SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2004, Issue No. 113
December 21, 2004

CIA COMMENCES REVIEW OF OPERATIONAL FILES EXEMPTION

The Central Intelligence Agency announced today that it is conducting its second decennial (once every ten years) review of the scope of a Freedom of Information Act exemption that was granted in 1984 for so-called operational files.

"The CIA Information Act of 1984, codified in section 431 of title 50 of the United States Code, authorizes the DCI to exempt operational files of the CIA from the publication, disclosure, search, and review provisions of the Freedom of Information Act," explains a CIA notice in the Federal Register.

The Act "requires that, not less than once every ten years, the DCI shall review the exemptions in force to determine whether such exemptions may be removed from any category of exempted files or any portion thereof."

Public comments on the scope of the exemption are solicited as part of the decennial review. See this December 21 Federal Register notice:

The National Security Archive has posted supplementary documentation on the history of the Act and its implementation here:

The CIA's operational files exemption is a matter of concern not only to historians and Agency watchers. It is also implicated in some of the most urgent and controversial matters of national policy.

Thus, the CIA recently invoked the exemption in federal court to argue that it should not be compelled to disclose records relating to an investigation of allegations of torture committed by U.S. personnel in Iraq.

See this December 8 memorandum filed by the CIA in a Freedom of Information Act proceeding brought by the ACLU and other organizations:

But yesterday, Judge Alvin Hellerstein of the Southern District of New York rejected the CIA argument and ordered the Agency to begin turning over records to the ACLU and its co-plaintiffs.

NARA PROBES CIA LOSS OF HISTORICAL BUDGET RECORDS

The National Archives and Records Administration is asking the Central Intelligence Agency to explain its recent statement to a federal judge that it cannot locate copies of the classified annexes to the intelligence authorization acts for fiscal years 1947 through 1970, as noted earlier this month (SN, 12/10/04).

A newly obtained letter from NARA to the CIA states: "It is our understanding that a record set of those annexes should be preserved among the permanent appropriations and budget files of the CIA," wrote Howard P. Lowell, director of modern records programs at the National Archives.

"How can you lose those things?" asked historian Anna Nelson of American University on National Public Radio Weekend Edition on December 18. "You can't lose those things. So, you know, where are they?"

A CIA response is due by the end of the month.

CORRECTION: CIA RECORDS NOT REMOVED FROM NATIONAL ARCHIVES

A story in the previous issue of Secrecy News was mistakenly titled "CIA Removes Records From National Archives" (SN, 12/16/04).

In fact, however, no CIA records have been physically removed from the National Archives.

While various records in open collections at the Archives have been removed from public access by CIA reviewers, as reported, those records remain in the custody of the National Archives.

MORE BACKGROUND ON THE MYSTERY SPY SATELLITE PROGRAM

The highly classified intelligence program that erupted into public controversy earlier this month, which reportedly involves a low observable stealth imaging satellite codenamed MISTY, has been described in some detail in unclassified published sources.

Earlier this year, the Russian space magazine Novosti Kosmonavki discussed the program in an article by Alexei Kucheiko. It was cited by the Washington Post in a December 11 story by Dana Priest.

"I've read it, and it's a good summary and extension of all the MISTY-related lore that's come out over the past decade," said former CIA analyst Allen Thomson.

A copy of the article, in Russian, is reposted here with permission of Novosti Kosmonavtiki (www.novosti-kosmonavtiki.ru/):

The National Security Archives last week posted an excerpt from Jeffrey Richelson's book The Wizards of Langley, which first described the MISTY program, and has now added some remarkable declassified documents obtained by Richelson which trace the historical roots of the stealth satellite concept as far back as 1963. See:

ISOO ELABORATES ON AUTOMATIC DECLASSIFICATION PLANS

Some further details on agency plans for responding to the automatic declassification requirements of President Bush's March 2003 executive order on classification policy were provided by the Information Security Oversight Office (ISOO) in private correspondence.

The Bush order called for automatic declassification of most 25 year old documents by December 2006. (Under a previous order from President Clinton, automatic declassification was to take effect in April 2003.)

Ten agencies have previously been granted exemptions from automatic declassification for particular file series, wrote ISOO director William Leonard, and an additional request is currently pending.

"Several agencies have indicated their intent to delay for an additional 5 years [until 2011] the automatic declassification of information contained in special media such as microforms, motion pictures, and audiotapes," he wrote.

In addition, extensions up to three years [until 2009] have been granted in several cases for records involving multiple agency "equities" or interests.

Mr. Leonard provided the information in response to a query from researcher James David. See:

NGA EXTENDS COMMENT PERIOD ON WITHDRAWAL OF RECORDS

The National Geospatial-Intelligence Agency (NGA) has extended the public comment period on its proposal to withdraw various aeronautical records from public access.

"The period of comment will be open from the date of this Register until 30 June 2005. NGA will consider all comments when making the final decision to go forward with this proposed action, in part, in whole, or not at all," according to a December 17 Federal Register notice:

For background on the controversy over the NGA proposal, see "NGA Plans Limited Access to Aeronautical Data Beginning in FY 06" by Cynthia Di Pasquale, Inside the Air Force, December 3 (reposted with permission):

NARA ANNOUNCES FURTHER DECLASSIFICATION OF JFK RECORDS

Over 4000 historical documents concerning the assassination of President Kennedy that previously remained partially classified are now released in full, according to a December 20 announcement from the National Archives.

An equal number of documents have been partially released but with fewer redactions than in previous versions.

"Newly released information ranges from one word to a paragraph or more per document," the Archives release said:

SOME NEW CONGRESSIONAL RESEARCH SERVICE PRODUCTS

"Nuclear Weapons: Comprehensive Test Ban Treaty," updated December 17, 2004:

"Nuclear Testing and Comprehensive Test Ban: Chronology Starting September 1992," updated November 9, 2004:

"Scientific Research and the Experimental Use Privilege in Patent Law," October 28, 2004:

"Intelligence Issues for Congress," updated December 9, 2004:

"Terrorism: Background on Chemical, Biological, and Toxin Weapons and Options for Lessening Their Impact," updated December 1, 2004:

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

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