AMERICAN CIVIL LIBERTIES

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NATIONAL OFFICE 125 BROAD STREET, 18T H FL. NEW YORK, NY 10004-2400 T/212.549.2500 F/212.549.2654 WWW.ACLU.ORG OFFICERS AND DIRECTORS

SUSAN N. HERMAN PRESIDENT ANTHONY D. ROMERO EXECUTIVE DIRECTOR ROBERT B. REMAR TREASURER

March 14, 2016 BY ECF Mark Langer, Clerk U.S. Court of Appeals for the District of Columbia Circuit E. Barrett Prettyman U.S. Courthouse 333 Constitution Ave., N.W. Washington, DC 20001 Re: ACLU v. CIA, 15-5217 (argued Feb. 17, 2016) Dear Mr. Langer:

This case was argued on February 17 before Circuit Judges Tatel and Griffith and Senior Circuit Judge Sentelle. Pursuant to Federal Rule of Appellate Procedure 28(j), Plaintiffs–Appellants the American Civil Liberties Union and American Civil Liberties Union Foundation (together, “ACLU”) write to call the Court’s attention to remarks made last week by Lisa Monaco, Assistant to the President for Homeland Security and Counterterrorism, at the Council for Foreign Relations. Ms. Monaco’s remarks indicate that the government intends to disclose some of the information whose withholding the government has defended in this appeal.

This appeal concerns the government’s withholding of two

categories of information: first, certain legal memos; and, second, “summary strike data.” Pl. Br. 7. In her remarks (attached), Ms. Monaco stated that:

[I]n the coming weeks, the Administration will publicly release an assessment of combatant and non-combatant casualties resulting from strikes taken outside areas of active hostilities since 2009. Going forward, these figures will be provided annually. The statistical information the government apparently intends to

release is a subset of the summary strike data whose disclosure the ACLU has sought. Moreover, the disclosure of this statistical

JAMEEL JAFFER DEPUTY LEGAL DIRECTOR

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2

information will affect the strength of the government’s argument that other subsets of the summary strike data may lawfully be withheld. See CIA Br. 43–44.

In light of the government’s intent to disclose some of the

summary strike data at issue in this appeal, the ACLU respectfully suggests that the Court resolve the portion of this case relating to the withholding of legal memos but then remand the case to the district court to allow the CIA to (i) re-review the summary strike data records in light of the anticipated disclosure of the statistical information referenced in Ms. Monaco’s remarks; and (ii) file new public declarations justifying the withholding of summary strike data that it believes the FOIA still permits it to withhold.

Respectfully submitted,

/s/ Jameel Jaffer______ Jameel Jaffer American Civil Liberties Union

Foundation 125 Broad Street, 18th Floor New York, New York 10004 T: 212.549.2500 F: 212.549.2654 jjaffer@aclu.org

Counsel for Plaintiffs–Appellants

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For Immediate Release March 07, 2016

The White HouseOffice of the Press Secretary

Remarks by Lisa O.Monaco at the Council onForeign Relations -Kenneth A. MoskowMemorial Lecture

Lisa O. Monaco

Assistant to the President for Homeland Securityand Counterterrorism

“Evolving to Meet the New Terrorist Threat”

Council on Foreign Relations

Monday, March 7, 2016

the WHITE HOUSE PRESIDENT BARACK OBAMA Contact Us Get Email Updates

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Thank you, Ken, for that introduction. And thankyou all for being here. It’s great to be at theCouncil on Foreign Relations. I’m especiallyhonored to be delivering the Kenneth MoskowMemorial Lecture. For those who aren’t aware, KenMoskow—in addition to being the kind of guy wholiked to run with the bulls in Pamplona—was atalented CIA operative, who hailed from myhometown of Newton, Massachusetts. He diedtragically and far too young near the summit ofMount Kilimanjaro. His life and work was like thatof so many men and women of the intelligence,military, homeland security, diplomatic, and lawenforcement communities who put their lives onthe line every single day to keep our country safe.

Today, I want to talk about the preeminent securitythreat we face—the threat of terrorism, how ISILrepresents a new evolution of that threat, and howwe are waging an innovative campaign to counterISIL and its barbaric ideology.

It was only three months ago that a married couple—Syed Rizwan Farook and Tashfeen Malik—walkedinto an office gathering in San Bernardino andopened fire. They had assault rifles, and a veritablearmory in their home, including pipe bombs. Theyalso had a six-month-old daughter, who they leftwith her grandmother before they began theirmurderous rampage. Fourteen people were killedand another 22 wounded. Syed Farook was an

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American citizen.

Like recent attacks from Paris to Chattanooga, itwas a stark reminder that, for all our vigilance, thespecter of terrorism persists—both for Americansand for our allies. Instability, from Syria to Somalia,provides fertile ground for extremism. Sometimes,tragically, the attackers are homegrown. But Imention this horrific incident not just because itwas the worst terrorist attack on the United Statessince 9/11, but because it was a starkly differentkind of attack.

Simply put, the terrorist threat we confront today,almost 15 years after that terrible September day,has evolved dramatically. We have entered a newphase in our fight against terrorism. Whatdistinguishes the threat today is that it is broader,more diffuse—and less predictable—than at anytime since 9/11. Where we once spoke ofhierarchal “networks” and “sleeper cells,” much ofthe threat today is online, distributed across theglobe. While we continue to see planning forsophisticated and coordinated attacks, such asthose in Paris, terrorism today is increasinglydefined by small cells or lone actors, sometimeswith little or no direct contact with terroristorganizations, who have succumbed to violentextremism. It’s what you might call opportunistic,“do-it-yourself” terrorism.

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The primary example of this new type of terrorismis the cancer of ISIL. Originally an outgrowth of alQaeda in Iraq, in the past two years ISIL haseclipsed core al Qaeda as the principal terroristthreat we face. The world has been shocked by thebutchery and depravity of these twisted fanatics. From their stronghold in Raqqa, Syria, ISIL hasdisplayed an apocalyptic ambition and anunprecedented brutality. They crucify victims andburn alive others. They enslave women andchildren, and teach that rape is an expression ofGod’s will. They behead innocents and broadcasttheir barbarism to the world.

But it’s not only ISIL’s unconscionable brutality thattroubles us. What keeps me up at night is that thisthreat is unlike what we’ve seen before. Al Qaedafocused on launching catastrophic attacks againstthe West—the “far enemy.” They used the Internetto post grainy videos and propaganda in PDF form. ISIL is very different. A recent report on ISIL wassubtitled, “From Retweets to Raqqa”—and that, Ithink, underscores the scale of our challenge. These fanatics are online and on the ground. Theyare terrorists, insurgents, and bureaucrats,attempting to control a territory that was at onepoint larger than the United Kingdom. ISILsupporters have shown an ability to engineer high-profile attacks, like blowing up a Russian airlinerover the Sinai Peninsula. But they also directforeign fighters to attack soft targets, as they did inParis. They have deployed crude but deadlychemical weapons, which pose an imminent threatto Syrians and Iraqis. And through their use of

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social media, ISIL has distributed the threatglobally. They can inspire sympathizers andadherents anywhere, turning lost souls intosoulless killers—whether in Bangladesh or SanBernardino.

But, even as we focus on ISIL, we cannot take oureye off al Qaeda, its affiliates, and its adherents. From North Africa to South Asia, their desire tostrike at American interests and citizens warrantsour continued vigilance. The most active of theseaffiliates remains al Qaeda in the ArabianPeninsula, which has attempted to attack theUnited States multiple times—though Americanairstrikes and international pressure have thwartedAQAP’s external plots and targeted its leadership. We continue to disrupt plots from Al Qaeda’slargest affiliate—the Nusrah Front in Syria. And weare paying close attention to al Qaeda in theIslamic Maghreb, which has shown through brutalattacks in Mali and Burkina Faso that it remainsdangerous.

Taken together, these threats are a toxic brew. And the different threat ISIL poses, in particular, isnot a danger we can ignore or underestimate. Thisis not an entity we can accommodate. So I’ll say itagain: today, ISIL in all its manifestations—insurgent army, foreign fighter magnet, socialmedia phenomenon, external operations cadre—isthe principal counterterrorism threat we face as anation.

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Against this backdrop, we are applying the lessonslearned in our fight against al Qaeda to a new andadaptive enemy. Thanks to our brave military andintelligence personnel, we’ve disrupted al Qaeda’sfinances and training camps. We’ve hunted downtheir leaders, including Osama bin Laden and manyothers. Core al Qaeda as we knew it 15 years agohas been decimated. Al Qaeda’s remaining leadersin Afghanistan and Pakistan spend more timeplotting how to survive than plotting attacks. Andwe will not let up our relentless pressure.

Our success against al Qaeda is the result of thetransformation that our national securityapparatus has undergone over the past 14 years. After 9/11, we implemented a series of legal,structural, and cultural reforms to break down thebarriers that had grown up between lawenforcement, the intelligence community, themilitary and the functions—not named at the time—that we now call Homeland Security. I have seen—first at the FBI, then at the Department of Justice,and now at the White House—how we broughtintelligence and law enforcement tools together toconfront this threat. We have adopted “newnormals” in everything from airline travel to ourinteractions with partners overseas. And thecourage and dedication of counterterrorismprofessionals -- across two Administrations -- hassucceeded in averting further large-scalecatastrophic attacks on our homeland.

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Just as we’re doing with al Qaeda, we will degradeand ultimately destroy ISIL. As President Obamatold the nation, “We will prevail by being strongand smart, resilient and relentless, and by drawingupon every aspect of American power.” As always—whether confronting al Qaeda, ISIL, or anotherthreat—we are guided in our counterterrorismefforts by a few core principles. We will alwaystake every appropriate lawful action to protectAmericans at home and abroad from terroristthreats. We will protect our values by continuingto conduct our counterterrorism efforts astransparently as possible, with clear guidelines,strong oversight and accountability, and in fullaccordance with the rule of law. We will build andsustain effective multilateral coalitions, andcollaborate with those partners to anticipate andannihilate terrorist organizations before theyrequire an outsized military response. And we’llintegrate our counterterrorism actions withexisting efforts to undermine the forces that fuelterrorists, such as political oppression and lack ofopportunity.

In recent years, we have taken clear and specificsteps to institutionalize our counterterrorismapproach so that our military, intelligence, and lawenforcement communities have the tools andauthorities they need to sustain the fight for yearsto come. This includes putting in place a durablelegal and policy framework to guide ourcounterterrorism actions consistent with ourvalues.

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As it applies to ISIL specifically, our strategyconsists of five pillars. First, we are protecting thehomeland. Second, we are engaging our partners. Third, we are taking direct action to target ISIL onthe battlefield. Fourth, we’re disrupting the factorsthat enable ISIL, such as financing and foreignfighters. And fifth, we’re taking creative steps tocounter the violent extremism that swells ISIL’sranks.

Our first pillar is the first part of my job title andwill always be our first responsibility as the UnitedStates government—protecting the homeland. Every day, I meet with the President to discuss thethreats we face. Whether its terrorism, cyberattacks, or deadly viruses like Ebola, his firstquestion is always, “Are we doing everything wecan to protect the American people?” He does nottake his eye off the ball. Ever. And I can tell youthat the President and those of us on his nationalsecurity team are focused on preventing futureattacks at home and abroad, whether the terroristsare homegrown, ISIL-directed, or ISIL-inspired.

Destroying ISIL starts with going after ISIL abroad. And, as our second pillar recognizes, we can’t do italone. The United States has built a broad coalitionof 66 international partners. We’re sharing vitalintelligence. We’re training, equipping, andempowering partners on the ground in Syria andIraq. Together with our international partners,

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we’re working through the political process todiminish the terrible violence in Syria. The currentcessation of hostilities provides an opportunity tomove that process forward, even as we continue toisolate and hammer ISIL.

And we are hammering ISIL on the ground throughdirect action, our third pillar. In Iraq and Syria,coalition forces have conducted almost 11,000precision airstrikes on ISIL. Today, these terroristshave lost about 40 percent of the territory theyonce controlled in Iraq and 20 percent in Syria. Ouroperations are keeping ISIL guessing—for fear ofcapture or feeling the full weight of the mightiestmilitary on earth. We estimate that our coalition istaking out one to two key ISIL leaders every day. That includes their second-in-command, theirfinance chief, and Mohamed Emwazi—also knownas “Jihadi John”—who brutally murderedAmericans and other victims.

Of course, ISIL cannot survive without the fightersand finances sustaining its barbaric enterprise. That’s pillar number four. And that’s why, workingwith partners, we are slowing the flow of foreignfighters in and out of Iraq and Syria. ISIL has lost10,000 or more frontline fighters. At the sametime, we are choking off ISIL’s ability to fund itsterror—striking their oil infrastructure and makingit harder for them to extort local populations. Inflation is up in ISIL-controlled areas. And ifyou’re an ISIL fighter today, chances are you’rebeing paid far less than you were last year.

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There must be no safe haven for these killers. Wecontinue to go after ISIL wherever it tries to takeroot. In Libya, for instance, we’ve removed ISIL’sleader there and recently struck a training camp. In all of these strikes, our operators do everythingin their power to avoid civilian casualties. And inkeeping with the President’s commitment totransparency, I can announce that, in the comingweeks, the Administration will publicly release anassessment of combatant and non-combatantcasualties resulting from strikes taken outsideareas of active hostilities since 2009. Goingforward, these figures will be provided annually. Because we know that not only is greatertransparency the right thing to do, it is the bestway to maintain the legitimacy of ourcounterrorism actions and the broad support ofour allies.

But no amount of airstrikes—no amount of militarypower alone—can defeat these fanatics and theirwarped worldview once and for all. Our approach—initially tailored after 9/11 to fight a top-downterrorist network that operated more like acorporation than a secret army—is adapting to fittoday’s diverse, dynamic, and decentralized threatenvironment. The only lasting answer to hatefulideologies are better ideas. So, even as we targetISIL’s men and money, our final pillar recognizesthat we must also confront—and defeat—theirtwisted message.

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ISIL is trying to occupy digital territory as well. They’re on Facebook. They’re on YouTube. Thereare something like 90,000 Twitter accountsassociated with or sympathetic to ISIL, sometimeswith 50,000 followers each. Last year, ISILproduced nearly 7,000 slick pieces of propaganda,disseminated by 43 distinct ISIL media offices. Iremember only a few years ago, thecounterterrorism community was worried about anal Qaeda affiliate distributing an online magazinevia PDF file. That looks like the eight-track tapeversion compared to what we’re seeing now.

With the click of a mouse, these Internet-savvyextremists are poisoning the minds of people anocean away. Many of these recruits have beenmiddle-class and seemingly well-adjusted in theircommunities. The FBI has investigated ISIL-inspired suspects in all 50 states. And this is notjust an American or a Western problem—as we’veseen from Nigeria to Indonesia, this is a globalproblem.

With allies and partners, we are working hard toexpose ISIL’s true nature and highlight theirhypocrisy—a group that claims to be defendingMuslims is actually killing countless innocentMuslim men, women, and children. But we knowthat the U.S. government is often not the best ormost compelling voice for this message. That’swhy we’re working to enable partners around theglobe and in our communities who canconvincingly speak against extremism. We’ve seen

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the United Arab Emirates, Saudi Arabia, andMalaysia stepping up their efforts to discredit ISIL’sclaim to represent Islam. The State Departmenthas created a new Global Engagement Center,which will amplify and empower the voices of ourinternational partners, from religious leaders to ISILdefectors. Our CVE Task Force, co-led by theDepartments of Homeland Security and Justice, iscoordinating these efforts across the U.S.government.

But ultimately, one of our most potent weaponsagainst terrorist narratives is the power of ourideas and the innovation that has made thiscountry great. For the past year, we’ve beenworking to partner with some of our nation’s mostimaginative companies. Tech firms like Facebook,Google, YouTube, and Instagram have madesignificant strides—removing terrorist content thatviolate their terms of service and denying ISIL adigital safe haven. Already, Twitter has suspendedroughly 125,000 ISIL-linked accounts in just thepast six months. I want to commend thesecompanies for the actions they’ve taken to date inremoving ISIL’s murderous online message.

Our engagement with Silicon Valley on counteringISIL online has actually been more positive thanyou’d think from reading the news. Last year, Iwent to Silicon Valley to initiate the White House’sfocus on innovating our way through this problem. I sat down with key tech leaders, socialentrepreneurs, philanthropists, and students at the

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Stanford “D” school—the design school. It mayseem an odd choice for someone who has spentalmost two decades in government—but thesetting was instructive and almost as important asthe discussions themselves. In a space more akinto an ad agency or a creative design studio, webrainstormed how to prevent ISIL’s use oftechnology to recruit, radicalize, and mobilize. I’veheld similar sessions in Boston and in New York. And just a few weeks ago, we brought these worldstogether—Madison Avenue, Silicon Valley, andHollywood, as well as NGOs and civil society—todevelop private-sector approaches for counteringviolent extremism online. We call it the MadisonValleywood Project. These companies areexploring cutting-edge ways to amplify crediblevoices to counter ISIL’s destructive narrative. They’re just getting started, but we think that thecollaborations that could spring from this projectare quite promising.

This cannot be a top-down effort. It must comefrom empowered voices like those I heard lastSeptember at a Global Youth Summit in New York,co-hosted by the White House and the CounterExtremism Project. Hundreds of young people,from 45 countries, came together to build digitalplatforms designed to help keep people off thedark road of radicalization. They came up withincredible ideas—from supporting aspiringentrepreneurs to anti-extremist rap music.

Even with all these creative and determined efforts,

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even with our constant vigilance, there will alwaysbe those who try to exploit our openness in anattempt to cause chaos and destruction. Homeland security must be about more thantaking our shoes off when we fly. Whether we’reconfronting terrorism or a tornado, we have tocontinue creating a culture of resilience—to refuseto be terrorized, to rebuild when we get knockeddown. To embrace one truth unequivocally: that ahateful and barbarous group like ISIL will neverovercome our strength as Americans.

A few months ago, I gathered at ArlingtonCemetery with the families of those lost in thebombing of Pan Am 103 over Lockerbie, Scotland. For more than 25 years, the families of the fallenhave mourned their friends and family. But they’vealso celebrated weddings and births. They’ve lostloved ones, but they haven’t lost hope. That’s whatmakes this country stronger than any terroristbomb or bullet.

We see it in San Bernardino—in the employees whoreturned to work in January, shaken butdetermined; in the woman wearing hijab whobowed her head to remember the victims; in thedisabled man, a client of the center, who held up asign reading, “I love you IRC.” We see it in Boston,after the marathon bombings—an attack on myhometown—where next month, 30,000 wicked-determined runners will lace up their shoes for the120th Boston Marathon, crest Heartbreak Hill, andshow the true meaning of Boston Strong.

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We face a cruel and cunning adversary in ISIL. Thetactics of terror have transformed. We haveentered a new era. And as President Obama hasmade clear, this will be a generational struggle. But with the dedication of our brave men andwomen in uniform, our diplomats, intelligence andlaw enforcement officers; the support of ourpartners; the innovation of the private sector; andthe strength and resilience of the American people,we will meet this threat as we have others beforeit.

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