Bill would tighten cloak of NSA secrecy, critics say
Spy agency says proposal would be labor-saver on requests routinely denied
The National Security Agency, one of the country's most clandestine agencies, is seeking to cloak its activities in what critics say is another layer of secrecy. Legislation headed for the Senate floor would let the global eavesdropping agency automatically turn down requests by citizens for files on how the NSA collects intelligence.
NSA officials say that they routinely deny requests for so- called "operational files" and that the legislation would simply free the agency's staff from the time-consuming task of searching for and reviewing those files before sending out rejection letters.
But historians, researchers and watchdog groups say the broadly worded measure threatens to close one of the few windows into an enormously powerful agency. The provision, tucked deep within Senate defense and intelligence authorization bills, has drawn little notice on Capitol Hill.
"The danger is the NSA is reverting to the old Soviet Union here, where everything is per se secret and you don't have any means to get around it," said James Bamford, who used the Freedom of Information Act to obtain thousands of NSA documents to write two books on the agency. "Besides the score on the local golf course there, they can say pretty much anything is operational because everything has to do with NSA's operations."
The Fort Meade-based agency says that it is seeking nothing so sweeping. The measure aims only to exempt files describing the "nuts and bolts" of intelligence collection, a spokeswoman said.
On Capitol Hill, most lawmakers have been satisfied with the agency's explanation.
"There's always a question of how much of this you do" in limiting access to government files, said West Virginia Sen. John D. Rockefeller IV, the senior Democrat on the Select Committee on Intelligence. "It's a fine line, but it was felt to be OK."
Bill Duhnke, a senior aide to the GOP-led committee, said: "There's a better use of [the agency's] time and effort - the war on terrorism and so forth - than searching for records that are going to be denied anyway."
But critics of the proposal say the exempt files could include everything from properly classified data, such as the cell phone frequencies used by al-Qaida operatives, to harmless information on the radio gear American spies used in the 1960s to eavesdrop in the Soviet Union.
Opponents are only now organizing to fight the bill. Among them are the Federation of American Scientists, the American Library Association, the American Society of Newspaper Editors and the Electronic Privacy Information Center.
In 1984, Congress gave a similar exemption to the CIA, freeing it from aspects of the Freedom of Information Act.
But critics note that the CIA measure was enacted after extensive public hearings. There have been no public hearings on the NSA proposal.
The NSA houses millions of documents from decades of espionage. Though most remain classified, those released have added significantly to the historical understanding of the Cold War, the Cuban Missile Crisis and the Kennedy assassination.
The NSA proposal "will not affect how much information FOIA requesters get or how much information will be reviewed and released under the historical review program," an agency spokeswoman said this week in a written response to questions from The Sun. "NSA remains committed to declassifying and releasing as much material as possible."
Because the NSA can invoke national security to deny requests, its proposal is largely put forth as a labor-saver. The agency would not say how many requests for operational files it receives annually or how much time it spends handling them.
Annual Defense Department reports to Congress show that the NSA receives far fewer Freedom of Information Act requests than the CIA. Moreover, the NSA is far less likely to grant such requests, the reports show.
Loch K. Johnson, a University of Georgia intelligence expert, is skeptical of the NSA claim that such requests steal resources from the war on terrorism: "I think that's an excuse. It's already hard enough to find out what's going on in this agency. Further retrenchment will only make it harder."
The bill troubles A. Jay Cristol, an author and federal judge who says the NSA has a tendency to err on the side of secrecy.
Cristol sent an FOIA request to the agency two years ago while writing a book on Israel's 1967 attack on the spy ship USS Liberty. He wanted copies of radio messages intercepted by U.S. planes near the attack.
"The fact of the existence or nonexistence of such information is a properly classified matter," an NSA official responded in a letter last year.
Only after Cristol appealed to a federal court did the agency say it would release some material, court documents show.