Thursday, April 17, 2014
By Marisa Taylor
Mcclatchy Washington Bureau
And Jonathan S. Landay
WASHINGTON — Since last year’s revelations about the National Security Agency’s massive communications data dragnets, the spy agency has been inundated with requests from Americans and others wanting to know if it has files on them. All of them are being turned down.
A member of the protest group Code Pink, Sarah Harbi, demonstrates outside the Department of Justice last month.
The denials illustrate the bind in which the disclosures have trapped the Obama administration. While it has pledged to provide greater transparency about the NSA’s communications collections, the NSA says it cannot respond to individuals’ requests without tipping off terrorists and other targets.
As a result, Americans whose email and telephone data may have been improperly vacuumed up have no way of finding that out by filing open records requests with the agency. Six McClatchy reporters who filed requests seeking any information kept by the NSA on them all received the same response.
“Were we to provide positive or negative responses to requests such as yours, our adversaries’ compilation of the information provided would reasonably be expected to cause exceptionally grave damage to the national security,” the NSA wrote last month in response to a McClatchy national security reporter who requested his own records. “Therefore, your request is denied because the fact of the existence or non-existence of responsive records is a currently and properly classified matter.”
GUARDING AGAINST AL-QAIDA?
In an apparent reaction to former NSA contractor Edward Snowden’s revelations of the NSA’s data collections, the number of open records requests filed with the agency more than tripled – from 1,065 to 4,060 – between 2010 and 2013, according to data supplied by the NSA. The denial rate during the same period skyrocketed from an estimated 33 percent to 82 percent because of the higher number of people seeking their own intelligence records. The NSA does approve other types of records requests, such as academics asking for historical records and former workers seeking their employment records.
The high rejection rate of requests seeking individuals’ own records sharply contrasts with Director of National Intelligence James R. Clapper’s pledge to “lean in the direction of transparency, wherever and whenever we can.” It also clashes with the NSA’s own public assertion that laws enacted in 1974 entitle “individuals to access federal agency records or to request an amendment to records that are maintained in a file retrievable by an individual’s name.”
“Theoretically, these agencies could argue that al-Qaida could get everyone on Earth to file a request (for documents) and by process of elimination find out who they’re really spying on,” said Kel McClanahan, an attorney who specializes in suing intelligence agencies under open records laws. “It may be a ludicrous argument, but it’s one that the agencies are able to assert.”
NSA spokeswoman Vanee Vines said that although her agency must deny individuals’ requests for their own intelligence files, her agency releases as much information as it deems possible in other cases.
“The administration’s push for transparency is taken very seriously by the FOIA (Freedom of Information Act) Office at NSA,” she said. “Because it is not possible to use discretion to release classified information, the FOIA Office does its best to release other information that could potentially be protected under another exemption if a specific harm to the agency is not identified.”
Documents released by the administration in response to Snowden’s leaks have confirmed that the NSA violated its own rules in some cases, including by improperly collecting at least 56,000 domestic emails as part of its massive surveillance program to combat terrorism. A federal court ruled the program unconstitutional, forcing the NSA to change its practices by segregating collections most likely to contain Americans’ emails.
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