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· tr.NITED STATES

FOREIGN lNTELLlGENCE SURVEILLANCE COuRT

WASHINGTON D.C.

IN RE DIRECTIVES 70 YAHOO 1. INC.

PURSUANT TO SECTION 10513 OF TiiE

FOREIGN INTEU.IGENCB SURVBlLLANCE

ACT.

. <

£Ul DECLARATION

{U) 1, J. M1chael McConnell, declare as follows;

• 105B(g):

I am the Director of Na.tional Intelligence (DNl) of the United States. I have held this

position since Febnuu-y 2007. Previously,l have servoct as tbe> Smior Intelligence Officei' :t'or the

U.S. Seventh Fleet, Assistant Chief of Staff for Iu!.elligence f~r the U.S. Pacific Fleet, the

Director of Intelligenco for the Joint Chiefs of Staff during Operation Desert Storm, nnd as the

Director of 'the National Sec.urity Agency (NSA).

~The purpose of tb.is declaration is to explain, in my capacity as the DNI and head of

the United States IntelUgence. Community, why granting Yahoo's Motion for a temporary stay of

the Court' a April 25, 2008 Memorandum Opinion and Order instructing Y ahc>O to comply with

lawful directives issued by the Attorney General aud DNI under the ~rotect America Act (PM) ·

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would harm the national ~rl1y .interests of the United States. As desctibocll:>elow,

iDtematiooal terrorists, and pa.."1.icular, use Y ehoo to . .

communicate over the Internet. ~e to Yahoo's failute to comply with P AA directivt;&, the

Intelligence Community bas been prevented from obtBlning foreign intelligence infonnation that. . .

is vital to our national sec:orit;. Any funher delay in Ylfuoo's crunplience could cau.~~e great

hmn to the United States, as vital foreign i.'ltelligence information contained in communications

to which oo.ly Y ab~ has acoess, will go uncollected. Y ehoo' s inutiediate compliance with the

directives is therefore critical for the U.S. T.otelligence Community to use all lawfo.l resonrees to

counter the threat posed by international te.rrorists and otbet threats to out natioonl socutity.

(U) 'BACKGROUND ON DIRECTOR OF NATIONAL INTElLIGENCE

(U) The position of DNl was created by Congress in the Intelligfltl~ Reform and

Terrorism Prevention Act of 2004, Pub: L. 108-458, §§ lOll(a) and 1097, 118 Stat. 36.38. 3643-

63, 3698-99 (2004) (amending sectioDB l02 through 104 of Title I of the Nation!t'Secntity Act

of 194 7). Subject to tho authority, direction, and control of the Ptesident. the DNI serves. as the

head of the U.S. IntelUgonce Community and as the princ:ip~ adviser to the President, the

National Securlty CDuncll, and the Hom~and Security Council for intelligence matters .related to

. the national security. See 50 U.S.C. § 403.(b)(l), (2).

{U) The United States ''Intelligence Community" includes the Office of the Director of

Nationsl Iutelli:gencej the Central InteU1gcmce Agency (ClA); tho NSA; the Deferu;e~ Intelligence

Agen~y; the National Geospatial-fntelligeoce Age:ncy: th.c National Reconnaissance Officei other . . offices within the Department ofDeferu.e for tbe colleCtion of specia.l.ized national intelligence

through reoonnaisaance programs~ the intelligence elements of the military services, the Fede.ral

Bureau of Investigation (FBI), the Department of the Treasury, tho Department of En erg)•, the

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Drug Enforcement Administration, and thfl Coast Ouard; the Bureau of Intelligence and

Research of the Department of State~ the elements of the D~partment of Homeland Security

con.cerped with the analysiS of intelligence information; and such oth~r elemellts of any other

department or agency as may be designated by the 'President, or jointly designated by the DNI

~d beads of the department or agr:mcy concerned, as an element of the Intelligence Community.

See 50 V.S.C. § 401a(4).

(U) The responsibilities and audl.orities of the D NI are set forth ill thiN ational Security

Act, as amended,' See 50 U.S.C. § 403-1. These responsibilities in.'clude ensuring that national

intelligence is l)rovided to the President, the beads of the depa.."tments and agencies of the

Ex:ec~ti.ve Bra.och.. th3 C:hainnan of the Joint Chiefs of Staff and senior military co~ders,

and the Senate and House of Representatives and committees thereof. 50 U.S.C. § 403-l(a)(l),

The Dl-11: is also charged with establisb.ing the objectives of, determining the requirements and

priorities for, and managing and directing the tasking, collection, analysist production, and

dissemination of national intelligence by elements of tbe Intelligence Community. I d. § 403-

l(f)(l}(A)(i) and.(i.i), The DNI is also responsible for developing and determining, based on

proposals submitte~ by the beads of agencies and departments within the In~elllgence

Community. ao a.nnual consolidated budget for thd-lational Intelligence Prograri:l for

presentation to the President, an~ for en~uring the effecti~e execution of the aonual budget for

intelligence and intelligence-related acti:v.ities, and for managing and allotting ap-propriations for

the National Intelligence Program. ld. § 403-l(c)(l)-(5).

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flD GLOBAL NA]lONJ\L SECJ.JlYTY 'fH¥RA TS.

~The United Slates contin~es to face a global tt.rrorlst extremist threat.

~~ Agents of al Qaeda and associated terrorist organ.iz!ltions operate in

numerous countries all o-ver the world. The CIA estimates t:!lat between 10,000 and 15,000

individuals from approxhnately 60 countries attended el Qa.eda sponsored camps between 1996

and 2001, creating a broad w~b of ~>npport across the globe. See CIA Assessment. "Countering

Misconceptions About Training Camps in Mghan.istan," August 2006. 'Ihe a1 Qeeda-direated

airline p1ot that was foiled in London in 2006, the recent merge~: over the past s~veral .ye!U'S of a1

Qaeda with regional North Mclean ~xtretnisL grou?s, ~.nd the maturation of jihadi.st netwod:s

supporting the Iraqi insurgency all reflect the extent to which al Qaeda ancl its affiliat~s continue

to operate on a global level. See .Interagency Inttlligence COmmittee on Te.rrorism (TICf)

Assessment. "Status of Homeland Plotting," February 2007; liCT Assessment. 'TheMagreb and

Sahel: !ncreru;ing Threat to US Interests," March 2007; see also U.S, Department of State,

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Coun.try Reports on Ten·or:ism 2004 at 107..08 (Apr. 2004) (noting that al Qa.eda "~es as a

foc:a.l point or umbrella organization for a worldwide network tlmt includes many Sunni Islamic

e"tremist groups,,. aild that it "has cells worldwide and is reinforced by its ties to Sunni ~tremist

network&" and .. probably ha~ several thousand extremists and 8.85ociates worldwide inspired by

the group • s ideology'). Additionally, the cl.mnatic proliferation of extremist websitcs q;u;

provided tecrorists \\o"ith worldwide propaganda, rocrultment, and commuoicati.cms tools not

previously available. See, e,8., Director of National Intelligence Open Sou.rcc: Center Analysis,

"Te.rrorunt: The Al-.Hisbah W ebaito Provides Online Nexus for Extremist Networking" (Dec.

2006) (noting that the al-Hisbah. ~eb fotunl "provides' an.onlinc rendetvous fer extremists

wor1dwlde, creating an environment that reinforces the Salafi jibadlst ideology and allows . . . members to intorac.t with like~minded individuals'').1

4 ln addition, a1 Qaeda members, affiliates an<J[or sympathizers have either claimed

responsibWty or responsibility has boea attributed to them by law enforcement and intelligence

agencies for a sign.ific~t number of violent attacks all ove:r the world. Among the locations of

these attaclts are the followiog: New York, New York; Washington, D.C.; P~sylvania;

London, U.K.; Madl.id., Spain; Casablanca and Rabat, Morocco; Istanbul., Turkey~ numerous

localities in Iraq; Riyadh and Jiddllh, S:audi Arabia; Adeo, Yemen; Nairobi, Ken,Yl!1 Dar cs-

Salaem, T~ania; Algeti!!.1 and Ma'Uritllll5a; numerous localities in Afghanistan~ Tashkent,

Uzbe-kistan; New Dolbi, India;· J aka.rta and BaH, Indonesia; and Zamboanga, P~lippines. These

attacks axel.n additlon to several failed attempts to cooduc;:t attacl::.s that instead ended in arrests in . '

France, Getmany, Italy, l'urlcey and Denmark. Al Qaeda-insp~ attackS ha.ve abo been

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disrupted in Canada and Australia. Moreover, al Qnecta opentilions that had been planned for

il'tside the United States have been disrupted by United States governme-.nt officials before the

operations could be ~erected.

""(!8fJllCS/,<N;f) :Be)'ood al Qaeda and im a.ffili.ate;, there a.--e additi.onal international

terrorist gre>ups that threaten U.S. and Western interests. For example, the Intellige.nce

Community has assessed that th~ oonflict during .the $UDlil1e:t 2006 between Lebanose Blzballah

and Israel caused the terrorist group to d~velop and update contingency plans to attack Western

mterests worldwide. The Intelligence Community has further assessed thn.t Hi1.ballah rem.alns

willing to retaliate against ~.S. and Israeli interests worldwide in the event of a significant U.S.­

or Israeli - attack. against it or its chief sponsor, Iran.

~ Unitod States faces additional na:tiooal security threats. The persistent threat

of the proliferation of Weapons ofMass·Des.truction (WMD) remains. The Intelligence . .

COIDillUnity i& most concerned about me threa.t and dest!biltzing effect of nuclear proliferation.

In particular, the lotel.U.gence Community is following North Korea's maintenance of nuclear

weapons, and Iran's pursuit of fissile material and nuclear capable n:rlssilo delivery systems. We

are aJso concernod about the threat from biological and chemical agents.

~In addition. the Intelligence Community is aware ofthe vulner&bilities of the ·.

U.S. ioforrnatio4 infrastructure to increasing cyber attacks by forcign governments and others.

Issue!! of political stability and of national and regional conflict in Europe, the Horn of Africa,

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the !\fiddle East. Eurasia and Southeast Asia, ru-e all areas where collection ruder the P AA will

serve to b.olster our int.elligenco c.apabilitios. For the Intelligence Community, enhanced foreigo

intelligeoce collection capabilities place ua in a better posi.r:ion to p.t-ovide warn.iug to the Nation

regarding the threats. we face .

• NSA has advised tbat

As has been reported to this Comt consistently in

applications for electronic surveillance .and/or physical search authority made under the Foreign

Intelligence Surveillance Act (FISA) in international terrorlsm

furtherance of theix lntematlo.nal

tcn:o.ris..'"ll activities. Intelligence Community inYestigntion and analysis of~as revealed

~In particular, Intelligence Community investigation and analysis has shown that II

demonstrates that:

• Intelligence Community analysis and reporting furrlter

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Tho use by international terrorists of the ipecitic techniques noted e.bove demonstrates why tbe

agility and speed that P AA coll~tion provides has the po~enti~ to vastly improv~ our foreign

intelligence collection. Further, out collecUon through Court-authorized electronic surveillance

andlorpbysical search, PAA authorities and global Signals Intelligence (SIGINT) activities

conducted pursuant to Ex.ecutive Order 12333, reveals that international terrorist

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Accordingly. each day that

Yahoo does not cbrnply with the directive~ we are.losing foreign intelligence jnfoi'CllRtion that

may never be recovered.

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(lJ) mRTANCE OF PAA ACOIJISITIONS . TO s.NA'fioNAL SECIJilTY lNIERES'm

~To date, surveillance conducted under fue PM has produ~ ~tical

foreign intelligence infonnntion that has enahled the Intelligence CommQD.ity to more eff~tlvely

protoct the Uniled States and its interests ·from terrorist attack and other thteats to oor national

August 2007, NSA has produced over

foreign intelligence reports tbat included PAA-acquired information. ·Most recently, in April

2.008, NSA produced overllllntellig~ce reports. NS~'s intelligence reports are dis'seminated

to other memb~ of the Intelligence Community to support their counterterrorism and

counterlntelllgence efforts: to intelligence officers lllld military personnel engaged in daoga-.rou&

missions on the ground; and to policymakers to inform decision making about critical matters

' s.ffecting national security and forcign policy affairs. Tho timely acquisition. analysis and

d.issem.in.ation of intelligence obtained from P AA authorities has made, and will contL"lue to

.malce. important contributions to our ability to ·pro~ct the Nation. Provider compliance with

PAA direcd~es is an essential component in this effort.

- fl'S· /RELTO USA, F'fE'l) :For examp~. NSA bas advised that PAA cp!lection was

ao extremely irnpo.rtanr· source of intelligence cox:1cetnto.g

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intelligence Information on the following:

The intercepte~ communication~ that formed the basis of each of th.ntclligence reports

noted above were obtained solely or in significant part from PAA-authoriz.ed collection.

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"aaVRGEN'f NEED FOR YAHOO COMPLIANCE WtrH PAA DIRECTJYF..S

~ahoo • s immediate compliance witb P AA directives is of the highest natlona.l ·

traditional FISA framework has enabled the Intelligence Com.."''lunity to obtain highly important

foreign intelligence information. its probable cause requirements 110d accompanying process

does: not permit us to colle.ct all of the L'lformation we should be collecting on ove.rseas targets;

applications presented· to tho Court in 2007 targeted

counterterrorism purposes. P AA-authorized collection provides a

rnor~ effective way of obtaining fore.ign intelligence information. given the volume and natl.U"e of

.... - ... J.QU~ and other Internet communications of foreign in~lligence targets oversMs.

\Sj.Similarly, me emergency authorizati~>n process under the traditional FISA process is

not a substitute for the agility provided by PAA authorities. As this Court is aware, before -

emergency S\trveillance can begin. the Attorney General must determine that then:: is.prol:table

cause that the target of the survei!laac_e is a foreign power or an agent of a foreign power ~nd that

PIS A' a othor requirements a..-c met The process of compiling tho facts necessary for such a

determination and preparing the n~ssary applications takes time and results in delays. Because

of tho probable ~use requirement, the requirement to present applications to this Coun within 72

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bo\lr'S of an elllergency !lllthorization, resource con,traint.s and other statutory requireme.nts such

as the requirement to obtain Attorney Oenerel. and other high level approvals, tha Intelligence

Co!Dlllunity m11st limit the use of emergency authoriz.ations to certain high-priority

circumstances. Emergency auihorizations cunnot be employed for every foreign iotelligenco

target. The National Security Division, Department of Justice, has Qdvised that

applications targetin-or counterterroiism pwposes

presented to the Court from January 1, 2008 to April30, 2008

following an emergency authorization.

:-(S}Finally, it is impo~t to highlight that the Intelligence Community is imPlementing

PM authorities consistent with the Constitution, statutocy requirements, and policy •. ,Extensive

training, implementation guidance, minimization procedures and oversight mec~ms arc in

place. In addition, as provided for in each AG/Dl->1"1 Certification authorized to dat~?, any time

~SA seelc.s to acquire foreign intelligence information against a U.S. peMn abroad during the

C01.1rse ofPAA-authocized coll~tion activity, NSA must first obtain Attorney General

authorization, using the procedure.<; under Section 2.5 of Executive Order 12333 that have been

in place for decades. NSA advises that currently, the Internet communications of ... S.

persons locatod overseas are being collected Ullder P AA authorities, wirh the appropr.iate

concurrent Attorney General approval under Sec.ti.on 2,5 of Executive Or:de.r 1Z333.

According1y, ·PAA collection :has been implemonted consisteut with tb~ protection of. U.S. person

information and rights.

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(I]) CONCLUSION

(U) For the foregoing reasbns, 1 provide this declaration in my capacity as the Director

of National Intelligence. I declare under penalty of perjury that the foregoing is true and correct.

DATE: q M~Y o<t /)1W1ft~~ (~cCONNEU.. Director of National Intelligence

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