FAS Note: The following material describes several secrecy-related provisions proposed by the Department of Defense for inclusion in the 2009 Defense Authorization Act. None of the provisions were included in the bill (S. 3001) as marked up in May 2008 by the Senate Armed Services Committee.

2009 DEPARTMENT OF DEFENSE AUTHORIZATION

Section-by-Section Analysis

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Subtitle C—Intelligence-Related Matters

Text of Proposed Sections 921-922 (pdf)

Section 921. Over the past several years, different agencies within the Intelligence Community (IC) sought to amend the Freedom of Information Act (FOIA) 5 U.S.C. 552, to exempt operational files from the statutory requirement to search, review and, as required, disclose documents contained therein upon receipt of a FOIA request. These exemptions were sought since information contained in such files is classified and seldom, if ever, released. Thus, agency personnel were spending thousands of hours searching, reviewing and, for the most part, denying access to operational file documents under the FOIA exemption for classified national security information.

The Defense Intelligence Agency (DIA) also sought to achieve an operational files exemption similar to that granted to other IC agencies. Such a measure was included in section 933 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2006, which was signed into law by the President on January 6, 2006. Unlike other IC exemptions, this one contained a sunset provision effective December 31, 2007.

Section 705 of the National Security Act of 1947 states that the Director, DIA, in coordination with the Director of National Intelligence (DNI), may exempt operational files of the DIA from the provisions of the FOIA, which require publication, disclosure, search, or review in connection therewith. Operational files are limited to Directorate of Human Intelligence (DH) files that "document the conduct of foreign intelligence or counterintelligence operations or intelligence or security liaison arrangements or information exchanges with foreign governments or their intelligence or security services" and to Directorate of MASINT and Technical collection (DT) files that document "the means by which foreign intelligence or counterintelligence is collected through technical systems."

Due to the sunset provision included in section 705, it is now necessary to seek an extension of this authority or removal of the sunset provision in its entirety.

Section 922. To protect Limited Distribution (LIMDIS) products and to assist in the investigation and prosecution of those who violate distribution restrictions, this section would establish specific criminal and administrative penalties for the wrongful disclosure, possession or conveyance of LIMDIS products. Amending 10 U.S.C. 455 would enable the Department of Defense (DoD) to protect sensitive geodetic information from inappropriate disclosures, including postings of such products on the internet, and internet commerce.

Section 455 of title 10 is a Freedom of Information Act (FOIA) exemption 3 statute. Under this statute, all LIMDIS products are exempt from disclosure to the public under the FOIA. Accordingly, only products exempt from FOIA release will be subject to the proposed civil and criminal penalties.

All LIMDIS materials must be marked with a complete LIMDIS caveat that cites 10 U.S.C. 455. Upon enactment of this revision to the statute, the LIMDIS caveat published on such materials will be changed to inform users of the new civil and criminal penalties under the revised 10 U.S.C. 455. Notice of this change would also be posted in the Federal Register. DoD and the National Geospatial-Intelligence Agency (NGA) will also revise agency directives and instructions as necessary to implement this requirement.

The proposed protections are similar to the protection offered for sensitive procurement information by 41 U.S.C. 423, "Restrictions on disclosing and obtaining contractor bid or proposal information or source selection information."

The geneses of this new subsection are repeated requests and feedback from agents of the Defense Criminal Investigative Service (DCIS) for more clear and effective proscriptions on the disclosure to unauthorized persons and the wrongful possession and selling of geodetic products that the Secretary of Defense and the Director, NGA, have determined to withhold from the public. Section 455 of title 10 identifies three categories of unclassified geodetic products that may be withheld from the public. These include products obtained or produced, or which contain information that was provided, pursuant to an international agreement that restricts disclosure to Government officials of the agreeing parties or that restricts use of such information for Defense or other Government purposes only. Almost half of the geodetic product currently withheld fall into this category. The United States must be able to assure our international partners that we have the capabilities to enforce our agreement to protect such products. The second and third categories of products directly relate to the intelligence and military missions of NGA. The second category includes products that contain information that has been determined -- in writing -- would, if disclosed, reveal classified or sensitive sources and methods or capabilities used to obtain source material for production of the geospatial information and data. The third and final category of geospatial products which are withheld from the public are those products which contain information that has been determined in writing would, if disclosed, jeopardize or interfere with ongoing military or intelligence operations; reveal military operational or contingency plans; or reveal, jeopardize, or compromise military or intelligence capabilities. The use of these products for warfighting and intelligence purposes mandates that they not be classified. Still, such sensitive geodetic products must be protected from disclosure to all unauthorized sources, to include being posted on the internet where they are immediately available to those who would do harm to U.S. troops and allies. Current protection efforts have been ineffective, at least in part, because of the lack of effective penalties for unauthorized possession, sell, and use.

In accordance with DoD and NGA regulatory guidance, these sensitive geodetic products bear a caveat identifying them as "LIMITED DISTRIBUTION (LIMDIS)." For several years, products bearing the LIMDIS caveat have wrongfully been offered for sale to the public through a variety of means from surplus stores to on-line auctions. NGA Office of International and Policy, Disclosure and Release Division, has repeatedly found LIMDIS products such as Evasion maps being offered for sale worldwide on eBay or displayed on internet sites. To date, DCIS efforts to prosecute the eBay sellers have not been successful. Arguments to prosecutors that these items are government property, the wrongful possession of which may be prosecuted as theft or wrongful conversion of government property, while legally correct, do not adequately convey the sensitivity and value of the products.

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Title X - General Provisions

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Text of Proposed Section 1036 (pdf)

Section 1036 amends section 130d of title 10, United Sates Code, to conform with section 892 of the Homeland Security Act of 2002 (6 U.S.C. 482) and section 1016 of Intelligence Reform and Terrorism Prevention Act (6 U.S.C. 485), and the authorities of the President, therein, concerning the treatment and sharing of homeland security information.

Section 482 of title 6, United States Code, defines "homeland security information," and provides that homeland security information shared with a State or local government will remain "under the control" of the Federal agency that provided the information and that no State or local disclosure laws shall apply to that shared information.

Section 130d ensures that such information, though shared with State and local personnel who are involved in the prevention or response to terrorist activity, is not subject to disclosure under the Freedom of Information Act (5 U.S.C. 552) because the information was shared.

Under section 130d, "confidential business information and other sensitive but unclassified homeland security information" in the possession of the Department of Defense does not lose any protection or exemption from disclosure under the FOIA simply because the information was shared with State and local personnel pursuant to 6 U.S.C. 482.

Currently 10 U.S.C. 130d states:

Limiting this protection to information "in the possession of the Department of Defense" could have harmful, unforeseen consequences for intergovernmental information sharing and create operational as well as legal obstacles for other Federal agencies that share homeland security information with State and local personnel.

To resolve the tension between section 130d and the Homeland Security Act, this proposal would amend section 130d in two ways. It would amend section 130d to apply to all Federal agencies and not just DoD by amending the phrase, "in the possession of the Department of Defense," to refer to "any Federal agency." This amendment eliminates both the negative implications and potential operational distortions created by limiting the application of section 130d only to the Department of Defense.

This proposal also would clarify that applicable FOIA exemptions for confidential business or homeland security information are not waived because the information was shared with State and local personnel. See generally Students Against Genocide v. Dep't of State, 257 F.3d 828, 836 (D.C. Cir. 2001) (noting that, generally, the government may not rely on an otherwise valid exemption to justify withholding information that already has been officially released to the public).

In addition, this proposal would replace "other sensitive but unclassified homeland security information," with "Homeland security information," to reflect the terminology used in 6 U.S.C. 482.

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Source: Department of Defense