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Our fun with FOIA continues! Yesterday, a two-page letter from the National Security Agency arrived in my mailbox. I'd requested that the agency share any intelligence it may have gathered that includes me. Not that I suspect they have any—I've nothing to do with the military or anything sensitive. (Though there was that bizarre run-in with the Secret Service at the 2008 Republican National Convention...) But I'd asked the FBI, so I figured I'd ask the NSA while I was at it.

The FBI replied, in essence: Hold on, we'll take a look. The NSA, on the other hand, makes the extraordinary claim that my even knowing would constitute "identifiable or describable damage" to national security.

A scan of the letter is below the jump, but here's the money passage:

The classified nature of the National Security Agency's efforts prevents us from either confirming or denying the existence of intelligence records responsive to your request, or whether any specific technique or method is employed in those efforts. The fact of the existence or non-existence of responsive records is a currently and properly classified matter in accordance with Executive Order 13526, as set forth in Subparagraph (c) of Section 1.4.

What is this executive order that classifies the "fact of the existence or non-existence" of any records on U.S. citizens as, well, classified?

Executive order 13526, signed by President Obama in 2009, is here. Section 1.4 begins:

Information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security in accordance with section 1.2 of this order, and it pertains to one or more of the following: (a) military plans, weapons systems, or operations; (b) foreign government information; (c) intelligence activities (including covert action), intelligence sources or methods, or cryptology;

Let me see if I've got this right...

... the NSA can neither confirm nor deny "the existence or non-existence" of records that involve me, because my even knowing whether those records exist "could reasonably be expected to cause identifiable or describable damage to the national security."

The next question, of course, is what "identifiable or describable" damage I could wreak on national security by knowing—not the contents of such intelligence, but whether it even exists. And does this apply to all U.S. citizens? Or am I a special case?

Are there any attorneys out in Slogland who can shed some light on this conundrum?

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  • NSA

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  • NSA