1

5-9-11 White Paper in support of the CIA MDR of the July 27, 2010 FOIA requested # 5

“all Robert II v CIA “c (3) exclusion” ex parte Declarations” documents

This is a White Paper (WP) in support of the May 9, 2011 request for a CIA Mandatory

Declassification Review (MDR) of the July 27, 2010 CIA FOIA request for the # 5 “all Robert

II v CIA “c (3) exclusion” ex parte Declarations” documents that were filed, without the

plaintiff’s knowledge, in the pending Robert II v CIA and DOJ, cv 02-6788 (Seybert, J.):

1. 9/3/85 North-FBI Revell “North Notebook” log entry

2. 9/6/85 North-CIA-FBI Exemptions 1, 3 and NHAO

3. 9/16/85 North-Call to Perot Exemptions 1 and 3

4. 10/1/85 CIA-DOD FOIA Exemption 1 and 3 and reference to medivac helos

5. All Robert II v CIA “c (3) exclusion” ex parte Declarations

The requester requests a May 19, 2011 docketing and a decision by May 23, 2011. In

this way, the Robert II v CIA and DOJ co-defendant Holder may not commit “fraud upon the

court” in his Second Circuit Robert VIII v DOJ, HHS, and SSA Brief due on May 25, 2011.

On September 23, 2010, a CIA FOIA Officer referred the FOIA request for the # 1- # 4

classified documents to NARA. On October 29, 2011, the FOIA requester made the NARA

FOIA request for the released of the four 1985 “North Notebook” documents by application of

President Obama’s December 29, 2009 E.O. 13526 §1.5 25 year automatic declassification

standard (1985+25=2010). NARA has not yet docketed that FOIA request. The FOIA requester

now seeks an E.O. 13526 § 3.3 NARA ADR decision for release of the four 1985 documents.

On September 23, 2013, the CIA FOIA Officer informed the FOIA requester that the CIA

has retained jurisdiction over FOIA request # 5. See CIA F-2010-01579. As of the date of this

WP, a CIA FOIA decision has not yet been rendered. The FOIA requester now requests an E.O.

13526 § 3.5 CIA MDR of the # 5 documents. Because Robert II v CIA and DOJ is a pending

FOIA case, the plaintiff-MDR requester will inform Judge Seybert of this MDR request for the

ex parte Declarations that reveal whether material facts have been withheld from Judge Seybert.

The purpose of this CIA MDR is for CIA Director Panetta to prevent AG Holder from

committing a déjà vu “fraud upon the court” in the pending Second Circuit Robert VIII v DOJ,

HHS, and SSA appeal as AG Gonzales had committed in Robert VII v DOJ, 2005 U.S. Dist.

LEXIS 39616, 193 Fed. Appx. 8 (2d Cir. 2006), cert. den. 127 S.Ct. 1133 (2007), by AG

Gonzales intentionally withholding material facts from Judge Garaufis, the Second Circuit, and

the Supreme Court. The appellant believes that a 2009-2011 DOJ “stovepipe” exists that

bypasses AG Holder so that he will not learn that AG Gonzales had withheld material facts from

the Article III Judges regarding the “do not exist” 1980s NSA TSP data banks that CIA Director

Casey established as a “black operation” in serial violation of § 413 of the National Security Act,

the “exclusivity provision” of the FISA, the Posse Comitatus Act (PCA) limitations on military

domestic law enforcement, and the Social Security Act. The “fraud upon the court” was

necessary to continue the off-OMB Budget funding source for the “immaculate construction” of

the NSA TSP data banks. See the 7-27-10 DOJ WP submitted with the July 27, 2011 CIA FOIA

request §§ K, M, N, Z, AA, CC, DD. See the 1-4-11 PIAB WP sent to President Obama’s

Chairman Boren and Hagel § 1, and 5-7-08 PIDB WP sent to President Bush’s PIDB §§ A-D.

2

This CIA MDR request is also related to the April 11, 2011 DOJ OLC MDR request re

the March 18, 2011 released redacted May 6, 2004 Memorandum of AAG of the OLC

Goldsmith. This is a connect-the-dots document because the unredacted document reveals

whether AG Meese’s “Unitary Executive” theory was the legal basis for the “do not exist” pre-

9/11 NSA TSP whereby 1) USG attorneys decided that the FISA “exclusivity provision” was an

“unconstitutional” Article I encroachment of the President’s Article II Commander in Chief

authority to take actions necessary to protect the nation from terrorists, and 2) that Mitchell v

Forsyth, 472 U.S. 511 (1985), had been “incorrectly” decided. See 1-4-11 PIAB WP §§ 13-

This CIA MDR request is also related to the April 11, 2011 ODNI MDR request for the

July 27, 2010 ODNI FOIA requested “NCTC TSP and PSP data banks access guidelines”

document. This ODNI document reveals whether the pre-9/11 NSA TSP data banks continue to

be accessed in 2011 by the tens of thousands of USG and private contractor employees who

work at the over 9000 work locations identified in the jaw dropping Locator Map of the July 19,

2010 Washington Post “Top Secret America” series of investigative reporters Priest and Arlin

that explained the Orwellian breadth of the NSA-ODNI domestic surveillance program.

http://projects.washingtonpost.com/top-secret-america/map/ See 4-11-11 ODNI WP §§ C, H.

This CIA MDR request is also related to the May 9, 2011 NARA MDR request re the

“Peter Keisler Collection”, the “Perot”, and “Robert v National Archives ‘Bulky Evidence File”

documents. These are “Past is Prologue” documents because they reveal the existence of a

1981-2011 daisy-chain of “shadow government” attorneys who make “Unitary Executive”

decisions. These three sets of NARA connect-the-dots documents along with the four 1985

NARA “North Notebook” documents, reveal that faux “Commanders in Chief” had made 1980s

classified decisions re domestic “black operations” on behalf of President Reagan without the

knowledge of President Reagan. The 2010-2011 NARA emails re these seven NARA documents

reveal whether the 2010 NARA FOIA Officer’s “command and control” officer who made the

decision not to docket the request for the four 1985 “North Notebook” documents, is a member

of the 2009-2011 daisy-chain of “shadow government” attorney patriots who have a faux

“Commander in Chief” who is not President Obama. See 5-9-11 NARA MDR WP §§ C, L.

If these four MDR and ADR requests are denied, then the requester will file an omnibus

ISCAP appeal. He will also file additional requests for ADRs and MDRs for the release of the

“mosaic” of the July 27, 2010 FOIA requested NSA, DOJ, FBI, OMB, HHS, and SSA classified

connect-the-dots documents. He will cite to violations of the E.O. 13526 implementing 32 CFR

Parts 2001 and 2003 regulatory standards which were filed by Director of the Information

Security Oversight Office (ISSO) William J. Bosanko, the Executive Secretary of ISCAP, with

the approval of NARA Archivist David S. Ferriero. 75 F.R. 37254. (June 28, 2010).

The CIA MDR decision-makers are placed on Notice that if AG Holder does not accept

the Robert VIII v DOJ, HHS, and SSA appellant’s quiet settlement offer by May 25, 2011, then

in June, 2011 the appellant will provide a copy of this CIA MDR WP to the Senate Armed

Services Committee in support of DOD Secretary Nominee Panetta. The appellant will inform

the Senators that because CIA Director Panetta has the trust of President Obama, he can solve

the 2011 “Commander in Chief riddle” and advise President Obama to file a § 413(b) National

Security Act “corrective action” plan to cure 2011 illegal intelligence activities. See § R below.

3

A. The CIA MDR FOIA request for the July 27, 2010 CIA FOIA requested # 5 “all

Robert II v CIA “c (3) exclusion” ex parte Declarations” classified documents

This CIA MDR request is for the July 27, 2010 CIA FOIA rquested # 5 “all Robert II v

CIA “c (3) exclusion” ex parte Declarations” classified documents that USG attorneys filed

without the knowledge of the plaintiff. As per the FOIA requester’s October 29, 2010 letter to

CIA Acting Information and Privacy Coordinator of the Office of Public Affairs Scott Koch, a

request was made for a final decision re the retained FOIA request for the # 5 document that

was not referred to NARA. CIA Docket No. F-2010-01579. As of the date of this WP, a final

CIA FOIA decision has not been rendered as to the release of these classified documents.

President Obama’s December 29, 2009 E.O. 13526, Classified National Security

Information, 75 F.R. 707 (January 5, 2010), § 3.5 Mandatory Declassification Review provides:

(a) …all information classified under this order or predecessor orders shall be

subject to a review for declassification by the originating agency if:

(1) the request for a review describes the document or material containing

the information with sufficient specificity to enable the agency to locate

it with a reasonable amount of effort;

(2) the document or material containing the information responsive to

the request is not contained within an operational file exempted from

search and review, publication, and disclosure under 5 U.S.C. 552 in

accordance with law; and

(3) the information is not the subject of pending litigation. Emphasis Added.

As to § 3.3 (a)(1), the request is for ex parte Declarations re the “North Notebook”

documents, and not for the classified “North Notebook” documents. These ex parte Declarations

are contained in the CIA’s Robert II v CIA and DOJ case file within the CIA Office of General

Counsel. There are specifically identified and zero effort is needed to locate the documents.

As to § 3.3 (a)(2), if the ex parte Declarations discuss information that is from an

“operational file exempted from search and review,” then the CIA MDR decision should deny

the request for the release ex parte Declarations. If the “c (3) exclusion” ex parte Declarations

exist, then there should be an articulated explanation why these are “c (3) exclusion” documents.

If a § 3.6 (a) “Glomar Response” decision has been made not to admit the existence of the ex

parte Declarations, then that is an E.O. 13526 § 6.2 interpretation for AG Holder to make.

.

As to § 3.3 (a)(3), the information being sought is the information provided to Judge

Seybert, and not the information of the classified documents. The FOIA requester’s goal is to

prove to co-defendants CIA Director Panetta and AG Holder that a “fraud upon the court” had

been committed because USG attorneys intentionally withheld material facts from Judge Seybert

for the purpose of deceiving Judge Seybert in the pending litigation. The plaintiff asserts that §

3.3 (a)(3) should not apply to documents that prove a “fraud upon the court” was committed.

4

The Robert II v CIA and DOJ “c (3) exclusion” ex parte Declarations are the Declarations

approved by 2002-2004 CIA General Counsel Scott Muller and his successor 2004-2009 Acting

CIA General Counsel John Rizzo. These documents were filed by then-EDNY U.S. Roslynn

Mauskopf (2002-2007), and explained the reasons why the “c (3) exclusion” defense was used.

These ex parte Declarations documents were drafted pursuant to AG Meese’s December, 1987

Attorney General’s Memorandum on the 1986 Amendments to the Freedom of Information Act.

http://www.usdoj.gov/04foia/86agmemo.htm. Pursuant to the AG’s Guidelines, the CIA

General Counsel had a duty to “urge” Judge Seybert and Magistrate Lindsay not to indicate in

their decisions whether any ex parte “c (3) exclusions” Declarations had been filed. “In either

case, the government will of course urge the court to issue a public decision which does not

indicate whether it is or is not an actual exclusion situation.” Id. 20. See § F below.

Therefore, the CIA MDR decision-makers should be consulting with CIA General

Counsel Preston who knows from reviewing the Robert II v CIA and DOJ case file and case

emails whether Robert II v CIA and DOJ ex parte Declarations had been filed. Given the March

18, 2011 DOJ release of the redacted May 6, 2004 OLC Memorandum of AAG of the OLC

Goldsmith explaining the post-9/11 “Unitary Executive” theory as to whether the FISA

“exclusivity provision” was an “unconstitutional” encroachment on the President’s Article II

Commander in Chief authority, CIA General Counsel Preston may read the CIA emails and

consult with President Obama’s February 8, 2011 appointed OLC Principal Deputy AAG

Caroline Diane Krass as to release of the ex parte Declarations. Pursuant to § 6.2 of E.O. 13526,

any interpretation of the CIA MDR “shall” be made by the AG. See 5-9-11 NARA MDR § C.

The CIA-DOJ legal decision making-process re the legal basis for CIA “black

operations” is compartmentalized to minimize the number of attorneys who know the Top Secret

legal interpretations. Former-Assistant CIA General Counsel A. John Radsan (2002-2004),

explained the importance of the CIA Office of General Counsel decision-making process with a

“who guards the guardians” article: Sed Quis Cotodiest Ipsos Custsodes: The CIA’s Office of

General Counsel? Journal of National Security Law & Policy, Vol.2:201 (2008). He explained

the interrelationship between the CIA General Counsel and OLC attorneys:

The General Counsel usually initiates requests for legal opinions from the

Justice Department. She may want a second opinion on advice she has already

given the Agency, or she may want somebody else’s license on the line. Such

CIA-DOJ interactions are tightly compartmentalized. At DOJ’s Office of Legal

Counsel, the group that handles the request may be limited to the lawyer who

has the “CIA account,” along with the chief and a deputy chief. The chief of

OLC will, in turn, be inclined to brief the appropriate division chief, the Deputy

Attorney General, and the Attorney General. If necessary, the Justice

Department lawyers on the matter can be kept to a handful. The number of

OGC lawyers will be similarly small: the General Counsel, the Deputy General

Counsel, the chief lawyer to the DO, and one or tow OGC lawyers assigned to

the relevant division(s). Overall, not may guards are involved in legal opinions

on sensitive topics. Id. 238. Emphasis Added.

http://www.mcgeorge.edu/Documents/publications/jnslp/01_Radsan%20Master

%2009_11_08.pdf

5

Former-CIA Assistant General Counsel Radsan concludes by discussing the Presidents’

rule of law reliance upon CIA General Counsels and their “who guards the guardians” role:

In basic terms, the Presidents varying approaches to the rule of law parallel

those of the General Counsels at the CIA. Some Presidents, like President

Carter, may have strictly adhered to the letter of the law on intelligence

activities. Some Presidents, like President Reagan, may have strayed. Some

CIA General Counsels have followed their President’s course; some have

strayed. Even when Presidents and General Counsels share similarly

courses, they are not always in lock-step, because too many layers of

executive authority- White House Counsel, the National Security Adviser,

the DCIA, and other staffers –often stand between them. Yet the President

and the General Counsel have an effect on each other, even if that effect is

indirect and not easily measured. Id. 255. Emphasis Added.

Thus, CIA General Counsel Preston has an effect on President Obama’s CIA rule of law

decisions. It can be measured by whether President Obama knows whether the “exclusivity

provision” of the FISA applies to the 1984-2001 “do not exist” pre-9/11 NSA TSP data banks that

are now in the custody of DOD Cyber Commander-NSA Director Lt. General Alexander along

with the 2001-2011 post-9/11 NSA PSP data banks. CIA General Counsel Preston was the 1993 -

1995 DOD Principal Deputy General Counsel during which time he served for an extended period

as Acting General Counsel. As a result, he knows whether 1992-1995 DIA Director Clapper had

accessed the 1984-1995 “do not exist” NSA TSP data banks in violation of the “exclusivity

provision” of the FISA, and whether the 1984-2007 NSA TSP data banks continued to be accessed

after DOD Under Secretary of Intelligence Clapper had on September 17, 2007 “closed” the DOD

Threat And Local Observation Notice (TALON) program. See 7-27-10 DOJ WP §§ K, CC, DD.

Because on February 8, 2011 President Obama appointed his 2009-2010 Special Counsel to

the President For National Security Affairs and Deputy Legal Adviser at the National Security

Council Krass to be the Principal Deputy AAG of the OLC, there is now a reduction in what

Randan characterized as the “too many layers of executive authority” between the President and

the CIA General Counsel as to the legal basis for “black operations” being conducted pursuant to

the President’s Article II Commander in Chief duties. She had been President Bush’s 2001-2009

OLC Attorney Advisor and Senior Counsel. She had been President Clinton’s 1999-2000 Deputy

Legal Adviser at the National Security Council. As a result, CIA General Counsel Preston and

Principal Deputy AAG of the OLC Krass have a 1993-2011 institutional memory as to whether

Presidents Clinton, Bush, and Obama have known that the 1984-2011 NSA Directors access to the

“do not exist” 1984-2001 NSA TSPs, has been based on the “Unitary Executive” theory that the

President has Article II authority to conduct warrantless wiretaps to protect against terrorists.

Given the allegation of a serial violation of § 413 (a) of the National Security Act because

no President notified the “Gang of Eight” of the 1984-2001 access to the pre-9/11 NSA TSP data

banks, CIA General Counsel Preston and OLC Principal Deputy AAG Krass can provide a “heads

up” memo for President Obama as to whether he should file a § 413 (b) “corrective action” plan

and cure prior illegal intelligence activities. The plan could include a universal Access Guideline

that applies to the pre-9/11 NSA PSP data banks. See 4-11-11 ODNI WP §§ A, C, E, F, H.

6

The purpose of this CIA MDR request is also in order that CIA Director Panetta has an

opportunity to read the ex parte Declarations when he considers the Robert II v CIA and DOJ

plaintiff’s quiet settlement offer when AG Holder, his co-defendant, considers the Robert VIII v

DOJ, HHS, and SSA quiet settlement offer prior to AG Holder filing his May 25, 2011 Brief. The

CIA MDR requester believes that at this late date, CIA Director Panetta does not know that CIA

Director Casey created the 1984 NSA TSP pursuant to his “Unitary Executive” theory that

President Reagan, without his knowledge, had unlimited Article II Commander in Chief authority

to conduct domestic wiretaps to protect the national security. This was before and after the June

19, 1985 “incorrectly” decided Mitchell v Forsyth, 105 S.Ct. 2806 (1985), decision re Article I

FISA limits on domestic wiretapping. See 7-27-10 DOJ WP § N and 1-4-11 PIAB WP §§ 12-14.

Co-defendant CIA Director Panetta began his public career as the 1969 Assistant to HHS

Secretary Robert Finch and President Nixon’s Director of Office for Civil Rights. After

practicing law from 1971-1976, he became a 1976-1993 House Member. From 1979-1985 he

was a Member of House Budget Committee before becoming Chairman from 1989-1993. Upon

information and belief, as 1989-1993 Chairman of the Budget Committee, he did not know of the

existence of the 1984-1993 NSA TSP data banks that were funded with off-OMB Budget funds.

Co-defendant CIA Director Panetta was the 1993-1994 OMB Director and from July 17,

1994 to January 20, 1997 President Clinton’s Chief of Staff. Upon information and belief, as

OMB Director and WH Chief of Staff, he did not know of the existence of the 1984-1997 NSA

TSP data banks that were not funded with classified OMB Budget funds. See 7-27-10 DOJ WP

§§ K, Z, CC, DD. See also 1-4-11 PIAB WP §§ 34, 35 and 5-9-11 NARA MDR WP §§ D, E..

CIA General Counsel Preston was the 1995-1998 DAAG responsible for civil litigation

in the courts of appeals for 1993-1999 AAG of the Civil Division Frank Hunger. Therefore, he

was responsible for the accuracy of the AG Reno’s Second Circuit Gordon v. Shalala, 55 F.3d

101 (2d Cir. 1995), cert. den, 517 U.S. 1103 (1996), Briefs defending the 1982 “Jackson

nonacquiescence policy” of HHS General Counsel del Real. Upon information and belief, he had

consulted with Associate AG John Schmidt after WH Counsel Abner Mikva requested a review

of AAG of the Civil Division Hunger’s defense of the “nonacquiescence” policy in Gordon.

“Because the Department of Justice is representing the defendants in the pending litigation we

have forwarded your correspondence and enclosure to the Associate Attorney General for any

appropriate action.” http://www.snowflake5391.net/mikva.pdf. See 7-27-10 DOJ WP §§ T, Z.

CIA General Counsel Preston has a duty to provide a “heads up” memo to CIA Director

Panetta advising whether the “do not exist” 1984-2001 NSA TSP data banks were funded with

off-OMB Budget “Jackson nonacquiescence policy” funds because the data banks could not be

funded with classified OMB Budget funds because of the serial impeachable violation of § 413

(a) of the National Security Act. Given the plaintiff’s March 3, 2003 Robert II v CIA and DOJ

Affirmation, he should also advise whether the CIA General Counsels withheld material facts

from Judge Seybert that corroborated the plaintiff’s Affirmation. See 7-27-10 DOJ WP §§ E-G.

Therefore, the CIA MDR decision-makers should be consulting with CIA General

Counsel Preston when they apply the § 3.5 standards. If CIA Director Panetta accepts plaintiff’s

quiet settlement offer, then the plaintiff would withdraw this May 9, 2011 CIA MDR request.

7

B. The related May 9, 2011 NARA ADR FOIA request for the # 1-# 4 1985 July 27, 2010

CIA FOIA requested Robert II v CIA and DOJ “North Notebook” documents

The CIA MDR decision-makers are placed on Notice that they have a due diligence duty

to read the July 27, 2010 CIA FOIA requested four selected 1985 CIA redacted “North

Notebook” documents that are now subject to the May 9, 2011 NARA ADR request. The CIA

had transferred the “North Notebook” documents to NARA pursuant to Memorandum of

Understanding (MOU) between the CIA and NARA. The requester secured these four redacted

documents from the NARA Special Access Room. These are “Past is Prologue” documents that

reveal facts re the Iran-Contras Affair and 1985 CIA decision-making that are not publicly

known because the CIA had used FOIA Exemptions 1, 3, and 7 to redact facts in the documents.

President Obama’s December 29, 2009 E.O. 13526, Classified National Security

Information, 75 F.R. 707 (January 5, 2010), § 3.3 Automatic Declassification provides:

a) …all classified records that (1) are more than 25 years old and (2) have been

determined to have permanent historical value under title 44, United States Code,

shall be automatically declassified whether or not the records have been reviewed.

All classified records shall be automatically declassified on December 31 of the

year that is 25 years from the date of origin, except as provided in paragraphs (b)–

(d) and (g)–(j) of this section. Emphasis Added.

Pursuant to § 4.3, Special Access Programs (SAPs), these are documents that contain

intelligence information from sensitive intelligence operations:

a) Establishment of special access programs. Unless otherwise authorized

by the President, only the Secretaries of State, Defense, Energy, and

Homeland Security, the Attorney General, and the Director of National

Intelligence, or the principal deputy of each, may create a special access

program. For special access programs pertaining to intelligence sources,

methods, and activities (but not including military operational, strategic, and

tactical programs), this function shall be exercised by the Director of

National Intelligence. These officials shall keep the number of these

programs at an absolute minimum, and shall establish them only when the

program is required by statute or upon a specific finding that:

(1) the vulnerability of, or threat to, specific information is exceptional; and

(2) the normal criteria for determining eligibility for access applicable to

information classified at the same level are not deemed sufficient to protect

the information from unauthorized disclosure. Emphasis Added.

These # 1-# 4 classified documents are part of a “mosaic” of documents the requester has

sought in his 1985-2005 serial FOIA actions. The 1980s “mosaic” of documents confirm the

FOIA plaintiff’s almost incredible allegation that CIA Director Casey, without the knowledge of

President Reagan, had funded “black operations” with off-OMB Budget unaudited HHS funds

that included the “immaculate construction” of the “do not exist” 1980s NSA TSP data banks.

8

The four 1985 “North Notebook” connect-the-dots documents contain evidence as to

whether HHS funds were the funding source for CIA Director Casey’s “black operation” off-the-

shelf medical delivery system at International Medical Center, Inc. (IMC) that provided medical

treatment and supplies for the Contras in violation of the Boland Amendment. These are

connect-the-dots with the May 9, 2011 NARA MDR requested “Peter Keisler Collection”, the

“Perot”, and “Robert v National Archives ‘Bulky Evidence File” documents. They reveal

whether 1986 Assistant WH Counsel Peter Keisler, who would become the 2003-2007 AAG of

the Civil Division and 2007 Acting AG, knew that President Reagan did not know that unaudited

HHS “nonacquiescence” policy funds were used to pay for the Contras medical supplies and

treatment in violation of the Boland Amendment, § 413 of the National Security Act, and the

Social Security Act. See 5-7-08 PIDB WP §§ A, 7-27-10 DOJ WP §§ U, Z, AA, 5-9-11 NARA

MDR WP §§ E, K, and 2-22-11 Robert VIII v DOJ, HHS, and SSA Brief at Point V A.

The four 1985 “North Notebook” documents are also connect-the-dots documents with

the March 18, 2011 DOJ released redacted May 6, 2004 Memorandum of AAG of the OLC

Goldsmith. That document explains the “Unitary Executive” theory as applied to the “do not

exist” pre-9/11 NSA TSP. The requester continues to assert that he was an illegal target of the

illegal 1980s NSA TSP because a “do not exist” FBI counterintelligence “plumber” unit used

information from the illegal Robert NSA TSP wiretaps for use in the “Fraud Against the

Government” investigation of Robert. That investigation was initiated by HHS General Counsel

del Real, as a covered agent, who on December 1, 1985 would become the IMC Chief of Staff

who administered the HHS funds used to pay for Contras medical supplies and treatment.

The four September and October, 1985 CIA redacted “North Notebook” documents are

book ended by two 1985 medical delivery systems and IMC documents that were not redacted

and are posted on www.Snowflake5391.net. On January 22, 1985, Lt. General North recorded in

his “North Notebook” a log entry re a HMO Florida medical support system.

http://snowflake5391.net/medical.pdf. On December 2, 1985, HHS issued a 20 million dollar

voucher to IMC where on December 1, 1985 former-HHS General Counsel del Real had become

IMC President Recarey’s Chief of Staff. http://www.snowflake5391.net/IMC.pdf.

The Robert II v CIA and DOJ plaintiff seeks the ADR release of the four 1985 classified

“North Notebook” documents to cite to co-defendants CIA Director Panetta and AG Holder

when they consider the plaintiff’s quiet settlement offer that had apparently been rejected by

2004-2009 Acting CIA General Counsel John Rizzo. This is the same quiet settlement offer that

the Robert VIII v DOJ, HHS, and SSA appellant has requested that AG Holder consider prior to

filing his Second Circuit Brief that is due on May 25, 2011. See 4-11-11 OLC MDR WP §§ J-M.

The #1 September 3, 1985 North-FBI Exemptions 1, 7 and “North Notebook” FBI

Revell redacted log entry, reveals whether there were communications between the CIA and the

FBI re the “black operation” at IMC. http://www.snowflake5391.net/9-3-85North-FBI.pdf. As

explained in his Memoir, A-G-Man’s Journal, in June, 1985 FBI Director Judge Webster had

appointed Assistant Director of Investigations Oliver “Buck”Revell as the FBI liaison to the Vice

President’s Task Force on Terrorism Operational Sub-Group (OSG). This is a SAP document

that is part of a “mosaic” of document that prove whether IMC HHS funds paid for Contras’

medical supplies and treatment Contras. See 5-7-08 PIDB WP and 5-9-11 NARA ADR § C.

9

CIA Director Panetta should know whether FBI Director Judge Webster knew in 1985

that Assistant Director of Investigations Oliver “Buck’ Revell knew as the FBI liaison to the

Vice President’s Task Force on Terrorism, that CIA Director Casey was conducting a “black

operation at IMC in violation of the Boland Amendment. AG Holder should know the names

of the USG attorneys who without the knowledge of President Reagan, determined that

pursuant to the “Unitary Executive” theory, the Boland Amendment was an “unconstitutional”

Article I encroachment on President Reagan’s Article II Commander in Chief authority. The

September 3, 1985 unredacted document provides a key time line fact because of the 1985 joint

FBI-DOJ-HHS task force “Fraud Against the Government” investigation of IMC and the 1985

“Fraud Against the Government” investigation of Robert that was at issue at the September 4,

1985 Ruppert conference in Judge Altimari’s Chambers. Those two FBI “Fraud Against the

Government” investigations were being conducted simultaneously in September, 1985 with the

knowledge of AAG of the Civil Division Richard Willard. See 7-27-10 DOJ WP §§ V, W, Y,

AA, EE, 5-9-11 NARA MDR WP §§ H, I, 2-22-11 Robert VIII Brief Point IV and Point V A.

The # 2 September 6, 1985 North-CIA-FBI Exemptions 1, 3 and NHAO log entry reveals

whether Lt. Gen, North knew that the Department of State Nicaraguan Humanitarian Assistance

Office (NHAO) funds were not used to pay for the medical supplies and treatment of the Contras

at IMC. http://www.snowflake5391.net/9-6-85NorthCIA.pdf. It is an important historical fact

if the Congressionally appropriated NHAO funds were not used to pay for Contras’

humanitarian needs that included their medical treatment at IMC, and unaudited HHS off-OMB

Budget funds were used in violation of the Boland Amendment and the Social Security Act

with the knowledge of CIA Director Casey, FBI Director Judge Webster, AG Meese, HHS

Secretary Heckler, and Acting SSA Commissioner Mc Steen. See 5-07-08 PIDB WP §§ A-E.

CIA Director Panetta can review the CIA SAPs’ IMC archives to learn whether CIA

Director Casey knew that unaudited HHS funds, not NHAO funds, were used to pay for the

1985 Contras medical supplies and treatment at IMC. He can also learn whether CIA General

Counsel Stanley Sporkin resigned in 1985 because he learned of CIA Director Casey’s

violations of the Boland Amendment and the Social Security Act by his funding “black

operations” with unaudited HHS “nonacquiescence policy” funds Congress had appropriated to

pay for the needs of the aged, blind, and disabled. See 7-27-10 DOJ WP §§ Q, P, X, Z, AA, ZZ.

The # 3 September 16, 1985 North-Call to Perot Exemptions 1 and 3 log entry reveals

whether Mr. H. Ross Perot knew that NHAO funds were not being used to pay for the medical

supplies and treatment of the Contras at IMC. http://snowflake5391.net/perot.pdf. This is a

connect-the-dots 1985 document to the FOIA requested “Perot” classified documents that reveal

the “chicanery & corruption” at the CIA and DOD that Mr. H. Ross Perot warned President

Reagan on February 24, 1987 by citing to the “Perot” documents. On February 25, 1985,

President Reagan provided these documents to AG Meese. See 5-9-11 NARA MDR WP § E.

CIA Director Panetta, the 1993-1994 OMB Director, can read this document and the

“Perot” documents and determine what FBI Director Judge Webster learned from the “Perot”

documents. CIA Director Panetta can also learn whether May 26, 1987 CIA Director Judge

Webster continued to use unaudited HHS off-OMB Budget funds to pay for CIA “black

operations” not paid for with classified OMB Budget funds. See 7-27-10 DOJ WP §§ K, Z, AA.

10

The # 4 October 1, 1985 CIA-DOD FOIA Exemption 1 and 3 and reference to medivac

helos log entry is an important historical fact if the medivac helicopter was funded with

unaudited HHS funds given the “FBI Abshire” documents that FBI Director Judge Webster did

not provide to the Tower Commission, the joint Senate-House Iran-Contras Committee, and

IC Lawrence Walsh. http://www.snowflake5391.net/medivachelos.pdf.This is an important

CIA/DOD connect-the-dots document to the “Perot” documents that corroborates the “chicanery

& corruption” revealed in the SAP “Perot” documents. See 5-9-11 NARA MDR WP §§ D, E.

CIA Director Panetta, the 1994-1997 WH Chief of Staff, should know the “Past is

Prologue” facts of how the CIA and WH “stovepipes” bypassed President Reagan without

President Reagan’s knowledge. This is an important fact because the use of unaudited HHS

“Jackson nonacquiescence policy” funds continued to be used to pay for the “do not exist”

1984-1997 NSA TSP data banks without the knowledge of President Clinton, 1993-1994 OMB

Director Panetta, and 1994-1997 WH Chief of Staff Panetta. As a result, CIA Director Panetta

should know the “Past Prologue” facts of how the 1993-2001 WH “stovepipes” bypassed

President Clinton without President Clinton’s knowledge and how the 2009-2011 CIA and WH

“stovepipes” bypassed President Obama without President Obama’s knowledge. See the 5-7-08

PIDB WP §§ A-E, 7-27-10 DOJ WP §§ Z, AA, and 1-4-11 PIAB WP §§ 1-8, 14, 15, 34, 35.

Hence, the importance of the NARA ADR for four 1985 “North Notebook” documents

that are in the custody of NARA Archivist David Ferriero in the NARA Special Access Room.

The requester has made the gravest of allegations that there is a 2009-2011 faux “Commander in

Chief” who is making decision regarding accessing the “do not exist” 1984-2011 NSA TSP data

banks in the custody of DOD Cyber-Commander-NSA Director Lt. General Alexander in serial

violation of the § 413 of the National Security Act, the “exclusivity provision” of the FISA, the

PCA limitations on domestic military law enforcement, and the Social Security Act. This access

of the “do not exist” 1984-2011 NSA TSP data banks is without the knowledge of President

Obama, AG Holder, CIA Director Panetta, and ODNI Director Clapper. See §§ Q, R below.

This is a very simple NARA ADR for four identifiable 1985 documents consisting of 4

pages of facts that occurred over 25 years ago. If there are any E.O. 13526 § 3.3 interpretations,

then pursuant to E.O. 13526 § 6.2, AG Holder “shall” make those interpretations. The NARA

ADR requester has requested that the NARA ADR be docketed by May 19, 2011. If the NARA

ADR requester does not receive a docket number or acknowledgment letter by that date, then this

is evidence of the existence of a May, 2010-2011 NARA “stovepipe” because the NARA FOIA

requester never received a docket number for October 29, 2011 FOIA request for the four 1985

CIA “North Notebook” documents. Upon information and belief, there are NARA emails re that

NARA decision that merit review by Chairman Issa. See 5-9-11 NARA MDR WP § C.

Because there are only four pages involved and the documents are located within the

NARA Special Access Room, the CIA MDR decision makers should have no problem reading

these four pages of the July 27, 2010 CIA FOIA requested # 1-# 4 documents prior to rendering

the CIA MDA decision re the # 5 document. CIA Director Panetta can read these four pages of

documents and take action to prevent AG Holder from committing a déjà vu “fraud upon the

court” in his May 25, 2011 Robert VIII v DOJ, HHS, and SSA Brief that AG Gonzales had

committed in Robert VII v DOJ. See 7-27-10 DOJ WP 5-2-11 §§ E-G, N, O,AA, AAA.

11

C. Key time line facts of Robert II v CIA and DOJ, Robert VII v DOJ, and Robert VIII v

DOJ, HHS, and SSA that reveal that AG Holder’s DOJ Associate DAG Baker knows that

the “Barrett nonacquiescence policy” was applied to withheld material facts from Judge

Seybert in Robert II v CIA and DOJ

The CIA MDR decision makers are placed on Notice of key time line facts of Robert II

v CIA and DOJ, Robert VII v DOJ, and Robert VIII v DOJ, HHS, and SSA. These time line

markers reveal that AG Holder’s 2011 Associate AG James Baker knows there are emails that

reveal who made “Barrett nonacquiescence policy” litigation decisions to withhold material

facts from Judge Seybert in the “c (3) exclusion” Declarations. If the requester’s OLC MDR

request to declassify the May 6, 2004 redacted OLC Memorandum of AAG of the OLC

Goldsmith is granted, then Judge Seybert can learn from USG emails the names of the clients of

CIA General Counsels Muller, (Acting) Rizzo, and Preston. See 5-9-11 NARA MDR WP § C.

CIA General Counsel Preston and Associate DAG Baker know whether USG attorneys

implemented AAG of the OLC Charles Cooper’s 1986 “Barrett nonacquiescence policy”

whereby USG attorneys withheld material facts from the Article III Judges in Robert II v CIA

and DOJ, Robert VII v DOJ, and Robert VIII v DOJ, HHS, and SSA in order to protect the

national security secrets of CIA Director Casey’s illegal “black operations” at IMC and the

NSA. “Finally, acceptance of the view urged by the federal appellants would result in a blanket

grant of absolute immunity to government lawyers acting to prevent exposure of the government

in liability.” Barrett v. United States, 798 F. 2d 565, 573 (2d Cir. 1986). Emphasis Added.

AG Holder’s Associate DAG Baker knows whether the “Barrett nonacquiescence policy”

was implemented in Robert II v CIA and DOJ because he began his DOJ career as a 1998-2001

Office of Intelligence Policy and Review (OIPR) reviewing FISA applications with the

knowledge of the existence of the “do not exist” NSA TSP. In May, 2001 he was the OIPR

Acting Counsel and then became the 2002-2007 Counsel for the National Security Division of

Intelligence Policy. In December, 2006, CIA Director Hayden awarded him the George H.W.

Bush Award for Excellence in Counterterrorism and on January 19, 2007 AG Gonzales awarded

him the Edmund J. Randolph Award. These were the highest CIA and DOJ awards.

In Robert VII v DOJ, OIPR Counsel Baker filed his “corrected” October 1, 2004

Declaration and explained why on March 1, 2004 he had withheld the FOIA requested “FISC

Robert” documents by applying FOIA Exemption 1 and the “Glomar Response” defense. Upon

information and belief, this Declaration replaced an uncorrected “c (3) exclusion” ex parte

Declaration that he had been filed with Judge Garaufis that had indirectly corroborated some of

Robert’s fact assertions in his Robert VII v DOJ complaint alleging that he had been illegally

wiretapped by the FBI in violation of the FISA. See 7-27-10 DOJ WP §§ K, N, AA-EE.

AG Holder’s Associate DAG Baker knows whether the unredacted May 6, 2004 OLC

Memorandum of AAG of the OLC Goldsmith reveals the legal basis for the “do not exist” pre-

9/11 NSA TSP was the “Unitary Executive” theory of AG Meese. He knew AG Meese had

determined that Mitchell v Forsyth, 472 U.S. 511, 520 (1985), was “incorrectly” decided. “We

conclude that the Attorney General is not absolutely immune from suit for damages arising out

of his allegedly unconstitutional conduct in performing his national security functions.” Id. 520

12

The following are the time line of facts which Associate DAG Baker knows are facts that

the CIA MDR decision-makers should know when they render their CIA MDR decision:

1. February 7, 2003 Robert II v CIA and DOJ AG Ashcroft Motion to Dismiss Declarations

2. March 6, 2003 plaintiff’s March 4, 2003 Affirmation filed in response to Motion to Dismiss

3. September 30, 2003 Robert II v CIA and DOJ Judge Seybert Order granting Motion to

Dismiss plaintiff’s complaint without prejudice if filed within 10 days pursuant to FRCP 8

4. October 7, 2003 Robert II v CIA and DOJ amended complaint filed

5. March 1, 2004 OIPR Counsel Baker makes FOIA decision to withhold “FISC Robert”

documents based on FOIA Exemption 1 and the “Glomar Response” defense

6. March 10, 2004 confrontation of WH Counsel Gonzales and AG Ashcroft, DAG Comey, and

FBI Director Mueller in AG Ashcroft’s hospital room re recertification of NSA PSP

7. March ??, 2004 a Robert II v CIA and DOJ “c 3 exclusion” ex parte Declaration filed

8. April 9, 2004 Robert II v CIA and DOJ Report and Recommendation of Magistrate Lindsay

9. April 19, 2004 Robert II v CIA and DOJ plaintiff’s Objections to Magistrate’s Report filed

10. April 23, 2004 Robert II v CIA and DOJ letter of EDNY AUSA Susan Riley requesting

additional time to respond to plaintiff’s Objections to the Report and Recommendation

11. April 27, 2004 Robert II v CIA and DOJ letter of EDNY AUSA Riley requesting Judge

Seybert consider “screening” future FOIA cases filed by the plaintiff

12. May 6, 2004 OLC Memorandum from AAG of the OLC Goldsmith re the legal basis of the

pre-9/11 NSA TSP (redacted) and the post-9/11 NSA PSP (unredacted)

13. May 12, 2004 Robert II v CIA and DOJ Order of Judge Seybert granting the Magistrate’s

Report and Recommendation

14. May 13, 2004 Robert VII v DOJ complaint filed seeking the release of “FISC Robert”

documents withheld by OIPR Baker on March 1, 2004

15. May 20, 2004 OLC Opinion of AAG of the OLC Goldsmith re USG employees not

providing Congress classified information without the President’s approval (See § __ below)

16. June 14, 2004 Robert II v CIA and DOJ plaintiff compliance with May 12, 2004 Order

17. ?? 2004 Robert VII v DOJ uncorrected ex parte (c (3) exclusion” Declaration filed by OIPR

Counsel Baker with Judge Garaufis

13

18. October 1, 2004 Robert VII v DOJ “corrected” Declaration filed by OIPR Counsel Baker

19. November 2, 2004 Robert II v CIA and DOJ plaintiff’s letter filed with a copy of OIPR

Counsel Baker’s October 1, 2004 Robert VII v DOJ Declaration.

20. May 25, 2005 Robert VIII v DOJ, HHS, and SSA complaint filed

21. ?? 2005 Robert VIII v DOJ, HHS, and SSA AG Gonzales’ undocketed Motion and

supporting Declarations seeking an injunction prohibiting Robert from filing a FOIA request

without Judge Garaufis pre-clearance Order

22. December 9, 2005 Robert VIII v DOJ, HHS, and SSA Order of Judge Garaufis prohibiting

Robert from filing a FOIA complaint without Judge Garaufis’ pre-clearance Order

23. December 14, 2005 Robert VIII v DOJ, HHS, and SSA Clerk’s Judgment prohibiting Robert

Robert from filing a FOIA request without Judge Garaufis pre-clearance Order

24. December 16, 2005 Risen and Lichtblau NY Times article Bush Lets U.S. Spy on Callers

Without Courts publicly revealing the existence of the NSA domestic wiretapping program

http://www.nytimes.com/2005/12/16/politics/16program.html?_r=1&pagewanted=print

25. December 22, 2005 letter of AAG of the Office of Legislative Affairs William E. Moschella

to the “Gang of Eight” providing § 413 Notice of the “do not exist” 2002-2005 NSA PSP

http://www.fas.org/irp/agency/doj/fisa/doj122205.pdf.

26. January 19, 2006 Whitepaper Legal Authorities Supporting the Activities of the National

Security Agency Described by the President in which AG Gonzales explains the legal basis for

the post-9/11 2002-2005 NSA PSP http://www.usdoj.gov/olc/2006/nsa-white-paper.pdf.

27. April 3, 2006 Robert VII v DOJ letter-Brief of EDNY AUSA Mahoney filed on behalf of

AG Gonzales informing Second Circuit that Robert was not a FISA “aggrieved person”

http://www.snowflake5391.net/RobertvDOJbrief.pdf.

28. November 20, 2006 Robert VII v DOJ petition for writ of certiorari filed

29. December, 2006 Robert VII v DOJ decision of Solicitor General Clement not to file Brief in

opposition to petition to for a writ of certiorari with knowledge of content of March 1, 2004

withheld classified documents and the May 6, 2004 OLC Memo of AAG of the OLC Goldsmith

30. December, 2006, CIA Director Hayden awards Counsel for the National Security Division

of Intelligence Policy Baker the Gorge H.W. Bush Award for Excellence in Counterterrorism,

31. January 19, 2007, AG Gonzales awards Counsel for the National Security Division of

Intelligence Policy the Edmund J. Randolph Award

32. January 22, 2007 Robert II v CIA and DOJ plaintiff’s letter informing Judge Seybert that the

Supreme Court denied the Robert VII v DOJ petition for a writ of certiorari

14

32. May 13, 2008 Robert II v CIA and DOJ letter informing Judge Seybert that the plaintiff had

filed a request with the NARA Public Interest Disclosure Board re the CIA FOIA requests

33. July 19, 2010 Priest and Arkin Washington Post series “Top Secret America” explaining the

NSA domestic surveillance program http://projects.washingtonpost.com/top-secret-america/map/

The requester places the CIA MDR decision-makers on Notice that they have a due

diligence duty to read the following documents when making the MDR decision re the # 5

FOIA request for the Robert II v CIA and DOJ ex parte Declarations:

A. OIPR Baker’s Robert VII v DOJ March 1, 2004 withheld classified documents withheld

pursuant to the “Glomar Response” defense, his uncorrected “c (3) exclusion” Declaration,

and his October 1, 2004 “corrected” Declaration. http://www.snowflake5391.net/baker.pdf.

B. AAG of the OLC Goldsmith’s unredacted May 6, 2004 OLC Memorandum to AG Ashcroft

https://webspace.utexas.edu/rmc2289/OLC%2054.FINAL.PDF

C. EDNY AUSA Mahoney’s April 3, 2006 Robert VII v DOJ letter-Brief that Robert was not a

FISA “aggrieved person” http://www.snowflake5391.net/RobertvDOJbrief.pdf.

After reading those documents, the CIA MDR decision-makers will be able to determine

for themselves whether the CIA General Counsels had made Judge Seybert the “handmaiden”

of these Executive Branch attorneys. “Under no circumstances should the Judiciary become

the handmaiden of the Executive.” Doe, et. al. v Mukasey, Mueller, and Caproni, 549 F 3d 861,

870 (2d Cir. 2008). See 7-27-10 DOJ WP PP. See 4-11-11 OLC WP §§ D-F, I, and § R below.

After reading those documents, the CIA MDR decision-makes should ask CIA General

Counsel Preston whether any of the “c (3) exclusion” Declarants were placed on Notice that it

would be an Espionage Act violation if they revealed to the Article I Congress or an Article III

Judges, including Judge Seybert, the existence of the 1984-2001 NSA TSP and that NSA

Directors have had access to the “do not exist” 1984-2001 NSA TSP data banks. Upon

information and belief, he knows whether the “Barrett nonacquiescence policy” litigation

decision-makers in Robert v Holz, Robert II v CIA and DOJ, Robert VII v DOJ, and Robert VIII

v DOJ authorized the use of Barrett Espionage intimidation tactics during the Robert FOIA

litigation. “…the estate further contends that the federal-attorney defendants’ unlawful

interference with their rights in the pending New York Court of Claims action is confirmed by

Marcus’ deposition testimony in the present case to the effect that they forced him to engage in

the foregoing tactics under threat that he might be prosecuted personally for violation of the

federal Espionage Act.” Id. at p. 577. Emphasis Added. See 5-7-08 PIDB WP §§ D, H, P, R. .

Hence, the importance of the CIA MDR decision-makers knowing CIA General Counsel

Preston’s 2011 knowledge of the intertwined facts of Robert II v CIA and DOJ, Robert VII v

DOJ and Robert VIII v DOJ, HHS, and SSA. The plaintiff will be presenting the CIA MDR

decision to Judge Seybert so that she can decide for herself whether she has been the

“handmaiden” of USG attorneys. See 7-27-10 DOJ WP §§ E-G, PP and §§ E, F, M, O below.

15

D. The CIA MDR decision makers should apply AG Holder’s March 19, 2009 FOIA

Guidelines with its presumption of disclosure to the # 5 “c (3) exclusion” documents

The CIA MDR decision makers should apply AG Holder’s March 19, 2009 FOIA

Guidelines with its presumption of disclosure to the # 5 “c (3) exclusion” documents. If the

presumption of disclosure is not applied, then the CIA MDR decision should explain why that

standard is not applied and who made this decision on behalf of CIA Director Panetta.

On March 19, 2009, AG Holder issued his Press Release Attorney General Issues New

FOIA Guidelines to Favor Disclosure and Transparency. AG Holder highlighted the importance

of the openness and transparency so that the public knows how its own government works:

The American people have the right to information about their

government’s activities, and these new guidelines will ensure they are able

to obtain that information under principles of openness and transparency.

The new FOIA guidelines address both application of the presumption of

disclosure and the effective administration of the FOIA across the

government. As to the presumption of disclosure, the Attorney General

directs agencies not to withhold records simply because they can

technically do so. In his memo, the Attorney General encourages agencies

to make discretionary disclosures of records and to release records in part

whenever they cannot be released in full.

The Attorney General also establishes a new standard for the defense of

agency decisions to withhold records in response to a FOIA request. Now,

the Department will defend a denial only if the agency reasonably foresees

that disclosure would harm an interest protected by one of the statutory

exemptions, or disclosure is prohibited by law. Under the previous

defensibility standard of the rules rescinded today, the Department had

said it would defend a denial if the agency had a "sound legal basis" for its

decision to withhold. http://www.usdoj.gov/ag/foia-memo-march2009.pdf

AG Holder’s March 19, 2009 FOIA Guidelines provide guidance as to de novo FOIA

requests regarding FOIA documents at issue in pending litigation:

Instead, the Department of Justice will defend a denial of a FOIA request

only if (1) the agency reasonably foresees that disclosure would harm an

interest protected by one of the statutory exemptions, or (2) disclosure is

prohibited by law. With regard to litigation pending on the date of the

issuance of this memorandum, this guidance should be taken into account

and applied if practicable when, in the Judgment of the Department of

Justice lawyers handling the matter and the relevant agency defendants,

there is a substantial likelihood that application of the guidance would

result in a material disclosure of additional information. Emphasis Added.

http://www.justice.gov/ag/foia-memo-march2009.pdf

16

The CIA MDR decision makers have a duty to read the four 1985 # 1- # 4

”North Notebook” documents subject to the May 9, 2011 NARA ADR request. The Robert II v

CIA and DOJ plaintiff asserts these document reveal the classified facts withheld from Judge

Seybert in the # 5 “c (3) exclusion” ex parte Declarations that CIA Director Casey’s domestic

“black operations” at IMC and NSA were Special Access Programs. If so, then these facts

corroborated the plaintiff’s almost incredible assertions made in his March 3, 2003 Affirmation

which was filed prior to OIPR Baker’s March 1, 2004 decision to use FOIA Exemption 1 and the

“Glomar Response” to withhold the “FISC Robert” documents. See 7-27-10 DOJ WP §§ L-N.

Pursuant to 32 CFR § 2001.49 (b), Special access programs, NARA is to comply with a

Memorandum of Understanding (MOU) with the CIA.

(b) Significant interagency support requirements. Agency heads must

ensure that a Memorandum of Agreement/Understanding is established for

each SAP that has significant interagency support requirements, to

appropriately and fully address support requirements and supporting

agency oversight responsibilities for that SAP. Emphasis Added.

Pursuant to 32 CFR § 2001.30 (n)(2)(ii), there can be a delay of the onset of automatic

declassification as to referred documents. “Information properly identified as a referral to

another agency contained in records maintained in the physical, but not legal custody of NARA

shall be subject to automatic declassification after accessioning and in accordance with §

2001.34, provided the information has not otherwise been properly exempted by an equity

holding agency under section 3.3 of the order. Emphasis Added.

The CIA is the equity holding agency as to the content of the 1985 classified documents.

Therefore, the Special Access Program “North Notebook” documents are subject to the April 7,

2008 MOU between CIA Director Michael Hayden and NARA Archivist Allen Weinstein,

Memorandum of Understanding Between the CIA and the NARA. This MOU established CIA

and NARA declassification procedures for NARA to declassify CIA documents that had been

transferred to NARA for custody in the NARA Special Access Room:

1. In accordance with Executive Order 12958, as amended, and 44 U.S.

2108, this memorandum of understanding (MOU) serves as a procedural

agreement to memorialize the conditions which govern the treatment of

Federal records of the Central Intelligence Agency (CIA) transferred to the

legal custody of the National Archives and Records Administration

(NARA). Further, this MOU establishes the procedures that NARA and

the CIA and of other agencies and organizations within NARA’s legal

custody that contain identifiable and classified CIA information and/or

identifiable information protected by CIA statutes that would also

constititute withholding statutes under section (b) (3) of the Freedom of

Information Act (FOIA). This MOU also establishes the procedures that

NARA and the CIA will follow in reviewing for public CIA Office of

General Counsel records that are specifically marked an identified on a SF

258 and containing attorney-client and/or attorney work product privileged

17

information. This MOU does not apply to Presidential records. Emphasis

Added. http://www.fas.org/sgp/othergov/intel/nara-cia.pdf.

At 6 (b), the NARA-CIA MOU has a “shall” consulting duty for the NARA Archivist to

consult with the CIA in cases in which the CIA uses the “Glomar Response” defense. These are

cases in which then CIA Director Hayden could not acknowledge the existence or nonexistence

of classified responsive records that have been transferred to the NARA. CIA Director Leon

Panetta and Archivist NARA David Ferriero now have the 2011 MOU consultation duty:

2) After consultation with the CIA, inform any requester of the referral to

CIA, unless such association is itself classified under Executive Order

12958, as amended. In cases where referral to CA cannot be

acknowledged and the CIA determines in writing that the existence or

nonexistence of responsive records is classified, NARA shall, without

identifying the CIA, inform the requester that NARA will neither confirm

nor deny the existence or nonexistence of responsive information. In

cases where referral to CIA cannot be acknowledge, but CIA determined

that the existence or nonexistence of responsive records is not classified,

NARA shall, without identifying the CIA, provide the requester with

CIA’s review and release determinations. Emphasis Added.

Thus, the CIA-NARA MOU establishes the procedures for “responsive” documents

to which the “Glomar Response” defense may have been used. This is a delicate issue because

2005-2009 CIA Director Hayden was the NSA Director 1999-2005 and then the April 21, 2005-

May 26, 2006 ODNI Principal Deputy Director. As a result, CIA Director Hayden knew

whether CIA Director Casey had established illegal “black operations” at IMC and NSA, and

whether the “immaculate construction” and maintenance of the 1984-2009 NSA TSP and PSP

data banks that were not funded with classified OMB Budget funds, were funded with off-OMB

Budget “Jackson nonacquiescence policy” funds. See 7-27-10 DOJ WP §§ K, Z, AA, CC, DD.

The Robert II v CIA and DOJ plaintiff asserts that the “Glomar Response” E.O. 13526

§ 3.6 (a) does not apply because the public already knows the 1985 redacted documents exist. If

there is any question of interpretation as to the application of § 3.6 (a) to the classified 1985

“North Notebook” documents, then pursuant to § 6.2 (c), CIA Director Panetta should request

his co-defendant AG Holder to make the “shall” interpretation whether the “Glomar Response”

defense applies. “(c) The Attorney General, upon request by the head of an agency or the

Director of the Information Security Oversight Office, shall render an interpretation of this order

with respect to any question arising in the course of its administration. Emphasis Added.

If there needs to be a interpretation of the E.O. 13526 § 3.3 or §3.6 (a), then that

interpretation should be made in May, 2011 by AG Holder, CIA Director Panetta’s co defendant

in Robert II v CIA and DOJ. AG Holder would be applying his own April 19, 2009 presumption

of disclosure to an E.O. 13526 interpretation re 1985 CIA classified documents pursuant to the

CIA-NARA MOU. Since there are only 4 four one page “North Notebook” documents and the

Robert VIII v DOJ, HHS, and SSA appellant has cited to the “North Notebook” documents in

his February 22, 2011 Brief, AG Holder should read the 1985 documents before May 25, 2011.

18

The CIA MDR decision-makers are placed on Notice that as of the date of this WP, there

has not been a DOJ docketing of the April 11, 2011 OLC MDR request for the declassification of

the March 18, 2011 declassified redacted May 6, 2004 OLC Memorandum of AAG of the OLC

Goldsmith. This is an important time line fact if, as alleged by Robert VIII v DOJ, HHS, and

SSA appellant, there is a 2011 DOJ “stovepipe” that bypasses AG Holder to prevent AG Holder

from learning the 1984-2011 off-OMB Budget funding source for the “Top Secret America”

domestic surveillance program identified on the July 19, 2010 Washington Post Locator Map. If

so, then this would be a violation of E.O. 13526 § 1.7 (a)(4). “…prevent or delay the release of

information that does not require protection in the interest of the national security.”

The redacted May 6, 2004 OLC Memorandum is a connect-the-dots document with the

four 1985 Robert II v CIA and DOJ “North Notebook” documents because it reveals the scope of

the pre-9/11 “Unitary Executive” theory of AG Meese as applied to CIA Director Casey’s “black

operations” at NSA and at IMC. The four 1985 “North Notebook” connect-the-dots documents

also reveal whether there was a 1985 FBI counterintelligence “plumber” unit tasked to protect

CIA Director Casey’s off-OMB Budget HHS funding source for the “black operation’ at IMC

that was in violation of the Boland Amendment without the knowledge of President Reagan.

Hence, the importance of CIA Director Panetta complying with the CIA-NARA MOU as

the equity holding agency to NARA’s retention of the four 1985 Robert II v CIA and DOJ

“North Notebook” classified documents. That MOU compliance should result in CIA Director

Panetta reading the four pages of the July 27, 2010 CIA FOIA requested # 1-# 4 classified

documents. After CIA Director Panetta reads those four documents, CIA Director Panetta will

know whether CIA General Counsels Muller and (Acting) Rizzo had implemented the “Barrett

nonacquiescence policy” and intentionally withheld material facts from Judge Seybert for the

purpose of deceiving Judge Seybert because the withheld facts corroborated Robert’s almost

incredible allegations. If so, then CIA Director Panetta should learn whether AG Holder’s OLC

MDR decision-makers will declassify the 1985 facts of the redacted May 6, 2004 OLC Memo. .

Ironically, as discussed below in § O, Justice Thomas’ Connick v Thompson decision as

to the individual professional responsibilities and ethics obligations of government attorneys,

makes easy the ethics decisions of all attorneys representing co-defendants CIA Director Panetta

and AG Holder in Robert II v CIA and DOJ. If the redacted May 6, 2004 OLC Memo is

declassified, then CIA General Counsel Preston and EDNY U.S. Attorney Lynch have run-of-

the-mill ethics obligations to comply with the April 1, 2009 NYS Rules of Professional Conduct

Rule 3.3(a)(3) duty to cure misrepresentations of fact and law made Judge Seybert. “If a lawyer,

the lawyer’s client, or a witness called by the lawyer has offered material evidence and the

lawyer comes to know of the falsity, the lawyer shall take responsible remedial measures,

including if necessary disclosure to the tribunal.” Emphasis Added. See 7-27-10 DOJ WP § E. .

If the OLC MDR decision is not to declassify the May 6, 2004 OLC Memo, then that

decision will result in Associate DAG Baker and EDNY U.S. Attorney Lynch having to take

action to prevent AG Holder from committing a “fraud upon the court” in Robert VIII v DOJ,

HHS, and SSA because AG Holder’s Second Circuit Brief is to be filed by May 25, 2011.

Hence, the importance of the CIA MDR decision-makers consulting with CIA General Counsel

Preston who has a duty to consult with Associate DAG Baker and EDNY U.S. Attorney Lynch.

19

Therefore, the CIA MDR decision makers should gather the facts necessary to apply AG

Holder’s March 19, 2009 presumption of disclosure standard to pending FOIA case. “….when,

in the Judgment of the Department of Justice lawyers handling the matter and the relevant

agency defendants, there is a substantial likelihood that application of the guidance would result

in a material disclosure of additional information.” Emphasis Added.

The CIA MDR requester respectfully submits that this too is an easy standard to apply.

CIA General Counsel Preston has a duty to consult with the DOJ lawyers handling the case and

co-defendant CIA Director Panetta, and inform the CIA MDR decision-makers whether the

information contained in the July 27, 2010 FOIA requested #1-# 5 documents “would result in

material disclosure of additional information.” Since the four 1985 “North Notebook”

documents are subject to the 25 year automatic declassification rule, the “hard” decision is

whether to extend the classification of these 25 year old documents. That decision is made by

the original classifying agency. CIA Director Panetta has the 2011 duty to make that decision.

Thus, the CIA MDR request comes back full circle to CIA Director Panetta’s decision

whether to ratify the decisions of CIA Directors Casey (1981-1987), Judge Webster (1987-

1991), Gates (1991-1993), Woolsey (1993-1995), Deutch (1995-1996), Tenet (1997-2004), Goss

(2004-2005), and Hayden (2006-2009), that the “sources and methods” of the CIA using an

off-OMB Budget funding of the NSA TSP data banks, should remain as a Top Secret. CIA

Director Panetta, who possesses the Chilicky “normal sensibilities” of human beings, will

have to decide in May, 2011 whether the off-OMB Budget funding source for the NSA TSP

and NSA PSP data banks should continue to be the off-OMB Budget “Jackson nonacquiescence

policy” funds rather than classified OMB Budget funds. See 7-27-10 DOJ WP §§ Q, Z, ZZ.

However, CIA Director Panetta will be making this classification decision with the

knowledge that all 535 Members of Congress, the U.S. public, and terrorists around the world,

all know that the “Top Secret America” domestic surveillance program revealed in the

Washington Post series, includes the “do not exist” 1984-2011 NSA TSP and PSP data banks.

This is the “Past is Prologue” 1984-2011 CIA “sources and methods” secret for which CIA

Director Panetta and Holder, both attorneys, have their own Connick ethics duty not to commit

a “fraud upon the court” in Robert II v CIA and DOJ, and for AG Holder not to “commit a

“fraud upon the court” in his Robert VIII v DOJ, HHS, and SSA Brief filed on May 25, 2011.

CIA Director Panetta should be making the decision whether to extend the 25 year

declassification rule, knowing the answer to the “Commander in Chief riddle.” CIA Director

Panetta should know the names of the 1981-2011 faux “Commanders in Chiefs” who had

approved the 1984-2011 off-OMB Budget funding for the “immaculate construction” and

maintenance of the “do not exist” 1984-2011 NSA TSP and PSP data banks, who were not

Presidents Reagan, Bush, Clinton, Bush, and Obama. See 5-9-11 NARA WP and § R below.

Therefore, the CIA MDR decision-makers task is made easy by applying AG Holder’s

March 19, 2009 presumption of disclosure standard that applies to the pending Robert II v CIA

and DOJ FOIA documents. If CIA General Counsel Prescott consults with Associate DAG

Baker, then he will learn “there is a substantial likelihood that application of the guidance would

result in a material disclosure of additional information.” See the 1-4-11 PIAB WP § 34.

20

E. The CIA MDR decision-makers application of the March 19, 2009 FOIA Guidelines to

the Robert II v CIA and DOJ # 5 ex parte Declarations may result in the AG Holder

modifying AG Meese’s December, 1987 “c (3) exclusion” Guidelines

The CIA MDR decision makers application of the March 19, 2009 FOIA Guidelines to

the Robert II v CIA and DOJ # 5 ex parte Declarations, may result in the AG Holder modifying

AG Meese’s December, 1987 “c (3) exclusion” Guidelines. AG Meese’s Attorney General’s

Memorandum on the 1986 Amendments to the Freedom of Information Act continues to be

the DOJ “working law” cited on its 2011 DOJ website without modification. If AG Holder does

not modify AG Meese’s Memorandum, then USG attorneys will continue to use “c (3)

exclusion” ex parte Declarations to make Article III Judges the “handmaidens of the Executive”

without any Article II or Article III checks and balances. 7-27-10 DOJ WP §§ F, AA, PP.

Pursuant to 5 U.S.C. 552, an AG is to file a "(c)(3) exclusion" ex parte Declaration with

an Article III Judge that explains why the USG is using the “Glomar Response” defense The

FOIA plaintiff is not to know whether the FOIA requested document even exists. In December,

1987, AG Meese explained how to apply the “c (3) exclusion” defense:

Accordingly, it shall be the government’s standard litigation policy in the

defense of FOIA lawsuits that wherever a FOIA plaintiff raises a distinct

claim regarding the suspected use of an exclusion, the government

routinely will submit an in camera declaration addressing that claim, one

way or another. Where an exclusion was in fact employed, the correctness

of that action will be justified to the court. Where an exclusion was not in

fact employed, the in camera declaration will simply state that fact,

together with an explanation to the judge of why the very act of its

submission and consideration by the court was necessary to mask whether

that is or is not the case. In either case, the government will of course urge

the court to issue a public decision which does not indicate whether it is or

is not an actual exclusion situation. Such a public decision, not unlike and

administrative appeal determination of an exclusion-related request for

review, should specify only that a full review of the claim was undertaken

and that, if an exclusion in fact was employed, it was and continues to

remain, amply justified. Id. at 20. Emphasis Added.

http://www.usdoj.gov/04foia/86agmemo.htm.

The “handmaiden” issue is raised by the Memorandum’s instruction that the USG

attorneys are to ask the Article III Judge to “mask” their decision to deceive the plaintiff. “…

consideration by the court was necessary to mask whether that is or is not the case.” Emphasis

Added. The USG attorneys are to “urge” the Article III Judge to issue a decision that does not

reveal the fact that an ex parte Declaration was filed with the Court. “…the government will of

course urge the court to issue a public decision which does not indicate whether it is or is not an

actual exclusion situation.” Emphasis added. This AG’s Memorandum is instructing the USG

attorneys to ask the Article III Judges, ex parte, to act in concert with the USG attorneys to

violate the NYS Judiciary Law § 487 penal deception of a party standard in order to protect the

nation from terrorists. “….with intent to deceive the court or any party,…" Emphasis Added.

21

The CIA MDR requester’s belief that Robert II v CIA and DOJ “c (3) exclusion”

declarations exist, is based on the April 9, 2004 Report and Recommendation of EDNY

Magistrate Arlene Lindsay that was issued after the March 1, 2004 decision of OIPR Counsel

Baker to deny Robert’s request for the release of the FOIA requested “FISC Robert” documents.

Based on the infamous March 10, 2004 confrontation hospital room confrontation between WH

Counsel Gonzales and AG Ashcroft, DAG Comey, and FBI Director Mueller re the certification

of the Top Secret NSA PSP, the plaintiff believes that 2002-2004 CIA General Counsel Scott

Muller filed a “c (3) exclusion” ex parte Declaration with Judge Seybert in response to the

plaintiff’s Robert II v CIA and DOJ March 4, 2003 Affirmation in which he made his almost

incredible allegation that he had been the target of an illegal “do not exist pre-9/11 NSA TSP.

The redacted May 6, 2004 Memorandum of AAG of the OLC Goldsmith, reveals

whether CIA General Counsel Muller knew in March, 2003 that Robert II v CIA and DOJ

plaintiff’s almost incredible allegation was true that he had been the target of an illegal 1980s

NSA TSP that was conducted without the knowledge of the “Gang of Eight.” Upon information

and belief, CIA General Counsel Muller knew on March 3, 2003 that the legal basis for the

pre-9/11 NSA TSP was the extreme “Unitary Executive” theory of AG Meese that the FISA

“exclusivity provision” encroached upon the President’s Article II Commander in Chief

authority. Upon information and belief, he also knew whether 1981-1985 CIA General Counsel

Stanley Sporkin had honorably resigned when he learned that CIA Director Casey had used off-

OMB Budget “Jackson nonacquiescence policy” funds to pay for “black operations” at IMC and

the NSA. See March 4, 2003 Robert II v CIA and DOJ Affirmation at § B and § R below.

CIA General Counsel Muller honorably resigned in July, 2004. He was succeeded by

2004-2009 Acting CIA General Counsel John Rizzo whose CIA career began in 1978. He was

the Acting CIA General Counsel when on October 15, 2004 Robert requested that Judge Seybert

include OIPR Counsel Baker’s October 1, 2004 Robert VII v DOJ in the Robert II v CIA and

DOJ Record and consider the plaintiff’s request for a settlement conference.

Upon information and belief, as the Robert II v CIA and DOJ litigation progressed

contemporaneously with the Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA FOIA

litigation, 2004-2009 Acting CIA General Counsel John Rizzo filed a series of “c (3) exclusion”

ex parte Declarations in response to the plaintiff’s status letters sent to Judge Seybert. As per the

Robert II v CIA and DOJ, Robert VII v DOJ, and Robert VIII v DOJ, HHS, and SSA time line

presented in § C above, AG Gonzales’ DOJ attorneys were filing FRCP 11 signed pleadings in

Robert VII v DOJ and Robert VIII v DOJ, HHS, and SSA that did not inform Judge Garaufis and

the Second Circuit the source of Director Judge Webster’s evidence that Robert may be a

terrorist or an agent of a foreign power. See 7-27-10 DOJ WP §§ E-G, K, M, N, V, W, AA, CC.

CIA General Counsel Preston knows whether any Robert II v CIA and DOJ “c (3)

exclusion” ex parte Declarations were filed. If so, then he knows whether material facts had

been withheld pursuant to the 1986 “Barrett nonacquiescence policy” to prevent Judge Seybert

from learning that the “do not exist” NSA TSP had illegally targeted Robert. “Finally,

acceptance of the view urged by the federal appellants would result in a blanket grant of

absolute immunity to government lawyers acting to prevent exposure of the government in

liability.” Barrett v. United States, 798 F. 2d 565, 573 (2d Cir. 1986). Emphasis Added.

22

CIA General Counsel Preston (2009-) was the 1993-1995 DOD Principal Deputy General

Counsel. He knows whether plaintiff Robert’s allegations are true that a pre-9/11 NSA TSP had

been conducted without § 413 Notification to the “Gang of Eight” and in violation of the

“exclusivity provision” of the FISA. He knows whether the 1995 “wall” constructed by DAG

Gorelick between DOJ attorneys and the NSA TSP military officers, was to protect the integrity

of DOJ attorneys so that they would not implement a “Barrett nonacquiescence policy” and

withhold material facts from the FISC as to information received from the “do not exist” NSA

TSP data banks. http://media.collegepublisher.com/media/paper441/documents/5nkzph1t.pdf.

This is an important CIA General Counsel Preston mens rea time line fact because he knows

whether the unredacted May 6, 2004 OLC Memo of AAG of the OLC Goldsmith explains the

“Unitary Executive” theory that the “exclusivity provision” of the FISA “unconstitutionally”

encroached upon Article II Commander in Chief authority to conduct the pre-9/11 NSA TSP.

CIA General Counsel Preston became the 1995-1998 DAAG of the Civil Division

responsible for Circuit Court litigation. He knew the 1995-1996 litigation position of Associate

AG Schmidt, SG Days, and AAG of the Civil Division Hunger to defend the “Jackson

nonacquiescence policy” of HHS General Counsel del Real in Gordon v. Shalala, 55 F.3d 101

(2d Cir. 1995), cert. den, 517 U.S. 1103 (1996). See January 17, 1995 letter from WH Counsel

Mikva to Gordon counsel referring the “nonacquiescence” policy issue to Associate AG

Schmidt. http://www.snowflake5391.net/mikva.pdf. See also 7-27-10 DOJ WP § T.

CIA General Counsel Preston’s review of the Robert II v CIA and DOJ case file notes and

“c (3) exclusion” ex parte Declaration reveal whether CIA General Counsels Muller and

(Acting) and Rizzo litigation strategy breached NYS Judiciary Laws § 487 by their “conscious

avoidance” of the facts in order to deceive Magistrate Lindsay and Judge Seybert. “Conscious

avoidance occurs when a person deliberately closes his eyes to avoid having knowledge of what

would otherwise be obvious to him.” U.S. v. Reyes, 302 F.3d 48, 49-50 (2d Cir. 2002).

In defense of 2002-2007 EDNY U.S. Attorney Roslynn Mauskopf, upon information

and belief, she did not have clearance to read any classified documents that would corroborate

Robert’s almost incredible assertions that CIA Director Casey had conducted “black operations”

at IMC and the NSA. Because of the Top Secret compartmentalization used to protect the Top

Secret access to the “do not exist” NSA TSP data banks, the EDNY “stovepipe” has bypassed

all of the 1984-2011 EDNY U.S. Attorneys. See 7-27-10 DOJ WP §§ I, AA, AAA.

As a result, CIA General Counsel Preston knows whether CIA General Counsels Muller

and (Acting) Rizzo applied AG Meese’s 1987 Guidelines and intentionally withheld material

facts from the Robert II v CIA and DOJ “c (3) exclusion” ex parte Declarations to make

Magistrate Lindsay and Judge Seybert the “handmaidens” of the CIA General Counsel. “Under

no circumstances should the Judiciary become the handmaiden of the Executive.” Doe, et. al. v

Mukasey, Mueller, and Caproni, 549 F 3d 861, 870 (2d Cir. 2008). See 7-27-10 DOJ WP § PP.

Therefore, the CIA MDR review of the # 5 “all Robert II v CIA “c (3) exclusion” ex

parte Declarations” provides CIA General Counsel Preston with an opportunity to provide a

“heads up” memo for CIA Director Panetta suggesting that AG Holder amend AG Meese’s

1987 Memorandum. He could also recommend that AG Holder accept the quiet settlement offer.

23

F. The CIA MDR decision-makers are placed on Notice of the DOJ 2009 Edition of the

Guide to the Freedom of Information Act explanation of the “c (3) exclusion” defense

which was printed before President Obama issued his December 29, 2009 E.O. 13526

The CIA MDR decision-makers are placed on Notice of the DOJ 2009 Edition of the

Guide to the Freedom of Information Act explanation of the “c (3) exclusion” defense which

was printed before President Obama issued his December 29, 2009 E.O. 13526. If there are any

interpretation questions triggered by the DOJ FOIA Guide, then pursuant to E.O. 13526 § 6.2 (c),

CIA General Counsel Preston “shall” secure the necessary interpretation from AG Holder.

AG Holder’s 2009 Edition of the Guide to the Freedom of Information Act posted on the

DOJ website provides an explanation of the “c (3) exclusion” provision:

The record exclusions expressly authorize federal law enforcement

agencies, under these exceptional circumstances, to “treat that records as

not subject to the requirements of the (the FOIA).” Given their unique

nature, any agency considering employing an exclusion or having a

question as to their implementation should first consult with the Office of

Information and Policy, at (202)514-3642.

http://www.justice.gov/oip/foia_guide09/exclusions.pdf

The DOJ Exclusion explanation notes that the use of the “ c (3) exclusion” is based on an

FBI Director’s counterintelligence decision that the documents should remain classified, and the

FOIA requester should not know that the FOIA requested classified documents even exist:

This exclusion recognizes the exceptional sensitivity of the FBI’s

activities in the areas of foreign intelligence, counterintelligence, and the

battle against international terrorism, as well as the fact that the classified

files of these activities can be particularly vulnerable to targeted FOIA

requests. Sometimes, within the context of a particular FOIA request, the

very fact that the FBI does or does not hold any records on a specified

person or subject can itself be a sensitive fact, properly classified in

accordance with the applicable executive order on the protection of

national security information, and protectible under FOIA Exemption 1.

Once again, however, mere invocation of Exemption 1 to withhold such

information can provide information to the requester which would have an

extremely adverse effect on the government’s interests.

Congress took cognizance of this through the (c)(3) exclusion, in which it

authorizes the FBI to protect itself against such harm in connection with

any of its records pertaining to “foreign intelligence, or

counterintelligence, or international terrorism. To do so, the FBI must of

course reach the judgment, in the context of a particular request, that the

very existence or nonexistence of responsive documents is itself a

classified fact and that as it need employ this record exclusion to prevent

disclosure. By the terms of this provision, the excluded records may be

24

treated as such as long as their existence, within the context of the request,

“remains classified information.”

Additionally, it should be noted that while the statute refers to records

maintained by the FBI, exceptional circumstances could possible arise in

which it would be appropriate for another component of the Department of

Justice or another federal agency to invoke this exclusion jointly on a

derivative basis as well. Such a situation could occur where information

in records of another component or agency is derived from FBI records

which fully qualify for (c)(3) exclusion. In such extraordinary

circumstances, the agency processing the derivative information should

consult with the FBI regarding the possible joint invocation of the

exclusion in order to avoid a potentially damaging inconsistent response.

Id. 679-690. Emphasis Added.

The DOJ Exclusion explanation includes “Procedural Considerations” when a decision is

made to use the “exclusion” defense in those “extraordinary” cases in which the use of the

statutory Exemptions cannot be used. The Robert II v CIA and DOJ plaintiff/Robert VIII v DOJ,

HHS, and SSA appellant, is asserting that his FOIA cases involving the “do not exist” NSA TSP

are “extraordinary circumstances” cases in which the DOJ has been applying the “no records”

response. The DOJ 2009 Guideline highlights the importance of internal review process with a

“specific official determination” and an “extremely careful attention” because there may be

judicial review of the Executive Branch agency’s “no records” FOIA decision:

When an agency reaches the judgment that it is necessary to employ an

exclusion, it should do so as a specific official determination that is

reviewed carefully by appropriate supervisory agency officials. The

particular records covered by an exclusion should be concretely and

carefully identified and segregated from any responsive records that are to

be processed according to ordinary procedures.

It must be remembered that providing a “no records” response as part of

an exclusion strategy does not insulate the agency from either

administrative or judicial review of the agency action. The recipient of a

“no records” response might challenge it because he believes that the

agency has failed to conduct a sufficiently detailed search to uncover the

requested records. Alternately, any requester, mindful of the exclusion

mechanism and seeking information of a nature which could possibly

trigger an exclusion action, could seek judicial review in an effort to

pursue his suspicions and to have a court determine whether an exclusion,

if in fact used, was employed appropriately.

Moreover, because the very objective of the exclusions is to preclude the

requester from learning that there exist such responsive records, all

administrative appeals and court cases involving a “no records” response

must receive extremely careful attention. Id. 680-681. Emphasis Added.

25

The DOJ “Procedural Considerations” establish that when a decision is made whether to

use an “exclusion” defense, the documents are to have been read de novo to determine if they

should be withheld which means applying the AG Holder’s March 19, 2009 FOIA Guidelines:

In the exceptional case in which and exclusion was in fact invoked, the

appellate review authority should examine the correctness of that action

and come to a judgment as to the exclusion’s continued applicability as of

that time. In the event that an exclusion is found to have been improperly

employed or to be no longer applicable, the appeal should be remanded for

prompt conventional processing of all formerly excluded records, with the

requester advised accordingly. When it is determined either that an

exclusion was properly employed or that, as in the overwhelmingly bulk

of cases, no exclusion was used, the result of the administrative appeal

should be, by all appearances, the same: The requester should be

specifically advised that this aspect of his appeal was reviewed and found

to without merit. Id. 682. Emphasis Added.

The “Procedural Considerations” caution the FOIA Officer that exclusion issues that will

be subject to judicial review should be carefully and thoughtfully processed:

Exclusion issues in court actions must be handled with similarly careful

and thoughtful preparation. First, it need be recognized that any judicial

review of a suspected exclusion determination must of course be

conducted ex parte, based upon an in camera court filing submitted

directly to the judge. Second, it is essential to the integrity of the exclusion

mechanism that the requesters not be able to determine whether an

exclusion was employed at all in a given case based upon how the case is

handled in court. Thus, it is critical that the in camera defenses of

exclusion issues raised in FOIA cases occur not merely in those cases in

which an exclusion actually was employed and is in fact being defended.

Id. 682-283 Emphasis Added.

The “Procedural Considerations” informs the FOIA Officer that ex parte Declarations

will be filed with the Article III Judge explaining the “correctness” of the use of the “exclusion”

defense and will “urge” the Court to render a “masked” decision:

Accordingly, it is the government’s standard litigation policy in the

defense of FOIA lawsuits that, whenever a FOIA complaint raises a

distinct claim regarding the suspected use of an exclusion, the government

will routinely submit an in camera declaration addressing that claim, one

way or the other. When an exclusion was in fact employed, the

correctness of that action will be justified to the court. When an exclusion

was not in fact employed, the in camera declaration will state simply that

it is being submitted to the court so as to mask whether or not an

exclusion is being employed, thus preserving the integrity of the exclusion

process overall. In either case, the government will of course urge the

26

court to issue a public decision which does not indicate whether it is or is

not an actual exclusion case. Such a public decision, like an

administrative appeal determination of an exclusion-related request for

review, should specify only that a full review of the claim was had and

that, if an exclusion was in fact employed, it was, and remains, amply

justified. Id. 683. Emphasis Added.

This last excerpt from the 2009 FOIA Guide is a restatement of the December, 1987

Attorney General’s Memorandum on the 1986 Amendments to the Freedom of Information Act

with its “urge” the Judge to render a decision that “masks” the fact an ex parte Declaration was

filed with the Court. This DOJ 2009 Guide was written after the Second Circuit had issued its

2008 “handmaiden of the Executive” warning to AG Mukasey. “Under no circumstances should

the Judiciary become the handmaiden of the Executive.” Doe, et. al. v Mukasey, Mueller, and

Caproni, 549 F 3d 861, 870 (2d Cir. 2008). See the 7-27-10 DOJ WP § PP and the appellant’s

February 22, 2011 Robert VIII v DOJ, HHS, and SSA Brief p. 5 and Point II C.

If AG Holder commits a déjà vu “fraud upon the court” in his Robert VIII v DOJ, HHS,

and SSA May 25, 2011 Brief, then in June, 2011 the appellant will file an FBI MDR request for

the July 27, 2010 FBI FOIA requested FBI classified connect-the-dots documents to this CIA

MDR of the “c (3) exclusion” ex parte Declarations and the NARA ADR of 1985 documents:

.

1) FBI Abshire documents-third request

2) FBI copy of joint FBI-DOJ-HHS “IMC Final Investigative Report”

3) FBI copy of February 25, 1987 “Perot” documents

4) FBI copy of Robert v National Archives “FBI Agent Allison” documents

5) FBI unredacted copy of Robert v DOJ “62-0 file” documents

6) FBI Robert III v DOJ “Recarey extradition” documents

7) FBI Robert VII v DOJ “FISC Robert” documents

8) FBI Charles Robert documents including NSLs sent to banks and ISP

The “FBI Abshire” documents are connect-the-dots documents to the four 1985 CIA-

NARA “North Notebook” documents subject to a NARA ADR decision. These are the

documents that FBI Director Judge Webster’s December 1986 “task force of departmental

general counselors” culled and withheld from the Tower Commission, the Senate-House Iran

Contras Committee, and IC Walsh as described by President Reagan’s Special Counselor David

Abshire in his Memoir Saving the Reagan Presidency: Trust is the Coin of the Realm. These are

the documents that FBI General Counsel Caproni and OIP Director Melane Pustay decided

would not be processed without Judge Garaufis’ pre-clearance Order that Robert could file a

FOIA request. See the 2-22-11 Robert VIII Brief Point IV and 5-9-11 NARA ADR WP § C.

Upon information and belief, OIP Director Pustay’s “command and control” officer

ordered her not to docket the April 11, 2011 OLC MDR request re the declassification of the

March 18, 2011 released redacted May 6, 2004 OLC Memo of AAG of the OLC Goldsmith. If

so, then OIP Director Pustay knows whether the redacted May 6, 2004 document explains the

extreme “Unitary Executive” theory of AG Meese that the “exclusivity provision” of the FISA

was an “unconstitutional” encroachment on the President’s Article II Commander in Chief

authority and whether AG Gonzalez committed a “fraud upon the court” in Robert VII v DOJ.

27

If the redacted May 6, 2004 OLC Memo explains AG Meese’s “Unitary Executive”

theory as applied to the “do not exist” 1984-2001 NSA TSP, then this highlights the importance

of the NARA ADR of the Robert II v CIA and DOJ # 1. “9/3/85 North-FBI Revell “North

Notebook” log entry” document. As explained in § E of the NARA MDR re the “Peter Keisler

Collection” documents, 1985 Executive Assistant Director of Investigations “Buck’ Revell

knew whether the FBI counterintelligence “plumber” unit had access to the “do not exist” NSA

TSP in order to perform its task to protect the off-OMB Budget funding source for CIA Director

Casey’s domestic “black operations” that included the “black operations” at IMC and the NSA.

CIA Director Panetta has a duty to read the five July 27, 2011 FOIA requested

documents because they present the 2011 issue of how the CIA “continued classification”

policy interfaces with President Obama’s E.O. 13526 § 3.3 ADR 25 year declassification rule.

CIA Director Panetta will learn that CIA’s “Past is Prologue” policy to protect future sources and

methods with a “continued classification” defense, eviscerates the 25 year declassification

standard. The Second Circuit affirmed the CIA’s use of the “continued classification” defense in

Wilson v CIA, 586 F. 3d 171 (2d Cir. 2010). See 7-27-10 DOJ WP §§ L, AA, TT, YY.

If the CIA MDR denies this declassification request, then Robert will file an ISCAP

appeal. He will make his “Past is Prologue” argument that if the CIA has used a “Glomar

Response” defense to protect a “continued classification” decision to withhold documents prove

CIA Director Casey’s 1985 FISA and PCA violations, then this has resulted in the 2011 FISA

and PCA violations because CIA Director Panetta’s continues to have 2011 access to the “do not

exist” 1984-2001 NSA TSP data banks in the custody of DOD Cyber Commander-NSA Director

Lt. General Alexander. This would mean that AG Holder and CIA Director Panetta have decided

that the protection of the 2011 CIA “sources and methods” of “rigging” the 2011 SSA computer

to apply the “Jackson nonacquiescence policy” to fund “black operations” not reported to

Congress, trumps the application of AG Holder’s March 19, 2009 presumption of disclosure

after the public already knows of the existence of the “Top Secret America” NSA TSP.

Thus, the CIA MDR of the # 5 “all Robert II v CIA “c (3) exclusion” Declarations also

provides CIA Director Panetta with an opportunity to review how the 2009 DOJ FOIA Guide

standard effects the 2011 “continuing classification” of CIA Director Casey’s 1980s “sources

and methods” of accessing information from the “do not exist” NSA TSP data banks in

impeachable violation of the “exclusivity provision” of the FISA. CIA Director Panetta will have

an opportunity to determine whether because of AG Gonzales’ December 22, 2005 § 413 (a)

letter to the “Gang of Eight” re the post-9/11 NSA PSP, CIA General Counsel Preston has a duty

to cure any misrepresentations of fact or law made to Judge Seybert in the Robert II v CIA and

DOJ ex parte Declarations that are subject to the CIA MDR. See 7-27-11 DOJ WP §§ E-G, AA.

Thus, the CIA MDR decision re the # 5 document and the NARA ADR decision re # 1-#

4 documents will reveal whether AG Holder should revise the DOJ’s 2012 FOIA Guide.

Therefore, the CIA MDR decision makers should learn whether the OLC MDR decision-makers

will be declassifying the redacted May 6, 2004 OLC Memo and whether the NARA ADR

decision-makers will be declassifying the # 1-# 4 1985 documents. If not, then this will mean

the 2009 DOJ Guide’s “c (3) exclusion” standard was applied in Robert II v CIA and DOJ and

Robert VIII v DOJ, HHS, and SSA and facts were intentionally withheld from the Judges.

28

G. The CIA MDR decision-makers’ duty to read the # 5 “c (3) exclusion” ex parte

Declarations along with the OLC MDR requested unredacted May 6, 2004 OLC Memo of

AAG of OLC Goldsmith and seek guidance from CIA General Counsel Preston as to

whether to apply the E.O. 13526 § 1.7 (a)(4) misclassification standard

The CIA MDR decision-makers have a duty to read the Robert II v CIA and DOJ # 5

“c (3) exclusion” ex parte Declarations along with the OLC MDR unredacted May 6, 2004

OLC Memorandum of AAG of OLC Goldsmith. If after reading the “c (3) exclusion”

documents the CIA MDR decision-makers determine the CIA General Counsels intended to

withheld material facts from Judge Seybert, then they should seek guidance from CIA General

Counsel Preston whether to apply the E. O. 13526 § 1.7 (a)(4) misclassification standard.

The CIA MDR decision-makers are placed on Notice that CIA General Counsel Preston

and EDNY U.S. Attorney Lynch, the attorneys for Robert II v CIA and DOJ co-defendants CIA

Director Panetta and AG Holder, know that the Second Circuit applies a 2002 “conscious

avoidance” of facts standard when witnesses close their eyes to obvious facts. “Conscious

avoidance occurs when a person deliberately closes his eyes to avoid having knowledge of what

would otherwise be obvious to him.” U.S. v. Reyes, 302 F.3d 48, 49-50 (2d Cir. 2002).

The CIA MDR decision-makers should not be using a “conscious avoidance” of facts

adjudication strategy given their access to the unredacted May 6, 2004 OLC Memorandum that

explains how the “Unitary Executive” theory was applied to reach the conclusion that the FISA

“exclusivity provision” of the FISA “unconstitutionally” encroached upon the President’s Article

II Commander in Chief authority to wiretap without warrants to protect the nation. This is a May

6, 2004 unredacted OLC Memo “fact” that cannot be avoided after reading the Robert II v CIA

and DOJ “c (3) exclusion” ex parte Declarations submitted to Judge Seybert given AG Gonzales’

subsequent December 22, 2005 § 413 (a) letter to the “Gang of Eight” admission that the

“exclusivity provision” of the FISA did not encroach upon the President’s Article II Commander

in Chief authority. See 4-11-11 OLC MDR WP §§ B-F. See also 7-27-10 DOJ WP §§ E, K,

M, N, CC, DD. See also 2-22-11 Robert VIII v DOJ, HHS, and SSA appellant’s Brief

Statement of Facts pp 14-15. http://snowflake5391.net/Robert8vDOJ2dCirBrief.pdf

AAG of the OLC Goldsmith’s May 6, 2004 released Memo explained how the “Unitary

Executive” theory was the legal basis for the post-9/11 NSA TSP. This was written after OIPR

Counsel Baker made his March 1, 2004 decisions to withhold the classified “FISC Robert”

documents by application of FOIA Exemption 1 and the “Glomar Response” defense. This was

also after the plaintiff’s Robert II v CIA and DOJ Mach 4, 2003 Affirmation informed Judge

Seybert he was the target of the pre-9/11 NSA TSP that was conducted in violation of the FISA.

AAG of the OLC Goldsmith’s May 6, 2004 Memo was also after the infamous March

10, 2004 confrontation between then-WH Counsel Gonzales and AG Ashcroft, DAG Comey,

and FBI Director Mueller in AG Ashcroft’s hospital room. This is a key time line fact sequence

because President Bush did not fulfill his § 413 (a) of the National Security Act duty to report

intelligence activities to the “Gang of Eight” as to the warrantless NSA Presidential Surveillance

Program (PSP), until AG Gonzales sent the December 22, 2005 § 413 (a) “Gang of Eight”

letter with its post-9/11 retroactive application, but not with any pre-9/11 NSA TSP application.

See the 7-27-10 DOJ WP §§ K, CC, DD. See also 1-4-11 PIAB WP §§ 13, 14, 16, 23, 28, 33.

29

AAG of the OLC Goldsmith’s May 6, 2004 Memorandum for AG Ashcroft explained

that the main legal authority of the post-9/11 NSA PSP was the Congressionally enacted

September 18, 2001 Authorization for Use of Military Force (AUMF) which trumped the

“exclusivity provision” of the FISA. However, this heavily redacted May 6, 2004 OLC opinion

also discussed the President’s inherent unlimited Article II authority as the Commander-in-Chief

to authorize the NSA to take actions at all times, not just during wartime such as after 9/11:

The President’s authority in this field is sufficiently comprehensive that

the entire structure of federal restrictions for protection national security

information has been created solely by presidential order, not by statute.

See generally Department of the Navy v Egan, 484 U.S. 5187, 527, 530

(1988); See also New York Times Co. v United States, 403 U.S. 713, 729-

730 (1971)(Stewart, J., concurring)(“(I)t is the constitutional duty of the

Executive-as a matter of sovereign prerogative and not as a matter of laws

the courts know law—through the promulgation and enforcement of

executive regulations, to protect the confidentiality necessary to carry out

its responsibilities in the field of international relations and national

defense.”). Similarly, the NSA is entirely a creature of the Executive-it has

no organic statute defining or limiting its functions. (redacted b1, b3). Id.

45. Emphasis added.

AAG of the OLC Goldsmith’s May 6, 2004 Memorandum explained that the “Unitary

Executive” theory whereby the Article I Congress did not have the constitutional authority to

encroach upon the Article II Commander in Chief’s duties if the Article I encroachment rendered

it “impossible for the President to perform his constitutionally prescribed functions:”

Even if we did not conclude that (redacted b1,b3) was within the core of

the Commander-in-Chief power with which Congress cannot interfere, we

would conclude that the restrictions in the FISA would frustrate the

President’s ability to carry out his constitutionally assigned functions as

Commander in Chief and are impermissible on that basis. As noted

above, even in prior opinions suggesting that Congress has the power to

restrict the Executive’s actions in foreign intelligence collection this

Office has always preserved the caveat that such restrictions would be

permissible only where they do not “go so far as to render it impossible

for the President to perform his constitutionally prescribed functions.”

Redacted b5 . Id. 70. Emphasis Added.

Thus, the legal basis for the 2002-2004 NSA PSP was not limited to the September 18,

2001 AUMF, but tracks back to the 1978 enactment of the FISA and the “Unitary Executive”

theory interpretation that the FISA “exclusivity provision” was an encroachment on the

President’s Article II Commander in Chief authority to protect the nation from terrorists. Upon

information and belief, the heavily redacted portions of AAG of the OLC Goldsmith’s May 6,

2004 Memorandum discusses the President’s inherent Article II Commander in Chief authority

as being the legal basis for the “do not exist” 1984-2001 NSA TSP that was being conducted by

the Intelligence Community prior to 9/11 and without any § 413 (a) “Gang of Eight” notification.

If so, then President Obama has a § 413(b) duty to file a “corrective action” plan. See § R below.

30

On March 18, 2011, former-AAG of the OLC Goldsmith commented on his Blog on the

DOJ’s release of the redacted document. DOJ Releases Redacted Version of 2004 Surveillance

Opinion. “I continue to believe that the memorandum provides a sound analysis of a difficult

set of legal issues encountered in a difficult context.” http://www.lawfareblog.com/2011/03/doj-

releases-redacted-version-of-2004-surveillance-opinion/. Emphasis added.

On March 18, 2011, the DOJ OLC declassification decision-makers knew that the July

19, 2010 Washington Post “Top Secret America” series had let the cat-out-of-the-bag as to the

existence of the domestic surveillance program. They knew that the public had learned from the

jaw-dropping Priest and Arkin Locator Map of the thousands of USG and private contractor

work stations hidden in plain sight, and that tens of thousands USG employees and private

contractor employees have had access to the “do not exist” 2002-2010 NSA PSP data banks.

http://projects.washingtonpost.com/top-secret-america/map/ These March 18, 2011 DOJ

declassification decision-makers also knew that the terrorists of the world knew that the NSA

had access to decades of data banks that retained domestic as well as international wiretaps.

These DOJ decision-makers also knew that AG Gonzales had admitted on December 22, 2005

that the “exclusivity provision” of the FISA applied to the 2002-2005 warrantless NSA TSP.

The May 6, 2004 Memo’s explanation of the “Unitary Executive” theory also had been

the legal basis for the CIA “black operation” at IMC conducted in violation of the Boland

Amendment. CIA General Counsel Preston can confirm that CIA Director Casey’s off-the-shelf

medical delivery system was based on CIA Director Casey’s belief that the Boland Amendment

was an “unconstitutional” encroachment on President Reagan’s Article II Commander in Chief

authority. See the November 18, 1987, Report of the Congressional Committees Investigating

the Iran-Contra Affair Minority Report of then-Congressman Dick Cheney drafted in part by

staff Member David Addington, CIA Director Casey’s 1981-1984 Assistant CIA General

Counsel.http://www.presidency.ucsb.edu/PS157/assignment%20files%20public/congressional%

20report%20key%20sections.htm. See 7-27-10 DOJ WP §§ K, CC, DD.

Former-AAG of the OLC Jack Goldsmith, who had honorably resigned in July, 2004

when CIA General Counsel Muller had honorably resigned, explained in his 2008 Memoir that

the attorneys who implemented the “Unitary Executive” theory were “geniuses” because of the

way they controlled the facts provided to Article II classified decision-makers:

They were geniuses at this,” Goldsmith said. “they could divide up all

these problems in the bureaucracy, ask different people to decide things

in their lanes, control the facts that they gave them, and then put the

answers together to get the result they want.” Conflict Over Spying Led

White House to Brink. Gellman, Washington Post, 9-14-08.” internet

print out 3 of 9. Emphasis Added.

Upon information and belief, one of the 2011 “geniuses” who has made 2011 “Unitary

Executive” litigation decisions by controlling Article II classified decisions, is Associate DAG

Baker. He received the 2006 CIA George H.W. Bush Award for Excellence in Counterterrorism

and the 2007 DOJ Edmund J. Randolph Award, in part because of the “genius” of his 2004-

2007 Counsel for the National Security Division of Intelligence Policy litigation decisions.

31

Upon information and belief, the CIA MDR decision-makers will learn from reading the

Robert II v CIA and DOJ email whether the Robert II v CIA and DOJ litigation decision-

maker was 2004-2007 Counsel for the National Security Division of Intelligence Policy Baker. If

so, then the CIA MDR decision-makers should be consulting with CIA General Counsel Preston

to learn from AG Holder’s 2011 Associate DAG Baker whether the “Glomar Response” § 3.6

exception will be applied the OLC MDR decision re the May 6, 2004 OLC Memo.

President Obama’s E.O. 13526 § 3.6 Processing Requests and Review provides:

a) An agency may 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. Emphasis added.

The CIA MDR requester asserts that the § 3.6 (a) exception is trumped by

President Obama’s E.O. 13526 §1.7, Classification Prohibitions and Limitations:

a) In no case shall information be classified, continue to be maintained as

classified, or fail to be classified in order to:

(1) conceal violations of law, inefficiency, or administrative error;

(2) prevent embarrassment to a person, organization, or agency;

(3) restrain competition;

(4) prevent or delay the release of information that does not require

protection in the interest of the national security. Emphasis Added.

The application of the § 1.7 (a)(4) “interest of the national security” standard raises the

CIA General Counsel “guardian of the guardians” question raised by 2002-2004 CIA Assistant

Counsel Radsan as discussed in § A above. It presents the 2011 “Commander in Chief riddle” as

applied to CIA General Counsel Preston and Associate DAG Baker. Thus, the CIA MR requester

asserts that § 1.7 (a)(4) “in the interest of national security” standard should be applied to

determine who made the “in the interest of the national security” decision. See § L below.

In July, 2004 when he resigned, CIA General Counsel Muller, a 1978-1982 SDNY

AUSA, knew the contents of AAG of the OLC Goldsmith’s May 6, 2004 OLC Memo to AG

Ashcroft explaining that the legal basis for the “do not exist” pre-9/11 1984-2001 NSA TSP and

post-9/11 NSA PSP data banks. He knew that the “immaculate construction” and maintenance of

the 1984-2004 NSA TSP and PSP data banks had been illegally funded with off-OMB Budget

funding. He also knew of the 1984-2004 Presidents’ serial impeachable violations of the § 413

(a) of the National Security Act because Presidents Reagan, Bush, Clinton, and Bush had not

notified the “Gang of Eight” of the “do not exist” pre-9/11 1984-2001 NSA TSP data banks

and post-9/11 2002-2004 NSA PSP data banks or the illegal off-OMB Budget funding source.

Hence, the importance of the CIA MDR decision-makers reading the unredacted May 6,

2004 OLC Memo and determining whether the Declarants withheld facts in the Robert II v CIA

and DOJ “c (3) exclusion” Declarations re the “do not exist” NSA TSP that had illegally

targeted Robert. If so, then they should apply the E.O. 13526 § 1.7 (a)(4) standard.

32

H. The CIA MDR decision-makers’ are placed on Notice of AAG of the OLC Goldsmith’s

May 21, 2004 OLC opinion prohibiting HHS employees from disclosing classified

information to Congress without the President’s authorization

The CIA MDR decision-makers’ are placed on Notice of AAG of the OLC Jack

Goldsmith’s May 21, 2004 OLC opinion prohibiting HHS employees from disclosing classified

information to Congress without the President’s authorization violates Executive Branch

principles. Letter Opinion for the General Counsel of Health and Human Services. This OLC

opinion was based in part on a September 8, 1986 memo from AAG of the OLC Charles Cooper

to President Reagan’s WH Counsel Peter Wallison after he had made his 1986 OLC “Barrett

nonacquiescence policy” decision. It has applicability to this CIA MDR request for the

declassification of the # 5 ex parte Declarations because those documents reveal Article II

attorneys lied-by-omission to their Presidents as to their knowledge that USG attorneys had lied-

by-omission to Congress re the CIA domestic “black operations” at IMC and the NSA.

On May 21, 2004, AAG of the OLC Jack Goldsmith issued an OLC letter opinion to

HHS General Counsel Azur in response to an April 26, 2004 Congressional Research Service

(CRS) Memo Re: Agency Prohibiting a Federal Officer from Providing Accurate Cost

Information to the United States Congress. AAG OLC Goldsmith’s OLC memo explained the

application of the “Unitary Executive” theory” to the Article II Executive privilege decisions to

withhold from Congress requested HHS information. He concluded that this 2004 decision was

“consistent with longstanding Executive Branch legal positions, that HHS officials do indeed

have such authority.” Id. 1. Emphasis Added. http://www.usdoj.gov/olc/crsmemoresponsese.htm.

AAG Goldsmith first cited to AG Reno’s March 9, 1988 OLC Statement of

Administration Policy (SAP) that a proposed statute would be vetoed because it provided

intelligence community employees with a right to disclose classified information to Congress

without the President’s authorization, violated separation of powers principles:

The SAP stated that the Administration had determined that S. 1668, a bill

purporting to direct the President to inform employees in the intelligence

community that they had a right to disclose classified information to

Congress without authorization, was an unconstitutional violation of

separation of powers principles and, if presented to the President, would

be the subject of a veto recommendation from his senior advisors. The

SAP went on to say that:

This provision is clearly contrary to the Supreme Court's

explicit recognition of the President's constitutional

authority to protect national security and other privileged

information. Congress may not vest lower-ranking

personnel in the Executive branch with a "right" to furnish

national security or other privileged information to a

member of Congress without receiving official

authorization to do so. By seeking to divest the President of

his authority over the disclosure of such information, S.

33

1668 would unconstitutionally infringe upon the President's

constitutional authority. Id. 1. Emphasis Added.

AAG OLC Goldsmith’s May 21, 2004 OLC memo cited to a September 8, 1986 memo

from AG Meese’s AAG of the OLC Cooper to President Reagan’s WH Counsel Peter Wallison

to the exercise of Executive privilege re non classified “whistleblower” information:

The position presented in the Clinton Administration SAP (see reference

to "other privileged information") and the Moss Testimony (at 19 n.34)

was not limited to classified information, but extended to all deliberative

process or other information protected by executive privilege. Because

these statutes may not override the constitutional doctrine of executive

privilege, they may not act to prohibit the supervision of the disclosure of

any privileged information, be it classified, deliberative process or other

privileged material. See Memorandum for Peter J. Wallison, Counsel to

the President, from Charles J. Cooper, Assistant Attorney General, Office

of Legal Counsel at 3 n.6 (Sept. 8, 1986) ("Consistent with our view that

Congress cannot override executive privilege by statutory enactment, we

do not believe the 'whistleblower' provisions allow an employee to escape

sanctions for disclosure of material covered by executive privilege."). See

also Memorandum for Robert M. McNamara, Jr., General Counsel,

Central Intelligence Agency, from Todd D. Peterson, Deputy Assistant

Attorney General, Office of Legal Counsel, Re: Legal Authority to

Withhold Information from Congress at 3 (Sept. 9, 1998) ("application of

[statutory] reporting requirements . . . is limited by a constitutional

restraint - the executive branch's authority to control the disclosure of

information when necessary to preserve the Executive's ability to perform

its constitutional responsibilities"). Id. 2. Emphasis Added.

AAG of the OLC Goldsmith explained that the “unitary Executive” rationale was because

of the Commander in Chief fealty factor that the “President must be able to rely upon the

faithful service of subordinate officials” including attorneys within the Article II agencies:

The [judicial] decisions and the long practical history concerning the right

of the President to protect his control over the Executive Branch are based

on the fundamental principle that the President's relationship with his

subordinates must be free from certain types of interference from the

coordinate branches of government in order to permit the President

effectively to carry out his constitutionally assigned responsibilities. The

executive power resides in the President, and he is obligated to "take care

that the laws are faithfully executed." In order to fulfill those

responsibilities, the President must be able to rely upon the faithful service

of subordinate officials. To the extent that Congress or the courts interfere

with the President's right to control or receive effective service from his

subordinates within the Executive Branch, those other branches limit the

ability of the President to perform his constitutional function. Id. 2-3.

Emphasis Added.

34

The CIA MDR requester is seeking the declassification of CIA documents to prove to

CIA Director Panetta that President Obama cannot “rely upon the faithful service of subordinate

officials” because pursuant to the extreme “Unitary Executive” theory “subordinate officials”

have a license-to-lie-by-ommission to President Obama pursuant to their interpretation of the

Article II Commander in Chief authority to take whatever action is necessary to protect the

nation from terrorists including violating “unconstitutional” FISA, and PCA provisions. This is

the “Commander in Chief riddle” that CIA Director Panetta can solve when he reads the July 27,

2010 FOIA requested CIA MDR # 5 ex parte Declarations and NARA ADR # 1-# 4 1985 CIA

documents along with the April 11, 2011 OLC MDR requested OLC May 6, 2004 OLC

Goldsmith Memo and ODNI MDR requested “NCTC TSP and PSP data banks access

guidelines” connect-the-dots classified documents. These documents prove that a 1984-2011

daisy-chain of “shadow government” attorney-patriots lied-by-omission to Presidents Reagan,

Bush, Clinton, Bush, and Obama re the “do not exist” NSA TSP data banks to provide their

Presidents with a “plausible deniability” defense to the serial impeachable violations of § 413 (a)

of the National Security Act, the “exclusivity provision” of the FISA, the PCA limitations on

military domestic law enforcement, and the Social Security Act. See §§ L, Q, R below.

The CIA MDR decision-makers, after consulting with CIA General Counsel Preston,

should apply the President’s need to “rely upon the faithful service of subordinate officials”

standard as explained by AAGs of the OLC Cooper and Goldsmith, to the # 5 Robert II v CIA

and DOJ ex parte Declarations. The CIA MDR decision makers can determine whether the

“faithful service of subordinate officials” resulted in the grotesque twist whereby “subordinate

officials” have lied-by-omission to Judges, Members of Congress, and Presidents in order to

protect the Top Secret off-OMB Budget source of the 1982-2011 “Jackson nonacquiescence

policy” funding for the illegal domestic CIA “black operations” conducted at IMC and NSA.

This license-to-lie-by-omission assertion can be tested by determining the accuracy of

the information the # 5 “c (3) exclusion” ex parte Declarations provided Judge Seybert when

compared to HHS IG Richard Kusserow’s December 15, 1987 testimony to the House

Committee on Government Operations investigating alleged “Fraud upon the Government” at

International Medical Center, Inc. See April 14, 1988 House Committee on Government

Operations Report: Medicare Health Maintenance Organizations: The International Medical

Centers Experience. IG Kusserow’s testimony was one month after the November 18, 1987

released Senate-House Report of the Congressional Committees Investigating the Iran-Contra

Affair with the Minority Report of Congressman Cheney explaining the “Unitary Executive”

theory and the breadth of President Reagan’s Article II Commander in Chief authority.

The CIA MDR decision-makers have a due diligence duty to determine whether CIA

Director Casey had conducted a “black operation” at IMC and whether IG Kusserow provided

this fact to the House Committee investigating IMC. The CIA MDR decision-makers will learn

whether HHS General Counsel del Real-IMC Chief of Staff del Real had been a CIA covered

agent tasked to administer the unaudited HHS funds that paid for medical supplies and treatment

at IMC in violation of the Article I Boland Amendment without the knowledge of President

Reagan. See Miami Mystery: Paid to Treat Elderly, IMC Moves in Worlds of Spying and

Politics: Medicare Money Flowed in: Only Mr. Recarey Knows Where It Flowed Next:

Congress, "bugs" and Mob. Wall Street Journal 8-9-1988. See 2-22-11 Robert Brief Point V A.

35

The CIA MDR decision-makers also have a due diligence duty to determine whether

CIA General Counsel Preston knows that SSA Commissioner Astrue’s sworn January 24, 2007

Senate Finance Committee testimony that the HHS-SSA “nonacquiescence policy” had ended

prior to his becoming the HHS General Counsel in 1989, remains as uncured false testimony:

I am particularly proud of having led the effort to terminate the agency’s

longstanding “nonacquiescence” policies, an achievement highlighted by

Chairman Moynihan when I was last before you in 1989 during my

confirmation hearing for General Counsel of HHS.” Emphasis Added. .

http://www.snowflake5391.net/JudicialReview.pdf.

SSA Commissioner Astrue was the 1985 Acting Deputy Assistant Secretary of

Legislation, 1986 Legal Counsel to the SSA Deputy Commissioner for Programs, 1986-1988

Counselor to the SSA Commissioner. In 1988 he was the 1988 Associate White House Counsel

for President Reagan. He was the 1989 Associate White House Counsel for President Bush

when President Bush nominated him to become the HHS General Counsel. Thus, SSA

Commissioner Astrue has a 1985-2011 institutional memory as to the implementation of the

1985-2011 “Jackson nonacquiescence policy” that continues during President Obama’s 2011

constitutional Article II “take Care” watch, to be applied to reduce by one-third the federal SSI

benefits of millions of Ford v. Shalala, 87 F. Supp 2d 163 (E.D.N.Y. 1999), nationwide class

members who do not reside in the Seventh Circuit states. See 7-27-10 DOJ WP §§ R-U, Z, ZZ.

CIA MDR decision-makers can ask CIA General Counsel Preston, the 1995-1998 DOJ

DAAG responsible for circuit civil litigation including Gordon v. Shalala, 55 F.3d 101 (2d Cir.

1995), cert. den, 517 U.S. 1103 (1996), to solve the “Gordon riddle” that was presented to the

Second Circuit in the Robert VIII v DOJ, HHS, and SSA appellant’s December 18, 2009

Motion for a pre-argument settlement conference to quietly settle the appeal:

Was the June 22, 1989 Senate Finance Committee testimony of Associate

WH Counsel-HHS General Counsel Nominee Astrue that the

“nonacquiescence” policy had ended prior to 1989 false, or did the

February, 1996 Gordon Brief in opposition to the petition for a writ of

certiorari of SG Days and AAG of the Civil Division Hunger contain the

false information that the HHS “nonacquiescence” policy continued in

1996 based on the United States v Mendoza, 464 U.S. 154 (1984),

offensive collateral estoppel standard? See 7-27-10 DOJ WP §§ T, Z.

On June 22, 1989, President Bush’s Associate WH Counsel Astrue testified to the Senate

Finance Committees as President Bush’s HHS General Counsel Nominee, and informed the

Senators how the HHS “nonacquiescence policy” had been modified from the mid -1980s:

Mr. Astrue: Non-acquiescence is a policy that the Social Security

Administration has from sometime in the early sixties through the mid

eighties in which they would refuse to acknowledge the precedential value

of a court of appeals decision within the jurisdiction of that court of

appeals and it is an area that concerned me.

36

I prevailed in 1985 in insisting that summaries of non-acquiescence rulings

be published in the Federal Register. There was a dispute about that at one

point in the Department. The Notice of proposed rulemaking terminating the

Social Security Administration’s policy of non-acquiescence was largely a

project which I got started within the agency. Id. at p. 20. Emphasis

Added.http://www.snowflake5391.net./Astrue_6_22_89.pdf.

The 2011 “Gordon riddle” is based on SSA Commissioner Nominee Astrue’s sworn

January 24, 2007 Senate Finance Committee testimony that the HHS-SSA “nonacquiescence

policy” had ended prior to his becoming the HHS General Counsel in 1989. That sworn January

24, 2007 Senate testimony is contrary to the litigation position taken by HHS Secretary Shalala’s

attorneys in the 1995 Second Circuit Gordon litigation. In HHS Secretary Shalala’s February,

1996 Brief in opposition to the Gordon petition for a writ of certiorari, SG Days, AAG of the

Civil Division Hunger, and DAAG of the Civil Division Preston defended the 1982 “Jackson

nonacquiescence policy” of HHS General Counsel del Real based on the 1984 Supreme Court

INS Mendoza decision’s use of an offensive collateral estoppel defense:

“Petitioner’s discussion of the Acquiescence Ruling manifests a

misunderstanding of such rulings. In issuing those rulings, the

Commissioner has chosen to acquiesce in adverse court of appeals decisions

within the respective circuits, instead of seeking review of those decisions in

this Court. That practice, however, in no way obligates the Commissioner

to change her administration of the Act in cases involving other litigants in

other circuits that have not rejected her legal position on a particular issue.

See e.g., United States v Mendoza, 464 U.S. 154 (1984).” Id. n. 4 Emphasis

added. http://www.usdoj.gov/osg/briefs/1995/w95955w.txt.

DAAG of Civil Division Preston’s February, 1996 Gordon defense of the HHS-DOJ

1982 “Jackson nonacquiescence policy” of HHS General Counsel del Real and AAG of the

Civil Division Willard, presents a sharp 1996 “Past is Prologue” contrast to the 1985 decision of

CIA General Counsel Sporkin. He had honorably resigned when he learned that the unaudited

HHS “nonacquiescence” funds, not classified OMB Budget funds, were the off-OMB Budget

funding source of CIA “black operations” being conducted by CIA Director Casey. On August

1, 1988, then-Judge Sporkin, with the knowledge of his CIA nondisclosure agreement, severely

criticized HHS Secretary Bowen's Medicare nonacquiescence policy and AG Meese's defense of

the Medicare nonacquiescence policy in Duggan v. Bowen, 688 F. Supp. 1687 (D.C.D.C. 1988):

Indeed the actions by HHS in the cases presented to me has been

reprehensible. It is the most blatant form of stonewalling that an agency

can engage in and the Secretary should certainly take all steps to prevent

this from happening again. Id. at 1692. Emphasis Added.

The CIA MDR decision makers will learn that CIA General Counsel Preston knows that

HHS-SSA “most blatent form of stonewalling” continues in 2011 without the knowledge of

President Obama. He knows SSA Commissioner Astrue has “rigged” the 2011 SSA computer to

apply the 1982 “Jackson nonacquiescence policy “ funds to reduce by one-third the monthly

37

benefits of millions of Ford class members. CIA MDR decision makers have a due diligence

duty to ask CIA General Counsel Preston whether EDNY U.S. Attorney Lynch, his co-counsel

in Robert II v CIA and DOJ, breached her duty to report to AG Holder her knowledge that

EDNY AUSA Mahoney, the USG’s 1999-2011 lead counsel in Ford v Shalala, knows that SSA

Commissioner Astrue, her client in Robert VIII v DOJ, HHS, and SSA, had lied to the Senate

Finance Committee on January 24, 2007 because the “nonacquiescence” policy did not end.

28 U.S.C. § 535, Investigation of crimes involving Government officers and employees:

(b) Any information, allegation, matter, or complaint witnessed,

discovered, or received in a department or agency of the executive branch

of the Government relating to violations of Federal criminal law involving

Government officers and employees shall be expeditiously reported to the

Attorney General by the head of the department or agency, or the witness,

discoverer, or recipient, as appropriate, .. Emphasis Added.

The CIA MDR decision makers will also learn that CIA General Counsel Preston knows

that the 2011 solution to the “Gordon riddle” is that SSA Commissioner Nominee Astrue had

lied to January 24, 2007 Senate Finance Committee because he knew that the “Jackson

nonacquiescence policy” had to continue in 2007 in order to be the off-OMB Budget funding

source for the “do not exist” 1984-2007 NSA TSP data banks in the custody 2005-2011 NSA

Director Lt. General Alexander. As a result, CIA General Counsel Preston knows that the 2011

application of OLC Goldsmith’s May 20, 2004’s Letter Opinion for the General Counsel of

Health and Human Services with its President’s Article II “take care” need to “rely upon the

faithful service of subordinate officials” test, means that EDNY U.S. Attorney Lynch has not

fulfilled her 28 U.S.C. 535 (b) duty to report to AG Holder her knowledge that SSA

Commissioner Nominee Astrue lied to Senate Finance Committee. 7-27-10 DOJ WP § J.

Hence, the importance of CIA MDR decision-makers reading for accuracy the # 5 “all

Robert II v CIA “c (3) exclusion” ex parte Declarations” that CIA General Counsels Muller and

Rizzo submitted to Judge Seybert. If the CIA MDR decision makers learn that CIA General

Counsels Muller and Rizzo implemented the July 31, 1986 “Barrett nonacquiescence policy”

and intentionally withhold material facts from Judge Seybert in order to protect the Top Secret

illegal off-OMB Budget source for the “do not exist” NSA TSP data banks, then they should also

apply the September 8, 1986 OLC Executive privilege opinion of AAG of the OLC Cooper re

the President’s fealty reliance “upon the faithful service of subordinate officials” standard.

The CIA MDR requester respectfully submits that if the “must rely upon the faithful

service of subordinate officials” standard applies, then CIA General Counsel Preston will inform

CIA Director Panetta that SSA Commissioner Nominee Astrue lied to the Senate Finance

Committee, so that CIA Director Panetta can inform President Obama. If President Obama

learns that SSA Commissioner Astrue lied to the Senate Finance Committee in order to protect

the “Jackson nonacquiescence policy” off-OMB Budget funding source for the “do not exist”

NSA TSP data banks, then DOD Secretary Nominee Panetta should ask President Obama to

waive Executive privilege and file a § 413 (b) “corrective action” plan that cures the illegal

intelligence activity of 2007-2011 SSA Commissioner Astrue funding the NSA TSP data banks.

38

I. CIA MDR decision-makers are placed on Notice of the pending September 15, 2010

OLC FOIA request for the release of “Jackson nonacquiescence policy” document subject

to President Bush’s November 2, 2002 Presidential Signing Statement “exception” for 28

U.S.C. § 530D classified “nonacquiescence” policy decisions

CIA MDR decision-makers are placed on Notice of the pending September 15, 2010

OLC FOIA request for the release of the “Jackson nonacquiescence policy” subject to President

Bush’s November 2, 2002 Presidential Signing Statement “exception” to 28 U.S.C. § 530D for

classified “nonacquiescence” policy decisions. CIA General Counsel Preston knows whether

the delay in rendering that OLC FOIA decision is because of conflicting opinions among USG

attorneys whether a “Glomar Response” decision should be made to withhold the fact that HHS

General Counsel del Real was covered agent when he made that decision, or whether AG

Holder should make the 2011 decision to rescind the classified 1982 “Jackson nonacquiescence

policy” and end the 1986-2011 equal protection violation caused by 20 C.F.R. § 416.1130 (b).

The 2002 28 U.S.C. § 530D (a)(1)(A)(ii), Report on Enforcement of Laws: Policies

Regarding the Constitutionality of Provisions and Non-acquiescence established AG Ashcroft’s

2002 reporting duty as to all “nonacquiecensce” decisions:

(1) In general.— The Attorney General shall submit to the Congress a

report of any instance in which the Attorney General or any officer of the

Department of Justice—

(A) establishes or implements a formal or informal policy to refrain—

(ii) within any judicial jurisdiction of or within the United States, from

adhering to, enforcing, applying, or complying with, any standing rule of

decision (binding upon courts of, or inferior to those of, that jurisdiction)

established by a final decision of any court of, or superior to those of, that

jurisdiction, respecting the interpretation, construction, or application of

the Constitution, any statute, rule, regulation, program, policy, or other

law whose enforcement, application, or administration is within the

responsibility of the Attorney General or such officer; Emphasis Added

However, President Bush’s November 2, 2002 § 530D Signing Statement established an

“exception” to the AG’s duty to report to Congress for classified “nonacquiescence” decisions:

Furthermore, section 202(a) requires that the President report to the

Congress the issuance of any "unclassified Executive Order or similar

memorandum or order" that establishes or implements a policy of intra-

circuit non-acquiescence or of refraining from enforcing, applying, or

administering a Federal statute, rule, regulation, program, or policy on the

ground that it is unconstitutional. Based upon the text and structure of this

section, the executive branch shall construe this reporting obligation to

cover only unclassified orders in writing that are officially promulgated

and are not included in the reports of the Attorney General or other

Federal officers to whom this section applies. Emphasis Added.

http://www.presidency.ucsb.edu/ws/index.php?pid=73177

39

In November, 2002 AAG of the OLC Counsel Jay Bybee, on behalf of AG Ashcroft,

determined whether the 1982 OLC classified “Jackson nonacquiescence policy” decision of

HHS General Counsel del Real would continue to be a classified OLC opinion and not be

reported to Congress. Upon information and belief, CIA General Counsel Muller knew this

Jackson fact when the Robert II v CIA and DOJ “c (3) exclusion” ex parte Declarations were

filed with Magistrate Lindsay and Judge Seybert. Upon information and belief, the USG’s ex

parte declarations did not reveal the fact that the “Jackson nonacquiescence policy” was a

classified policy notwithstanding the plaintiff’s March 3, 2003 Affirmation which asserted that

the “Jackson nonacquiescence policy” was the off-OMB Budget source for CIA Director Casey’s

“black operations” at IMC and NSA. See plaintiff’s March 3, 2003 Affirmation §§ A-D.

On February 8, 2011, President Obama appointed his 2009-2010 Special Counsel to the

President For National Security Affairs and Deputy Legal Adviser at the National Security

Council Caroline Diane Krass, to be the Principal Deputy AAG of the OLC. She had been

President Clinton’s 1999-2000 Deputy Legal Adviser at the National Security Council.

Therefore, she knows whether the “Jackson nonacquiescence policy” was a classified policy

before and after President Bush’s November 2, 2002 § 530D Signing Statement, and had been a

classified “nonacquiescence” case throughout the 2002-2011 Robert II v CIA and DOJ litigation.

From 2001-2009 Principal Deputy AAG of the OLC Krass was the OLC Attorney

Advisor and Senior Counsel for AGs Ashcroft (2001-2005), Gonzales (2005-2007), (Acting)

Keisler (2007), and Mukasey (2007-2008). CIA General Counsel Preston has a due diligence

duty to contact Principal Deputy AAG of the OLC Krass and learn whether a 2011 FOIA

decision has been made to release the September 15, 2010 FOIA requested # 2 1982 “Jackson

nonacquiescence policy” document or deny the request using the “Glomar Response” defense.

Principal Deputy AAG of the OLC Krass knew in November, 2002 whether AAG of the

OLC Bybee made the decision that covered agent-HHS General Counsel del Real’s 1982

“Jackson nonacquiescence policy” decision would continue as a § 530 D “exception” classified

OLC decision not to be reported to Congress. That 1982 classified decision was subsequently

ratified by AAGs of the OLC Theodore Olson (1981-1984), Charles Cooper (1985-1988),

Douglas Kmiec (1988-1999), William Barr (1989-1990), Michael Luttig (1990-1991), Timothy

Flanigan (1991-1992), Walter Dellinger (1993-1994), (Acting) Beth Nolan (1994-1996),

(Acting) Dawn Johnson (1996-1998), and Randolph Moss (1998-2001), This is an important

time line fact because of the March 10, 2004 confrontation between then-WH Counsel Gonzales

and AG Ashcroft in his hospital room when AG Ashcroft refused to certify President Bush’s

NSA PSP that was being conducted without § 413 (a) notification to the “Gang of Eight.”

Principal Deputy AAG of the OLC Krass knew on May 6, 2004 the content of AAG of

the OLC Goldsmith’s May 6, 2004 Memorandum to AG Ashcroft as to the legal authority for

the post-9/11 NSA PSP data banks that were then being accessed by NSA Director Michael

Hayden (1999-2005) who would become the Robert II v CIA and DOJ co-defendant from 2006-

2009. She knew whether the redacted May 6, 2004 OLC Memorandum now subject to the April

11, 2011 request for an OLC MDR, explained that the legal basis for the “do not exist” pre-9/11

NSA TSP data banks was AG Meese’s “Unitary Executive” theory that the FISA “exclusivity

provision” of the FISA was an “unconstitutional” Article II encroachment. See § G above.

40

Principal Deputy AAG of the OLC Krass knew on May 21, 2004 that AAG of the OLC

Goldsmith’s Letter Opinion to HHS General Counsel Azur explained how the “Unitary

Executive” theory applied to USG “whistleblowers” who reported to Congress allegations of

Article II law violations without the approval of the President. She knew this OLC opinion

applied to HHS and SSA “whistleblowers” who knew that from 1994-2004 the SSA computer

was “rigged” to apply the classified “Jackson nonacquiescence policy” to reduce by one-third

1994-2004 Ford class members federal benefits that were diverted to pay for the “immaculate

construction” and maintenance of the “do not exist” 1984-2004 NSA TSP and NSA PSP

without the knowledge of the “Gang of Eight. See 7-27-10 DOJ WP §§ O-U, Z and § E above.

Principal Deputy AAG of the OLC Krass knew on December 22, 2005 the intrigue that

surrounded AG Gonzales’ December 22, 2005 retroactive § 413 Notification to the “Gang of

Eight” of the existence of the post-9/11 NSA PSP, but not retroactively to the pre-9/11 1984-

2001 NSA TSP. She knew that the December 16, 2005 NY Times report, Bush Lets U.S. Spy on

Callers Without Courts, of investigative reporters Risen and Lichtblau, meant that AG Gonzales

had to fulfill his § 413 (a) duty and report to the “Gang of Eight” the existence of the “do not

exist” 2002-2005 NSA PSP data banks. She knew that (Acting) AAG of the OLC Bradbury

(2005-2008), knew that the December 22, 2005 § 413 (a) Letter had withheld from the “Gang

of Eight” the existence of the pre-9/11 NSA TSP. See 7-27-10 DOJ WP §§ K, AA, CC, DD.

Principal Deputy AAG of the OLC Krass knew on January 19, 2006 that AG Gonzales

knew that his Whitepaper to the Senate Majority Leader, a Legal Authorities Supporting the

Activities of the National Security Agency Described by the President, intentionally did not

discuss the pre-9/11 NSA TSP. http://www.usdoj.gov/olc/2006/nsa-white-paper.pdf. She knew

that AG Gonzales’s “Unitary Executive” theory explanation that the AUMF trumped the

“exclusivity provision” of the FISA by application of the “Youngstown” “Category I” test,

would not pass any “smell” test as applied to the “do not exist” pre-9/11 NSA TSP.

Principal Deputy AAG of the OLC Krass now knows that on April 3, 2006 AG Gonzales

had committed a “fraud upon the court” in Robert VII v DOJ when EDNY AUSA Mahoney filed

AG Gonzales’ April 3, 2006 Robert VII v DOJ letter-Brief and informed the Second Circuit that

Robert was not an “aggrieved person” by application of 50 C.F.R. § 1806 (f). She knows from

reading that April 3, 2006 letter-Brief that AG Holder would be committing a déjà vu “fraud

upon the Court” if he filed a May 25, 2011 Robert VII v DOJ, HHS, and SSA Brief and doubled

down on AG Gonzales’ “fraud upon the court” rather than curing the “fraud upon the court” by

informing the Second Circuit of the April 3, 2006 misrepresentations of fact and law.

http://www.snowflake5391.net/RobertvDOJbrief.pdf. See 7-27-10 DOJ WP §§ E-G, M-O, AAA.

Principal Deputy AAG of the OLC Krass now knows that on January 24, 2007 SSA

Commissioner Nominee Astrue had lied to the Senate Finance Committee that the

“nonacquiescence” policy had ended prior to his becoming the HHS General Counsel in 1989. “I

am particularly proud of having led the effort to terminate the agency’s longstanding

“nonacquiescence” policies, an achievement highlighted by Chairman Moynihan when I was last

before you in 1989 during my confirmation hearing for General Counsel of HHS.”

http://www.snowflake5391.net/Astrue_1_24_07.pdf. She knows that the classified “Jackson

nonacquiescence policy” continues in May, 2011. See 7-27-10 DOJ WP §§ E-G, J, Z, ZZ.

41

Principal Deputy AAG of the OLC Krass now knows from reading the September 15,

2010 letter to Acting AAG of the OLC Cedarbaum, that unless AG Holder rescinds the classified

“Jackson nonacquiescence policy” OLC memo, millions of Ford v. Shalala, 87 F. Supp 2d 163

(E.D.N.Y. 1999)class members who do not reside in the Seventh states, will continue to be

denied the equal protection of the SSI regulations during President Obama’s Constitutional

watch. She knows that Congress did not intend that the SSI funds that were appropriated for the

aged, blind, and disabled were ever intended to be used to pay for the “immaculate construction”

and maintenance of the 1984-2011 “do not exist” NSA TSP and PSP data banks that were not

funded with classified OMB Budget funds. She knows that the 1994-2011 Ford class members

due process violations have not been cured. See July 27, 2010 DOJ WP §§ B-D, F, Z, YY, ZZ.

Principal Deputy AAG of the OLC Krass knows that pursuant to Acting AAG of the

OLC Moss’ October 5, 1999 OLC Memorandum, that ISCAP has jurisdiction to review withheld

CIA “sources and methods” documents. See § P below. As a result, she knows that the July 27,

2010 CIA FOIA request for the # 1-# 4 1985 documents, now subject to the May 9, 2011 NARA

ADR request, will be subject to an ISCAP appeal if decision is made to withhold the 1985

documents to protect the 1985-2011 “sources and methods” of the CIA. She knows ISCAP will

learn whether CIA Director Casey had funded the “black operations” at IMC and NSA with

Congressionally appropriated “Jackson nonacquiecensce policy” funds because he knew

classified OMB Budget funds could not be used because of the impeachable violations of the

Boland Amendment and § 413 (a) of the National Security Act duty to inform the “Gang of

Eight” of the “black operations” at IMC and NSA. She knows that ISCAP will learn that there

also were impeachable violations of the “exclusivity provision” of FISA, the PCA limitations on

domestic military law enforcement, and the Social Security Act. See 5-7-08 PIDB WP §§ F, K.

Hence, the importance of Principal Deputy AAG of the OLC Krass, President Clinton’s

1999-2000 Deputy Legal Adviser at the National Security Council, information-sharing with

CIA General Counsel Preston, the 1993-1995 DOD Principal Deputy General Counsel and

1995-1998 Civil Division DAAG who supervised the 1995-1996 Gordon litigation. They know

whether the classified 1982 “Jackson nonacquiescence policy” document reveals that the CIA’s

“sources and methods” of off-OMB Budget funding source for the “immaculate construction”

and maintenance of the “do not exist” 1984-2001 NSA TSP data banks and 2002-2011 NSA

PSP data banks, have been “Jackson nonacquiescence policy” funds that the Congress

appropriated for age, blind, and disabled SSI recipients. They also know the 1994-2011 Ford v

Shalala, class members due process rights continue to be breached in May, 2011 without the

knowledge of AG Holder and President Obama. See 1-4-11 PIAB WP §§ 12, 18, 20-23, 34, 35.

The CIA MDR decision-makers have a due diligence duty to read the July 27, 2010 CIA

FOIA requested # 5 “all Robert II v CIA “c (3) exclusion” ex parte Declarations” documents

and ask CIA General Counsel Preston whether CIA Director Panetta, the 1989-1993 Budget

Committee Chairman, 1993-1994 OMB Director, and 1994-1997 WH Chief, knows that SSA

Commissioner Astrue’s September 24, 2007 Senate testimony that the “nonacquiescence” policy

had ended prior to becoming 1989 HHS General Counsel, remains in May, 2011 as uncured false

testimony. This is a “smoking gun” fact that CIA Director Panetta should know when in May,

2011 he considers the plaintiff’s ongoing quiet settlement offer whereby AG Holder orders SSA

Commissioner Astrue to “make true” his sworn January 24, 2007 Senate testimony.

42

The CIA MDR decision-makers should know whether 1999-2011 CIA Director Panetta

knows the answer to the how-could-it-have-happened Jackson question that the Robert II v

CIA and DOJ plaintiff had presented to the Second Circuit in his Robert VIII v DOJ, HHS, and

SSA December 18, 2009 Motion seeking a pre-argument quiet settlement conference:

How could it have happened that in 2010 SSA Commissioner Astrue is

programming the 2010 SSA computer to apply the 1982-2010 “Jackson

nonacquiescence policy” of HHS General Counsel del Real to reduce

2010 Ford v Shalala nationwide class members’ benefits contrary to the

sworn January 24, 2007 Senate Finance Committee testimony of SSA

Commissioner Nominee Astrue that the nonacquiescence policy had ended

prior to his becoming HHS General Counsel in 1989, and contrary to the

2000 Christensen administrative law decision of Justice Thomas that the

law to be applied is the duly promulgated regulation and not an agency’s

attorney’s interpretation of the regulation?

The CIA MDR decision-makers should know whether 1999-2011 CIA Director Panetta

knows the answer to the “Gordon riddle” presented in appellant’s December 18, 2009 Motion:

Was the June 22, 1989 Senate Finance Committee testimony of Associate

WH Counsel-HHS General Counsel Nominee Astrue that the

“nonacquiescence” policy had ended prior to 1989 false, or did the

February, 1996 Gordon Brief in opposition to the petition for a writ of

certiorari of SG Days and AAG of the Civil Division Hunger contain the

false information that the HHS “nonacquiescence” policy continued in

1996 based on the United States v Mendoza, 464 U.S. 154 (1984),

offensive collateral estoppel standard?

The CIA MDR decision-makers should also know whether 2009-2011 CIA Director

Panetta knows the answer to question raised in the appellant’s August 24, 2010 appeal

reinstatement letter that the Second Circuit granted on September 24, 2010:

Was the funding source for the work locations identified in the "Top

Secret America" Location map that indicates 2,162 government work

locations and 6,941 company work locations hiding in plain sight, the

“Jackson nonacquiescence policy” funds?

If the CIA-MDR decision-makers learn that CIA Director Panetta cannot answer these

three questions posed to the Second Circuit in Robert VIII v DOJ, HHS, and SSA, then time is

of the essence for the CIA MDR docket of this request by May, 19, 2011 and render a decision

by May 23, 2011. This would allow Robert II v CIA and DOJ co-defendant CIA Director Panetta

time to inform co-defendant AG Holder of this decision. Then AG Holder can decide whether to

accept the ongoing Robert II v CIA and DOJ and Robert VIII v DOJ, HHS, and SSA quiet

settlement offer and not submit his Robert VIII v DOJ, HHS, and SSA Brief on May 25, 2011

and commit a déjà vu “fraud upon the court” as did AG Gonzales commit a “fraud upon the

court” in his Robert VII v DOJ April 3, 2006 letter-Brief. See 7-27-10 DOJ WP §§ E-G, J, AA.

43

J. The CIA MDR decision-makers are placed on Notice of the 1986 Bowen v City of New

York “clandestine” policy remedy that applies to 1994-2011 Ford v Shalala class members

The CIA MDR decision-makers are placed on Notice of the 1986 Bowen v City of New

York, 106 S. Ct. 2022 (1986), “clandestine” policy equitable tolling remedy that is available to

1994-2011 Ford v Shalala class members. The requester asserts that if the # 5 Robert II v CIA

and DOJ ex parte Declarations reveal that HHS General Counsel del Real had been a CIA

covered agent when he made his 1982-1985 “Jackson nonacquiescence policy” decisions, then

this is the mother of all “clandestine” policies so as to trigger the Bowen v City of New York

remedy whereby SSA Commissioner Astrue cites to the “Jackson” regulation, 20 C.F.R. §

416.1130 (b), in the Ford remedy Notices sent to cure the due process violations. See § I above.

On June 2, 1986, the Supreme Court established the equitable tolling remedy that is to be

applied when the HHS Secretary implemented a “clandestine” policy and denied benefits based

on an illegal policy not known by the Social Security beneficiaries. Justice Powell explained the

1986 duty of HHS Secretary Bowen to cure the illegal policy retroactively because the claimants

had been denied a “fair and neutral” procedure to adjudicate appeals claim denials that the HHS

Secretary knew was an incorrect standards and had the capability to prevent its application:

Moreover, we are aware that the administrative inconvenience may result

from our decision. But the Secretary had the capability and the duty to

prevent the illegal policy found to exist in the District Court. The

claimants were denied the fair and neutral procedure required by the

statute and regulations, and they are now entitled to pursue that procedure.

Emphasis Added.

The June 2, 1986 Bowen v City of New York decision was after the July 25, 1985 House

Judiciary Subcommittee testimony of Acting SSA Commissioner Mc Steen, SSA Chief Counsel

Gonya, and DAAG Kuhl that the “nonacquiescence” policy had ended on June 3, 1985, and that

Jackson was not a “nonacquiescence” case. This is an important 1985 time line fact because in

August, 1985 HHS General Counsel del Real continued to implement his 1982 “Jackson

nonacquiescence policy” to reduce by one-third the federal monthly benefits of millions of SSI

recipients who resided in the 47 States that were not the Seventh Circuit.7-27-10 DOJ WP § U.

On August 16, 1985, Judge Altimari rendered a Ruppert decision. AAG of the Civil

Division Willard knew that this decision had been made without Judge Altimari considering the

July 25, 1985 House testimony that the “Jackson nonacquiescence policy” had ended. AAG of

the Civil Division Willard’s August, 1985 mens rea has “Past is Prologue” time line significance

because he knew that HHS General Counsel del Real had made Ruppert counsel the target of the

“Fraud Against the Government” investigation to secure Robert’s incarceration to eliminate an

attorney challenging his 1982 “Jackson nonacquiescence policy” that was applied to 1985 SSI

recipients who resided in the 47 States that were not Seventh Circuit states. AAG of the Civil

Division Willard knew that Robert had requested a conference with Judge Altimari to complain

about the 1985 litigation strategy of HHS General Counsel del Real to use Special Agents to

interrogate Robert’s clients ex parte in their homes to learn the legal advise that Ruppert counsel

was providing his clients and the legal fees he charged. See 7-27-10 DOJ WP §§ S, AAA.

44

Upon information and belief, the Robert VIII v DOJ, HHS, and SSA appellant’s July 27,

2010 FOIA requested September 4, 1985 Ruppert v Heckler DOJ case file notes, reveal that

AAG of the Civil Division Willard was the “main Washington” attorney who appeared at the

September 4, 1985 Ruppert Chambers conference. Upon information and belief, the September

4, 1985 Ruppert notes also reveal that he had had an ex parte communication with Judge

Altimari, but did not inform Judge Altimari what “fraud” that Robert was accused of committing.

AAG of the Civil Division Willard also knew on September 4, 1985 whether Robert had

been the target of the CIA Director Casey’s NSA TSP that was being conducted without § 413

(a) of the National Security Act Notice to the “Gang of Eight” and was in violation of the

“exclusivity provision” of the FISA. AAG of the Civil Division Willard knew whether Robert’s

FOIA requested HHS “Fraud Against the Government” of Robert documents revealed that HHS

General Counsel del Real had used information from the NSA TSP that had wiretapped Robert’s

telephones. See the sealed Robert v Holz, cv-85-4205 (Wexler, J), classified transcripts.

If AG Holder commits a déjà vu “fraud upon the court” in his May 25, 2011 Robert VIII

v DOJ, HHS, and SSA Brief, then the CIA MDR requester will be filing a DOJ ADR request

seeking the release of September 4, 1985 Ruppert case file notes and 1985 DOJ Robert v Holz

DOJ case file notes pursuant to President Obama’s E.O. 13526 § 3.3 ADR 25 year rule. He will

inform the DOJ ADR decision makers that he is seeking these 1985 documents to prove the

“Past is Prologue” fact that a 1984-2011 daisy-chain of “shadow government” attorney-patriots

have been implementing the “Jackson nonacquiescence policy” as an off-OMB Budget source

to pay for the “immaculate construction” of the “do not exist” 1984-2011 NSA TSP data banks.

The June 2, 1986 Bowen v City of New York equitable tolling remedy decision was after

HHS General Counsel Robertson’s April 21, 1986 recommendation to HHS Secretary Bowen

that he codify the “Jackson nonacquiescence policy” by publishing the “Jackson” regulation, 20

C.F.R. § 416.1130 (b). 51 F.R. 13487. HHS General Counsel Robertson’s decision to limit the

application of the Jackson decision to the Seventh Circuit states, was contrary to the July 25,

1985 House testimony that Jackson was not a “nonacquiescence” case. 7-27-10 DOJ WP § R.

The June 2, 1986 Bowen v City of New York equitable tolling remedy decision was

prior to the Second Circuit’s July 31, 1986 Barrett v. United States, 798 F. 2d 565 (2d Cir.

1986), decision that government attorneys did not have a “good faith” defense to withhold from

Judges material facts to protect national security secrets. “Finally, acceptance of the view urged

by the federal appellants would result in a blanket grant of absolute immunity to government

lawyers acting to prevent exposure of the government in liability.” Id. 573 Emphasis Added.

The June 2, 1986 Bowen v City of New York equitable tolling remedy decision was

prior to EDNY Chief Begleiter’s August 14, 1986 letter to EOUSA Attorney-Advisor Rodriguez

that explained the DOJ “Unitary Executive” theory. Chief Begleiter, the supervising attorney in

Ruppert and of the “Fraud Against the Government” investigation of Robert, explained that AG

Meese had the Article II authority to decide that the Seventh Circuit had “incorrectly”

interpreted the SSI income regulation. Notwithstanding the July 25, 1985 House Judiciary

Subcommittee testimony, he advised that pursuant to the inter-circuit “nonacquiescence” policy,

Judges not in the Seventh Circuit states, were not to follow the Jackson decision:

45

There is, however, no duty on the part of the Department of Health and

Human Services nor of the United States District Court for the Eastern

District of New York to “acquiesce” or follow a Seventh Circuit decision

and an Indiana district court decision applicable to an Indiana-only class

in our district. Fundamental principles governing rulings by inferior

federal courts dictate that one district need not accept as binding

precedent the rulings of another district or of a Court of Appeals outside

the district court’s circuit, unless an appropriate class is certified. Mr.

Robert’s argument that it is somehow unlawful for the Secretary to treat

Indiana residents differently from New York residents ignores the well

accepted possibility of inconsistent decisions among district and circuit

courts. As long as the law permits inconsistent rulings, there is no ethical

violation in our arguing that Jackson decisions not be followed in the

Eastern District of New York. Emphasis Added.

http://www.snowflake5391.net/begleiter.pdf.

EDNY Chief Begleiter’s August 14, 1986 letter remains in 2011 as a “smoking gun”

admission that the July 25, 1985 House Judiciary Subcommittee testimony was false because

after the June 2, 1986 Bowen v City of New York decision, he admitted he was defending HHS

General Counsel del Real’s 1982 “Jackson nonacquiescence policy” to deny SSI benefits. It

reveals that 1986 Counselor to the SSA Commissioner Astrue knew the July 25, 1985 testimony

that the “nonacquiescence policy had ended, was false. This is a key 1986 time line fact because

2011 SSA Commissioner Astrue knows his January 24, 2007 sworn Senate testimony was false

because he knew that the 1989-2007 HHS-SSA computer had been “rigged” to apply the 1982

“Jackson nonacquiescence policy” to deny millions of Ford class members benefits.

Based on SSA Commissioner Astrue’s January 24, 2007 Senate Finance Committee

testimony, EDNY U.S. Attorney Lynch, AG Holder’s attorney in Robert II v CIA and DOJ and

Ford v Shalala, has her own K & A Radiologic Technology Services, Inc. v. Commissioner of

the Department of Health and of the State of New York, 189 F. 3d 273 (2d Cir. 1999),

supervising duty to read the # 5 “all Robert II v CIA “c (3) exclusion” ex parte Declarations” to

determine whether CIA General Counsel Preston, the 1995 DAAG of the Civil Division

supervising attorney in Gordon v Shalala and Ford v Shalala, knows that the clandestine

“Jackson nonacquiecensce policy” continues in May, 2011. This is 2011 K & A fact because it

establishes that U.S. Attorney Lynch knows he knows that she knows why a “clandestine”

policy has violated 1994-2011 Ford class members due process and equal protection rights.

“(2) failed to remedy the alleged deprivation after learning of it.” Id. 276. 7-27-10 DOJ WP § B.

Therefore, the CIA MDR decision-makers should ask CIA General Counsel Preston

straight up whether the Bowen v City of New York “clandestine” policy remedy would apply to

1994-2011 Ford v Shalala class members if the NARA ADR requested # 1-# 4 “North

Notebook” documents reveal that HHS General Counsel del Real-IMC Chief of Staff Real was a

1981-1986 CIA covered agent. CIA Director Panetta should know the mens rea of his own CIA

General Counsel when in May, 2011 he considers the Robert II v CIA and DOJ plaintiff’s quiet

settlement offer whereby AG Holder orders SSA Commissioner Astrue to “make true” his

Senate January 24, 2007 testimony and ends the clandestine “Jackson nonacquiescence policy.”

46

K. The CIA MDR decision-makers are placed on Notice that CIA Director Panetta

possesses the Chilicky v Schweiker “normal sensibilities” of human beings

The CIA MDR decision-makers are placed on Notice that CIA Director Panetta

possesses the Schweiker v Chilicky, 108 S. Ct. 2460 (1988) “normal sensibilities” of human

beings. As a result, when he reviews the CIA MDR and NARA ADR decisions, he may decide

to read the July 27, 2010 FOIA requested #1-#5 Robert II v CIA and DOJ withheld documents

when he considers the plaintiff’s quiet settlement offer. Therefore, the CIA MDR decision-

makers should consider asking CIA General Counsel Preston, the 1995-1998 DOJ DAAG who

supervised the DOJ’s Gordon litigation, to explain how the Chilicky “normal sensibilities” of

human beings standard would apply if AG Holder accepted the Robert VIII v DOJ, HHS, and

SSA appellant’s quiet settlement offer whereby AG Holder orders SSA Commissioner Astrue to

“make true” his January 24, 2007 Senate Finance Committee testimony that the

“nonacquiescence” policy had ended prior to his becoming the HHS General Counsel in 1989.

In Chilicky, Justice O’Connor used a “normal sensibilities” of human beings standard in

explaining why Congress intended that the elaborate administrative appeal procedure provided

the necessary relief if incorrect legal standards had been applied in denying benefits. Justice

O’Connor explained the remedy to cure an illegal HHS standard was measured in months:

We agree that suffering months of delay in receiving the income on which

one has depended for the very necessities of life cannot be fully remedied

by the "belated restoration of back-benefits." The trauma to respondents,

and thousands of others like them, must surely have gone beyond what

anyone of normal sensibilities would wish to see imposed on innocent

disabled citizens. Nor would we care to "trivialize" the nature of the

wrongs alleged in this case. Id. at 2470. Emphasis Added.

By application of the Chilicky “normal sensibilities” standard that measures the remedy

for an illegal standard in months, over eleven years have passed and the Ford remedy Notices

continue not to cite to SSI regulations upon which benefits have been terminated or reduced.

On September 29, 1999, Judge Sifton decided Ford v. Shalala, 87 F. Supp 2d 163 (E.D.N.Y.

1999), certified an April 9, 1994 nationwide class and explained the class Ford due process

violation by citing to Gray Panthers v. Schweiker, 652 F. 2d 146, 168-169 (D.C. Cir. 1980):

Unless a persons is adequately informed of the reasons for the denial of a

legal interest, a hearing serves no purpose-- and resembles more a scene from

Kafka than a constitutional process. Without notice of the specific reasons...

a clamant is reduced to guessing what evidence can or should be submitted in

response and driven to responding to every possible argument ... at the risk of

missing the critical one altogether. Id. at 181. Emphasis Added

On April 9, 1994, CIA Director Panetta was the OMB Director. Because he possesses

the Chilicky “normal sensibilities” of human beings, he will understand the 1994-2011 collateral

damage caused by the Ford due process violations should not take over eleven years to cure.

Therefore, he may accept the quiet settlement offer in May, 2011. 7-27-10 DOJ WP §§ Z, ZZ.

47

If CIA General Counsel Preston provides CIA Director Panetta, his client, with the

answer to the “Gordon riddle” that was presented to the Second Circuit in the Robert VIII v DOJ,

HHS, and SSA December 18, 2009 Motion seeking a pre-argument settlement conference, then

CIA Director Panetta can present this answer to AG Holder to prevent AG Holder from

committing a “fraud upon the court” in his Robert VIII v DOJ, HHS, and SSA due on May 25,

2011 Brief. This is the same quiet settlement offer presented on November 11, 2008 to DAG

Filip and Acting CIA General Counsel Rizzo to present to then co-defendants AG Mukasey and

CIA Director Hayden prior to President-Elect Obama becoming the Commander in Chief of SSA

Commissioner Astrue whose term ends in 2012. See 11-11-08 DAG Filip WP §§ A, F, G, I.

On October 7, 2010, President Obama signed the Intelligence Authorization Act of 2010.

As a result, 2011 classified OMB Budget funds were available to replace the off-OMB Budget

funds to pay for the 2011 construction and maintenance of the “do not exist” 1984-2010 NSA

TSP and NSA PSP data banks in the 2011 custody of DOD Cyber Commander-NSA Director

Lt. General Alexander. “This is the first intelligence authorization act enacted in nearly 6 years,

and it includes a number of provisions that will assist in the effective and efficient execution of

Intelligence Community (IC) programs.” Emphasis Added. http://www.whitehouse.gov/the-

press-office/2010/10/07/statement-president-intelligence-authorization-act.

Thus, May, 2011 is the month for CIA Director Panetta to use the Chilicky “normal

sensibilities” test to lay the groundwork for his allocation of the next DOD fiscal year as to the

use of the Intelligence Authorization Act of 2010 funds to replace the use of “Jackson

nonacquiescence policy” funds to pay for the construction and maintenance of the 1984-2011

NSA TSP data banks under the “command and control” of DOD Cyber Commander-NSA

Director Lt. General Alexander. It will be very difficult for any DOD classified Budget analyst

to argue a fiscal necessity to continue to use Ford class members benefits as off-OMB Budget

funds to pay for the “Top Secret America” domestic surveillance program that all 535 Members

of Congress with millions of 1994-2011 Ford class constituents. know exists from viewing the

July 19, 2010 Locator Map of the “Top Secret America” domestic surveillance program that has

been hidden-in-plain-sight. http://projects.washingtonpost.com/top-secret-america/map/

Therefore, CIA General Counsel Preston should provide CIA Director Panetta with a

“heads up” memo that explains the Chilicky “normal sensibilities” of human beings standard

and advises the CIA Director Panetta, the soon-to-be DOD Secretary, that there are 2011

appropriated classified OMB Budget funds available to pay for the construction and maintenance

of the 2011 NSA TSP data banks that are purchased by DOD Cyber Commander-NSA Director

Lt. General Alexander. DOD Secretary Panetta will be able to use the Chilicky “normal

sensibilities” standard when he confronts NSA Acting General Counsel Acting NSA General

Counsel Vito Potenza (2005-2011) and DOD Cyber Commander-NSA Director Lt. General

Alexander’s “Commander in Chief” who is not President Obama. See 1-4-11 PIAB WP § 22.

It is because CIA Director Panetta was OMB Director Panetta on April 9, 1994, the Ford

nationwide class certification date, that CIA Director Panetta should receive a prompt CIA MDR

decision. Any one of the 100 Senators who have constituents who are Ford class members could

blind side DOD Nominee Panetta with a Chilicky “normal sensibilities” question as to what did

President Clinton’s 1994-1997 Chief of Staff Panetta know and when did he know it question.

48

CIA General Counsel Preston’s “heads up” memo for CIA Director Panetta should

include a report from ODNI Principal Deputy Director Stephanie O’ Sullivan whether ODNI

Director Clapper will be allocating Intelligence Authorization Act of 2010 funds to pay for the

NSA TSP and NSA PSP data banks in the custody of DOD Cyber Commander-NSA Director Lt.

General Alexander. This is a critically important 2011 ODNI decision because SSA

Commissioner Astrue has continued in May, 2011 to “rig” the SSA computer to apply the

“Jackson nonacquiescence policy” standard. See 7-27-10 DOJ WP §§ K, M, N, Z, AA, CC, DD

The February 17, 2011 confirmed ODNI Principal Deputy Director Stephanie O’ Sullivan

had been the Associate Director of the CIA after being the CIA’s Director of the Directorate of

Science and Technology (DS&T). She joined the CIA in 1995 and knows that off-OMB Budget

funds had been used to pay for the “immaculate construction” and maintenance of the “do not

exist” 1984-2001 NSA TSP data banks and 2002-2005 NSA PSP data banks. She knows that

the “do not exist” 2002-2005 NSA PSP data banks that AG Gonzales retroactively reported to

the “Gang of Eight” in the December 22, 2005 § 413 (a) Notice letter, were merely additions to

the pre-existing “do not exist” 1984-2001 NSA TSP data banks that had been accessed by NSA

Directors Faurer (1981-1985), Odom (1985-1988), Studeman (1988-1992), Mc Connell (1992-

1996), Minihan (1996-1999), and Hayden (1999-2005). She knows the NSA Directors used off-

OMB Budget funds without the knowledge of Presidents Reagan, Bush, Clinton and Bush,

because the NSA General Counsels knew there were ongoing impeachable violations of § 413

(a) of the National Security Act, the “exclusivity provision” of the FISA, the PCA domestic

military law enforcement limitations, and the Social Security Act. See 4-11-11 ODNI WP §§ E-I.

CIA General Counsel Preston can include in a “heads up” memo for CIA Director

Panetta the effect of Robert II v CIA and DOJ plaintiff’s April 11, 2011 OLC MDR request

being granted whereby the redacted May 6, 2004 OLC Memo to AG Ashcroft is declassified. If

the public learns that there is no risk to the national security if the public knows that the

“Unitary Executive” theory was the legal basis for the “do not exist” pre-9/11 1984-2001 NSA

TSP as well as the “do not exist” post-9/11 NSA PSP, then this raises the issue of whether the

July 27, 2010 FOIA requested # 5 “all “c (3) exclusion” ex parte Declarations” are being

withheld in violation of E.O. 13526 §1.7 (a) (2) Classification Prohibitions and Limitations. (2)

prevent embarrassment to a person, organization, or agency, or …” The agency being the CIA.

Hence, the importance of CIA General Counsel Preston not withholding any facts from

CIA Director Panetta re the off-OMB Budget funding source of the 1984-2011 pre-9/11 NSA

TSP data banks and the post-9/11 NSA PSP data banks, which were not funded with classified

OMB Budget funds. Because CIA Director Panetta possesses the Chilicky “normal sensibilities”

of human beings, he will be shocked to learn that SSA Commissioner Astrue continues in May,

2011 to “rig” the SSA computer to apply the “Jackson nonacquiescence policy” to reduce by one

third the monthly federal SSI benefits of millions of 1994-2011 Ford class members who do not

reside in the Seventh Circuit states. Therefore, the CIA MDR decision makers should consult

with CIA General Counsel Preston who can advise whether the E.O. 13526 § 1.7 (a) (2)

“embarrassment” standard applies to the Declarants of the “c (3) exclusion” Declarations who

withheld material facts from Judge Seybert. If so, then the CIA MDR decision makers can

determine who ordered the Robert II v CIA and DOJ Declarants who otherwise possessed the

“normal sensibilities” of human beings, to withhold material facts from Judge Seybert.

49

L. The CIA MDR decision makers should know the answer to the CIA “Commander-in-

Chief riddle” before rendering a decision that should reveal to CIA Director Panetta the

names of the 2009-2011 CIA daisy-chain of “shadow government” decision-makers whose

“Commander in Chief” has not been President Obama

The CIA MDR decision makers should know the answer to the “Commander-in-Chief

riddle” before rendering a decision that should reveal to CIA Director Panetta the names of

the 2009-2011 CIA daisy-chain of “shadow government” decision-makers whose “Commander

in Chief” has not been President Obama. Because President Obama, like CIA Director Panetta,

possesses the Chilicky “normal sensibilities” of human beings, the CIA MDR decision should

reveal the name of the CIA “command and control” officer who ordered the CIA FOIA Officer

not to render a FOIA decision as to the release of the July 27, 2010 CIA FOIA requested # 5 “all

Robert II v CIA “c (3) exclusion” ex parte Declarations” documents that reveal whether material

facts had been withheld from Judge Seybert to protect the secret of the NSA TSP funding source.

The “Commander-in-Chief riddle” is based on the fact that President Obama possesses

the Schweiker v. Chilicky, 108 S. Ct. 2460 (1988), “normal sensibilities” of human beings as

applied to the millions of aged, blind, and disabled 2009-2011 SSI recipients who are Ford v.

Shalala, 87 F. Supp 2d 163 (E.D.N.Y. 1999), class members. “The trauma to respondents, and

thousands of others like them, must surely have gone beyond what anyone of normal sensibilities

would wish to see imposed on innocent disabled citizens.” Id. at 2470. Emphasis Added.

If President Obama knew that off-OMB Budget Jackson v. Schweiker, 683 F. 2d 1076

(7th Cir. 1982), “nonacquiescence” policy funds have been funding the “immaculate

construction” and maintenance of the “do not exist” 1984-2011 NSA TSP data banks, then he

would order SSA Commissioner Astrue to “make true” within months his January 24, 2007,

Senate Finance Committee testimony that the “nonacquiescence” policy had ended prior to

becoming HHS General Counsel in 1989. The fact that President Obama continues in 2011 to

breach his Article II “take Care” duty by violating the equal protection and due process rights of

of Ford class members without his knowledge, means that there is a faux “Commander in Chief”

who is not President Obama, who violated the PCA and Social Security Act by approving

“Jackson nonacquiescence policy” funds to pay for 2009-2011 construction and maintenance of

the “Top Secret America” domestic data banks in the custody of DOD Cyber Commander-NSA

Director Lt. General Alexander. See 7-27-10 DOJ WP §§ Q, R-U, Z, ZZ and § K above.

The appellant has made the gravest of allegations to President Obama’s PIAB Co-

Chairman Boren and Hagel that the 2009-2010 “Commander in Chief” of the “command and

control” officers of the agencies’ decision-makers who made “Unitary Executive” decisions in

violation of the § 413 (a) of the National Security Act, the “exclusivity provision” of the FISA,

the PCA limitations on domestic military law enforcement, and the Social Security Act, is not

President Obama. Upon information and belief, the CIA MDR decision-makers will learn that

the “chain of command” officer of the “command and control” officer who ordered the CIA

FOIA Officer not to render a FOIA decision re the # 5 “c (3) exclusion” ex parte Declarations, is

not CIA Director Panetta, and that “command and control” officer’s “Commander in Chief” is

not President Obama. If so, then CIA Director Panetta has a duty to inform President Obama of

these facts. See 1-4-11 PIAB WP §§ 1, 17, 20-23, 28-35. See also 3-18-11 ISCAP WP §§ D-G.

50

On February 16, 2011, President Obama appointed the 2005-2011 CIA Chief Information

Officer (CIO) Al Tarasiuk as the ODNI Chief Information Officer (CIO) of the Intelligence

Community. As a result, CIA Director Panetta’s 2009-2011 CIA CIO has a duty to provide

ODNI Director Clapper with the names of the daisy-chain of “shadow government” decision-

makers who have made “Unitary Executive” decisions re access to the “do not exist” 1984-2011

NSA TSP and NSP data banks that are conducted in violation of the “exclusivity provision” of

the FISA. On April 11, 2001, the Robert II v CIA and DOJ appellant served ODNI CIO

Tarasiuk with a copy of the 4-11-11 ODNY MDR WP for the release of the July 27, 2010

ODNI FOIA requested “NCTC TSP and PSP data banks access guidelines” document.

During the Robert II v CIA and DOJ litigation, 2005-2011 CIA CIO Tarasiuk had been

the CIA’s Senior Privacy and Civil Liberties Officer. In January, 2011, he received the ODNI

National Intelligence Reform Medal for his accomplishments as CIA CIO that led to the

“transformation and integration of U.S. Intelligence Community” reforms.

Al Tarasiuk is a career senior intelligence officer at the Central

Intelligence Agency (CIA). From 2005 to 2010, Mr. Tarasiuk served as

Chief Information Officer at the CIA. In this role, he supported cyber

defense and also served as the CIA’s Senior Privacy and Civil Liberties

Officer. Prior to being appointed CIO, Mr. Tarasiuk was Director of CIA’s

Information Services Center. In his early years at CIA, Mr. Tarasiuk

served overseas in an operational role with the National Clandestine

Service. He began his federal career as a project engineer with Radio Free

Europe and Radio Liberty. In January 2011, he received the National

Intelligence Reform Medal from the Director of National Intelligence for

significant accomplishments leading to the transformation and integration

of the U.S. Intelligence Community. Emphasis Added.

http://www.whitehouse.gov/the-press-office/2011/02/16/president-obama-

announces-more-key-administration-posts-2162011

In ODNI Director Clapper’s February 16, 2011 Press Release, he explained that his

duties included establishing “common information technology standards” across the IC.

Therefore, he will locate the “NCTC TSP and PSP data banks access guidelines” document and

help develop a universal Access Guidelines that applies to the 1984-2011 NSA TSP data banks:

The CIO’s office is responsible for establishing common information

technology standards across the Intelligence Community and for directing

and managing all IT related procurement for the IC. The CI is tasked with

developing IT architecture to support information sharing policies and

objectives through the Intelligence Community. Emphasis Added.

http://www.dni.gov/press_releases/20110216_release.pdf

CIO of the IC Taraiuk will perform his information-sharing duty by cataloguing the

present “IT architecture” which will reveal the “Commander in Chief” of Cyber-Commander-

NSA Director Lt. General Alexander. CIA of the IO Tarauis will know that his 2009-2011

“Commander in Chief” had not been President Obama. See 1-4-11 PIAB WP §§ 1, 13-21,

51

As discussed in more detail in § R below, in July, 2011 DOD Secretary Panetta will learn

whether he is the civilian “chain of command” officer of Cyber-Commander-NSA Director Lt.

General Alexander. If not, then he will learn the answer to the 2009-2011 “Commander in Chief”

riddle and learn the name of the 2009-2011 “Commander in Chief” of Cyber-Commander-NSA

Director Lt. General Alexander who is not President Obama. See §§ Q, P below

DOD Secretary Panetta will “walk back the cat” and learn the names of the

“Commanders in Chief” of NSA Directors Faurer (1981-1985), Odom (1985-1988), Studeman

(1988-1992), Mc Connell (1992-1996), Minihan (1996-1999), and Hayden (1999-2005). If he

learns that there were faux “Commanders in Chief” in order to provide Presidents Reagan, Bush,

Clinton, Bush, and Obama with a “plausibility deniability” defense to the impeachable violations

of the FISA “exclusivity provision” and the PCA limitations on domestic military law

enforcement, then DOD Secretary Panetta will immediately inform President Obama.

Therefore, CIA Director Panetta should know in May, 2011 the answer to the “Chain of

Command riddle” as applied to CIA Directors Casey (1981-1987), Judge Webster (1987-

1991), Gates (1991-1993), Woolsey (1993-1995), Deutch (1995-1996), Tenet (1997-2004), Goss

(2004-2005), Hayden (2006-2009), and Panetta (2009-). CIA Director Panetta should “walk back

the cat” and learn the names of the faux “Commanders and Chief” of each CIA Director during

the Administrations of Presidents Reagan, Bush, Clinton, Bush, and Obama, because covered

agents accessed the “do not exist” 1984-2001 NSA TSP data banks that were not reported to the

“Gang of Eight” in AG Gonzales’ December 22, 2005 § 413 (a) “Gang of Eight” letter.

Hence, the importance of CIA Director Panetta reading the # 5 “c (3) exclusion”

Declarations which reveal whether 2002-2004 CIA General Counsel Muller, on behalf of co-

defendant CIA Director Tenet, and 2004-2009 (Acting) CIA General Counsel Rizzo, on behalf

of co-defendant CIA Directors Goss and Hayden, knew that material facts had been withheld

from Judge Seybert. Those “c (3) exclusion” Declarations were in response to the plaintiff’s

allegations made in his Robert II v CIA and DOJ March 3, 2003 Affirmation which was prior to

the March 1, 2004 decision of OIPR Counsel Baker to use FOIA Exemption 1 and the “Glomar

Response” to withhold the “FISC Robert” documents, and prior to the March 10, 2004

confrontation between WH Counsel Gonzales and AG Ashcroft, DAG Comey, and FBI Director

Mueller regarding the AG signing the FISC certifications. The April 9, 2004 Robert II v CIA

and DOJ Report and Recommendation of Magistrate Lindsay was issued after the March 10,

2004 confrontation, but before the May 6, 2004 OLC Memo of AAG of the OLC Goldsmith and

the October 1, 2004 Robert VII v DOJ “corrected” Declaration of OIPR Baker. See § G above.

Hence, the time line significance of the “c (3) exclusion” Declarations if the USG

Declarants withheld facts from Judge Seybert to prevent her from learning that the Robert II v

CIA and DOJ plaintiff’s almost incredible allegations were true. If the Robert VIII v DOJ, HHS

and SSA April 11, 2011 OLC MDR request is granted and the redacted May 6, 2004 OLC

memo is declassified, then the CIA documents have historical significance. The public will learn

that there were faux “Commanders in Chief” of the “Top Secret America” surveillance program

identified in the Washington Post series who were not Presidents Reagan, Bush, Clinton, Bush,

and Obama. Judge Seybert will learn that co-defendant CIA Director Panetta did not know this

fact so as to cure the fact misrepresentations of CIA Directors Tenet, Goss and Hayden.

52

M. The CIA MDR decision makers are placed on Notice of 2006-2009 CIA Director

Hayden’s “shot across the bow” July 29, 2009 New York Times Op Ed Contributor

Warrantless Criticism Article that there are more NSA TSP facts for the public to learn

The CIA MDR decision-makers are placed on Notice of 2006-2009 CIA Director

Hayden’s “shot across the bow” July 27, 2009 New York Times Op Ed Contributor Warrantless

Criticism Article that there are more NSA TSP facts for the public to learn. This is a fact for the

CIA MDR decision-makers to consider because investigative reporters will be filing their own

OLC MDR requests for the declassification of the AAG of the OLC Goldsmith’s May 6, 2004

Memorandum to AG Ashcroft that reveals the legal theory upon which the pre-9/11 “Top Secret

America” domestic surveillance program was based during the Constitutional watch of 1999-

2005 NSA Director General Hayden. See 7-27-10 DOJ WP §§ K, M, N, AA, CC, DD.

On July 27, 2009, former-CIA Director Hayden wrote his Op Ed articleWarrantless

Criticism.http://www.nytimes.com/2009/07/27/opinion/27hayden.html?_r=1&ref=todayspaper&

pagewanted=print. He responded to the July 10, 2009 Unclassified Report on the President’s

Surveillance Program of IGs DOJ Glenn Fine, CIA (Acting) Patricia Lewis, DOD (Acting)

Gordon Hedell, NSA George Ellard, and DNI Roslyn Mazer that was the declassified Report of

the Classified Report filed with the Congress pursuant to § 413 (b) of the National Security Act.

http://www.usdoj.gov/oig/special/s0907.pdf. See 4-11-11 ODNI WP §§ A, D, F, H, I.

CIA Director Hayden, who is not an attorney, had been the 1999-2005 NSA Director and

the 2005-2006 ODNI Principal Deputy Director. He highlighted the fact that at all times as

NSA Director, ODNI Deputy Director, and CIA Director he had relied upon USG attorneys’

legal opinions that the NSA TSP was in compliance with the FISA:

There is also one very large finding in the report that hasn’t received the

attention it deserves: “No evidence of intentional misuse” of the program

was discovered. …

There has been much controversy about the lawfulness of the program.

Here I must point out that agency lawyers — career attorneys with deep

expertise in the law, privacy and intelligence — assisted their professional

Justice Department counterparts in their review of the program but

remained comfortable throughout with the lawfulness of all aspects of the

surveillance effort…

In any event, the aspect of the program that was so contentious in March

2004, when some Justice Department officials objected, resumed in only

slightly modified form within six months under a new legal regime that all

the players in March’s crisis supported. And it should be pointed out that

the elements of the program made public in news reports in December

2005 had been consistently deemed lawful by the Justice Department. ..

This debate on law and policy will no doubt continue, but learning will

only begin when we turn down the volume, moderate our language and

53

recognize that there is more information that will appropriately become

available in time to allow both us and history to inform our judgments.

Emphasis Added.

Former-CIA Director Hayden’s shot-across-the-bow reference that “there is more

information that will appropriately become available in time” highlights the importance of the

accuracy of the USG’s “c (3) exclusion” ex parte Declarations that Article III Judges have

blindly presumed are accurate FRCP 11 signed documents. The DOJ’s March 18, 2011 release of

AAG of the OLC Goldsmith’s redacted May 6, 2004 OLC Memorandum to AG Ashcroft was an

admission that until AG Gonzales’ December 22, 2005 Notification letter to the “Gang of

Eight,” § 413 (a) the National Security Act was violated as to the post-9/11 NSA PSP.

CIA General Counsel Preston, the 1993-1995 DOD Principal Deputy General Counsel,

knows whether the redacted May 6, 2004 OLC Opinion reveals that the “do not exist” 1984-

2001 pre-9/11 NSA TSP had also been conducted in violation of the § 413 (a) the National

Security Act, the “exclusivity provision” of the FISA, the PCA limitations on domestic military

law enforcement, and the Social Security Act. If so, then he also knows that the July 27, 2010

FOIA requested # 5 “all Robert II v CIA “c (3) exclusion” ex parte Declarations” reveal that

CIA General Counsels Muller and (Acting) Rizzo and their clients CIA Director Tenet, Goss,

and Hayden, knew that facts re the “do not exist” NSA TSP were intentionally withheld from

Judge Seybert for the purpose of deceiving Judge Seybert so that she would find that the plaintiff

and his amended complaint allegations were not credible. See 7-27-10 DOJ WP §§ F, G, M, N.

Acting CIA General Counsel Rizzo knew that 2006-2009 co-defendant CIA Director

Hayden knew material facts had been withheld from Judge Seybert because 1999-2005 NSA

Director Hayden had had access to the “do not exist” 1984-2001 pre-9/11 NSA TSP data banks

that warehoused the wiretap information re Robert. The plaintiff’s allegations are corroborated

by reading the Robert VII v DOJ “FISC Robert” documents that OIPR Baker read on March 1,

2004 and withheld by application of FOIA Exemption 1 and the Glomar Response defenses.

Those withheld 1980s classified Robert documents reveal whether AG Meese informed the FISC

that FBI Director Judge Webster had evidence that plaintiff Robert was a terrorist or an agent of

a foreign power, but did not inform the FISC of the “do not exist” NSA TSP. See § C above.

Former-CIA Director Hayden’s July 27, 2009 Op Ed article raises the ethics question

whether EDNY U.S. Attorney Lynch and CIA General Counsel Preston have an April 1, 2009

NYS Rules of Professional Conduct Rule 3.3(a)(3) duty to cure misrepresentations of fact and

law made to Judge Seybert in the Robert II v CIA “c (3) exclusion” ex parte Declarations. “If a

lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and

the lawyer comes to know of the falsity, the lawyer shall take responsible remedial measures,

including if necessary disclosure to the tribunal.” Emphasis Added. See 7-27-10 DOJ WP § E.

Former-co-defendant CIA Director Hayden’s mens rea is not an esoteric question. One

of the purposes of the plaintiff’s request for the release of the 1985 “North Notebook” documents

is to prove to AH Holder that CIA Director Casey conducted “black operations” at IMC and the

NSA funded with off-OMB Budget “Jackson nonacquiescence policy” funds. If proven, then

this a “clandestine” policy that triggers the Bowen v City of New York equitable tolling remedy.

54

Another purpose for filing the July 27, 2010 FOIA request for the # 5 “all Robert II v

CIA “c (3) exclusion” ex parte Declarations” documents is to prove to CIA Director Panetta that

CIA General Counsel Muller knew that AAG of the Civil Division Peter Keisler (2003-2007)

had implemented the “Barrett nonacquiescence policy” of AAG of the OLC Cooper and had

intentionally withheld material facts from Judge Seybert so that she would not learn that the

plaintiff’s almost incredible allegations made in his March 4, 2003 Affirmation of the existence

of the “do not exist” 1980s NSA TSP, were true. The plaintiff believed that after reading the “c

(3) exclusion” ex parte Declarations, CIA Director Panetta would recommend to AG Holder

that the USG accept the appellant’s quiet settlement offer. See 11-11-08 DAG Filip WP.

This request for a CIA MDR decision re the # 5 “c (3) exclusion” Declarations and

former-CIA Director Hayden’s July 27, 2009 Op Ed article, now presents the issue of whether

President Obama’s December 29, 2009 E.O. 13526 is fatally flawed. If CIA General Counsel

Preston, the 1993-1995 DOD Principal Deputy General Counsel, determines that pursuant to the

§ 3.6 (a) “Glomar Response” standard, the July 27, 2010 #1-#5 documents are not subject to §

3.3 ADR and § 3.5 MDR procedures, then NARA ADR and CIA MDR requests will be

dismissed. As discussed in § A above, this raises the “who-watches the watchers” CIA General

Counsels issue as presented by 2002-2004 CIA Assistant General Counsel Randan. As discussed

in § B above, this would eviscerate the accountability purpose of E.O. 13526 § 3.3 and § 3.5

If CIA General Counsel Preston knows that the Declarants intentionally withheld facts

from Judge Seybert in the “c (3) exclusion” ex parte Declarations, then he knows that the CIA

General Counsels have made Judge Seybert the “handmaiden” of the CIA General Counsels.

“Under no circumstances should the Judiciary become the handmaiden of the Executive.” Doe,

et. al. v Mukasey, Mueller, and Caproni, 549 F 3d 861, 870 (2d Cir. 2008). The Robert VIII v

DOJ, HHS, and SSA appellant has raised this “handmaiden of the Executive” point as applied

to Judge Garaufis and the Second Circuit in his February 22, 2011 Brief at p. 5 and Point V.

Former-NSA Director Hayden’s acknowledgment of the evolving nature of the “true facts”

of the “do not exist” 1984-2011 “Top Secret America” domestic surveillance program that was

revealed in the July 19, 2010 Washington Post series, has a most disturbing Orwellian tone.

“Who controls the past controls the future: who controls the present controls the past.” 1984,

George Orwell. This is especially disturbing because before becoming CIA Director Hayden, he

was April 21, 2005-May 26, 2006 ODNI Principal Deputy Director Hayden when AG Gonzales

provided the December 22, 2005 § 413 Notification to the “Gang of Eight” that had retroactive

applicability to the post-9/11 2002-2005 NSA TSP, but not the pre-9/11 1984-2001 NSA TSP.

Hence the importance of the Robert VIII v DOJ, HHS, and SSA appellant’s April 11,

2011 ODNI MDR request seeking the release of the July 27, 2010 FOIA requested “NCTC TSP

and PSP data banks access guidelines” documents. ODNI General Counsel Robert Litt, the

1997-1999 Principal Associate DAG, knows that this document exists notwithstanding the fact

that the ODNI FOIA Officers could not locate this ODNI document. See 4-11-11 ODNI WP § _.

Therefore, the CIA MDR decision-makers should learn from CIA General Counsel

Preston what CIA Director Hayden knows the public will eventually know about the NSA TSP.

Then CIA Director Panetta should know what 1999-2005 NSA Director Hayden knew in 1999.

55

N. The CIA MDR decision makers are placed on Notice of the March 21, 2011 Second

Circuit Amnesty v Clapper decision that provides the requester with legal standing to

pursue his putative action that his First Amendment right of access to the Courts have been

violated by USG officials and their attorneys who knew of the illegal Robert wiretaps

The CIA MDR decision makers are placed on Notice of the March 21, 2011 Second

Circuit Amnesty v Clapper decision that provides the requester with legal standing to pursue his

putative action that his First Amendment right of access to the Courts have been violated by

USG officials and their attorneys who knew of the illegal Robert wiretaps. The July 27, 2011

FOIA requested # 5 “all Robert II v CIA “c (3) exclusion” ex parte Declarations” documents

contain evidence that CIA General Counsels made litigation decisions to withhold facts from

Judge Seybert because they knew that the FOIA requested “North Notebook” documents

revealed that CIA Director Casey, AG Meese, and FBI Director Judge Webster knew that the

1985 FBI counterintelligence “plumber” unit had made Robert a NSA TSP target. See 2-22-11

Robert VIII v DOJ, HHS, and SSA Brief Point IV and 7-27-11 DOJ WP §§ E-G, M, AA, AAA.

On March 21, 2011, the Second Circuit rendered its Amnesty v Clapper, 09-4112-cv,

decision and held that the plaintiffs had standing to challenge the FISA Amendments Act of

2008. That standing holding would apply to the Robert VIII v DOJ, HHS, and SSA appellant if

he filed a putative “Bivens” complaint alleging that 2011 USG attorneys had violated his First

Amendment right of access to the courts. These 2011 USG attorneys know that a Robert VII v

DOJ “fraud upon the court” had occurred as revealed in the now preposterously “missing”

Robert VII v DOJ “FISC Robert” documents, the May 6, 2004 redacted memo of AAG of the

OLC Goldsmith, and the Robert II v CIA and DOJ “c (3) exclusion” ex parte Declarations.

In Amnesty, the Second Circuit provided a standing holding that opens the courtroom

door for plaintiffs who claim that they had been or will be the targets of illegal wiretaps in

violation of the FISA and FISA Amendments Act of 2008:

Because standing may be based on a reasonable fear of future injury and

costs incurred to avoid that injury, and the plaintiffs have established that

they have a reasonable fear of injury and have incurred costs to avoid it,

we agree that they have standing. Id. slip op. 4-5. Emphasis Added.

The Robert VIII v DOJ, HHS, and SSA appellant-Robert II v CIA and DOJ plaintiff’s

“reasonable fear” argument is much stronger than the Amnesty plaintiffs who challenged the

interception of their international phone calls without any “hard” evidence that they had been

wiretapped. The appellant challenges the illegal wiretapping of his domestic phone calls and has

provable consequential damages. He can cite to the “hard” evidence in the now “missing” Robert

VII v DOJ, 2005 U.S. Dist. LEXIS 39616, 193 Fed. Appx. 8 (2d Cir. 2006), cert. den. 127 S.Ct.

1133 (2007), case file, that DOJ attorneys had withheld from Judge Garaufis, the Second Circuit,

and the Supreme Court. OIPR Counsel Baker explained why he withheld the “FISC Robert”

documents pursuant to “Glomar Response” defense in his ex parte 2004 “uncorrected” and

“corrected” October 1, 2004 Declaration. http://www.snowflake5391.net/baker.pdf. Robert can

also cite to the # 5 Robert II v CIA and DOJ ex parte Declarations that CIA General Counsel

Preston knows corroborates Robert’s “cover up” allegations. See 4-11-11 OLC WP §§ C, F, G.

56

In Amnesty, the Second Circuit rejected AAG of the Civil Division West’s argument

that there must be proof that there was USG monitoring or “effectively certain” evidence:

The government argues that the plaintiffs can obtain standing only by

showing either that they have been monitored or that it is “effectively

certain” that they will be monitored. The plaintiffs fall short of this

standard, according to the government, because they “simply speculate

that they will be subjected to government action taken pursuant to (the

FAA). Id. slip op. 32. Emphasis Added.

CIA General Counsel Preston, the 1993-1995 DOD Principal Deputy General Counsel,

and AAG of the Civil Division West, the 1993-1994 Special Assistant to DAGs Heymann and

Gorelick, know that Robert was illegally wiretapped from reading the Robert VII v DOJ

electronic case file which includes OIPR Counsel Baker’s 2004 emails and electronic links to

the “missing” Robert VII v DOJ “FISC Robert” transcripts. They know that AG Holder’s

Associate DAG Baker knows that AG Holder does not know these facts as the DOJ attorneys

prepare the draft of his Robert VIII v DOJ, HHS, and SSA Brief to be filed on May 25, 2011.

The Second Circuit explained how a present injury can be based on the plaintiffs’

actions taken in anticipation of future government action:

When a plaintiff asserts a present injury based on conduct taken in

anticipation of future government action, we evaluate the likelihood that

the future action will in fact come to pass. To determine whether the

present injury “fairly can be traced to the challenged (future) action,” see

Simon v Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976), we

must consider whether a plaintiff’s present injury resulted from some

irrational or otherwise clearly unreasonable fear of future government

action that is unlikely to take place. Such a disconnect between the present

injury and the predicated future government action would break the cause

chain required for standing. Id. slip op. 33. Italics in original. Underline

emphasis added.

CIA General Counsel Preston knows that the July 27, 2011 CIA FOIA requested # 1-# 5

connect-the-dots document will assist the putative “Bivens” plaintiff Robert carry his Ashcroft

v Iqbal, 129 S.Ct. 1937 (2009), “plausibility” burden when opposing AG Holder’s putative

Motion to dismiss appellant’s “Bivens” action. He knows that these Robert II v CIA and DOJ

documents prove true Robert’s “implausible” allegations that he had been the target of an

NSA TSP that was conducted by AG Meese and FBI Director Judge Webster before and after

Mitchell v Forsyth, 105 S.Ct. 2806 (1985). Hence, the importance of co-defendants Panetta and

Holder reading the # 5 Robert II v CIA and DOJ “c (3) exclusion” ex parte Declarations. After

reading these ex parte Declarations, AG Holder will know that Robert’s fear that he will forever

be a putative target of the “do not exist” NSA TSP, is not an irrational fear of a paranoid

plaintiff, but a reasonable “Past is Prologue” fear. AG Holder will apprehend that the 1980s

NSA TSP data banks under the 2011 “command and control” of DOD Cyber Commander-NSA

Director Lt. Alexander can be electronically harvested in the future. See 4-11-11 ODNI WP § H.

57

In Amnesty, the Second Circuit provided a lengthy analysis of Laird v Tatum, 408 U.S. 1

(1972), and the standing issue raised by those plaintiffs who had alleged that they were or in the

future would be the target of a Top Secret army surveillance program:

The government’s principal argument against the above analysis rests on a

single case, Laird v Tatum, 408 U.S. 1 (1972). Laird is unquestionably

relevant to this case, as it is the only case in which the Supreme Court

specifically addressed standing to challenge a government surveillance

program. Because Laird significantly differs from the present case,

however, we disagree with the government’s contention that Laird

controls the instant case, and that Laird created different and stricter

standing requirements for surveillance cases than for other types of cases.

Id. slip op. 53. Emphasis Added.

Appellant Robert argues that Laird applies to his 1980s facts because he was the target

of a military surveillance program that was administered by DOD Secretary Weinberger’s

military officers-NSA Directors Lincoln Faurer (1981-1985) and William Odom (1985-1988).

The NSA Directors wiretapped Robert to protect the off-OMB Budget funding source for the “do

not exist” NSA TSP data banks that could not be funded with classified OMB Budget funds. He

argues that these were illegal NSA TSP wiretaps because there had been no § 413 of the National

Security Act “Gang of Eight” Notification because President Reagan did not know that this “do

not exist” 1984-1988 NSA TSP was being conducted. See 7-27-10 DOJ WP §§ K, M, CC, DD.

The Second Circuit concluded by establishing a standing standard that is based on the

plaintiffs’ reasonable fear of their telephone conversations being wiretapped. That Amnesty

standard applies to the putative plaintiff Robert’s “Bivens” complaint against USG attorneys:

The plaintiffs’ uncontroverted testimony that they fear their sensitive

international electronic communications being monitored and that they

have taken costly measures to avoid being monitored—because we deem

that fear of those actions to be reasonable in the circumstances of this

case—establishes injuries in fact that we find are causally linked to the

allegedly unconstitutional FAA. We therefore find that plaintiffs have

standing to challenge the constitutionality of the FAA in federal court. Id.

slip op. 63. Emphasis Added.

Appellant asserts that there is no need for any Article III Judge to “deem” a fear that

Robert’s phone conversations might be wiretapped, because the Robert VII v DOJ electronic

case file with the “FISC Robert” documents, prove that Robert was wiretapped. He argues that

because AG Holder’s FOIA Officer was ordered not to docket the July 27, 2010 FOIA request

for the Robert VII v DOJ “FISC Robert” wiretap documents, that this triggers the “negative

inference” that the evidence exists. “Defendants forwent the opportunity to invoke the Section

1806 (f) procedures Congress created in order for executive branch agencies to establish “the

legality of the surveillance,” including whether a FISA warrant for the surveillance existed.” In

re National Security Administration Telecommunications- Al-Haramin v Obama,700 F.Supp.2d

1182, 1196 (N.D. Cal. 2010). See 2-22-11 Robert VIII v DOJ, HHS, SSA, Brief Point IV.

58

Appellant Robert filed the April 11, 2011 request for a E.O. 13526 § 3.5 OLC MDR

of the redacted May 6, 2004 Memorandum for the Attorney General that AAG of the OLC

Goldsmith sent to AG Ashcroft, to learn facts that he would include in his putative “Bivens”

complaint alleging that USG attorneys, including 2011 USG attorneys, have violated his First

Amendment right of access to the courts. Upon information and belief, the redacted pages of the

May 6, 2004 OLC Memorandum reveal that a pre-9/11 NSA TSP existed without the knowledge

of the FISC. The NSA TSP was based on the AG Meese’s “Unitary Executive” interpretation of

the FISA that its “exclusivity provision” unconstitutionally encroached upon President Reagan’s

Commander in Chief duty to protect the nation from terrorists both before and after the June 19,

1985 Mitchell v Forsyth, 472 U.S. 511 (1985) decision. See 7-27-10 DOJ WP §§ K, M-O.

The 1984-2001 “do not exist” NSA TSP data banks are the Achilles heel of the

Intelligence Community’s NSA TSP classified document “Ponzi” scheme whereby IC attorneys

have made 1986-2011 “Barrett nonacquiescence policy” litigation decisions and withheld

material facts from the Article III Judges, including the FISC and the Supreme Court, who then

became the “handmaidens” of the IC attorneys. This classified “Ponzi” scheme began to implode

when investigative reporter Priest and Arkin let the cat-out-of-the-bag in their July 19, 2010

Washington Post “Top Secret America” series explaining the domestic surveillance program.

Investigative reporters will file 2011 MDR requests for the redacted May 6, 2004 OLC Memo.

CIA Director Panetta and AG Holder will read “Glomar Response” withheld documents when

they “walk back the cat” in order to provide how-could-this-have-ever-happened answers to the

investigative reporters, the “Gang of Eight,” and President Obama. See 1-4-11 PIAB WP § H.

The greatest risk to the national security is the 2011 “Past is Prologue” PCA violation

whereby a faux “Commander in Chief” has unlimited Orwellian “1984” access to the “do not

exist” 1984-2011 NSA TSP data banks now in the custody of DOD Cyber Commander-NSA

Director Lt. General Alexander, without any Article I, Article II, and Article III checks and

balances. This is an unnecessary risk now that the Top Secret cat-is-out-of-the-bag of the

existence of the 1984-2011 ”Top Secret America” domestic surveillance program as revealed in

the jaw-dropping Priest and Arkin Locator Map with thousands of USG and private contractor

work stations hidden in plain sight. http://projects.washingtonpost.com/top-secret-america/map/

The 2011 daisy-chain of “shadow government” attorney-patriots will now have to decide

whether they will double down and have AG Holder, without his knowledge, commit the same

“fraud upon the court” in Robert VIII v DOJ, HHS, and SSA as did AG Gonzales in Robert VII

v DOJ. “Oh what a tangled weave, When first we practice to deceive.” Sir Walter Scott.

However, a 2011 USG double down litigation strategy will fail because of the Second

Circuit’s June 9, 2010 In re City of New York, 607 F.3d 923 (2d Cir. 2010), decision. In a §

1983 action in which the plaintiff claims a First Amendment right violation, the Article III Judge

is to review in camera the documents withheld pursuant to privilege claims. “To assess both the

applicability of the privilege and the need for the documents, the district court must ordinarily

review the documents in question.” See 7-27-10 DOJ WP XX and 2-22-11 Brief Point III.

The CIA MDR decision makers have a duty to ask CIA General Counsel Preston if 1980s

NSA TSP data banks exist. Then they should ask if Amnesty provides Robert standing to sue.

59

O. The CIA MDR decision-makers are placed on Notice of the March 29, 2011 Supreme

Court Connick v Thompson § 1983 decision that explained the “deliberate indifference”

standard and the government attorney individual professional and ethics standards

The CIA MDR decision-makers are placed on Notice of the March 29, 2011 Supreme

Court Connick v Thompson § 1983 decision that explained the “deliberate indifference” standard

and the government attorney individual professional and ethics standards. If the OLC MDR

request is granted and the May 6, 2004 redacted OLC Memo is declassified, then USG attorneys

will no longer be able to hide behind their non-disclosure agreements. All USG attorneys will

have to comply with their individual ethics standards as to their FRCP 11 signed briefs, their

duty to cure misrepresentations of fact and law, and their NYS Judiciary Law § 487 duty not to

deceive Judges or parties. See 7-27-10 DOJ WP §§ E-G and 4-11-11 OLC WP §§ H, K, M.

On March 29, 2011, the Supreme Court in Connick v Thompson, 09-571, reversed a

Fifth Circuit § 1983 decision, and held that the plaintiff had failed to carry his burden to prove

a District Attorney’s “deliberate indifference” to training his attorneys to provide a defendant

with exculpatory evidence. Because this decision addressed the mens rea of DA Connick, it

could be interpreted as affecting the Second Circuit’s Amnesty v Clapper standing decision as

to appellant’s putative “Bivens” action alleging attorneys’ breach of his First Amendment right

of access to the courts. See 2-22-11 Robert VIII v DOJ, HHS, and SSA 2-22-11 Brief Point IV.

The CIA MDR requester submits that Connick highlights the need for Article III review

of USG “Glomar Response” documents because those documents establish the actual intent of

USG attorney decision-makers. This eliminates the murky “deliberate indifference” fact issue as

to the need for training FOIA attorneys who make “Glomar Response” decisions to withhold

documents that would prove whether USG attorneys had committed “fraud upon the court” to

protect the “do not exist” NSA TSP off-OMB Budget funding source. 7-27-10 DOJ WP § G.

In Connick, Justice Thomas explained that there was no “deliberate indifference” as to

the need for training of attorneys issue because DA Connick’s attorneys knew that they were not

to withhold exculpatory evidence from the defendant. This was based on the per se fact that they

were practicing attorneys who had been trained in fundamental hornbook law issues:

Attorneys are trained in the law and equipped with the tools to interpret and

apply legal principles, understand constitutional limits, and exercise legal

judgment. …..

Nor does professional training end at graduation. Most jurisdictions require

attorneys to satisfy continuing-education requirements….

Attorneys who practice with other attorneys, such as in a district attorney’s

offices, also train on the job as they learn from more experienced attorneys…..

In addition, attorneys in all jurisdictions must satisfy character and fitness

standards to receive a law license and are personally subject to an ethical

regime designed to reinforce professional standards. Id. slip op. 12-13.

60

Justice Thomas concluded that District Attorney Connick could rely upon his attorneys

having had their own individual professional training and fulfilling their own ethical obligations:

A district attorney is entitled to rely on prosecutors’ professional training

and ethical obligations in the absence of specific reason, such as a pattern

of violations, to believe that those tools are insufficient to prevent future

constitutional violations in the “usual and recurring situations with which

(the prosecutors) must deal.” Canton, 489 U.S. at 391.” Id. slip op. 15-16.

Emphasis Added.

Applying Connick to USG attorneys’ FOIA “Glomar Response” decisions re the NSA

TSP, was made easier by the March 18, 2011 release of AAG of the OLC Goldsmith’s May 6,

2004 Memorandum because on December 22, 2005 AG Gonzales had abandoned the “Unitary

Executive” theory that the FISA “exclusivity provision” encroached upon the President’s Article

II Commander-in-Chief’s authority to conduct domestic wiretapping to protect the nation from

terrorists. The December 22, 2005 letter from AAG of the Office of Legislative Affairs

Moschella to the “Gang of Eight” provided retroactive § 413 of the National Security Act Notice

of the 2002-2005 NSA PSP. This was AG Gonzales’ admission that FISA applied to the

2002-2005 NSA PSP data banks that were accessed by 1999-2005 NSA Director General

Michael Hayden, but not retroactively to the “do not exist” 1984-2001 NSA TSP data banks.

http://www.fas.org/irp/agency/doj/fisa/doj122205.pdf. See 2-22-11 Brief Statement of Facts.

Applying the Connick per se knowledge of lawyers standard, the USG attorneys who

were not privy to the compartmentalized Top Secret “Glomar Response” decision-making

process, did not know there was a classified OLC opinion that established the President’s

authority not to comply with the plain meaning of the “exclusivity provision” of the FISA. The

per se knowledge that the President had an Article II “take Care” duty to comply with the FISA

“exclusivity provision” was publicly established on January 19, 2006 when AG Gonzales sent

his Whitepaper to the Senate Majority Leader, Legal Authorities Supporting the Activities of

the National Security Agency Described by the President, explaining the post-9/11 NSA TSP.

http://www.usdoj.gov/olc/2006/nsa-white-paper.pdf. See 7-27-10 DOJ WP §§ K, CC, DD.

Applying the Connick per se knowledge of lawyers standard to EDNY AUSA Kathleen

Mahoney’s April 3, 2006 Robert VII v DOJ letter-Brief addressing the Second Circuit’s teed up

FISA question whether Robert was an “aggrieved party,” is now at issue in Robert VIII v DOJ,

HHS, and SSA. http://www.snowflake5391.net/RobertvDOJbrief.pdf. Whereas AUSA Mahoney

may never have had clearance to read the classified Robert VII v DOJ “FISC Robert”

documents, on March 1, 2004 then-OIPR Counsel Baker read the classified documents. In his

“corrected” October 1, 2004 Robert VII v DOJ Declaration, he explained why he used the

Exemption 1 and “Glomar Response” defenses. http://www.snowflake5391.net/baker.pdf. On

April 3, 2006, then-Counsel for the National Security Division of Intelligence Policy Baker knew

Robert was a FISA “aggrieved person.” Based on the classified May 6, 2004 Memorandum for

the Attorney General, he knew the April 3, 2006 letter-Brief misrepresented the facts. Therefore,

2011 Associate DAG Baker now has his own May, 2011 Connick per se exculpatory ethical

duty to inform the Second Circuit in Robert VIII v DOJ, HHS, and SSA of misrepresentation of

facts made in Robert VII v DOJ because Robert was then and is now a FISA “aggrieved person.”

61

Applying the Connick per se individual ethics duty of lawyers standard to the accuracy

of the Robert II v CIA and DOJ # 5 “c (3) exclusion” ex parte Declarations, is also a per se

ethics issue for CIA General Counsel Preston. He knows that EDNY U.S. Attorney Lynch, his

co-counsel representing co-defendant AG Holder in Robert II v CIA and DOJ, has an April 1,

2009 NYS Rules of Professional Conduct Rule 3.3(a)(3) duty to cure misrepresentations of fact

and law made to Judge Seybert in Robert II v CIA and DOJ ex parte Declarations. “If a lawyer,

the lawyer’s client, or a witness called by the lawyer has offered material evidence and the

lawyer comes to know of the falsity, the lawyer shall take responsible remedial measures,

including if necessary disclosure to the tribunal.” Emphasis Added. See 7-27-10 DOJ WP § E.

The CIA MDR decision-makers are placed on Notice that EDNY U.S. Attorney Lynch

was the 1999-2001 EDNY U.S. Attorney. As a result, she was the supervising attorney of EDNY

AUSA Mahoney in the Robert v National Archives, 1 Fed. Appx. 85 (2d Cir. 2001), and Robert

v DOJ, 2001 WL 34077473 (EDNY), 26 Fed. Appx. 87 (2d Cir. 2002). Therefore, because of the

content of the March 18, 2011 released May 6, 2004 OLC Memo of AAG of the OLC

Goldsmith, EDNY U.S. Attorney Lynch knows that she has an April 1, 2009 NYS ethics Rule

3.3(a)(3) duty to cure misrepresentations of fact and law made to Judge Wexler, Judge Mishler,

and the Second Circuit in those FOIA cases. “(2) failed to remedy the alleged deprivation after

learning of it.” K & A Radiologic Technology Services, Inc. v. Commissioner of the Department

of Health and of the State of New York, 189 F. 3d 273, 276 (2d Cir. 1999). Emphasis Added.

This NYS ethics Rule 3.3(a)(3) duty to cure misrepresentations of fact and law applies in

the Robert VIII v DOJ, HHS, and SSA appeal because CIA General Counsel Preston knows that

AUSA Mahoney’s 2011 supervising attorney EDNY U.S. Attorney Lynch, also has a duty to

cure the misrepresentations of fact and law made by AUSA Mahoney in her April 3, 2006 Robert

VII v DOJ letter-Brief. 1999-2001 and 2009-2011 EDNY U.S. Attorney Lynch knows that

AUSA Mahoney knows that her April 3, 2006 FRCP 11 signature was not a “team effort” but her

individual effort. “The message there by conveyed to the attorney, that this is not a “team effort”

but in the last analysis yours alone, precisely to the point of Rule 11.” Pavelic & Le Fore v

Marvel Entertainment Group, 110 S. Ct. 456, 459 (1991). 7-27-10 DOJ WP §§ E-G, AAA.

Based on the Connick per se knowledge of lawyers standard, the CIA MDR decision-

makers are placed on Notice that CIA Counsel Preston is bound by the stare decisis holding of

Barrett v. United States, 798 F. 2d 565 (2d Cir. 1986). “Finally, acceptance of the view urged by

the federal appellants would result in a blanket grant of absolute immunity to government

lawyers acting to prevent exposure of the government in liability.” Id. 573. Emphasis Added. He

knows the redacted May 6, 2004 OLC Memo not only proves that the April 3, 2006 letter-Brief

misrepresented the facts, but proves that Robert was the target of the illegal NSA TSP. Thus,

because USG attorneys have in concert violated Robert’s First Amendment right of access to the

courts, he has his own per se 2011 conflict of interest. See 7-27-10 DOJ WP §§ E-G, AAA.

Based on the Connick per se knowledge of lawyers standard, the CIA MDR decision-

makers are placed on Notice that CIA Counsel Preston is bound by the stare decisis holding of

Doe, et. al. v Mukasey, Mueller, and Caproni, 549 F 3d 861, 870 (2d Cir. 2008). He is not to

make Judge Seybert the 2011 “handmaiden” of the CIA. “Under no circumstances should the

Judiciary become the handmaiden of the Executive.” Id. 870. See 7-27-10 DOJ WP § PP.

62

Based on the Connick per se knowledge of lawyers standard, the CIA MDR decision-

makers are placed on Notice that EDNY U.S. Attorney Lynch and EDNY AUSA Mahoney have

a NYS Judiciary Law § 487, Misconduct by attorneys, penal duty not to deceive the Second

Circuit in Robert VIII v DOJ, HHS, and SSA “1. Is guilty of any deceit or collusion, or consents

to any deceit or collusion, with intent to deceive the court or any party.” 7-27-10 DOJ WP § F.

Based on the Connick per se knowledge of lawyers standard, the CIA MDR decision-

makers are placed on Notice that EDNY U.S. Attorney Lynch is also bound by Judge Sifton’s

Ford v. Shalala, 87 F. Supp 2d 163 (E.D.N.Y. 1999), Order that HHS Secretary Shalala had

violated the due process rights of the April 9, 1994 nationwide certified class. She knows why in

October, 2000 then-DAG Holder made his honorable and courageous decision not to perfect

EDNY U.S. Attorney Lynch’s Second Circuit Ford appeal. Because of Connick, EDNY U.S.

Attorney Lynch now knows that she has a NYS Judiciary Law § 487 penal duty not to deceive

the millions of 1994-2011 Ford v Shalala class members who eleven years after Judge Sifton’s

1999 Ford decision, continue to have their due process rights violated because the Ford

“remedy” Notices do not include citations to the “Jackson” regulation, 20 C.F.R. § 416.1130 (b),

upon which their monthly benefits have been reduced. See 7-27-10 DOJ WP §§ C, P-U, Z, ZZ.

Based on the Connick per se knowledge of lawyers standard, the CIA MDR decision-

makers are placed on Notice that EDNY U.S. Attorney Lynch is bound to apply the Bowen v

City of New York, 106 S. Ct. 2022 (1986), equitable tolling principle to the SSA “clandestine”

policy of SSA Commissioner Astrue diverting the 1994-2011 Ford class members “Jackson

nonacquiescence policy” funds to pay for the “immaculate construction” and maintenance of the

NSA TSP and PSP data banks. “The claimants were denied the fair and neutral procedure

required by the statute and regulations, and they are now entitled to pursue that procedure.” Id.

2034. Emphasis Added. Hence, the importance of the CIA MDR and NARA ADR decisions as

to the release of the Robert II v CIA and DOJ documents which will reveal the mother of all

“clandestine” policies to trigger the Bowen v City of New York remedy. 7-27-10 DOJ WP § Z.

Because of the Connick per se holding of the individual professional training and ethics

obligations of EDNY U.S. Attorney Lynch in Robert II v CIA and DOJ and Ford, CIA General

Counsel Preston, the 1995-1998 Civil Division DAAG supervising attorney in Gordon and in

Ford, has his own Chilicky “normal sensibilities” of human beings duty to consider the plight of

millions of 1984-2011 Ford class members to whom the 1995 Gordon holding has been applied

to reduce their benefits. If CIA General Counsel Preston is a 2011 member of the daisy-chain

of “shadow government” attorney-patriots who have made the “Unitary Executive” decisions on

behalf of their Presidents, without the knowledge of their Presidents, then he should present his

May, 2011 Connick ethics dilemma to his faux 2011 “Commander in Chief” and ask him to

apply the Chilicky “normal sensibilities” test on behalf of President Obama to the May, 2011

Ford class members whose federal benefits have been reduced by one-third. See § L above,

The lay public know that attorneys are not to lie to Judges. After Connick, all of the

USG attorneys are bound by the Connick run-of-the-mill ethics standard. Therefore, even if

these attorney-patriots’ faux “Commanders in Chief” order them to violate federal laws to protect

the nation from terrorists, they have the ethical duty not to lie to Judges and not to file FRCP 11

signed Briefs with the knowledge that facts have intentionally been withheld from Judges.

63

P. The CIA MDR decision makers are placed on Notice that ISCAP has jurisdiction to

review CIA MDR “sources and methods” decisions based the October 5, 1999 OLC

Memorandum of Acting AAG Moss that has not been rescinded

The CIA MDR decision makers are placed on Notice that ISCAP has jurisdiction to

review CIA MDR “sources and methods” decisions based the October 5, 1999 OLC

Memorandum of Acting AAG of the OLC Moss that has not been rescinded. The OLC Memo

was based on the authority of the President, not the CIA Director, to establish classification and

declassification policies. This October 5, 1999 OLC Memorandum takes on greater importance if

the “mosaic” of July 27, 2010 FOIA requested classified connect-the-dots documents reveal a

1981-2011 daisy-chain of “shadow government” attorney-patriots whose fealty has been to their

faux “Commanders in Chief” and not to Presidents Reagan, Bush, Clinton, Bush, and Obama,

based on their belief in the extreme “Unitary Executive” theory of AG Meese. See 5-7-08

PIDB WP, 11-11-08 DAG Filip WP, 7-27-10 DOJ WP, 3-18-11 ISCAP WP, 4-11-11 OLC WP.

On October 5, 1999, Acting AAG of the OLC Randolph Moss issued the OLC

Memorandum: ISCAP Jurisdiction Over Classification Decisions by the Director of Central

Intelligence Regarding Intelligence Sources and Methods and interpreted President Clinton’s

April 17, 1995 E.O.12958, Classified National Security Information. 60 F.R. 19825 (1995).

Information Security Oversight Office (ISSO) Director Steven Garfinkel had requested the OLC

opinion. This OLC Memo answered the jurisdiction question whether ISCAP could review a

CIA MDR classification decision to withhold classified CIA documents to protect intelligence

sources and methods. This 1999 OLC analysis was based on the fact that the ISCAP is the

delegee of the President who has the President’s Article II § 2 Commander in Chief duty to

classify and control classified information needed to protect the national security.

The OLC Memo resolved the sensitive CIA “sources and methods” issue with an

unequivocal conclusion that remains as the 2011 OLC “sources and methods” ISCAP opinion:

This memorandum responds to a request that we resolve a dispute between

members of the Interagency Security Classification Appeals Panel

("ISCAP") over whether determinations made by the Director of Central

Intelligence ("DCI") about the classification of information pertaining to

intelligence sources and methods are subject to substantive review by

ISCAP. The Director of the Intelligence Security Oversight Office

("ISOO") and the General Counsel of the National Archives and Records

Administration ("NARA") take the view that such determinations by the

DCI are subject to substantive ISCAP review; the DCI takes the contrary

view. We conclude that the DCI's determinations are subject to substantive

ISCAP review. Id. 1. Emphasis Added.

http://www.fas.org/sgp/advisory/iscap/olc_opinion.html

The October 5, 1999 OLC Memo explained the delegee duties of the ISCAP and

explained that the CIA Director can always appeal an adverse ISCAP ruling to the President:

The President created ISCAP for the express purpose of "advising and

assisting [him] in the discharge of his constitutional and discretionary

authority to protect the national security of the United States." Order,

64

5.4(e). An ISCAP ruling constitutes advice to the President that an

agency's declassification decision is inconsistent with his classification

standards and may result in the withholding of information that should,

under those same standards, be disclosed. The DCI, of course, is free to

appeal an ISCAP ruling to the President. Id., 5.4(d). Accordingly, under

the Order, the final decision over whether to declassify and to disclose or

withhold information rests with the President; or, where no appeal is

taken, with ISCAP as his delegee.

In short, because the President may override the views of the DCI and

authorize the disclosure of information pertaining to intelligence sources

and methods, any disclosure of such information that results from the

President's decision to uphold an ISCAP ruling is not "unauthorized"

within the meaning of the NSA, 50 U.S.C. 403-3(c)(6), and thus cannot

"supersede" any requirements of that statute. Similarly, any

declassification or disclosure of such information that results from

presidential affirmation of an ISCAP ruling does not "limit[] the

protection" otherwise afforded such information under the NSA, such

information enjoys only the level of protection that the President, in the

discharge of his constitutional duties, believes such information deserves.

Moreover, because the President has authorized ISCAP to act as his

delegee regarding classification decisions, an ISCAP declassification

decision that the DCI does not appeal has the same significance, for

purposes of the NSA, as a decision made by the President himself, and

likewise does not "limit[]" or "supersede" the protections and requirements

of the NSA, or result in an "unauthorized" disclosure within the meaning

of that statute. Id. 5-6. Emphasis Added.

Thus, CIA Director Panetta has a remedy to appeal an adverse ISCAP decision to

President Obama. “The DCI, of course, is free to appeal an ISCAP ruling to the President.” The

CIA MDR requester would welcome CIA Director Panetta’s appeal to President Obama of an

ISCAP decision reversing a CIA MDR decision denying declassification of the # 5 “all Robert

II v CIA “c (3) exclusion” ex parte Declarations” documents. Then President Obama would

learn the names of the 2009-2011 “fifth column” members of the 1981-2011 daisy-chain of

“shadow government” attorneys-patriots who have made the 2009-2011 extreme “Unitary

Executive” decisions re the access to the “do not exist” 1984-2011 NSA TSP data banks that are

in the custody of DOD Cyber Commander-NSA Director Lt. General Alexander, pursuant to the

orders of their faux “Commander in Chief ” who is not President Obama. See § R below.

Because of the Robert v National Archives FOIA litigation position of 1998-2011 NARA

General Counsel Stern as discussed in §§ H, L of the May 9, 2011 NARA MDR, it should be

noted that NARA General Counsel Stern joined in the application for this OLC opinion. “The

request was joined subsequently by the General Counsel of NARA. See Letter for Randolph D.

Moss, Acting Attorney General, Office of Legal Counsel. From Gary M. Stern, General Counsel,

NARA (June 8, 1999).” Id. n. 1. CIA General Counsel Preston can consult with NARA General

Counsel Stern re the application of this standard by the NARA ADR and MDR decision-makers

as to whether the seven requested NARA documents reveal “sources and methods” of the CIA.

65

The October 5, 1999 OLC Memo provides a 1999-2011 answer to the “Commander in

Chief riddle” discussed in § L above. This 1999 OLC opinion provides Notice to the 2009-2011

daisy-chain of “shadow government” attorney-patriots practitioners of the extreme “Unitary

Executive” theory of AG Meese who have lied-by-omission to President Obama to protect the

“sources and methods” of access to the “do not exist” NSA TSP data banks that are under the

command DOD Cyber Commander-NSA Director Lt. General Alexander. Their Commander

in Chief is President Obama, and not the 2009-2011 faux “Commander in Chief” who has

made “Glomar Response” decisions re the NSA TSP without President Obama’s knowledge:

It thus appears that Congress intended to confer on the DCI a statutory

duty, like its administrative antecedent, is in aid of the President’s

authority. Indeed, to assume otherwise would raise grave concerns about

the national security information the President believes should be

disclosed would appear to conflict with the Framers’ considered judgment,

embodied in Article II, that, within the executive branch, all authority

over matters of national defense and foreign affairs is vested in the

President as Chief Executive and Commander in Chief. In addition, the

President must retain authority over the disposition of national security

information to the extent necessary to discharge his constitutionally

assigned duties. Id. n. 5, p. 7. Emphasis added.

Therefore, the CIA MDR decision makers should be consulting the Chair of the CIA

Agency Appeals Panel as to whether to declassify the # 5 “all Robert II v CIA “c (3) exclusion”

ex parte Declarations which reveal whether a faux “Commander in Chief” had ordered CIA

General Counsels Muller and (Acting) Rizzo to withhold “black operations” facts from Judge

Seybert. The Chair of the CIA Agency Release Panel has the authority to assemble the

interested parties to render the CIA MDR declassification decision on behalf of CIA Director

Panetta re “black operations” conducted by CIA Directors Casey 1981-1987), Judge Webster

1987-1991), Gates (1991-1993), Woolsey (1993-1995), Deutch (1995-1996), Tenet (1997-2004),

Goss (2004-2005), and Hayden (2006-2009). “The Chair may request interested parties to

participate when special equities or expertise are involved.” 32 C.F.R. 1900.41 (c)(2).”

The Chair of the CIA Agency Release Panel may decide that the interested parties

include former-CIA General Counsels Muller and (Acting) Rizzo. They can deny or confirm

Robert II v CIA and DOJ plaintiff’s assertion that both CIA Directors Casey (January 28,1981-

January 29, 1987) and Webster (May 26, 1987-August 31, 1991), knew of the existence of the

1980s “black operations” at IMC and NSA. This is a key mens rea time line fact because 2006-

2011 DOD Secretary Gates was the 1982-1986 CIA Deputy Director for Intelligence, 1986-1989

CIA Deputy Director, and 1991-1993 CIA Director. He now knows CIA Director Casey had

conducted “black operations” at IMC and NSA. See 7-27-10 DOJ WP §§ K, M, N, CC, DD.

DOD Secretary Gates reported in his 1996 Memoir, From the Shadows, Robert M.

Gates, Simon and Schuster, 1996, of the existence of an internal “stovepipe” at the CIA,

Because of the compartmentalization of Top Secret information, as the CIA Deputy Director

he reported that he did not know that CIA Director Casey had violated § 413(a) of the National

Security Act covert action reporting duty and Boland Amendment by illegal funding the Contras:

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“Thus, by the time of the prohibition on CIA began on October 1, 1984,

the action on Nicaragua and the Contras had passed from the CIA to NSC.

The details of all of this were known only to a handful of people at CIA

headquarter. I was not among them.” Id. 392 Robert M. Gates, From the

Shadows, Simon and Schuster, 1996. Emphasis Added.

Nine months have passed and there has been no CIA FOIA decision re the # 5 FOIA

requested documents. Therefore, the CIA MDR decision-makers should be consulting with

Acting Information and Privacy Coordinator Koch to learn if he was ordered not to render a

FOIA decision because the documents involve the pending Robert II v CIA and DOJ FOIA

action. If so, then a CIA FOIA decision should so state. 32 C.F.R. § 1900.22. The FOIA

requester would appeal that decision to the CIA Appeals Release Panel. 32 C.F.R. § 1900.42.

On appeal, the Robert II v CIA and DOJ plaintiff would request that all of the CIA

Appeals Release Panel Members, whose Commander in Chief is President Obama, read the “c

(3) exclusion” ex parte Declarations filed with Judge Seybert to determine whether the CIA

General Counsels Muller and (Acting) Rizzo had implemented the “Barrett nonacquiescence

policy” and withheld material facts from Judge Seybert in order to made Judge Seybert a

“handmaiden” of the CIA General Counsels. “Under no circumstances should the Judiciary

become the handmaiden of the Executive.” Doe, et. al. v Mukasey, Mueller, and Caproni, 549 F

3d 861, 870 (2d Cir. 2008). See 7-27-10 WP §§ E-G, N, AA, PP, XX. See also §§ A-F above.

This October 5, 1999 OLC opinion also applies to the 4-11-11 undocketed OLC MDR

request re the redacted May 6, 2004 OLC Memorandum. CIA General Counsel Preston will

advise the CIA MDR decision makers the likelihood of AG Holder’s OLC MDR decision

makers declassifying the redacted May 6, 2004 OLC Memorandum of AAG of the OLC

Goldsmith to AG Ashcroft re the legal basis for the “do not exist” pre-9/11 NSA TSP. CIA

General Counsel Preston has a duty to explain the October 21, 2004 Principles to Guide the

Office of Legal Counsel drafted by former OLC attorneys for the reasons as explained by

Professor Dawn Johnson in Guidelines for the President’s Legal Advisors. 81 Indiana Law

Journal 1345 (2006). http://www.law.indiana.edu/ilj/volumes/v81/no4/11_Guidelines.pdf. These

OLC Principles were in response to OLC opinions of 2001-2003 AAG of the OLC Bybee.

Upon information and belief, Principal Deputy AAG of the OLC Caroline Diane Krass

and OLC Special Counsel Paul Colborn are now applying these October 21, 2004 OLC

Principles to the September 15, 2010 FOIA request for a series of OLC opinions. This includes

the FOIA request for the classified # 1 “1985 “Mitchell v Forsyth nonacquiescence policy”, #

2 “1982 “Jackson nonacquiescence policy”, # 3 1990 “Ruppert nonacquiescence policy”, # 4

1986 “Barrett nonacquiescence policy”, # 5 “2001 “Christensen nonacquiescence policy” and #

6 “2007 “Ford v Shalala nonacquiescence policy” documents that explain why AG Holders’ 93

U.S. Attorneys do not follow the holdings of these cases subject to the AG’s 28 U.S.C. § 530D

duty to inform Congress of the “nonacquiescence” cases. See 1-4-11 PIAB WP §§ 13-16, 35.

Deputy AAG of the OLC Krass, the 2001-2009 OLC Attorney Advisor and Senior

Counsel, will confirm the 2011 viability of this October 5, 1999 OLC opinion. She will also

confirm that CIA General Counsel Preston’s Commander in Chief is President Obama.

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This October 5, 1999 OLC opinion also applies to the 5-9-11 NARA ADR request re the

# 1-# 4 classified documents and 5-9-11 NARA MDR re “Peter Keisler Collection”, “Perot”,

and “Robert v National Archives ‘Bulky Evidence File” withheld classified connect-the-dots

documents. CIA General Counsel Preston can advise the CIA MDR decision-makers whether

CIA officials have instructed NARA Archivist Ferriero’s ADR and MDR decision makers not to

declassify these seven connect-the-dots documents that would reveal “sources and methods” of

the CIA. See 5-9-11 MDR WP § C and 7-27-10 DOJ WP §§ G, N, V-Y, AA, BB.

Upon information and belief, the NARA ADR and MDR decision-makers will seek the

legal advise of NARA General Counsel Stern whether the E.O. 13526 § 3.5 “Glomar Response”

defense applies to these documents if the CIA had asserted that these documents reveal the

“sources and methods” of the CIA. If so, then NSA General Counsel Stern will also seek

guidance from the E.O. 13526 § 3.7 National Declassification Center (NDC). On April 4, 2011,

the NDC posted on the internet its Bi-Annual Report on Operations of the National

Declassification Center; Reporting period: January 1. 2010-December 31, 2010. The NDC Blog

reported that new FOIA MDR declassification standards may be implemented in the spring.

We are also finalizing new work processes for Freedom of Information

Act/Mandatory Declassified Reviews for classified Federal records to

provide for more timely responses for public requests. We are currently

piloting new methodologies we expect to have in full implementation in

the spring. Id. 3. Emphasis Added.

http://www.archives.gov/declassification/reports/2010-biannual-january1-

december31.pdf.

Hence, the importance of the CIA MDR decision-makers take into account the fact that

standards that were relied upon by CIA General Counsels Muller and (Acting) Rizzo are not the

standards that CIA General Counsel Preston is to apply. The Robert II v CIA and DOJ plaintiff

has advised CIA General Counsel Preston of AG Holder’s “fraud upon the court” risk in Robert

VIII v DOJ, HHS, and SSA. Pursuant to AG Holder’s March 29, 2009 FOIA Guidelines re

pending litigation, he is to consult with the DOJ attorneys handling Robert II v CIA and DOJ:

With regard to litigation pending on the date of the issuance of this

memorandum, this guidance should be taken into account and applied if

practicable when, in the Judgment of the Department of Justice lawyers

handling the matter and the relevant agency defendants, there is a

substantial likelihood that application of the guidance would result in a

material disclosure of additional information. Emphasis Added.

http://www.justice.gov/ag/foia-memo-march2009.pdf

As per Acting AAG of the OLC Moss’ October 5, 1999 OLC memo, the Commander in

Chief of the ISCAP decision-makers is President Obama. Therefore, the CIA MDR requester

suggests that the CIA MDR decision-makers first docket this CIA MDR request, and then seek

legal guidance from CIA General Counsel Preston. After consulting with DOJ Robert II v CIA

and DOJ attorneys, CIA General Counsel Preston can advise the CIA MDR decisions makers

the most likely ISCAP decision if the CIA MDR decision is not to release the # 5 documents.

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Q. The CIA MDR decision makers should factor in the effect of the confirmation of CIA

Director Panetta as the DOD Secretary and General Patraeus as the CIA Director

The CIA MDR decision makers should factor in the effect of the confirmation of CIA

Director Panetta as the DOD Secretary and General Patraeus as the CIA Director. Assuming

their confirmation during the FOIA appeal of the denial of the request for the # 5 “all Robert II

v CIA “c (3) exclusion” ex parte Declarations” documents, CIA Director Patraeus will be the

successor co-defendant in Robert II v CIA and DOJ when CIA Director Panetta becomes the

DOD successor to 2006-2010 DOD Secretary Gates, the 1982-1986 CIA Deputy Director for

Intelligence, 1986-1989 CIA Deputy Director, and 1991-1993 CIA Director, who will resign on

June 30, 2011. Therefore, the CIA MDR decision-makers have two months to render a decision

that may lead to CIA Director Panetta accepting the Robert II v CIA and DOJ quiet settlement

offer and end this 2002-2011 litigation by June 30, 2011. See 11-11-08 DAG Filip WP.

General Patraeus will be resigning as a military officer after his is confirmed as the new

CIA Director. Needless to say, CIA Director Patraeus will understand the October 5, 1999 OLC

Memo re FOIA classified CIA documents that his Commander in Chief continues to be

President Obama. “One thing he’ll find is C.I.A. doesn’t do the hierarchy thing very well at

all,” said Michael V. Hayden, C.I.A. director from 2006 to 2009. “That’ll be a bit of an

adjustment.” Shane, Director Petraeus to Face Different Culture at C.I.A., NY Times, 4-27-11.

On June 30, 2011, CIA Director Panetta will become the “chain of command” officer for

DOD Cyber Commander-NSA Director Lt. General Alexander. As to classified NSA

documents, DOD Secretary Panetta’s Commander in Chief will be President Obama just as it

was when he was the CIA Director and the President’s delegee re CIA classified documents.

The CIA MDR decision-makers are placed on Notice that on July 27, 2010 the Robert

VIII v DOJ, HHS, and SSA appellant filed a NSA FOIA request for the release of DOD “NSA

TSP and PSP data banks access guidelines” documents. This FOIA was based on the July 19,

2011 “Top Secret America” Washington Post series of investigative reporters Priest and Arkin

that revealed the NSA’s domestic surveillance that has been hidden in plain sight from Members

of Congress and the public. http://projects.washingtonpost.com/top-secret-america/map/

On September 8, 2010, the NSA FOIA Officer denied the FOIA request and used a de

facto “Glomar Response” decision that no “responsive” records could be located. “A thorough

search of our files was conducted, but no records responsive to your request were located.”

Emphasis added. FOIA Case # 62557. On October 29, 2010, the Robert VIII v DOJ, HHS, and

SSA appellant appealed the NSA FOIA Officer’s to the NSA FOIA Appeal Authority.

Six months have passed and the NSA FOIA Appeal Authority has not yet rendered its

decision. Upon information and belief, the NSA FOIA Appeal Authority is awaiting a legal

opinion from DOD General Counsel Jeb Johnson whether the “Glomar Response” E.O. 13526 §

3.6 (a) applies to the NSA classified guidelines re the “do not exist” 1984-2011 NSA TSP data

banks in the DOD Cyber Commander’s custody. Upon information and belief, DOD General

Counsel Johnson has requested an AG’s E.O. 13526 § 6.2 interpretation as to whether the §

3.6 (a) “Glomar Response” applies to DOD access guidelines to the NSA TSP data banks.

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In his Senate Armed Services Committee Nominee questionnaire, DOD General Counsel

Johnson had been asked a series of questions as to OLC opinions being the “law” that was to be

applied by the DOD Secretary and to DOD “black operations” of the DOD:

What actions would you take in response to an opinion issued by OLC

with which you disagreed as a matter of proper interpretation of the law?

If OLC issued an opinion with which I materially disagreed, I would not

hesitate to inform OLC of the extend and nature of the disagreement,

mindful, again, that the Attorney General is the chief legal officer of the

United States and that his or her legal opinions are controlling throughout

the Executive Branch. Emphasis Added.

Upon information and belief, DOD General Counsel Johnson is awaiting a decision from

Principal Deputy AAG of the OLC Krass re the “NSA TSP and PSP data banks access

guidelines” documents that he knows exist, and, if released, would confirm the existence of the

“Top Secret America” NSA domestic surveillance program described in the Washington Post

series. If so, then there is a possibility of a 2011 OLC opinion updating Acting AAG of the

OLC Moss’ October 5, 1999 decision that binds all delegees of the Commander in Chief.

Upon information and belief, in response to the April 11, 2011 requested for an ODNI

MDR decision re the ODNI “NCTC TSP and PSP data banks access guidelines” documents,

ODNI General Counsel Litt also had requested that AG Holder issue an E.O. 13526 § 6.2

interpretation as to use of § 3.6 (a) “Glomar Response” assertion to deny MDR jurisdiction for

the request to declassify ODNI access guidelines to the “do not exist” NSA TSP data banks in

the custody of DOD Cyber-Commander-NSA Director Lt. General Alexander. If so, then the

ODNI MDR decision could be the template for the CIA MDR decision re documents that reveal

the existence of the 1980s NSA TSP data banks that have been accessed by CIA Directors

pursuant to the “Unitary Executive” theory of AG Meese as revealed in the March 18, 2011

FOIA released redacted May 6, 2004 Memorandum from AAG of the OLC Goldsmith to AG

Ashcroft re the NSA TSP. See 4-11-11 OLC WP § M and 7-27-11 DOJ WP §§ K, N, CC, DD.

CIA General Counsel Preston can inform the CIA MDR decisions makers if ODNI

General Counsel Litt and/or DOD General Counsel Johnson made these § 6.2 requests to AG

Holder. If so, then this increases the possibility AG Holder will read these documents and accept

the Robert VIII v DOJ, HHS, and SSA and Robert II v CIA and DOJ quiet settlement offers.

If DOD General Counsel Johnson has made § 6.2 requests to AG Holder, then the CIA

MDR decision makers should be informing CIA Director Panetta that he will be confronted with

the same “do not exist” NSA TSP classified information issue as DOD Secretary as he was as

CIA Director. If Principal Deputy AAG of the OLC Krass recommends that the NSA FOIA

Appeal Authority order the release of the “NSA TSP and PSP data banks access guidelines”

documents with appropriate redaction as to operational details, then CIA Director Panetta can

consider this fact when in May, 2011 he considers plaintiff’s Robert II v CIA and DOJ quiet

settlement offer to end the litigation prior to CIA Director Patraeus becoming the latest Robert II

v CIA and DOJ successor co-defendant to CIA Directors Tenet (1997-2004), Goss (2005-2005),

Hayden (2006- 2009), and Panetta (2009-). See the 11-11-08 DAG Filip WP §§ A, B, F, G, I.

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DOD declassification of “NSA TSP and PSP data banks access guidelines” documents

would be consistent with the FOIA public knowledge “inevitability” realism of DOD Secretary

Gates. Prior to the WikiLeaks scandal, DOD Secretary Gates had a realistic view of the

inevitability of the public learning of information facts re “black operations” of DOD and the

CIA. “Pretending that we could hold all of this and keep it all a secret, even if we wanted to, I

think was probably unrealistic,” Mr. Gates said. “My own view was shaped by the fact that I

regarded the information about a lot of these things coming out as inevitable.” Shanker, Gates

Voices Concerns About Release of Interrogation Memos, NY Times, 4-29-09. Emphasis added.

Declassification of the DOD “NSA TSP and PSP data banks access guidelines”

documents prior to June 30, 2011, would also be consistent with former-CIA Director Hayden’s

“shot across the bow” NY Times Contributor Op Ed article, Warrantless Criticism. “.. there is

more information that will appropriately become available in time…” See § M above.

President Obama nominated CIA Director Panetta to be DOD Secretary Gates’ successor

because he trusts CIA Director Panetta. The CIA MDR decision-makers know that CIA Director

Panetta will betray President Obama, the Commander in Chief of the DOD Cyber-Commander-

NSA Director Lt. General Alexander. Therefore, the CIA MDR decision makers should be

consulting the Chair of the CIA Agency Appeals Panel as to whether to declassify the # 5 “all

Robert II v CIA “c (3) exclusion” ex parte Declarations which reveal what CIA General

Counsels Muller and (Acting) Rizzo knew and when they knew it, re the withholding of

“black operations” facts from Judge Seybert. These are “black operation” facts that corroborate

the Robert II v CIA and DOJ plaintiff’s assertion that he was the target of an illegal domestic

NSA TSP conducted with the knowledge of CIA Director Casey, AG Meese, FBI Director

Webster, and DOD Secretary Weinberger. See 7-27-10 DOJ WP §§ E-G, K, N, CC, DD.

This is a most timely CIA MDR request prior to CIA Director Panetta replacing DOD

Secretary Gates who knows why 1984-2011 CIA and DOD “stovepipes” bypassed the CIA

Directors and DOD Secretaries re the military officer-NSA Directors access to the “do not

exist” 1984-2011 NSA TSP and PSP data banks. Over decades, he learned of the violations of

the § 413 (a) of the National Security Act, “exclusivity provision” of the FISA, PCA limitations

on military domestic law enforcement, and Social Security Act. 3-18-11 ISCAP WP §§ D-G.

It is because CIA Director Panetta and DOD Secretary Gates both possess the Chilicky

“normal sensibilities” of other human beings, that in the preparation for his DOD Secretary

confirmation hearing, DOD Secretary Gates will inform CIA Director Panetta the “Top” Top

Secret of the off-OMB Budget funding source for the “do not exist” 1984-2011 NSA TSP and

PSP data banks. In this way, DOD Secretary Nominee Panetta will not be “blindsided” by a

Senator’s question of 1993-1994 OMB Director Panetta as to the off-OMB Budget source for the

“immaculate construction” and maintenance of the “do not exist” 1984-2011 NSA TSP and PSP

data banks that were not funded with classified OMB Budget funds. DOD Secretary Gates

knows that this became an inevitable Congressional question when the 535 Members of

Congress, whose constituents are the millions of 1984-2011 Ford v Shalala class members,

learned of the existence of the “Top Secret America” NSA domestic surveillance program that

was revealed in the July 19, 2011 Washington Post series of investigative reporter Priest and

Arkin. See 7-27-10 DOJ WP §§ A, C, N, Z, AA, BB, CC, DD, ZZ. See § H below.

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Hence, the significance of President Obama nominating CIA Director Panetta, the former

Chairman of the Budget Committee and the 1993-1994 OMB Director, to be DOD Secretary.

As a result, the CIA MDR decision makers should not practice a “conscious avoidance” of facts

adjudication strategy. “Conscious avoidance occurs when a person deliberately closes his eyes

to avoid having knowledge of what would otherwise be obvious to him.” U.S. v. Reyes, 302

F.3d 48, 49-50 (2d Cir. 2002). This CIA MDR request provides Robert II v CIA and DOJ co-

defendant CIA Director Panetta a May, 2011 opportunity to prevent co-defendant AG Holder

from committing the déjà vu “fraud upon the court in Robert VIII v DOJ, HHS, and SSA.

At the same time, CIA Director Panetta can learn compartmentalized CIA facts that will

assist him in his DOD Secretary review of the 1984-2011 “NSA TSP and PSP data banks access

guidelines” documents that are being withheld pursuant to the “Glomar Response” defense.

With accurate facts, DOD Secretary Panetta may recommend that President Obama fulfill his §

413 (b) of the National Security Act duty to file a “corrective action” plan to cure illegal

intelligence activities. Such a § 413 (b) “corrective action” plan could include a universal Access

Guideline that covers the 1984-2011 “do not exist” NSA TSP data banks in the custody of DOD

Cyber Commander-NSA Director Lt. General Alexander. See 7-27-11 DOJ WP § DD.

The CIA MDR decision-makers should anticipate that the ISCAP Members who have

appearances of conflicts of interest, will resolve those conflicts in the favor of President Obama,

their Commander in Chief. If an ISCAP appeal is necessary, the CIA MDR appellant will argue

that the ISCAP Members have a duty to report to President Obama, the CIA’s “continued

classification” of documents that prove 2011 E.O. 13526 § 1.7 serial impeachable violations of

§ 413 (a) of the National Security Act, the FISA, the PCA, and the Social Security Act. For

example, ISCAP Member Mathew Olsen, the DOJ representative, can “walk back the cat” for

President Obama, his Commander in Chief, and provide the names of the daisy-chain of “shadow

government attorney-patriots. He was the 2005 Special Counsel to FBI Director Mueller when

the December 22, 2005 NSA PSP § 413 (a) Notice was sent. See 3-18-11 ISCAP WP §§ D-J.

The ISCAP Members who are lawyers, all have the Connick v Thompson individual

responsibility ethics duty to inform President Obama of the 2009-2011 breaches of his Article

II “take Care that the Laws are faithfully executed” as to the equal protection and due process

rights of 1994-2011 Ford class members. Even the non attorney ISCAP Members can read the

“Jackson” regulation, 20 C.F.R. § 416.1130 (b), and know that an SSI regulation that only

applies in Illinois, Indiana, and Wisconsin on its face violates the equal protection rights of the

millions of 1994-2011 Ford class members residing in the other 47 states. These non-attorney

ISCAP Members can also read Judge Sifton’s 1999 Ford decision and know that to cure the

millions of Ford class members due process rights, the Ford “remedy” Notices have to cite to the

SSI regulations, including the Jackson regulation, 20 C.F.R. § 416.1130 (b). See § O above.

Therefore, May, 2011 is the month that CIA MDR decision makers have a duty to read

the # 5 “all Robert II v CIA “c (3) exclusion” ex parte Declarations” documents. In this way,

CIA Director Panetta, on his own CIA Director watch can consider the plaintiff’s quiet

settlement offer to end the litigation prior to June 30, 2011. In this way, CIA Director Patreaus

would not be the successor co-defendant in an action in which he is defending his CIA Director

predecessors who followed the illegal litigation orders of faux “Commanders in Chief.”

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R. DOD Panetta’s July, 2011 20/20 hindsight vision of the 1984-2011 PCA violations by

the faux “Commanders in Chief” of the 1984-2011 “do not exist” NSA TSP data banks

hidden-in-plain-sight from Presidents Reagan, Bush, Clinton, Bush, and Obama

The CIA MDR decision-makers should anticipate DOD Secretary Panetta’s July, 2011

20/20 hindsight vision of the 1984-2011 PCA violations by the faux “Commander in Chiefs”of

the1984-2011 “do not exist” NSA TSP data banks hidden-in-plain-sight from the DOD

Secretaries of Presidents Reagan, Bush, Clinton, Bush, and Obama. That 20/20 vision will be

tested when Robert II v CIA and DOJ plaintiff files a DOD MDR of the “NSA TSP and PSP data

banks access guidelines” withheld pursuant to the use of the “Glomar Response” defense. DOD

Secretary Panetta will learn the name of the 2011 faux “Commander in Chief” of DOD Cyber-

Commander-NSA Director Lt. General Alexander. He may end NSA PCA violations by

becoming the civilian DOD “chain of command” officer whose Commander in Chief is President

Obama, and recommending that the President file a 2011 § 413(b) “corrective action” plan.

The soon-to-be confirmed DOD Secretary Nominee Panetta will replace the retiring

DOD Secretary Gates on June 30, 2011. He will bring his 20/20 hindsight vision made acute by

his 47 years of public service. In 1964, he began his public service career when he joined the

Army. Prior to discharge in 1966, he was a Captain who had been the chief of operations and

planning of the intelligence section of his unit. He knew that his Commander in Chief was

President Johnson, a civilian, and not a faux “Commander in Chief” anonymous military officer.

He began his Article II career in 1969 as an Assistant to HHS Secretary Robert Finch

and became President’s Director of Office of Civil Rights. After a private practice of law from

1971-1976, he began his Article I career a Congressman from 1976-1993 that included being

the 1989-1993 Chairman of the House Budget committee. He rekindled his Article II career as

1993-1994 OMB Director before becoming President Clinton’s 1994-1997 Chief of Staff.

In 2006 he was a member of the Iraq Study Group, a/k/a the Baker Commission. He

learned first hand the importance of accurate intelligence facts being provided to President Bush.

He learned the details of the process by which DOD Secretary Rumsfeld received

Counterintelligence Field Activity (CIFA) information. He learned that AG Gonzales’ December

22, 2005 § 413 (a) letter to the “Gang of Eight” retroactively reported the 2002-2005 NSA PSP

intelligence activity, but did not report pre-9-11 1984-2011 NSA TSP intelligence activity. He

learned that the DOD-NSA decision-making process relied upon the legal advise of the NSA

General Counsel as to domestic military officers access to the 1984-2006 NSA TSP data banks.

In 2006 he learned that the Acting NSA General Counsel was Vito Potenza. This is an

important 2006 hindsight fact because Acting NSA General Counsel Potenza (2005-2011) has

remained as the Acting NSA General Counsel for DOD Secretary Gates (2006-2011) and NSA

Director Lt. General Alexander ( 2005-2011). He has an institutional memory of NSA violations

of the Posse Comitatus Act limitations on domestic military law enforcement. On September 12,

2006, he testified testimony before the House Subcommittee on Crime, Terrorism, and

Homeland Security Committee re Legislative Proposals to Update the Foreign Intelligence

Surveillance Act, and informed the Article I Oversight Committee of “longstanding laws and

traditions concerning intelligence committee oversight have been effective and workable:”

73

More generally, we believe that the longstanding laws and traditions

concerning intelligence committee oversight have been effective and

workable, and we therefore have concerns with changes that would amend

the National Security Act in a manner that alters these settled

understandings.” Id. 2. Emphasis Added.

http://www.nsa.gov/public_info/speeches_testimonies/12sept06_potenza.s

html

In July, 2011, DOD Secretary Panetta will review the “settled understandings” between

DOD and the Congressional Oversight Committees re DOD Cyber Commander-NSA Director

Lt. General Alexander’s access to the 1984-2001 “do not exist” NSA TSP data banks that on

December 22, 2005 AG Gonzales did not inform the “Gang of Eight” had been accessed by the

NSA Directors who by statute are all military officers: NSA Directors Faurer (1981-1985),

Odom (1985-1988), Studeman (1988-1992), Mc Connell (1992-1996), Minihan (1996-1999),

Hayden (1999-2005), and Alexander (2005-). See 7-27-10 DOJ WP §§ K, M, N, CC, DD.

DOD Secretary Panetta will learn in July, 2011 whether operation decisions made by the

NSA Directors to access the “do not exist” NSA TSP data banks were made by the civilian DOD

Secretaries whose Commanders in Chief were Presidents Reagan, Bush, Clinton, Bush, and

Obama. If not, then DOD Secretary Panetta will learn whether Acting NSA General Counsel

Potenza knows the names of the faux “Commanders in Chief” who have been the “command and

control” officers of the NSA Directors including the 2009-2011 faux “Commander and Chief” of

DOD Cyber Commander-NSA Director Lt. General Alexander who was not President Obama.

In 2011, during the difficult decision-making re the covert operation to kill Osama bin

Laden, CIA Director Panetta again learned first hand the importance of a “chain of command”

that can be trusted to provide accurate information to the President because the Pakistani

intelligence service could not locate Osama bin Laden living “in plain sight.” This is an

important “in plain sight” lessons learned standard that DOD Secretary Panetta can apply when

he learns the 1984-2011 off-OMB Budget source for the elaborate “Top Secret America” NSA

domestic surveillance program that the public learned has been “in plain sight” from viewing

the July 19, 2010 Location Map of Washington Post investigative reporters Priest and Arkin in

their “Top Secret America” series. http://projects.washingtonpost.com/top-secret-america/map/

On July 27, 2010, the Robert VIII v DOJ, HHS, and SSA appellant filed his NSA FOIA

request for the release of the “NSA TSP and PSP data banks access guidelines” documents. He

explained that it was based on the July 19, 2010 “Top Secret America” series of Washington

Post investigative reporters Priest and Arkin. He noted how they had informed the public of the

NSA domestic surveillance program with over 9000 secret locations hidden in plain sight and

tens of thousands of USG and private contractor employees accessing the 1984-2011 NSA TSP

and TSP data banks under the “command and control” of DOD Cyber Commander-NSA

Director Lt. General Alexander. He also cited to 7-27-10 DOJ WP §§ K, M, N, CC, DD.

Upon information and belief, NSA Acting General Counsel Potenza ordered the FOIA

Officer to use the de facto “Glomar Response” defense that no “responsive” NSA records were

located. This was based on the E.O. 13526 § 3.6 (a) “Glomar Response” standard.

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In his October 29, 2010 appeal of the September 8, 2010 “Glomar Response” decision to

the NSA FOIA Appeal Authority, the FOIA appellant argued that the public would be reassured

that there were written NSA Guidelines applied by the NSA Director. “NSA Director Alexander

should proudly make public the NSA Guidelines that the public knows exist to reassure the

public that there are internal Article II checks and balances that prevent the FISA violations that

the FBI Directors knew had occurred.” Emphasis not added. See 1-4-11 PIAB WP §§ 13, 14.

As of the date of his WP, the NSA FOIA Appeal Authority has not rendered a decision.

Upon information and belief, NSA Acting General Counsel Potenza has advised the NSA FOIA

Appeal Authority not to render a decision because that decision would then be subject to ISCAP

review. Upon information and belief, Acting General Counsel Potenza does not want the ISCAP

to review the decision because this would result in President Obama learning not only of the

impeachable PCA violations that have occurred during his Constitutional watch, but the

existence of the 1984-2011 daisy-chain of “shadow government” patriots who have implemented

the extreme “Unitary Executive” theory of AG Meese and whose “Commanders in Chief” have

not been Presidents Reagan, Bush, Clinton, Bush, and Obama. See 3-18-11 ISCAP WP §§ D-G.

Upon information and belief, DOD Secretary Panetta will prudently request that DOD

General Counsel Jeb Johnson prepare a Report that details the “don’t ask don’t tell” procedures

that have been implemented as 1984-2011 “settled understandings” between DOD and the

Oversight Committees re the 1984-2011 NSA TSP data banks accessed by the NSA Directors

whose civilian “chain of command” officers were to be the 1984-2011 DOD Secretaries:

Caspar Weinberger- January 21-1981-November 23, 1987

Frank Carlucci III- November 23, 1987-March 20-1989

Richard Cheney - March 2, 1989-January 20, 1993

Leslie Aspin, Jr. - January 21, 1993-February 3, 1994

William Perry-February 3, 1994-January 24, 1997

William Cohen-January 24, 1997-January 20, 2001

Donald Rumsfeld- January 20, 2001-December 18, 2006

Robert Gates-December 18, 2006- June 30, 2011

DOD Secretary Panetta’s 20/20 July, 2011 hindsight vision will also allow him to follow

the money trail of the payment for the “immaculate construction” and maintenance of the “do

not exist” 1984-2001 NSA TSP and 2002-2011 NSA PSP data banks that were not paid for with

classified OMB Budget funds. He needs to know the 1984-2011 money trail in order to provide

accurate facts to President Obama when he decides whether to file a § 413 (b) “corrective action”

plan to cure the illegal intelligence community activities. See 1-4-11 PIAB WP §§ 1, 34.

DOD Secretary Panetta will learn from following the money trail how the 1984-2011

daisy chain of “shadow government” attorney-patriots had made the off-OMB Budget funding

decisions to pay for the “in plain sight” 1984-2011 NSA TSP and PSP data banks without the

knowledge of Presidents Reagan, Busy, Clinton, Bush, and Obama and the Article I Budget

Committees. He can pool the institutional memory of 2011 SSA Commissioner Astrue, 2011

DOD Secretary Gates, 2011 ODNI Director Clapper, 2009 CIA Director Hayden, and 2011 CIA

Director Panetta. The following venue time line for these USG officials may be of assistance:

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1979-1986 Budget Committee Congressman Panetta

1982-1986 CIA Deputy Director for Intelligence Gates

1985 Acting Deputy Assistant Secretary of Legislation Astrue

1986-1989 CIA Deputy Director Gates

1986 Legal Counsel to the SSA Deputy Commissioner for Programs Astrue

1986-1988 Counselor to the SSA Commissioner Astrue

1988 President Reagan’s Associate White House Counsel Astrue

1989 President Bush‘s Associate White House Counsel Astrue

1989-1993 HHS General Counsel Astrue

1989-1993 Chairman of the Budget Committee Panetta

1991-1993 CIA Director Gates

1992-1995 DIA Director Clapper

1993-1994 OMB Director Panetta

1994-1997 President Clinton Chief of Staff Panetta

1999-2005 NSA Director Hayden

2005-2006 ODNI Principal Deputy Director Hayden

2006-2009 CIA Director Hayden

2006-2010 DOD Secretary Gates

2007-2010 DOD Under Secretary of Defense Intelligence Clapper

2007-2011 SSA Commissioner Astrue

2009-2011 CIA Director Panetta

2010-2011 ODNI Director Clapper

DOD Secretary Panetta can learn from following the money trail whether the almost

incredible Robert II v CIA and DOJ and Robert VIII v DOJ, HHS, and SSA allegation is true

that 1984-2011 “Jackson nonacquiescence policy” off-OMB Budget funds have been the main

funding source for the 1984-2011 NSA TSP and PSP data banks that were not funded with

classified OMB Budget funds. If so, then President Obama should be informed of this fact.

DOD Secretary Panetta can prudently seek the wisdom of White House Office of

Information and Regulatory Affairs (OIRA) Director Cass Sunstein. He was a 1980-1981 OLC

attorney-advisor. He taught Constitutional and Administrative Law. His 2006 book, Infotopia:

How Many Minds Produce Knowledge, explores methods for aggregating information and

contains discussions of prediction markets, open-source software, and wikis. “Cass is not only a

valued advisor, he is a dear friend and I am proud to have him on my team." President Obama

April 20, 2009 WH Press Release. http://www.whitehouse.gov/the_press_office/President-

Obama-Announces-Another-Key-OMB-Post/.

DOD Secretary Panetta can also prudently seek the legal advise of OMB General

Counsel and Senior Policy Advisor Preeta Bansal, the Vice Chair of ACUS. She knows that

OMB Director Lew has custody of the 1982-2009 FOIA requested “OMB Jackson” documents

withheld pursuant to a de facto “Glomar Response” defense. She knows that the 1989 ACUS

Report, Estreicter & Revesz, Nonacquiescence by Federal Administrative Agencies, 98 Yale L.J.

679, 681 (1989), is “smoking gun” proof that SSA Commissioner Astrue lied to the Senate

Finance Committee when he testified that the “nonacquiescence policy had ended prior to his

becoming HHS General Counsel in 1989. See 7-27-10 DOJ WP § Z, ZZ. 1-4-11 PIAB § 35.

76

DOD Secretary Panetta can also prudently seek the legal advise of ACUS Council

Member Theodore Olson. He was the 1981-1984 AAG of the OLC when HHS General Counsel

del Real made his 1982 “Jackson nonacquiescence policy” decision. He was the 2001-2004

Solicitor General when AAG of the OLC Goldsmith drafted his May, 2004 Memorandum for

AG Ashcroft explaining the “Unitary Executive” theory of AG Meese that has been the legal

basis for accessing the “do not exist” 1984-2001 NSA TSP and 2002-2004 NSA PSP data banks.

DOD Secretary Panetta can also prudently ask ACUS Chairman Paul Verkuil to secure

background information as to the 1982-2011 “Jackson nonacquiescence policy” from ACUS

public members who have institutional knowledge of how “nonacquiescence” policies were

established and implemented before and after the 2002 28 U.S.C. § 530 D reporting statute:

Walter Dellinger - 1993-96 AAG of the OLC and 1996-97 Acting Solicitor General

Christopher Edley, Jr. - Berkeley School Dean and 1993-1995 OMB Associate Director

David C. Frederick - 1996-2001 Assistant to the Solicitor General

Peter D. Keisler - 2003-2007 AAG of the Civil Division and 2007 Acting AG

David W. Ogden - 1999-2001 AAG of the Civil Division and 2009-2010 DAG Deputy

Richard L. Revesz - NYU Law School Dean and co-author 1989 ACUS report

Larry D. Thompson - 2001-2003 DAG

Based on 2011 ACUS “Jackson nonacquiescence policy” information, DOD Secretary

Panetta can consider recommending to President Obama that in 2011 he file a § 413(b)

“correction plan” to cure illegal intelligence activities. Such a § 413(b) “corrective action” plan

could be for President Obama to order SSA Commissioner Astrue to “make true” his sworn

January 24, 2007 Senate Finance Committee testimony that the “nonacquiescence” policy had

ended prior to his becoming HHS General Counsel in 1989. However, this would mean that the

funding of the 2011 NSA TSP data banks would be with classified OMB Budget funds.

DOD Secretary Panetta could recommend that President Obama end the PCA violations

of the faux “Commander in Chief” of DOD Cyber Commander-NSA Director Lt. General

Alexander by including a § 413(b) universal Access Guideline that applies to the 1984-2011

NSA TSP data banks. This would be public recognition of a possible foe faux “Commander in

Chief” who misuses CATALYST algorithms to access the Orwellian data banks hidden-in-

plain-sight, against 535 Members of Congress or 2012 Presidential candidates or U.S. persons

targeted by “fifth column” 1984-2011 daisy-chain of “shadow government” attorney-patriots

implementing the extreme “Unitary Executive” theory.

Hence, the importance of the CIA MDR decision makers seeking legal advise from CIA

General Counsel Preston who can consult with DOD General Counsel Johnson and Acting NSA

General Counsel Potenza. In this way, if there is an issue of the E.O. 13526 § 3.6 (a) “Glomar

Response” standard being applied to this § 3.5 MDR, then they can seek a § 6.2 (c) “shall”

interpretation from AG Holder prior to AG Holder filing his Robert VIII v DOJ, HHS, and SSA

Brief on May 25, 2011. In this way, CIA Director Panetta can prevent AG Holder from

committing a “fraud upon the court” in Robert VIII v DOJ, HHS, and SSA on May 25, 2011.

AG Holder will learn that the FOIA requested # 5 “all Robert II v CIA “c (3) exclusion” ex

parte Declarations” documents prove that Robert was a FISA “aggrieved person” in 2006.

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S. Summary

The purpose of this May 9, 2011 CIA MDR request for declassification of the July 27,

2010 FOIA requested # 5 “all Robert II v CIA “c (3) exclusion” ex parte Declarations”

documents, is for CIA Director Panetta to prevent AG Holder from committing a May 25, 2011

déjà vu Robert VIII DOJ, HHS, and SSA “fraud upon the court” as did AG Gonzales in Robert

VII v DOJ, 2005 U.S. Dist. LEXIS 39616, 193 Fed. Appx. 8 (2d Cir. 2006), cert. den. 127 S.Ct.

1133 (2007), by implementing the 1986 “Barrett nonacquiescence policy” of AG Meese and

withholding material NSA TSP facts from Judge Garaufis, the Second Circuit, and the Supreme

Court. “Finally, acceptance of the view urged by the federal appellants would result in a blanket

grant of absolute immunity to government lawyers acting to prevent exposure of the government

in liability.” Barrett v. United States, 798 F. 2d 565, 573 (2d Cir. 1986). Emphasis Added.

This 5-9-11 CIA MDR request is related to other pending ADR and MDR requests: 5-9-

11 NARA ADR for four 1985 “North Notebook” documents, 5-9-11 NARA MDR for the

“Peter Keisler Collection, “Perot”, and “Robert v National Archives ‘Bulky Evidence File’”

documents, 4-11-11 OLC MDR for the redacted May 6, 2004 OLC Memo document, and 4-11-

11 ODNI MDR for the “NCTC TSP and PSP data banks access guidelines” document. These

1985-2011 connect-the-dots documents are “Past is Prologue” documents because they prove the

existence of a 1981-2011 daisy-chain of “shadow government” attorney-patriots who have made

1985-2011 FOIA “Glomar Response” litigation decisions on behalf of their faux “Commanders

in Chief” who were not Presidents Reagan, Bush, Clinton, Bush, and Obama.

If AG Holder commits a déjà vu “fraud upon the court” in his May 25, 2011 Robert VIII

v DOJ, HHS, and SSA Brief, then in June, 2011 the appellant will begin filing new ADR and

MDR requests with DOJ, FBI, NSA, NARA, OMB, HHS, and SSA to declassify other connect-

the-dots documents that prove the existence of the 1981-2011 daisy-chain of “shadow

government” attorney-patriots. AG Holder will learn the names of the daisy-chain of attorney-

patriots who have made “Glomar Response” decisions to prevent the “Gang of Eight” from

learning that 1984-2011 NSA Directors have had access to the “do not exist” 1984-2011 NSA

TSP and PSP data banks. These attorneys knew of the impeachable violations of § 413 (a) of the

National Security Act, the “exclusivity provision” of the FISA, the PCA limitations on military

domestic law enforcement, and the Social Security Act when off-OMB Budget funds paid for the

“black operations” of the CIA that included the “Top Secret America” domestic surveillance

program revealed by investigative reporters Risen and Lichtblau in their December 16, 2005

NY Times news report and Priest and Arkin in their July 19, 2010 Washington Post series.

These classified connect-the-dots documents provide CIA Director Panetta with the facts

necessary to recommend that President Obama file a 2011 § 413 (b) of the National Security Act

“corrective action” plan to cure the illegal NSA domestic intelligence activities that have been

conducted without the knowledge of Presidents Reagan, Bush, Clinton, Bush, and Obama,

Congressional Oversight Committees, and Article III Judges including the FISC, the Second

Circuit, and the Supreme Court. If no § 413 (b) plan is filed, then the declassified documents

would allow investigative reporters to deconstruct the 1981-2011 decision-making process of

the “Unitary Executive” decision-makers, and prove to President Obama that his E.O.13526

Classified National Security Information, 75 F.R. 707 (January 5, 2010), is fatally flawed.