SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 12
January 31, 2006

US ARMY: COLLECTING INFORMATION ON U.S. PERSONS

Military regulations offer wide latitude in the gathering of domestic intelligence information.

"Contrary to popular belief, there is no absolute ban on [military] intelligence components collecting U.S. person information," according to a 2001 Army intelligence memo.

What's more, military intelligence agencies can provisionally "receive" domestic intelligence information that they may not be legally permitted to "collect."

"MI [military intelligence] may receive information from anyone, anytime."

That point was stressed in the November 5, 2001 memo issued by Lt. Gen. Robert W. Noonan, Jr., the Deputy Chief of Staff for Intelligence.

DoD and Army regulations "allow collection about U.S. persons reasonably believed to be engaged, or about to engage, in International terrorist activities."

"Remember, merely receiving information does not constitute 'collection' under AR [Army Regulation] 381-10; collection entails receiving 'for use'," Gen. Noonan wrote.

"Army intelligence may always receive information, if only to determine its intelligence value and whether it can be collected, retained, or disseminated in accordance with governing policy."

The distinction between "receiving" information (always permitted) and "collecting" it (permitted only in certain circumstances) appears to offer considerable leeway for domestic surveillance activities under the existing legal framework.

This in turn makes it harder to understand why the NSA domestic surveillance program departed from previous practice.

"It seems to me that there is enough ambiguity in the language that with a bit of creativity in managing the US persons files there would have been not too much trouble" applying existing rules to the NSA program, said John Pike of GlobalSecurity.org, who pointed Secrecy News to the 2001 Army memo.

See "Collecting Information on U.S. Persons," Office of the Deputy Chief of Staff for Intelligence, November 5, 2001:

Army Regulation 381-10, "U.S. Army Intelligence Activities," was reissued on November 22, 2005, but up to now it has not been publicly disclosed.

The previous edition of AR 381-10, dated July 1, 1984 (and in effect until December 22, 2005), is available here:

NRO OPERATIONAL FILES EXEMPTION IN DISPUTE

In the past, the National Reconnaissance Office, the agency that develops spy satellites, has released unclassified portions of its budget request documents. But last year, the NRO refused to do so, claiming that these unclassified materials fall under the "operational files" exemption to the Freedom of Information Act.

A lawsuit brought by the Federation of American Scientists is challenging that claim. The two parties have just finished briefing the case with replies to each other's opposing motions.

"The defendant [NRO] has shown by a sworn declaration which is clear, specific, and reasonably detailed that the requested records are properly designated as operational," the NRO concluded.

No, "since all parties agree that the requested record has been disseminated beyond its originating operational file, the conclusion is inescapable that the requested record must be processed under FOIA," we argued.

At this point, the parties are largely talking past each other, and it will be up to the judge, the Hon. Reggie B. Walton, to resolve the dispute.

The latest pleadings in Aftergood v. NRO may be found here:

THE STATUS OF THE DCI FOLLOWING INTEL REFORM

The intelligence reform legislation of 2004 abolished the position of Director of Central Intelligence, transferring many of its functions to the new Director of National Intelligence.

This raised a technical legal question as to whether the DCI who was serving at the time, Porter J. Goss, would need to be formally reappointed to the position of Director of the Central Intelligence Agency (DCIA).

The question was analyzed at length by the Justice Department Office of Legal Counsel (OLC) in a January 2005 memo that has just been released.

To cut to the chase, the OLC concluded "that when the Intelligence Reform Act takes effect the then-current DCI would not require a new appointment to serve as DCIA."

See "Status of the Director of Central Intelligence Under the National Security Intelligence Reform Act of 2004, Justice Department Office of Legal Counsel, January 12, 2005 (published January 23, 2006):

INADVERTENT DISCLOSURES OF CLASSIFIED NUCLEAR INFO

The Department of Energy has released a sanitized version of its nineteenth report to Congress on inadvertent releases of classified nuclear weapons information through the declassification process.

Out of more than 150,000 pages at the National Archives that were reviewed by DOE, 16 pages contained Restricted Data, and another 99 pages contained Formerly Restricted Data (which is also classified).

As in the past, the most common type of inadvertent release concerned the locations of historical nuclear weapons storage depots. However, some design-related information was also inadvertently released. All of this material has now been withdrawn from public access.

See "Nineteenth Report to Congress on Inadvertent Releases of Restricted Data and Formerly Restricted Data Under Executive Order 12958," November 2005 (released in declassified form January 2006):

NOTABLE RULES AND REGS

Some notable rules and regulations on security policy that have recently been published include the following:

"National Industrial Security Program Directive Number 1," Information Security Oversight Office, January 27, 2006:

"International Interchange of Patent Rights and Technical Information," Department of Defense Instruction 2000.03, January 17, 2006:

"Naturalization of Aliens Serving in the Armed Forces of the United States and of Alien Spouses and/or Alien Adopted Children of Military and Civilian Personnel Ordered Overseas," Department of Defense Instruction 5500.14 January 4, 2006:

"Department of the Navy Policy for Content of Publicly Accessible World Wide Web Sites," Secretary of the Navy Instruction 5720.47B, December 28, 2005:

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

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