National Defense Authorization Act for Fiscal Year 2004 (Introduced in Senate)
SEC. 933. PROTECTION OF OPERATIONAL FILES OF THE NATIONAL SECURITY AGENCY.
(a) IN GENERAL- Title I of the National Security Act of 1947 (50 U.S.C. 401 et seq.) is amended by inserting after section 105D (50 U.S.C. 403-5c) the following new section:
`Sec. 105E. Protection of Operational Files of the National Security Agency
`(a) EXEMPTION OF CERTAIN OPERATIONAL FILES FROM SEARCH, REVIEW, PUBLICATION, OR DISCLOSURE- (1) The Director of the National Security Agency, with the coordination of the Director of Central Intelligence, may exempt operational files of the National Security Agency from the provisions of section 552 of title 5, United States Code, which require publication, disclosure, search, or review in connection therewith.(b) CLERICAL AMENDMENT- The table of contents contained in the first section of such Act is amended by inserting after the item relating to section 105D the following new item:
`(2)(A) Subject to subparagraph (B), for the purposes of this section, the term `operational files' means files of the National Security Agency (hereafter in this section referred to as `NSA') that document the means by which foreign intelligence or counterintelligence is collected through technical systems.
`(B) Files that contain disseminated intelligence are not operational files.
`(3) Notwithstanding paragraph (1), exempted operational files shall continue to be subject to search and review for information concerning--
`(A) United States citizens or aliens lawfully admitted for permanent residence who have requested information on themselves pursuant to the provisions of section 552 of title 5 or section 552a of title 5, United States Code;`(4)(A) Files that are not exempted under paragraph (1) which contain information derived or disseminated from exempted operational files shall be subject to search and review.
`(B) any special activity the existence of which is not exempt from disclosure under the provisions of section 552 of title 5, United States Code; or
`(C) the specific subject matter of an investigation for any impropriety, or violation of law, Executive order, or Presidential directive, -in the conduct of an intelligence activity by--
`(i) The Permanent Select Committee on Intelligence of the House of Representatives.
`(ii) The Select Committee on Intelligence of the Senate.
`(iii) The Intelligence Oversight Board.
`(iv) The Department of Justice.
`(v) The Office of General Counsel of NSA.
`(vi) The Office of the Director of NSA.
`(B) The inclusion of information from exempted operational files in files that are not exempted under paragraph (1) shall not affect the exemption under paragraph (1) of the originating operational files from search, review, publication, or disclosure.
`(C) The declassification of some of the information contained in exempted operational files shall not affect the status of the operational file as being exempt from search, review, publication, or disclosure.
`(D) Records from exempted operational files which have been disseminated to and referenced in files that are not exempted under paragraph (1) and which have been returned to exempted operational files for sole retention shall be subject to search and review.
`(5) The provisions of paragraph (1) may not be superseded except by a provision of law which is enacted after the date of the enactment of this section, and which specifically cites and repeals or modifies its provisions.
`(6)(A) Except as provided in subparagraph (B), whenever any person who has requested agency records under section 552 of title 5, United States Code, alleges that NSA has withheld records improperly because of failure to comply with any provision of this section, judicial review shall be available under the terms set forth in section 552(a)(4)(B) of title 5, United States Code.
`(B) Judicial review shall not be available in the manner provided for under subparagraph (A) as follows:
`(i) In any case in which information specifically authorized under criteria established by an Executive order to be kept secret in the interests of national defense or foreign relations which is filed with, or produced for, the court by NSA, such information shall be examined ex parte, in camera by the court.`(b) DECENNIAL REVIEW OF EXEMPTED OPERATIONAL FILES- (1) Not less than once every 10 years, the Director of NSA and the Director of Central Intelligence shall review the exemptions in force under subsection (a)(1) to determine whether such exemptions may be removed from the category of exempted files or any portion thereof. The Director of Central Intelligence must approve any determination to remove such exemptions.
`(ii) The court shall, to the fullest extent practicable, determine the issues of fact based on sworn written submissions of the parties.
`(iii) When a complainant alleges that requested records are improperly withheld because of improper placement solely in exempted operational files, the complainant shall support such allegation with a sworn written submission based upon personal knowledge or otherwise admissible evidence.
`(iv)(I) When a complainant alleges that requested records were improperly withheld because of improper exemption of operational files, NSA shall meet its burden under section 552(a)(4)(B) of title 5, United States Code, by demonstrating to the court by sworn written submission that exempted operational files likely to contain responsive records currently perform the functions set forth in paragraph (2).
`(II) The court may not order NSA to review the content of any exempted operational file or files in order to make the demonstration required under subclause (I), unless the complainant disputes NSA's showing with a sworn written submission based on personal knowledge or otherwise admissible evidence.
`(v) In proceedings under clauses (iii) and (iv), the parties may not obtain discovery pursuant to rules 26 through 36 of the Federal Rules of Civil Procedure, except that requests for admission may be made pursuant to rules 26 and 36.
`(vi) If the court finds under this paragraph that NSA has improperly withheld requested records because of failure to comply with any provision of this subsection, the court shall order NSA to search and review the appropriate exempted operational file or files for the requested records and make such records, or portions thereof, available in accordance with the provisions of section 552 of title 5, United States Code, and such order shall be the exclusive remedy for failure to comply with this subsection.
`(vii) If at any time following the filing of a complaint pursuant to this paragraph NSA agrees to search the appropriate exempted operational file or files for the requested records, the court shall dismiss the claim based upon such complaint.
`(viii) Any information filed with, or produced for the court pursuant to clauses (i) and (iv) shall be coordinated with the Director of Central Intelligence prior to submission to the court.
`(2) The review required by paragraph (1) shall include consideration of the historical value or other public interest in the subject matter of the particular category of files or portions thereof and the potential for declassifying a significant part of the information contained therein.
`(3) A complainant that alleges that NSA has improperly withheld records because of failure to comply with this subsection may seek judicial review in the district court of the United States of the district in which any of the parties reside, or in the District of Columbia. In such a proceeding, the court's review shall be limited to determining--
`(A) Whether NSA has conducted the review required by paragraph (1) before the expiration of the 10-year period beginning on the date of the enactment of this section or before the expiration of the 10-year period beginning on the date of the most recent review.
`(B) Whether NSA, in fact, considered the criteria set forth in paragraph (2) in conducting the required review.'.
`Sec. 105E. Protection of operational files of the National Security Agency.'.