from the FAS Project on Government Secrecy
Volume 2006, Issue No. 11
January 30, 2006


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:


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," 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, 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?"


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:


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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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