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See Previous Posting:
Proposed FOIA Exemption for National Security Agency Files Buried in FY 2004 Defense Authorization Act
The National Security Agency's Three Justifications for the Proposed Operational Files Exemption
Side By Side Comparison of Operational File Exemptions

 


 

For Immediate Release:
June 11, 2003

For more information contact:
Tom Blanton 202/994-7000
Meredith Fuchs 202/994-7000

SPY AGENCIES ABUSE FREEDOM OF INFORMATION EXEMPTIONS,
BUT CONGRESS MAY GRANT NEW ONE TO INTERCEPTS AGENCY

Proposed FOIA Exemption Would Provide National Security Agency
With Virtually Unchecked Power to Keep Records Secret

 

Washington, D.C., June 11, 2003 - The Congress is poised to give the National Security Agency a free pass from complying with the Freedom of Information Act for any NSA "operational" files, even though NSA has failed to demonstrate a need for the exemption and the Central Intelligence Agency and the National Reconnaissance Office are abusing similar provisions previously granted by Congress.

The proposed FY 2004 Defense and Intelligence Authorization Acts pending in Congress each include a provision that would, for the first time in the Freedom of Information Act's (FOIA) 37-year history, exempt the operational files of the National Security Agency from the FOIA. These proposed new FOIA exemptions have moved through the legislative process with little inquiry into whether they are needed and with little concern about the three different explanations that have been offered by the National Security Agency to three different audiences. See NSA's Three Justifications. The ease with which the proposal has passed through the congressional committees is due in large part to the fact that three other intelligence agencies, the Central Intelligence Agency (CIA), the National Imagery and Mapping Agency (NIMA) and the National Reconnaissance Office (NRO), already have similar exemptions from the FOIA. Yet the NSA proposal is potentially broader in both its purpose and its application. See Side By Side Comparison of Operational File Exemptions; May 16, 2003 Letter to NSA General Counsel.

More troubling still, in recent months both the CIA and the NRO have applied their FOIA exemptions well beyond the bounds that were authorized by Congress. The rationale for the exemptions is that so-called operational files - which, in the case of the NRO, are limited to records that describe scientific and technical means of surveillance - include information that would not ever be releasable under the FOIA. With no consideration for these limitations, the NRO has refused to search for records that were released with only partial redaction in response to a 1992 FOIA request and that discuss a wide range of historical and organizational matters:

To the extent the records do address the "technical" or "scientific" means of surveillance, the records relate to obsolete, declassified technology such as the CORONA satellite system.

The NRO also appears to have determined that all of its NRO Directives should be maintained as operational files, causing them to refuse to search for requested Directives. Among those that the NRO has categorized as operational are:

These records were previously released to another FOIA requester, so it is possible to review the documents categorized as operational files and determine that they do not concern the type of scientific and technical information that is protected by the FOIA exemption. The NRO FOIA exemption was enacted in 2002.

Similarly, the CIA - whose exemption is limited to protecting source and method information concerning the conduct of foreign intelligence or counterintelligence operations and the means of intelligence or counterintelligence collection through scientific and technical systems - has refused to search for histories of long obsolete and declassified CIA operations. One of the documents that the CIA refused to search for relates to covert operations not the collection of intelligence or counterintelligence, and was previously made available for review by author Evan Thomas during his research for the book The Very Best Men, (Simon & Schuster 1995) (Author's Note at 345):

In addition, the CIA refused to search for:

The CIA already has made authorized public disclosures revealing details of information concerning the subjects of the two histories. Yet, the CIA refuses even to search for the records, citing the protection afforded its operational files as the basis for the denial.

The House Permanent Select Committee on Intelligence is scheduled to mark up the provision in the proposed FY 2004 Intelligence Authorization Act tomorrow, Thursday June 11, 2003. Different versions of the proposed exemption also appear in the proposed FY 2004 Defense Authorization Act, which has passed the House and Senate and will be the subject of a conference between members of the Senate and House Armed Services Committees. Another version of the exemption appears in the proposed FY 2004 Intelligence Authorization Act, which has been marked up by the Senate Select Committee on Intelligence and passed by the Senate.

The National Security Agency's Three Justifications for the Proposed Operational Files Exemption

NSA provided the first explanation for the proposed new FOIA exemption for operational files as proposed report language:

Section by Section Analysis

In response to concerns raised by the National Security Archive and other organizations, during the week of May 12, the NSA provided the following subsequent explanation for the proposed new FOIA exemption for operational files:

Statement of an NSA spokesperson (provided May 15, 2003)

The NSA provided yet a third explanation that week in response to questions raised in Congress about the proposed new FOIA exemption for operational files:

Proposal for Exemption from the Freedom of Information Act
for Operational Files
(13 May 2003)

 

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