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?”

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.

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.

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).

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.

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.

The Central Intelligence Agency has selectively declined to publish on its web site at least three unclassified reports produced by the Center for the Study of Intelligence that present an unflattering picture of the Agency, US News reported this week.

See “A Tangled Web Woven,” by David E. Kaplan, US News and World Report, January 30, 2006.

The rules and procedures for protecting classified information in Congress — which differ in the House and the Senate — are described in another new CRS report.

See “Protection of Classified Information by Congress: Practices and Proposals,” updated January 11, 2006.

A new report from the Congressional Research Service presents a skeptical overview of the development of kinetic energy interceptors — anti-missile missiles — for defense against incoming ballistic missiles.

“The data on the U.S. flight test effort to develop a national missile defense (NMD) system are mixed and ambiguous. There is no recognizable pattern to explain this record nor is there conclusive evidence of a learning curve over more than two decades of developmental testing.”

A copy of the new CRS report was obtained by Secrecy News.

See “Kinetic Energy Kill for Ballistic Missile Defense: A Status Overview,” January 18, 2006.

The existing controversy over reauthorization of the USA Patriot Act — portions of which will “sunset” if they are not renewed — acquired a new dimension with the disclosure last month of an NSA domestic surveillance operation.

Some now argue that the Patriot Act should not be reauthorized before the Bush Administration’s claims of inherent presidential authority to conduct domestic intelligence surveillance outside of the framework of law (FISA) are confronted and clarified.

“The extensive new powers requested by the executive branch in its proposal to extend and enlarge the Patriot Act should under no circumstances be granted unless and until there are adequate and enforceable safeguards to protect the Constitution and the rights of the American people against the kinds of abuses that have so recently been revealed,” said former Vice President Al Gore in a January 16, 2006 speech.

Much of the Patriot Act is unobjectionable to anyone, and some of it is positively sensible. But it also has controversial provisions on “national security letters” as well as several totally extraneous provisions inserted by House Republicans.

A detailed assessment of the entire piece of legislation was prepared by the Congressional Research Service. A copy was obtained by Secrecy News.

See “USA PATRIOT Improvement and Reauthorization Act of 2005 (H.R. 3199): A Legal Analysis of the Conference Bill,” January 17, 2006.

The rudiments of Congressional oversight — its legal basis, its functions, and the diverse forms it takes — are concisely described in a newly updated report from the Congressional Research Service.

“Congressional oversight refers to the review, monitoring, and supervision of federal agencies, programs, activities, and policy implementation…. Congress’s oversight authority derives from its ‘implied’ powers in the Constitution, public laws, and House and Senate rules. It is an integral part of the American system of checks and balances.”

See “Congressional Oversight,” updated January 3, 2006.

Integral though it may be, there is a widespread perception that congressional oversight has atrophied in recent years.

“Everyone recognizes that the failure of congressional oversight was one of the reasons why we have some of the problems in the intelligence community today,” said Sen. John McCain on NBC Meet the Press on November 21, 2004.

“We really don’t have, still don’t have, meaningful congressional oversight,” McCain said.

Last week, Rep. Henry Waxman released two reports that compare Congress’ relentless probing of the Clinton Administration with the anemic oversight of the present Administration.

“On issue after issue, the Congress has failed to conduct meaningful investigations of significant allegations of wrongdoing by the Bush Administration,” Rep Waxman wrote. “This approach stands in stark contrast to the breadth and intrusiveness of congressional investigations of the Clinton Administration.”

See “Congress’ Abdication of Oversight,” January 17, 2006.

The National Security Agency has issued new guidance to assist officials in redacting (censoring) documents in Microsoft Word format and producing unclassified Adobe Portable Document (PDF) files without inadvertently disclosing sensitive information.

“MS Word is used throughout the DoD and the Intelligence Community (IC) for preparing documents, reports, notes, and other formal and informal materials. PDF is often used as the format for downgraded or sanitized documents.”

“There are a number of pitfalls for the person attempting to sanitize a Word document for release.”

For example, “As numerous people have learned to their chagrin, merely converting an MS Word document to PDF does not remove all [sensitive] metadata automatically.”

“This paper describes the issue, and gives a step-by-step description of how to do it with confidence that inappropriate material will not be released.”

See “Redacting with Confidence: How to Safely Publish Sanitized Reports Converted From Word to PDF,” National Security Agency, December 13, 2005: