Posts from May, 2012

Admin Presses for Renewal of FISA Surveillance Authority

The Obama Administration is urging Congress to renew provisions of the Foreign Intelligence Surveillance Act (FISA) Amendments Act that are set to expire at the end of this year.

“Reauthorizing this authority is the top legislative priority of the Intelligence Community,” wrote Director of National Intelligence James Clapper and Attorney General Eric Holder in a February 8 letter to Congress.

One of the key provisions, they explained, would permit the electronic surveillance of entire categories of non-U.S. persons who are located abroad “without the need for a court order for each individual target.”

Under this provision, “instead of issuing individual court orders, the FISC [Foreign Intelligence Surveillance Court] approves annual certifications submitted by the Attorney General and the DNI that identify categories of foreign intelligence targets.”

“The provision contains a number of important protections for U.S. persons and others in the United States,” according to a background paper attached to the February 8 letter, including limitations on targeting, minimization procedures to exclude information about U.S. persons, and other guidelines on acquisition.

“Failure to reauthorize [this section] would result in a loss of significant intelligence and impede the ability of the Intelligence Community to respond quickly to new threats and intelligence opportunities,” the background paper stated.

Proposed legislative language to enact an extension of Title VII of the FISA Amendments Act was transmitted to Congress by the DNI in a March 26 letter.

The American Civil Liberties Union disputes the adequacy of the FISA Amendment Act’s protections for U.S. persons and is challenging the constitutionality of the Act in a lawsuit that is pending before the U.S. Supreme Court.  The ACLU is also asking Congress to “Fix FISA by prohibiting dragnet surveillance, mandating more transparency about the government’s surveillance activities, and strengthening safeguards for privacy.”

Counterintelligence Surveillance Under FISA Grew in 2011

In 2011, the US Government submitted 1,745 applications to the Foreign Intelligence Surveillance Court for authorization to conduct electronic surveillance or physical searches under the Foreign Intelligence Surveillance Act (FISA), according to a new annual report to Congress. Of these, 1,676 included requests for authority for perform electronic surveillance, the report said.

That compares to 1,579 such applications in 2010 (including 1,511 for electronic surveillance).

As is usually the case, the FIS Court did not deny any electronic surveillance applications in whole or in part last year, though it made modifications to 30 of them.

The new report says that the government filed 205 applications for business records (including “tangible things”) for foreign intelligence purposes last year, compared to 96 in the previous year.

But the number of “national security letters” (a type of administrative subpoena) declined last year. In 2011, the FBI requested 16,511 national security letters pertaining to 7,201 U.S. persons, the new report said, compared to the 2010 total of 24,287 letter requests concerning 14,212 U.S. persons.

Classified Records Said to be Missing from National Archives

More than a thousand boxes of classified government records are believed to be missing from the Washington National Records Center (WNRC) of the National Archives and Records Administration (NARA), a three-year Inspector General investigation found.

But there are no indications of theft or espionage, an official said.

An inventory of the holdings at the Records Center determined that 81 boxes containing Top Secret information or Restricted Data (nuclear weapons information) were missing.  As of March 2011, an additional 1,540 boxes of material classified at the Secret or Confidential level also could not be located or accounted for, the Inspector General report on the matter said.  Each box can hold approximately 1.1 cubic feet or 2000 to 2500 sheets of paper.

The missing records “represent an ongoing failure at WNRC to protect some of the most sensitive information produced by the Federal Government,” wrote NARA Inspector General Paul Brachfeld in a 2009 letter to the Acting Archivist.

The IG report on the matter implied that it could constitute a violation of the Espionage Act, citing “alleged violations” of the espionage statues including prohibitions on “gathering, transmitting or losing defense information” (section 793), “disclosure of classified information” (section 798), and “unauthorized removal and retention of classified documents or material” (section 1924).

The results of the Inspector General investigation were first reported today in “Secret files missing at National Archives” by Jim McElhatton, The Washington Times, May 2.

The 2011 Inspector General report of investigation, released under the Freedom of Information Act, may be found here.

The missing records originated in the Office of the Secretary of Defense, the Army, the Navy, the Department of Energy, and other agencies.

The Inspector General report said that “At some point, the originating agency will have to make a determination on the effect the missing materials (from the missing 81 boxes) have on national security.”

In the meantime, “the Federal Bureau of Investigation has been notified of the missing classified materials per Department of Justice requirements.”

The problem of wayward official records, both classifed and unclassified, is not a new one. “In 1998 and 2004, WNRC conducted inventories of its classified holdings,” the Inspector General noted. “Both inventories revealed missing classified records.”

But more precisely, the inventories revealed discrepancies between the agency catalogs and the records on the shelf.  It is not entirely certain that any records have actually left official custody.  Today’s archival catalogs are pre-populated with the contents of a legacy hardcopy card catalog system that dates back many decades and that is inherently prone to error.

While poor records management practices are always problematic, there are several factors that would tend to mitigate the significance of the problem.

Many of the purportedly missing records are more than fifty years old, including one collection of pre-WWII records on “hydraulics.”  Almost all the records are more than 25 years old, and should have been declassified long ago.  The Washington National Records Center is not cleared for compartmented (SCI) intelligence records, and no such records are thought to be missing.


US v. Jones on GPS Monitoring, and More from CRS

New and updated reports from the Congressional Research Service that have not been made readily available to the public include the following.

United States v. Jones: GPS Monitoring, Property, and Privacy, April 30, 2012

China’s Rare Earth Industry and Export Regime: Economic and Trade Implications for the United States, April 30, 2012

Federal Agency Actions Following the Supreme Court’s Climate Change Decision in Massachusetts v. EPA: A Chronology, May 1, 2012

The U.S.-Colombia Free Trade Agreement: Background and Issues, April 27, 2012

Issues and Challenges for Federal Geospatial Information, April 27, 2012