SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2003, Issue No. 44
May 22, 2003

NSA FOIA EXEMPTION AMENDED

The Senate adopted an amendment on May 21 to narrow the proposed exemption from the Freedom of Information Act for "operational files" of the National Security Agency that document the technical means by which the Agency collects intelligence.

The amendment, offered by Senator Wayne Allard (R-CO), responded directly to some of the concerns voiced by FOIA advocates at a closed briefing on May 20.

Specifically, the amendment limits the scope of the new exemption to files held in the Signals Intelligence Directorate and the Research Associate Directorate of the NSA. It dictates that files that have been accessioned into the NSA archives are not operational files and must be searched and reviewed under FOIA. And it states that records do not become exempted operational files merely because they contain information derived from operational files.

The May 20 Senate Armed Services Committee briefing was chaired by Senator Allard and attended by Senator John Cornyn (R-TX) and Senator Hillary Clinton (D-NY). Each asked probing and intelligent questions aimed at clarifying the matter. Critics of the proposed exemption were represented by Meredith Fuchs of the National Security Archive and myself. The NSA was represented by NSA chief of staff Adm. Alexander A. Miller and NSA General Counsel Mr. Vito T. Potenza.

The text of the amended NSA FOIA exemption, adopted in the Senate version of the FY 2004 defense authorization act, is posted here:

Alternate (unrevised) versions of the exemption still appear in the Senate version of the 2004 Intelligence Authorization Act (section 501 of S. 1025) and in the House version of the 2004 Defense Authorization Act (section 1050 of H.R. 1588).

HOMELAND SECURITY VS. DISSENT

The growing mobilization of intelligence and law enforcement resources in the service of "homeland security" is spilling over into constitutionally protected domains of dissent, eroding the hitherto clear distinction between anti-government protests and suspected terrorism.

Thus, the California Anti-Terrorism Information Center (CATIC), "touted as a national model for intelligence sharing, ... has quietly gathered and analyzed information on activists of various stripes almost since its creation," according to a remarkable report in the Oakland Tribune.

Last month, the anti-terrorist CATIC warned police of potential violence at an anti-war rally at the Port of Oakland. CATIC officials insisted that their warning was appropriate, and within their charter.

"I've heard terrorism described as anything that is violent or has an economic impact, and shutting down a port certainly would have some economic impact," CATIC spokesman Mike Van Winkle told the Tribune. "Terrorism isn't just bombs going off and killing people."

See "State monitored war protesters" by Ian Hoffman, Sean Holstege and Josh Richman, Oakland Tribune, May 18:

"In the 20 months since Sept. 11, 2001, little-known government and commercial databases that track the movements and backgrounds of everyday Americans have steadily ballooned," according to the Wall Street Journal ("Data Collection Is Up Sharply Following 9/11" by Ann Davis, WSJ, May 22, p. B1).

TEETS ON THOMPSON ON NRO

Last year, aerospace executive David Thompson delivered a blistering attack on the performance of the National Reconnaissance Office, which builds and operates the nation's spy satellites. Mr. Thompson's speech, presented at the National Space Symposium in April 2002, alluded to previously unreported NRO technical disasters and mission failures that consumed billions of dollars. The speech is remarkable for its undisguised vitriol as well as its startling disclosures:

But the other shoe never dropped. Mr. Thompson rebuffed requests for follow-on interviews, and information that would confirm or flesh out (or refute) his revelations was never declassified and released.

Last month, however, NRO director Peter Teets spoke at the very same forum and acknowledged Mr. Thompson's criticisms in general terms.

"Through undisclosed sources and methods," Mr. Teets joked, "I got wind that this group was going to invite David back for a re-run, so I quickly volunteered to be your speaker tonight!"

"Frankly, I did have the opportunity to read David's speech. While it may have been a bit uncomplimentary, I read it in the spirit that there may be a grain of truth there."

"We spent some time at a recent CEO conference talking through some of his points. We always look for ways to improve our operations because we are certainly a learning organization."

So there. Mr. Teets' April 8 speech is posted on the NRO web site here:

DECLASSIFY THE 9/11 REPORT

Several members of the congressional joint inquiry into September 11 distanced themselves from Senator Bob Graham's claim that the Bush Administration was engaged in a "cover up" of events leading up to the terrorist attack. But even they expressed frustration with the Administration's continuing failure to release the inquiry's final report in unclassified form.

See "Graham 9/11 Coverup Claim Lacks Proof" by Keith Epstein, Tampa Tribune, May 18:

It is time to release the report, the Los Angeles Times editorialized May 21. See "Declassify the 9/11 Report":

"Excessive administration secrecy ... feeds conspiracy theories and reduces the public's confidence in government," said Sen. John McCain (R-AZ), testifying today at a public hearing of the National Commission on Terrorist Attacks Upon the United States, as reported by the Associated Press.

REPORTS ON TIA, PATRIOT ACT

The Defense Advanced Research Projects Agency (DARPA) released its congressionally-mandated report on the Total Information Awareness program, now re-designated the Terrorist Information Awareness program. The May 20 report is available here:

The Justice Department last week provided congressional overseers with new information concerning its implementation of the USA Patriot Act. See this May 20 release from the House Judiciary Committee:

A HARDLINE LOOK AT LEAKS

"The National Imagery and Mapping Agency (NIMA) has experienced roughly a hundred leaks [of classified information] just since 2000 that have damaged US imagery collection effectiveness. Many dozens of leaks on the activities and programs of the National Reconnaissance Office (NRO) have also helped foreign adversaries develop countermeasures to spaceborne collection operations. DIA and the military services, too, have suffered collection losses as a result of media leaks."

So writes James B. Bruce, Vice Chairman of something called the DCI Foreign Denial and Deception Committee, in an unusually uncompromising article about unauthorized disclosures of classified information in the latest unclassified issue of the CIA journal Studies in Intelligence.

Contending that "the problem is worse now than ever before," Mr. Bruce calls for stiff new penalties to crack down on leaks, including prosecutions of journalists that publish classified information. "We need to try remedies that have not been tried before," he says.

Mr. Bruce does not recognize any tension between national security interests and a free press. The requirements of national security as embodied in the classification system are always correct and they are always paramount, he says, and that's that.

It follows that "media representatives should be held responsible for publicizing intelligence information -- thus, making it available to terrorists and other US adversaries -- that they know to be classified."

"Journalists should also be held responsible under present criminal statutes for unlawful possession of classified documents when they have them," he writes.

Oh, and the same thing goes for "writers, publishing companies, media networks, and web sites that traffic in classified information."

"The view that leaks are harmless is ... nourished by ... popular myths that the government over-classifies everything -- including intelligence -- and classifies way too much," Mr. Bruce writes. "This seduction has become a creed among uncleared, anti-secrecy proponents."

See "The Consequences of Permissive Neglect: Laws and Leaks of Classified Intelligence" by James B. Bruce, Studies in Intelligence, vol. 47, no. 1, 2003:

While Mr. Bruce considers over-classification to be a myth fostered by outside activists, an increasing number of cleared insiders have reached an opposite conclusion.

"So many government documents are being stamped 'Top Secret,' 'Secret' or 'Confidential' these days that even lawmakers with access to classified materials complain the process has gotten out of hand," reports Chuck McCutcheon of Newhouse News.

See "Lawmakers Take Aim at Excessive Government Secrecy," May 20:

DUBIOUS SECRETS

Though some blinkered officials would deny it, there is no shortage of arbitrary, idiotic or obsolete secrets that are nevertheless classified in the name of national security.

"The Central Intelligence Agency classified and withheld from a Freedom of Information Act release a 25-year-old joke item in a weekly terrorism report about the terrorist threat to Santa Claus and the North Pole," the National Security Archive noted in a fascinating new collection of "Dubious Secrets." See:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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