A couple of weeks ago, the NSA refused to release 156 pages of draft talking points the agency created in the wake of the Edward Snowden leak, citing a “grave threat” to national security if any portion of the documents were declassified and released.
Now, the NSA is refusing to confirm or deny whether it has documents on a top-secret surveillance program the agency has acknowledged exists and discussed publicly.
This is the backstory.
On January 16, The Guardian published a report based on documents the newspaper obtained from Snowden identifying an NSA program called DISHFIRE, which captures 200 million text messages a day from around the globe, “pretty much everything it can,” according to an internal NSA document published by The Guardian.
Following the publication of the Guardian report, I filed a FOIA with the NSA for any and all records that mention or describe DISHFIRE and sought expedited processing for my request citing an urgent need to inform the public about “actual or alleged” government activities.
Additionally, and as part of a larger investigative project I’m undertaking (with the help of my attorney Jeffrey Light) in which I am seeking the declassification of records that have been released thus far by news organizations reporting on the Snowden disclosures, I also requested a copy of the 2011 NSA presentation published by The Guardian describing DISHFIRE’s capabilities.
On Saturday, I received several letters from the NSA in response to my FOIAs. One letter said my request for expedited processing was denied. Among other reasons for the rejection, the NSA said it has “already commented publicly on the existence of DISHFIRE” and therefore “an urgent need to inform the public does not exist.”
“The NSA acknowledgement [of DISHFIRE] represents our effort to inform the public and resolve questions about the government’s activity,” says the letter, dated February 4, and signed by Pamela Phillips, the head of the NSA’s FOIA office. “While the topic of any potentially responsive document may be of interest to the public, any records that pertain to or mention DISHFIRE do not represent a compelling or urgent need to shed light on an actual or alleged government activity, particularly given the vast amounts of media attention over the past several months.”
Got that? Phillips said in her letter denying my request for expedited processing that the NSA has already publicly discussed the existence of DISHFIRE. So, Phillips said, the NSA would process my FOIA in a normal “first-in, first-out processing queue.”
So I tore open another envelope, pulled out a letter also dated February 4 that Phillips signed, read it and let out a very loud WTF. It was a Glomar response. The letter said the NSA could neither confirm nor deny the existence of any materials pertaining to DISHFIRE.
“We have determined that the fact of the existence or non-existence of the materials you request is a currently and properly classified matter in accordance with Executive Order 13526 …” Phillips wrote, citing this and other exemptions to justify the denial of my FOIA.
To be clear, the NSA is refusing to entertain my FOIA for documents on DISHFIRE after issuing this statement to The Guardian about the program:
Dishfire is a system that processes and stores lawfully collected SMS data. Because some SMS data of US persons may at times be incidentally collected in NSA’s lawful foreign intelligence mission, privacy protections for US persons exist across the entire process concerning the use, handling, retention, and dissemination of SMS data in Dishfire. In addition, NSA actively works to remove extraneous data, to include that of innocent foreign citizens, as early as possible in the process.
I turned again to Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists, to find out what he thought about the NSA’s response.
“The NSA responses don’t seem internally consistent,” Aftergood said. “Since NSA has already acknowledged and described Dishfire, the Glomar response appears to be inappropriate. The Dishfire materials that are being withheld may be properly classified, but it’s hard to see how their existence can neither be confirmed nor denied.”
Nate Jones, the FOIA coordinator for George Washington University’s National Security Archive, went even further in explaining how wrong the NSA is in issuing me a Glomar.
“A Glomar refusal to confirm or deny the existence of documents can only be applied on documents whose existence or non-existence is properly classified,” Jones told me. “In this case, the NSA’s Glomar response is improper because the agency has already confirmed the existence DISHFIRE–both to The Guardian and even in another FOIA response to” me.
“A b(1) denial [which protects national security information that is classified]–rather than Glomar–may have been legally appropriate in this case,” Jones added. “But as Director of National Intelligence James Clapper has demonstrated before, even properly classified information may be released to the public when ‘harm to national security’ is ‘outweighed by the public interest.’ However, as these responses show, it appears that the NSA does not believe that disclosing the extent of American SMS data it collects is in the public interest.”
This is not the first time a government agency has tried to have it both ways, publicly discussing a top-secret program and then refusing to confirm or deny the existence of records pertaining to the same program.
Four years ago, the American Civil Liberties Union (ACLU) filed a FOIA lawsuit against the CIA after the agency issued a Glomar to the ACLU—refusing to confirm or deny the existence of any records—in response its request for records on the use of drones to assassinate suspected terrorists.
The ACLU noted that numerous government officials had already publicly discussed the matter. A federal court judge dismissed the case in 2011 but the ACLU appealed the decision to the D.C. Circuit. Last year, a three-judge panel unanimously ruled that the CIA could not hide behind a Glomar and refuse to confirm or deny the existence of records on targeted assassinations involving drones.
“It is neither logical nor plausible for the CIA to maintain that it would reveal anything not already in the public domain,” the judges wrote in their ruling.
The D.C. Circuit Court’s decision will come in handy if I decide to sue the NSA. But first, I intend to appeal the Glomar and wait and see how the agency will respond.
UPDATE: Journalist Marcy Wheeler pointed out to me that NSA analysts have previously identified DISHFIRE as one of the top secret programs they worked on in their LinkedIn profiles. Moreover, Wheeler pointed out to me that the NSA was recruiting analysts to work on the DISHFIRE program, as seen in this this one.