14 May 2006
EFF's Class-Action Lawsuit Against AT&T for Collaboration with Illegal Domestic Spying Program:
http://www.eff.org/legal/cases/att
DoJ Asserts State Secrets:
http://www.eff.org/legal/cases/att/motionintervene1.pdf
DoJ Motion to Dismiss:
http://www.eff.org/legal/cases/att/GovMotiontoDismiss.pdf
Source: Electronic files of the
US District Court
of Northern California
PDF of original:
http://www.eff.org/legal/cases/att/DeclofJohnNegroponte.pdf
Case 3:06-cv-00672-VRW Document 124-2 Filed 05/13/2006 Pages 1-7
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA |
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TASH HEPTING, GREGORY HICKS CAROLYN JEWEL and ERIK KNUTZEN on Behalf of Themselves and All Others Similarly Situated, Plaintiffs,
AT&T CORP., AT&T INC. and Defendants. ________________________________________ |
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Case No. C-06-0672-VRW DECLARATION OF |
I, John D. Negroponte, declare as follows:
INTRODUCTION
1. I am the Director of National Intelligence (DNI) of the United States. I have held this position since April 21, 2005. From June 28, 2004, until appointed to be DNI, I served as United States Ambassador to Iraq. From September 18, 2001, until my appointment in Iraq, I served as the United States Permanent Representative to the United Nations. I have also served as Ambassador to Honduras (1981-1985), Mexico (1989-1993), the Philippines (1993-1996), and as Deputy Assistant to the President for National Security Affairs (1987-1989).
2. In the course of my official duties, I have been advised ofthis lawsuit and the allegations at issue in this case. The statements made herein are based on my personal knowledge, as well as on information provided to me in my official capacity as DNI, and on my personal evaluation of that information. In personally considering this matter, I have executed a separate classified declaration dated May 12, 2006, and filed in camera and ex parte in this case. Moreover, I have read and personally considered the information contained in the In Camera, Ex Parte Declaration of Lt. Gen. Keith B. Alexander filed in this case. General Alexander is the Director ofthe National Security Agency ("NSA"), and is responsible for directing the NSA, overseeing the operations undertaken to carry out its mission, and by specific charge from the President and the DNI, protecting NSA activities and intelligence sources and methods.
3. The purpose of this declaration is to formally assert, in my capacity as DNI and head of the United States Intelligence Community, the military and state secrets privilege (hereafter "state secrets privilege"), as well as a statutory privilege under the National Security Act, see 50 U.S.c. § 403-1 (i)( 1), in order to protect intelligence information, sources and methods that are implicated by the allegations in this case. Disclosure of the information covered by these privilege assertions reasonably could be expected to cause exceptionally grave damage to the national security of the United States and, therefore, should be excluded from any use in this case. In addition, I concur with General Alexander's conclusion that the risk is great that further litigation will risk the disclosure of information harmful to the national security of the United States and, accordingly, this case should be dismissed. See Declaration of Lt. Gen. Keith B. Alexander, Director, National Security Agency.
BACKGROUND ON DIRECTOR OF NATIONAL INTELLIGENCE
4. The position of Director of National Intelligence was created by Congress in the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, §§ 101 1 (a) and 18 1097, 118 Stat. 3638, 3643-63, 3698-99 (2004) (amending sections 102 through 104 ofthe Title I of he National Security Act of 1947). Subject to the authority, direction, and control of the President, the DNI serves as the head of the U.S. Intelligence Community and as the principal advisor to the President, the National Security Council, and the Homeland Security Council, for intelligence-related matters related to national security. See 50 U.S.c. § 403(b)(1), (2).
5. The "United States Intelligence Community" includes the Office of the Director of National Intelligence; the Central Intelligence Agency; the National Security Agency; the Defense Intelligence Agency; the National Geospatial-Intelligence Agency; the National Reconnaissance Office; other offices within the Department of Defense for the collection of specialized national intelligence through reconnaissance programs; the intelligence elements of the military services, the Federal Bureau of Investigation, the Department of Treasury, the Department of Energy, Drug Enforcement Administration, and the Coast Guard; the Bureau of Intelligence and Research of the Department of State; the elements of the Department of Homeland Security concerned with the analysis of intelligence information; and such other elements of any other department or agency as may be designated by the President, or jointly designated by the DNI and heads of the department or agency concerned, as an element of the Intelligence Community. See 50 U.S.C. § 401a(4).
6. The responsibilities and authorities of the DNI are set forth in the National Security Act, as amended. See 50 U.S.c. § 403-1. These responsibilities include ensuring that national intelligence is provided to the President, the heads of the departments and agencies of the Executive Branch, the Chairman of the Joint Chiefs of Staff and senior military commanders, and the Senate and House of Representatives and committees thereof. 50 U.S.c. § 403-1(a)(I). The DNI is also charged with establishing the objectives of, determining the requirements and priorities for, and managing and directing the tasking, collection, analysis, production, and dissemination of national intelligence by elements of the Intelligence Community. ld. § 403-1 (f)(1)(A)(i) and (ii). The DNI is also responsible for developing and determining, based on proposals submitted by heads of agencies and departments within the Intelligence Community, an annual consolidated budget for the National Intelligence Program for presentation to the President, and for ensuring the effective execution of the annual budget for intelligence and intelligence-related activities, and for managing and allotting appropriations for the National Intelligence Program. Id. § 403-1(c)(1)-(5).
7. In addition, the National Security Act of 1947, as amended, provides that "The Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure." 50 U.S.c. § 403-1(i)(1). Consistent with this responsibility, the DNI establishes and implements guidelines for the Intelligence Community for the classification of information under applicable law, Executive Orders, or other Presidential directives and access and dissemination of intelligence. Id. § 403-1(i)(2)(A), (B). In particular, the DNI is responsible for the establishment of uniform standards and procedures for the grant of access to Sensitive Compartmented Information ("SCI") to any officer or employee of any agency or department of the United States, and for ensuring consistent implementation of those standards throughout such departments and agencies. Id. § 403-1(j)(1), (2).
8. By virtue of my position as the DNI, and unless otherwise directed by the President, I have access to all intelligence related to the national security that is collected by any department, agency, or other entity of the United States. Pursuant to Executive Order No. 12958, 3 C.F.R. § 333 (1995), as amended by Executive Order 13292 (March 25,2003), reprinted as amended in 50 US.CA. § 435 at 93 (Supp. 2004), the President has authorized me to exercise original TOP SECRET classification authority. My classified declaration, as well as the classified declaration of General Alexander on which I relied in this case, are properly classified under § 1.3 of Executive Order 12958, as amended, because the public disclosure of the information contained in those declarations could reasonably be expected to cause serious damage to the foreign policy and national security of the United States.
ASSERTION OF THE STATE SECRETS PRIVILEGE
9. After careful and actual personal consideration of the matter, I have determined that the disclosure of certain information implicated by Plaintiffs' claims -- as set forth here and described in more detail in my classified declaration and in the classified declaration of General Alexander -- could reasonably be expected to cause exceptionally grave damage to the national security of the United States and, thus, must be protected from disclosure and excluded from this case. Thus, as to this information, I formally invoke and assert the state secrets privilege. In addition, it is my judgment that any attempt to proceed in the case will substantially risk the disclosure of the privileged information described briefly herein, and in more detail in the classified declarations, and will cause exceptionally grave damage to the national security of the United States.
10. Through this declaration, I also invoke and assert a statutory privilege held by the DNI under the National Security Act to protect intelligence sources and methods implicated by this case. See 50 U.S.c. § 403-1(i)(1). My assertion of this statutory privilege for intelligence information and sources and methods is coextensive with my state secrets privilege assertion.
INFORMATION SUBJECT TO CLAIMS OF PRIVILEGE
11. In an effort to counter the al Qaeda threat, the President of United States authorized the NSA to utilize its SIGINT capabilities to collect certain "one-end foreign" communications where one party is associated with the al Qaeda terrorist organization for the purpose of detecting and preventing another terrorist attack on the United States. This activity is known as the Terrorist Surveillance Program ("TSP"). To discuss this activity in any greater detail, however, would disclose classified intelligence information and reveal intelligence sources and methods, which would enable adversaries of the United States to avoid detection by the U.S. Intelligence Community and/or take measures to defeat or neutralize U.S. intelligence collection, posing a serious threat of damage to the United States' national security interests. Thus, any further elaboration on the public record concerning the TSP would reveal information that could cause the very harms my assertion of the state secrets privilege is intended to prevent. The classified declaration of General Alexander that I considered in making this privilege assertion, as well as my own separate classified declaration, provide a more detailed explanation of the information at issue and the harms to national security that would result from its disclosure.
12. Plaintiffs also make allegations regarding other purported activities of the NSA, including allegations about NSA' s purported involvement with AT&T. The United States can neither confirm nor deny allegations concerning intelligence activities, sources, methods, relationships, or targets. For example, disclosure of those who are targeted by such activities would compromise the collection of intelligence information just as disclosure of those who are not targeted would reveal to adversaries that certain communications channels are secure or, more broadly, would tend to reveal the methods being llsed to conduct surveillance. The only recourse for the Intelligence Community and, in this case, for the NSA, is to neither confirm nor deny these sorts of allegations, regardless of whether they are true or false. To say otherwise when challenged in litigation would result in routine exposure of intelligence information, sources, and methods and would severely undermine surveillance activities in general. Thus, as with the other categories of information discussed in this declaration, any further elaboration on the public record concerning these matters would reveal information that could cause the very harms my assertion of the state secrets privilege is intended to prevent. The classified declaration of General Alexander that I considered in making this privilege assertion, as well as my own separate classified declaration, provide a more detailed explanation of the information at issue, the reasons why it is implicated by Plaintiffs' claims, and the harms to national security that would result from its disclosure.
CONCLUSION
13. In sum, I formally invoke and assert the state secrets privilege, as well as a statutory privilege under the National Security Act, to prevent the disclosure of the information detailed in the two classified declarations that are available for the Court's in camera and ex parte review. Moreover, because proceedings in this case risk disclosure of privileged and classified intelligence-related information, I join with General Alexander in respectfully requesting that the Court dismiss this case to stem the hanns to the national security of the United States that will occur if it is litigated.
I declare under penalty of perjury that the foregoing is true and correct.
DATE: 5/12/2006
[Signed]
JOHN D. NEGROPONTE
Director of National Intelligence
Source: Electronic files of the
US District Court
of Northern California
PDF of original:
http://www.eff.org/legal/cases/att/DeclKeithAlexander.pdf
Case 3:06-cv-00672-VRW Document 124-3 Filed 05/13/2006 Pages 1-5
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA |
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TASH HEPTING, GREGORY HICKS CAROLYN JEWEL and ERIK KNUTZEN on Behalf of Themselves and All Others Similarly Situated, Plaintiffs,
AT&T CORP., AT&T INC. and Defendants. ________________________________________ |
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) |
Case No. C-06-0672-VRW DECLARATION OF |
I, Keith B. Alexander, declare as follows:
INTRODUCTION
1. I am the Director ofthc National Security Agency (NSA), an intelligence agency within the Department of Defense. I am responsible for directing the NSA, overseeing the operations undertaken to carry out its mission and, by specific charge of the President and the Director of National Intelligence, protecting NSA activities and intelligence sources and methods. I have been designated an original TOP SECRET classification authority under Executive Order No. 12958, 60 Fed. Reg. 19825 (l995), as amended on March 25, 2003, and Department of Defense Directive No. 5200.1-R, Information Security Program Regulations, 32 C.F.R. § 159a.12 (2000).
2. The purpose of this declaration is to support the assertion of a formal claim of the military and state secrets privilege (hereafter "state secrets privilege"), as well as a statutory privilege, by the Director of National Intelligence (DNI) as the head of the intelligence community. In this declaration, I also assert a statutory privilege with respect to information about NSA activities. For the reasons described below, and in my classified declaration provided separately to the court for in camera and ex parte review, the disclosure of the information covered by these privilege assertions would cause exceptionally grave damage to the national security of the United States. The statements made herein, and in my classified declaration, are based on my personal knowledge of NSA operations and on information made available to me as Director of the NSA.
THE NATIONAL SECURITY AGENCY
3. The NSA was established by Presidential Directive in 1952 as a separately organized agency within the Department of Defense. Under Executive Order 12333, § 1.12.(b), as amended, NSA's cryptologic mission includes three functions: (1) to collect, process, and disseminate signals intelligence ("SIGINT") information, of which communications intelligence ("COMINT") is a significant subset, for (a) national foreign intelligence purpose, (b) counterintelligence purposes, and (c) the support of military operations; (2) to conduct infonnation security activities; and (3) to conduct operations security training for the U.S. Government.
4. There are two primary reasons for gathering and analyzing intelligence information. The first, and most important, is to gain information required to direct U.S. resources as necessary to counter external threats. The second reason is to obtain information necessary to the formulation of the United States' foreign policy. Foreign intelligence information provided by NSA is thus relevant to a wide range of important issues, including military order of battle; threat warnings and readiness; arms proliferation; terrorism; and foreign aspects of international narcotics trafficking.
5. In the course of my official duties, I have been advised of this litigation and reviewed the allegations in Plaintiffs' Amended Complaint and Motion for a Preliminary Injunction. As described herein and in my separate classified declaration, information implicated by Plaintiffs' claims is subject to the state secrets privilege assertion in this case by the DNI. The disclosure of this information reasonably could be expected to cause exceptionally grave damage to the national security of the United States. In addition, it is my judgment that any attempt to proceed in the case will substantially risk disclosure of the privileged information and will cause exceptionally grave damage to the national security of the United States.
6. Through this declaration, I also hereby invoke and assert NSA 's statutory privilege to protect information related to NSA activities described below and in more detail in my classified declaration. NSA' s statutory privilege is set forth in section 6 of the National Security Agency Act of 1959 (NSA Act), Public Law No. 86-36 (codified as a note to 50 U .S.C. § 402). Section 6 of the NSA Act provides that "[n]othing in this Act or any other law ... shall be construed to require the disclosure of the organization or any function of the National Security Agency [or] any information with respect to the activities thereof .... " By this language, Congress expressed its determination that disclosure of any information relating to NSA activities is potentially harmful. Section 6 states unequivocally that, notwithstanding any other law, NSA cannot be compelled to disclose any information with respect to its authorities. Further, NSA is not required to demonstrate specific harm to national security when invoking this statutory privilege, but only to show that the information relates to its activities. Thus, to invoke this privilege, NSAmust demonstrate only that the information to be protected falls within the scope of section 6. NSA's functions and activities are therefore protected from disclosure regardless of whether or not the information is classified.
INFORMATION SUBJECT TO CLAIMS OF PRIVILEGE
7. Following the attacks of September 11, 2001, the President of United States authorized the NSA to utilize its SIGINT capabilities to collect certain "one-end foreign" communications where one party is associated with the al Qaeda terrorist organization under the Terrorist Surveillance Program (TSP) for the purpose of detecting and preventing another terrorist attack on the United States. Any further elaboration on the public record concerning the TSP would reveal information that could cause the very harms that the DNI's assertion of the state secrets privilege is intended to prevent. My separate classified declaration provides a more detailed explanation of the information at issue and the harms to national security that would result from its disclosure.
8. Plaintiffs also make allegations regarding other purported activities of the NSA, including allegations about the NSA's purported involvement with AT&T. Regardless of whether these allegations are accurate or not, the United States can neither confirm nor deny alleged NSA activities, relationships, or targets. To do otherwise when challenged in litigation would result in the exposure of intelligence information, sources, and methods and would severely undennine surveillance activities in general. For example, if the United States denied allegations about intelligence targets in cases where such allegations were false, but remained silent in cases where the allegations were accurate, it would tend to reveal that the individuals in the latter cases were targets. Any further elaboration on the public record concerning these matters would reveal information that could cause the very harms that the DNI's assertion of the state secrets privilege is intended to prevent. My separate classified declaration provides a more detailed explanation of the information at issue and the harms to national security that would result from its disclosure.
CONCLUSION
9. In sum, I support the DNI's assertion of the state secrets privilege and statutory privilege to prevent the disclosure of the information detailed in my classified declaration that is available for the Court's in camera and ex parte review. I also assert a statutory privilege with respect to information about NSA activities. Moreover, because proceedings in this case risk disclosure of privileged and classified intelligence-related information, I respectfully request that the Court not only protect that information from disclosure, but also dismiss this case to stem the harms to the national security of the United States that will occur if it is litigated.
I declare under penalty of perjury that the foregoing is true and correct.
DATE: 12 May 06
[Signed]
LT. GEN. KEITH B. ALEXANDER
Director, National Security Agency
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