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.

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 All of this material has now been withdrawn from public access.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).

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.

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.

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.