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 GlobalSecurity.org, 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.

Biosecurity Project

I’m Michael Stebbins; my group focuses on biosecurity issues and national policy as it relates to health and biological sciences. These two areas have melded together in a number of ways since the anthrax attacks in 2001. First, there was a dramatic increase in research on bioterrorism threat agents including anthrax, tularemia, and plague. With this increase came the daunting fact that we have also dramatically increased the number of scientists who have access to and the knowledge of how to handle these agents. Second, what we have not seen is a serious commitment to increasing our nation’s public health infrastructure to handle emergencies, including the threat of a pandemic outbreak of influenza. This is absolutely essential, not just for the nation’s national security as it pertains to bioterrorism, but for all public health emergencies.

We have several active projects that address these important issues and will update you on them here. Please visit our main page for more information on the biosecurity group. Our bios can be found here.

Arms Sales Monitoring Project

My name is Matt Schroeder and I am the manager of the FAS’ Arms Sales Monitoring Project (ASMP). Since 1991, the ASMP has worked to increase transparency, accountability and restraint in the arms trade, and to end the illicit trade in small arms and light weapons. To that end, we do original research on arms trade policy issues, maintain the largest free online source of data and analysis on U.S. arms trade policies and programs, and advise policymakers, the media, and civil society on arms trade issues.

I hail from Holland, Michigan (aka God’s Country) but have lived on the East Coast for nearly a decade. I spent five years in New York City, where I worked for a couple of NGOs and earned a master’s degree in international security policy from Columbia University. I moved to DC in 2002, but still consider myself a New Yorker.

I am looking forward to sharing my thoughts (and reading your reactions to my thoughts) on the critically important but oft-ignored issues surrounding the arms trade. Defense trade controls, shoulder-fired surface-to-air missiles, and small arms/light weapons trafficking are my current foci, but many other issues will undoubtedly come up.

Government Secrecy

Welcome to this latest FAS experiment in blogging. We hope it will provide you with some insight into our activities and offer us another channel for presenting our work and our observations on strategic security and everything that entails, which is… a lot.

I’m Steven Aftergood, and I focus on secrecy and intelligence policy. The two fit together rather intimately, since secrecy is a characteristic feature of intelligence. But secrecy, while necessary in many cases, also has corrosive effects. It tends to impede oversight, to shield incompetence, and, worst of all, to degrade the performance of the intelligence bureaucracy itself. That’s why the 9/11 Commission concluded that U.S. is “too complex and secret.”

Confronting official secrecy can be a daunting task, and a frustrating one. But it can be done. I put out Secrecy News, an email newsletter (soon to be a blog, too) that tracks some of the latest twists and turns in secrecy policy, and I will be plagiarizing from it here regularly. So let’s go!

Welcome to the Federation of American Scientists’ Blog

Welcome to the inauguration of the Federation of American Scientists’ Web Log on national security issues. We are very excited about this new blog.

The Federation of American Scientists (FAS) was founded by scientists who worked on the Manhattan Project to develop the first atomic bombs. The birth of the atomic bomb was, or course, a turning point in history but one that had a particular significance for scientists because of their special role in its development. The founders of FAS thought that scientists should be concerned about the social, security, and political implications of their work and should strive to make the public aware of the implications of new science and technology. The founding motivations of FAS were keeping nuclear weapons and research under civilian control, minimizing the number of nuclear weapons and their salience to national security, and emphasizing international cooperation to reduce nuclear dangers. It would be nice, 60 years after the founding of FAS, to be able to say that all of these concerns have been taken care of. Unfortunately, in many ways they are as relevant today as they were then.

The six project directors of the FAS Strategic Security Project will be the regular contributors to our blog. Each of them has contributed a brief introduction as their first blog entry. I am Ivan Oelrich, the Vice President for Strategic Security, and I will cover nuclear weapons issues, including dirty bombs, and address some conventional weapons and budget questions. I will also write on nuclear energy questions when they relate to nuclear proliferation. Steve Aftergood will discuss the needed balance between secrecy and a well-informed public. Anne Fitzpatrick’s interests include technology policy, especially computers, the National Labs, and all things Russian. Hans Kristensen will discuss nuclear doctrine and force structure. Matt Schroeder will look at conventional arms control and the international trade in arms. Mike Stebbins covers biology, bio-security, and bio-terrorism. We will occasionally invite guest contributors.

Readers will be able to filter the blog by author or subject matter. The blog will include a moderated letters section. We welcome thoughtful letters but suspect we will be able to publish only a fraction of them. We think the blog is unique and fills an important niche – the first NGO blog with overall coverage of national security written by real experts in the field. We hope you enjoy the blog; we know we are looking forward to it.

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).

Classification Laws Apply to Everyone, Judge Says

In a startling pronouncement that can only heighten tensions between the press and the government, a federal judge said last week that the laws governing classified information apply to anyone who is in receipt of such information, including reporters who are the recipients of “leaks.”

“Persons who have unauthorized possession, who come into unauthorized possession of classified information, must abide by the law,” said Judge T.S. Ellis III. “That applies to academics, lawyers, journalists, professors, whatever.”

Judge Ellis’s statement came at the conclusion of a sentencing hearing for Lawrence Franklin, the former Pentagon analyst who was charged along with two former officials of the American Israel Public Affairs Committee (AIPAC) with felony violations of the Espionage Act.

The extraordinary claim that mere possession of classified information triggers legal obligations leads to absurd conclusions, particularly since anyone who reads the daily newspaper comes into “unauthorized possession of classified information.”

More importantly, it serves to discourage investigative reporting of illegal government activities that happen to be classified.

The provisions of the Espionage Act to which Judge Ellis was referring are “in many respects incomprehensible,” wrote Harold Edgar and Benno C. Schmidt, Jr. in their definitive1973 study “The Espionage Statutes and Publication of Defense Information,” Columbia Law Review, May 1973, vol. 73, pp. 929-1087 (Secrecy News, 10/19/05).

Judge Ellis’s statement was first reported in “Sentence in Franklin case sends chill through free-speech community” by Ron Kampeas, Jewish Telegraphic Agency, January 24.

Lawrence A. Franklin was sentenced January 20 on three felony counts: conspiracy to communicate national defense information to persons not entitled to receive it; conspiracy to communicate classified information to an agent of a foreign government; and the unlawful retention of national defense information. See this January 20 news release from the Department of Justice.

The prosecution of the two former AIPAC officials who were charged with Franklin, Steve Rosen and Keith Weissman, raises press freedom issues with even greater urgency since neither of them, unlike Franklin, held a security clearance.

Their attorneys last week filed motions to dismiss the case, but those motions are sealed pending a security review.

White House Rebuffed 2002 Effort to Relax FISA Standard

The Bush Administration rejected a Congressional initiative in 2002 that would have lowered the legal threshold for conducting surveillance of non-US persons under the Foreign Intelligence Surveillance Act from “probable cause” that the target is a terrorist or agent of a foreign power to “reasonable suspicion.”

Administration officials said at the time that the legislative proposal was unnecessary and possibly unconstitutional.

Yet in a speech this week on the NSA domestic surveillance program, Deputy Director of National Intelligence Gen. Michael V. Hayden indicated that the executive branch had unilaterally adopted a similar “reasonable suspicion” standard.

Instead of FISA’s more stringent “probable cause” requirement, the presidentially-directed NSA surveillance operation applied to international calls that “we have a reasonable basis to believe involve al Qaeda or one of its affiliates,” Gen. Hayden said on January 23.

The unexplained contradiction between the Administration’s public rejection of the “reasonable suspicion” standard for FISA, and its secret adoption of that same standard was noted yesterday by attorney and blogger Glenn Greenwald.

See “The Administration’s New FISA Defense is Factually False,” January 24.

The 2002 legislative proposed, S. 2659 introduced by Rep. Michael DeWine (R-OH), “raises both significant legal and practical issues [and] the Administration at this time is not prepared to support it,” said James A. Baker of the Justice Department.

Among other concerns, Mr. Baker said, “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.”

See Mr. Baker’s prepared statement from the July 31, 2002 hearing of the Senate Intelligence Committee.

The transcript and other prepared statements from that Senate Intelligence Committee hearing on “Proposals to Amend the Foreign Intelligence Surveillance Act” are available here.