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)
