ARCHIVED: Freedom of Information Act Exemption for National Security Agency Files in S. 1050, Defense Authorization Act

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May 16, 2003

Senator John Warner
Senator Carl Levin
United States Senate
Committee on Armed Services
228 Russell Senate Office Building
Washington, D.C. 20510

RE: Freedom of Information Act Exemption for National Security
Agency Files in S. 1050, Defense Authorization Act

Dear Senators Warner and Levin:

We are writing to express our concern about a provision in the proposed FY 2004 Defense Authorization Act that would exempt all "operational files of the National Security Agency" from the search, review, and disclosure provisions of the Freedom of Information Act ("FOIA"), 5 USC 552. (S. 1050, sec. 1035). The provision proposes to extend to the NSA the statutory exemption from search and review under FOIA that was specifically crafted for the Central Intelligence Agency Directorates of Operations and Science and Technology.

In the case of the CIA Information Act of 1984, there were numerous congressional hearings and extensive study. In this proposal, however, no showing has been made that the two situations are comparable and that, therefore, it is appropriate to apply the CIA Directorates of Operations and of Science and Technology exemption to NSA. Indeed, the organization and function of the NSA is so substantially different from the CIA that this extension needs substantial justification and explanation. Moreover, the NSA has not made any of the commitments to FOIA that the CIA made in 1984, including commitments to the funding and improved functioning of its FOIA program.

We urge that NSA be afforded the opportunity to clarify the language of the proposed exemption and address both the impact of and need for the exemption. At such time, we believe it would be appropriate to have public hearings to allow NSA to explain more clearly its intentions. We do not believe that this proposal should be considered prior to these clarifications.

Please feel free to contact Meredith Fuchs at the National Security Archive at (202) 994-7000 if you have any questions about our concerns. Thank you.

Sincerely,

American Association of Law Libraries (Mary Alice Baish)
American Civil Liberties Union (Timothy H. Edgar)
American Library Association (Patrice McDermott)
American Society of Newspaper Editors (Doug Clifton)
Arizona Toxics Information (Michael Gregory)
Association of Research Libraries (Prue Adler)
Committee of Concerned Journalists (Bill Kovach)
Common Cause (Celia Wexler)
Center for Democracy and Technology (Jim Dempsey)
Electronic Frontier Foundation (Lee Tien)
Electronic Privacy Information Center (David Sobel)
Federation of American Scientists (Steven Aftergood)
Freedom of Information Center (Charles N. Davis)
Freedom of Information Clearinghouse (Michael Tankersley)
Fund for Constitutional Government (Conrad Martin)
Information Trust (Scott Armstrong)
National Security Archive (Meredith Fuchs)
OMB Watch (Rick Blum)
Project On Government Oversight (Seth Morris)
Public Citizen (Michael Tankersley)
Reporters Committee for Freedom of the Press (Lucy Dalglish)
Society of Professional Journalists (Robert Lystad)

cc:

Hon. John McCain
Hon. James Inhofe
Hon. Pat Roberts
Hon. WayneAllard
Hon. Jeff Sessions
Hon. Susan Collins
Hon. John Ensign
Hon. Lindsey Graham
Hon. Elizabeth Dole
Hon. John Cornyn
Hon. James Talent
Hon. Saxby Chambliss
Hon. Robert Byrd
Hon. Joseph Lieberman
Hon. Jack Reed
Hon. Daniel Akaka
Hon. Bill Nelson
Hon. E. Benjamin Nelson
Hon. Mark Dayton
Hon. Evan Bayh
Hon. Hillary Rodham Clinton
Hon. Mark Pryor