Once Edward Snowden began leaking classified documents, National Security Agency officials knew that they'd be forced to respond. They began developing talking points. By their own account, the attempt spread across 156 pages of records. Or so the NSA told Jason Leopold, a transparency activist who wants to see them. The NSA has now officially refused his Freedom of Information Act request, using a number of legal arguments. Can you guess which one bothers me?
Here they are, via Leopold:
... the NSA classified all of the records as “top secret” under a FOIA exemption established by presidential executive order and determined that “their disclosure 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.”
Readers may be divided about whether Leopold, or any citizen, deserves to see these talking points. Perhaps officials ought to be able to deliberate about talking points in draft form without worrying that someone will pore over their rejected thoughts.
What bothers me is the claim that every last page of draft talking points related to the Snowden leaks would cause "exceptionally grave danger to national security."
The NSA sat around composing drafts of language explicitly meant for public consumption, and sharing any of it with the public would gravely threaten our security? It just doesn't seem credible.
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 ...”
Leopold has appealed the decision.