The National Security Agency appears to have spent a lot of time trying to agree on a set of talking points agency officials could use to respond to revelations that originated with Edward Snowden about the lawfulness of the agency’s classified surveillance programs.
Indeed, last October, I filed a Freedom of Information Act (FOIA) request seeking all draft talking points—from June 1, 2013 through the present—prepared by the NSA after The Guardian and Washington Post broke news about the agency’s controversial programs.
On Tuesday, I received a letter from the NSA stating that it had located 156-pages of responsive records. But the NSA classified all of the records as “top secret” under a FOIA exemption established by presidential executive order and determined that “their disclosure could reasonably be expected to cause exceptionally grave danger to the national security.”
“This agency is also authorized by various statutes to protect certain information concerning its activities,” states a January 23 letter signed by NSA FOIA chief Pamela Phillips. “We have determined that such information exists in these documents.”
Moreover, the NSA also applied another FOIA exemption to protect its draft talking points from disclosure, one that applies to “inter-agency or intra-agency memoranda or letters which would not be available by law to a party in litigation with the agency, protecting information that is normally privileged in the civil discovery context, such as information that is part of a pre-decisional deliberative process.”
That the NSA is refusing to release any portion of its draft talking points seems odd. I asked Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, whether the agency’s response to my FOIA is an example of “overclassification.”
“It’s impossible to say for sure,” Aftergood told me. “It’s conceivable that the draft talking points contained properly classified material that did not end up in the final talking points. But the fact that NSA is withholding all of the responsive records suggests that the agency was not strongly motivated to release them. Unlike the B1 exemption for properly classified information, the B5 exemption is discretionary and could be waived by the agency. But NSA officials made a decision to withhold everything. They are entitled to do that under the FOIA, but still …”
I already obtained a copy of the NSA’s final talking points via FOIA last November and published a report about it. Under the subheading “Sound Bites That Resonate,” the 27-page document advised NSA officials to cite the 9/11 attacks as justification for its mass surveillance activities. Critics have called into question the veracity of other assertions contained in the talking points, notably that the NSA’s surveillance programs has thwarted more than 50 “potential” attacks.
I sought agency’s draft talking points after I received a copy of the NSA’s final set of talking points because of questions that were raised about the integrity of the assertions in the final document. I have since appealed the NSA’s decision to withhold the draft set of records. I’ll update readers when I receive a response.