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Case 1 :05-cv-01458-UNA-AK Document 57-5 Filed 08/29/2008 Page 1 of 13 


Case 1 :05-cv-01 458-UNA-AK Document 57-5 Filed 08/29/2008 Page 2 of 1 3 



W SB: 

} MISC. Wo, 08-0442 



I,, HICMAEL V„ HAYDESF, hereby declare ana state:- 
1. I am the Director of the Central Intelligence Agency 
(CIA) and have served in this capacity .since 30- Kay 2006. la my 
■capacity as Director, I lead the CIA and manage the Intelligence 
Community's human intelligence and open source collection 
program's -on behalf of the Director of National Intelligence 
(DNI) .. I have held, a number of positions in the intelligence 
Community, including Principal Deputy Director of National 
Intelligence, ' from April .2005 to May 2.006; Director, National 
Security .Agency/Chief, Central Security Service (HSA/GSSj ,, rare 
George Q. Meade, Maryland, from March IS 95 to April 2005;. 
Commander of the Air Intelligence Agency and Director of the 
Joint Command .and Control Warfare Center, both headquartered at 
Kelly Air Force Base, Texas, from January 1396 to September 
1,927; and Director, Intelligence Directorate, U.S. European 
Command, Stuttgart, Germany, from. Kay 1953 to October X9 : 3-5- 

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2,. t was a four-star general in. the United States Air 
Force until my retirement from the Air Force en 1 July 2008 and 
have held penior staff positions at the Pentagon, the National 
Security Council imsc) , and the U.S. Embassy in Sofia, Bulgaria,, 
as well as serving as deputy Chief of Staff for United Rations 
Command and U.S. Forces Korea, I entered active doty in XS6S as 
a distinguished graduate of the Reserve Officer Training Corps- 
program . 

3 . I make the following statements based, upon ray personal 
knowledge and. information provided to roe in. ray official 

'1 . The purpose of this declaration and my accompanying 
classified declaration is to describe for the Court why the CXk 
is experiencing delays in providing documents and information, to 
the Department of Justice -IDQiTj and Department of- Defense (DQD) 
for use in habeas litigation. 
I, Purpose Of This Declaration 

"*• The .BQU-tasdiene JD ec rsion. 

5. Through the exercise of my official duties, I have .been 
advised of the IT. S. Supreme Court"' s decision in SouiBediene v. 
Buah, 128 S. Cti 2229 (2 008),,. and its impact on the habeas . 
corpus litigation in the United States District Court for the 
District of Columbia, which involves individuals detained, by the 
United States as alien enemy combatants at the tJ..S. Naval Base 

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Quant anamo Bay, Cuba- I understand that a majority of these 
pending habeas petitions have been transferred to this Court for 
initial rulings on common issues and administrative matters. I 
also, am aware that the Court has issued a scheduling order that 
requires the Government to file fifty factual returns to the 
habeas petitions per month until the Government has responded fco 
all of the petitions . 

6 . Since the Boumsdiene decision and the- entry of the 
Court's scheduling order, the CIA has worked diligently to 
establish a process and devote the personnel resources necessary 
to review the large volume of documents and information that the 
Government proposes to include in its factual returns- In lighc 
of the large quantity of cases .and the very tight schedule,, the 
CIA has consolidated and streamlined the review process to the 
maximum extent possible without sacrificing the- care and 
deliberation that must be employed to safeguard the national 
security by protecting classified foreign intelligence sources 
and inethods from unauthorized disclosure. I have made it clear 
to my senior manager's that meeting the Court ' s .schedule is a. top 
priority for the CIA. To that end, I have allocated additional 
personnel to those components involved in the habeas review 
process and have directed CIA managers to ensure that such 


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personnel have all the resources that they need," 4 ' Despite this 
effort, the CIA has not been able to complete its review of ail 
of the first fifty factual returns by 29 August 2008. In this- 
declaration, I will describe the classified ixtf orrriation 
implicated by the habeas litigation, the purpose of the CIA 
review process, the nature of the review process, and the delays 
in completing that process for all fifty returns. 

7. This unclassified declaration describes , to the extent 
possible on the- public record, the reasons- for the delay in 
completing all of the factual returns. I respectfully refer the 
■Court to my classified declaration, which is submitted for the 

■ Courc ' s in camera, ex parte review because it contains 
classified information that cannot- be disclosed publicly in rtiy 
unclassified declaration. 

B, CIA Information at Issue 

8, Much of the information upon which DOD relied in making 
its. enemy combatant determinations and upon which DGJ proposes 
to rely in its factual -returns derives from classified CIA 
intelligence reports. CIA intelligence reports are classified 
because they contain information that was clandestinely -acquired 
by the CIA; that is, information that is not available from any 
other source, CIA intelligence reports also are classified 

~ More than fifty CIA attorneys, paralegals, subject matter experts, and 
J classification officials are involved in the habeas' review process., 

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because public disclosure of the information contained therein 
would tend to reveal the clandestine intelligence activities, 
sources, and methods by which the CIA collected the information. 
Unauthorized disclosure of the classified information in CIA 
intelligence reports reasonably could be expected to result in 
damage to the national security, which includes defense against 
transnational terrorism, that I describe in ray classified 

9:. Before the CIA- can authorize DOB and 00 J to include 
classified CIA documents or information in the Government's 
factual returns, the CIA must first determine whether disclosure 
of such information ~.o the Court,, petitioners' counsel, 
petitioners, or the public could- be expected to damage the 
national security . This predictive judgment cannot be: made on 
an abstract basis. Rather, such judgments must be made by 
experienced intelligence professionals .after review on a 
document -by- document basis. The classified CIA information 
implicated by the habeas litigation falls broadly into three 
categories: a) foreign government information; b) foreign 
relations and foreign activities of the United States,- and c) 
intelligence activities, sources, and methods;. I will discuss 
each of these categories of classified information, in turn.. 

10. First, much of the classified CIA information 
implicated .by the habeas litigation was provided to the CIA by 

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the intelligence or security services of foreign governments 
with whom the CIA has confidential intelligence -sharing 
agreements. Second, much of the classified CIA information 
implicated by the habeas litigation concerns the foreign 
relations and foreign activities of the United States. Finally,, 
much of the. classified ' CIA information implicated by the habeas- 
litigation was collected through clandestine intelligence 
activities, sources, and methods. 

C, Damage to the National Security 

11, I recognize that the Court- has- not ordered any 
classified information, to be publicly disclosed. Nevertheless, 
exceptionally grave damage- to the national -security reasonably ■ 
could be expected to result if the CIA's deliberative review 
process for the disclosure of classified information, is riot 
followed during the habeas litigation. 

12.. I understand that more than 200 habeas petitions, have 
been filed in the District Court, 1 also understand that each 
detainee typically is represented by several attorneys. As a. 
result, the CIA documents cited in the Government's factual 
returns will be disclosed to several hundred, private attorneys 
who are not employees -of the U.S. Government . and who are not 
trained in handling classified information. With so- many 
untrained individuals allowed access- to .such sensitive 
information., I believe that unauthorised disclosures, even if 

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inadvertent, are not: only probable, but inevitable. The degree 
to which access to much of the classified information implicated 
by the habeas litigation is strictly controlled and limited to 
only a small cumber of employees of the federal government is 
described more completely later in my classified declaration. 
The Executive order and agency regulations controlling access to 
classified information recognise that limiting the number of 
people with access- to classified information is a necessary step 
in safeguarding such information... If the CIA does not follow 
its rigorous review process for documents implicated by the 
habeas litigation., the U.S. 'Government will not be able .to 
adhere to its carefully administered policy of compart men ting- 
its most highly sensitive information, which would imaeceptably 
increase the likelihood of unauthorized disclosures. 

13. cili subject matter experts,: of wtecia there are a. 
limited number, muse conduct a line-by-line review of documents 
determined by DOB and DOJ to be pertinent to a petitioner's 
status as an enemy combatant to determine whether the document 
can be provided in. redacted form, to petitioner's counsel or if 
it must he provided only to the Court, or possibly not. at all. 
As mentioned above, sign if leant CIS personnel and. resources have 
been redirected, to meet the. Court's habeas schedule. The 
redirection of these resources is in an effort to attempt to 
comely with the Court's habeas schedule. Were the CIA to cut 

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corners in its review process or conduct cne process vncnout 
sufficient deliberation regarding important U,£, national 
security interests., it is very possible that intelligence 
sources and methods could be compromised and foreign, relations 
disrupted- In that circumstance, there would be exceptionally 
grave damage to the national security of the United States,, 
particularly to the CIA's primary goal of protecting' the country 
from terrorist ar tacks* 
IX . Classification Authority 

14. The CIA was established by section 104(a) of the 
National Security Act of 1347 !(tae Act) , as amended, SO U..S.C.A. 
§ 40.3-4. Section 1Q4A of the Act, 50 U.3.C.A. § 403 -4a, 
established the position of Director o£ the Central Intelligence 
Agency {DCIA) , whose duties and responsibilities include serving 
as head of the CIA. and collecting information through, human 
sources and by other appropriate ■means; correlating and 
evaluating intelligence, relaxed to the national security- and 
providing appropriate, dissemination of such. intelligence; 
providing overall direction nor coordination of the collection 
of national, intelligence, outside the United States through human 
sources by elements of the intelligence, community authorized to 
undertake such collection,- and performing such other* functions 
and duties related to intelligence affecting the national 
security as the President, or the DHX, f may direct. A wore 

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particularized statement of the authorities of the DCIA and the 
CIA is set forth in sections 1.6 and 1.7 of Executive Order 
12333,, as amended.. 2 

15. Section lG2A(i}(l) of the Act, 50 u.S.C.A. § 403- 
l(i)(l), provides that the .DNT shall protect intelligence 
sources and methods from unauthorized disclosure.. Under the 
direction of the DWI pursuant to section I02A, and in accordance 
with section 6 of che Central Intelligence Agency Act of 1949,. 
as amended, 50 U.S.C.A.- § 403g, and section 1.6 (d) of Executive 
Order 12333, as amended, the Director of the CIA is responsible 
for protecting CIA intelligence sources and methods from 
-unauthorised disclosure. The documents implicated by the habeas 
■litigation, contain, information that, if disclosed, would tend to 
reveal intelligence sources and methods. 

16. In accordance with section 1.3 (a) {-2} of Executive 
Order 12 958, 3 the President has authorized me to exercise 
original TOP SECRET classification authority/' Pursuant to that 
authority, I have, portion-marked each paragraph of my 

- Exec. Order 123-33,, re printed as amended in 50 U.S/C.S.. § 401 note 24 (West, 
Supp. aoC-S) and revised by Exec. Order Bo. 1347,0, 73 E-ed. Seg. 45325 (Julv 
30, 2oaa) . 

Executive Order 12958 was amended by Executive Order 1.3.2 92-, Sse Exec. Order 
So. 13292,, 6B m&. Reg. 15315 (Mar. 28, 2003) . All citations to Sxec, Order 
So, 12-538 are to the Order as amended by Exec. Order Mo, 132.32, See Exec. 
Order No, 1.2958, 3 C,F.?., 333 (1995), reprinted as amended in 50 575, C, A. § 
435 note at 1S3 (-West Supp . 2GQ8) . 

'[ Order of President, Designation under Executive Order 12958, 70 Fed. Reg, 
'21 , 6 09 [Apr. 2.1, 2005} , reprinted in D.S.C.A. § 435 note at 2 05 (WestSutip. 
20-08) . " ' ■ 

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classified declaration with the Level of classification and 
control markings necessary for the full protection of the- 
information in that paragraph. The marking ,V U" denotes 

unclassified information; "S denotes information classified at 

the SECRET level because its unauthorized disclosure, reasonably 
could be expected to cause serious damage- to the national 
security; and V 'TS" denotes information classified at the TOP 
SECRET level because its unauthorized disclosure- reasonably 
could be expected to cause exce pt ig.nal ly grave damage to the 
national security- The portion-markings of each paragraph also 
may identify whether additional dissemination or access controls 
apply .. 

17., Section 4.3 of Executive Order 12958 provides that 
certain senior U.S. officials are authorised to establish- 
"Special Access Programs"' upon a finding that ■ '-'the vulnerability 
of j. or threat to, .specific information is- exceptional 1 ' and "the 
normal criteria for determining eligibility for -access 
applicable to information classified at the same level are not 
deemed sufficient to protect information from unauthorised, 
disclosure." The Director of the CIA is authorized to establish 
Special Access Programs for intelligence activities, sources, 
and methods. Such intelligence programs are called "Sensitive 
Compartment ed Information Programs," or SCI Programs. 


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18. The portion markings also contain "he dissemination 
controls QRCON, or OC,. and NOFORN, or W. ORCON (which stands 
for "Originator Controlled") means that the information cannot 
be 'further disseiri na- ted varhoaL authorization from the 
originating agency, in this case the CIA. K<)¥Q?M (which stands 
■for H ^o Foreign Dissemination'" ) means that the information, can 
be disseminated to U.S. persons only -and cannot be disseminated 
to foreign nationals. 
XII « Review- Process in Habeas Litigation. 

IS, The CIA did net receive the first draft factual 
returns until 12 August 2008, and received the last batch of 
factual returns as recently as 25 August 2006, Nevertheless , 
the G1A managed to complete its raviaw of a significant number 
of returns by the 2 9 August 2008 deadline/* 1 ' As a result of its 
initial efforts* the: CIA expects to be .able to cciuplete its 
review of any particular factual return within' thirty days of 
receipt of the draft return, by the CIA. With the benefit of 
increased production, of draft factual returns by DOJ and lessons 
learned in. completing its review of this initial set of returns, 
the CIA going forward expects to he able to increase its rate of 
completing reviews towards accoa-EiiOdating the Court's schedule of 
filing fifty factual returns per month. 

'< In addition to the factual returns filed in petitions pending before this 
Court,, Che GoverrBiisn-; also filed during August 2009 « number" of factual 
returns in necition.3 pending 'set ore -Judge Leon and uud«e Sullrsretu 


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IV'. Conclusion 

20. In my classified declaration, I have described the 
basis' for my judgment thac abandoning the rigorous deliberation 
of the CIA's review* process for : the habeas litigation, reasonably 
could be expected to 'cause exceptionally 1 grave .damage to the 
national security by the disclosures of very sensitive 
information. If the Court desires, I am willing to appear 
before the Court to provide additional information or answer any 
■questions.. If my appearance is necessar/v I request that the 
Court conduct the : proceedings on an ex parte basis so that I can 
elaborate on the issues described in aty ■ classified declaration... 

ii -k * * 

I hereby declare under penalty of perjury that the 
foregoing is true and. correct, 

.Executed this ^HlK day of . August , 200S. 

Michael V\ Hayden 

Director _ 

Central Intelligence agency 

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