Posts from January, 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,

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, 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.

However, the previous edition of AR 381-10, dated July 1, 1984 (and in effect
until December 22, 2005), is available 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).

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 (pdf).

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 (pdf).

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.

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.

Do Embedded Reporters Sign Non-Disclosure Agreements?

Puzzled by references to non-disclosure agreements signed by reporters who are embedded with U.S. military forces, Secrecy News requested a copy of such a non-disclosure agreement from the Pentagon.

But there isn’t one.

“The Office of the Assistant Secretary of Defense for Public Affairs has advised this Office that there is no non-disclosure agreement for access to classified material for embedded reporters,” wrote Chief DoD FOIA officer Will Kammer in response to our Freedom of Information Act request.

What there is, however, is a somewhat informal process of negotiation by which access is granted to a reporter in exchange for an agreement to conduct a security review.

“The [unit] commander may offer access if the reporter agrees to a security review of their coverage. Agreement to security review in exchange for this type of access must be strictly voluntary and if the reporter does not agree, then access may not be granted,” according to February 2003 public affairs guidance on embedded reporters.

“If a security review is agreed to, it will not involve any editorial changes; it will be conducted solely to ensure that no sensitive or classified information is included in the product. If such information is found, the media will be asked to remove that information from the product and/or embargo the product until such information is no longer classified or sensitive.”

“This paragraph does not authorize commanders to allow media access to classified information.”

See Mr. Kammer’s letter and the February 2003 public affairs guidance on embedded reporters here.

When Is Intelligence Considered “Collected”?

A layman might suppose that in the United States a telephone conversation cannot be intercepted by an intelligence agency such as the NSA except in compliance with the laws and guidelines governing intelligence collection.

But it’s more complicated than that because “interception” is not considered “collection,” according to a Department of Defense regulation.

“Information shall be considered as ‘collected’ only when it has been received for use by an employee of a DoD intelligence component in the course of his official duties.”

“Data acquired by electronic means is ‘collected’ only when it has been processed into intelligible form.”

See DoD 5240.1-R, “Procedures Governing the Activities of DoD Intelligence Components that Affect U.S. Persons,” (pdf) December 1982, at paragraph C2.2.1.

“This would suggest that automated speech recognition software, creating records on US persons for purposes of pattern recognition to detect sleeper cells, would not be prohibited,” said John Pike of, who first called attention to this provision.

In other words, defining “collection” in the peculiar way that the DoD regulation does appears to permit the NSA to conduct automated surveillance without violation of strictures on unauthorized domestic collection.

“And by the time a US person became a ‘person of interest’ as a result of this process, there would be reason to believe [probable cause] they were an agent of a foreign power,” he proposed.

“So why did NSA not take this approach?” Mr. Pike asked. “Why not just claim this, rather than making the rather more heroic legal claims they are making?”

The Mystery of the Two James Baker Statements

In a 2002 statement presented to the Senate Intelligence Committee, James A. Baker of the Justice Department Office of Intelligence Policy and Review questioned the constitutionality and the necessity of a proposal by Senator Mike DeWine to lower the legal threshold for domestic intelligence surveillance of non-U.S. persons from “probable cause” to “reasonable suspicion.”

But for yet unknown reasons, Mr. Baker’s remarkable statement is found in two distinct versions.

“If we err in our analysis and courts were ultimately to find a ‘reasonable suspicion’ standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions,” Mr. Baker said in the more expansive version of his statement.

Moreover, “If the current standard has not posed an obstacle, then there may be little to gain from the lower standard and, as I previously stated, perhaps much to lose.”

Yet even as Mr. Baker was expressing concerns about lowering the probable cause threshold, the government was doing precisely that in the NSA domestic surveillance activity.

Baker’s testimony was highlighted last week by blogger Glenn Greenwald and cited in the Washington Post and the New York Times.

Strangely, however, the testimony in which Mr. Baker presented those concerns cannot be found anywhere on the public record except for the Federation of American Scientists web site.

The testimony that is posted on the Senate Intelligence Committee web site does not contain the three paragraphs in which Mr. Baker questions the propriety of going beyond the probable cause standard as proposed by Senator DeWine.

Likewise, only the truncated version of Mr. Baker’s testimony was archived in the Nexis database and published by the Government Printing Office in its printed hearing record.

“I am going to check into this,” a Justice Department official told Secrecy News on January 27. “Maybe we can clear this mystery up.”

No one has suggested that the FAS version of the Baker statement is inauthentic.

In fact, an Associated Press story from the day of the hearing (July 31, 2002) includes this sentence: “Baker said the Justice Department is still reviewing that [DeWine] proposal and hasn’t decided whether such a change would be needed or if it would be constitutional.”

This sentence, by AP reporter Ken Guggenheim, does not correspond to anything in the truncated Baker statement or in his transcribed remarks at the hearing. But it does reflect the contents of the full version of his statement that was posted on the FAS web site, indicating that the AP had the same document.

Citing Mr. Baker’s testimony, Sen. Dianne Feinstein asked the Senate Intelligence Committee to investigate the apparent contradiction between his remarks and the conduct of the NSA surveillance program.

“I hope that the Committee’s review of this entire matter will include inquiring whether the failure to brief the Committee as required by law was compounded by testimony which was at best misleading, and at worst, false,” Sen. Feinstein wrote.

In a second letter, she noted the discrepancy between the Baker testimony on the FAS web site and the official Committee version. “I do not know why the two transcripts are different, and I have asked my staff to investigate.”

Both letters from Senator Feinstein are posted here.

NSA Declassification Plan

The National Security Agency has 46 million pages of historically valuable classified records more than 25 years old that are subject to automatic declassification by the end of December 2006, according to a new NSA declassification plan.

Another 4.5 million pages of 25 year old records have been categorically exempted from automatic declassification because they “contain information relating to our core capabilities and vulnerabilities.”

The millions of pages that are subject to “automatic declassification” this year “will require close and careful review,” the NSA said.

But NSA “is committed to declassifying national security information as instructed in Executive Order 12958, as amended. The Agency will use all available resources to successfully accomplish the provisions of the E.O. within the required time.”

A copy of the new NSA declassification plan was obtained under the Freedom of Information Act by researcher Mike Ravnitzky.

See “NSA/CSS Declassification Plan for Executive Order 12958,” Memorandum for Deputy Under Secretary of Defense (Counterintelligence & Security), January 5, 2006.

Handbook on Making Intelligence Accountable

To promote intelligence accountability in new democracies and elsewhere, a new publication addresses the principles of intelligence oversight and presents draft legal provisions to govern intelligence. The document is being published in seven languages from Albanian to Ukrainian.

See “Making Intelligence Accountable: Legal Standards and Best Practice for Oversight of Intelligence Agencies” by Hans Born and Ian Leigh, Geneva Centre for the Democratic Control of Armed Forces (DCAF).