NSA Can Neither Confirm Nor Deny It Uses The Phrases It Used On A Leaked Slide

from the NATSEC-shrugs dept

Mon, Jun 16th 2014 1:10pm — Tim Cushing

The NSA's ubiquitous Glomar response continues to appear on every FOIA request denial it issues. The entirety of the NSA's systems can neither be confirmed nor denied, no matter how much information has been leaked to the press over the past year.

Investigative reporter Jason Leopold recently filed a FOIA request asking the agency to turn over any documents related to the phrases displayed on the leaked slide pictured below.

Leopold asked the NSA about its variations on the phrase "collect it all" (a.k.a. former NSA head Keith Alexander's personal motto), including "sniff it all," "process it all," "exploit it all," "partner it all" and "know it all." As is its particular idiom, the NSA Glomared all over the response letter. (via Freedom of the Press Foundation's Trevor Timm)

Your request appears to be related to recently published information about alleged NSA activities. Therefore, to the extent that your request seeks any information about NSA intelligence programs, or in relation to any specific methods or means for conducting the programs, we cannot acknowledge the existence or nonexistence of such information.

We have determined that the fact of the existence or nonexistence of the materials you request is a currently and properly classified matter in accordance with Executive Order 13526, as set forth in Subparagraph of Section 1.4. Thus, your request is denied pursuant to the first exemption of the FOIA which provides that the FOIA does not apply to matters that are specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign relations and are, in fact properly classified pursuant to such Executive Order.

Quick question: if the material, in fact, does not exist, is it still "properly classified?"

In addition, this Agency is authorized by various statutes to protect certain information concerning its activities. The third exemption of the FOIA provides for the withholding of information specifically protected from disclosure by statute. Thus, your request is also denied because the fact of the existence or non-existence of the information is exempted from disclosure pursuant to the third exemption.

So, not only are the phrases apparently subject to a variety of FOIA exemptions, even a simple nod of recognition in the direction of the NSA's "collect it all" aspirations is strictly forbidden. It's enough to make you want to drag the NSA into the nearest interrogation room and yell at it while jabbing repeatedly at the slide above, "THIS! THIS! DOES THIS LOOK FAMILIAR?!??"

As mentioned earlier, this is standard operating procedure for the agency, which has greeted this new, forced era of openness with begrudging releases (compelled by court orders) of previously classified documents and an unwillingness to confirm or deny anything about its programs. People who have requested anything the NSA has gathered on them personally are familiar with this response. Even the FBI will cough up its own files if asked, but the NSA can't even let respondents know whether or not it's siphoned up any of their metadata, presumably because doing so allows the terrorists to win.

At the bottom of the response letter, the NSA includes its token spiel about the possible avenues of recourse requesters can avail themselves of should its "neither confirm nor deny" response fail to satisfy, but it's not like anyone believes anything short of a federal lawsuit will loosen the agency's grip. And even then, that's not a sure thing. The best case scenario is a long-delayed, heavily-redacted document that provides little to no insight into the NSA's activities.

Nsa Sniff It All Glomar (PDF)Nsa Sniff It All Glomar (Text)

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Filed Under: collect it all, foia, glomar response, jason leopold, nsa, surveillance

22 Comments

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That One Guy (profile), 16 Jun 2014 @ 1:07pm

Does that EVER work?
Really, do any of the people who use that excuse honestly think it means anything but 'Yes X totally does exist'?

If something doesn't exist, then it can't be classified, therefor there's nothing to deny, so if they're refusing to say anything, that's a pretty obvious admittance that the whatever-it-is in question does in fact exist.

I suppose it's the difference between 'We know it's happening but can't confirm it' and 'We know it's happening and have proof to back it up', as nothing else makes much sense.
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Anonymous Coward, 16 Jun 2014 @ 1:20pm

Has anyone ever thought of putting in a request on documents related to the development of a Death Star or something equally as silly to see if they Glomar it or flat out deny it?
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Anonymous Coward, 16 Jun 2014 @ 1:24pm

They missed the most important summary of their approach, it leads to understanding nothing prior to it happening, due to data overload. After something happens they can extract the relevant data to reconstruct events and understand what happened, and how they failed to see it coming.
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Anonymous Coward, 16 Jun 2014 @ 1:24pm

How transparent of them
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Michael J. Evans, 16 Jun 2014 @ 1:30pm

External validation?
I'd be far more inclined to believe an external validation authority over taking the word of an agency that has, quite frankly, irreparably lost any form of trust anyone should have ever had.
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Anonymous Coward, 16 Jun 2014 @ 1:33pm

Yeah they screwed the pooch on the wording of that denial...

"We have determined that the fact of the existence or nonexistence of the materials you request is a currently and properly classified matter..."

What they meant to say was...

"We have determined that if the materials you request do exist they would currently and properly be classified matter..."

For people that like to weasel word things their game is slipping.
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Anonymous Coward, 16 Jun 2014 @ 1:55pm

Re:
Disagree. Your version does not with specificity address "if the materials you request don't exist", theirs does. They cut off the avenue for a followup. Additionally it is not a matter of whether the materials exist, it is a matter of the fact of whether they exist or not (the object of the sentence is a fact, not the material).
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bob, 16 Jun 2014 @ 2:03pm

physicists at the NSA
it's obviously a physicist studying quantum theory at night and answering NSA FOIA requests during the day.
this explains how the requested materials might both exist and not exist, allowing proper classification until the point someone opens the folder to see if the material is there or not. then it takes on a finite state, allowing for a more mundane answer.
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Anonymous Coward, 16 Jun 2014 @ 2:13pm

Re: Re:
As was pointed out, if they don't exist, it doesn't matter only materials that do exist can be classified. My phrasing puts the sentence in the hypothetical.
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saulgoode (profile), 16 Jun 2014 @ 2:18pm

Let he who is without sin...
We have determined that the fact of the existence or nonexistence of the materials you request is a currently and properly classified matter...
So when Congressman Mike Rogers denied the existence of these programs last July, he was actually revealing classified information concerning matters of national security. Further, when he admitted the existence of these NSA programs last August (after Glenn Greenwald released documents detailing their makeup), he similarly engaged in revealing classified information.
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Falindraun (profile), 16 Jun 2014 @ 2:40pm

i can neither confirm nor deny the existence or non-existence of a funny and or witty comment.
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John Fenderson (profile), 16 Jun 2014 @ 3:53pm

Re: Re: Re:
But whether or not the materials exist can be properly classified. I think that's what they're getting at.

They aren't wrong, and this is longstanding practice. If they denied the existence of things, then it would be possible to find out what does exist through a process of elimination.
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art guerrilla (profile), 16 Jun 2014 @ 6:27pm

Re:
Death Star "silly" ? ? ?

we *are* the death star, silly...
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Anonymous Coward, 16 Jun 2014 @ 6:57pm

Is the reference to Misawa about the Air Base in Japan?
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Bhagwati suthar, 16 Jun 2014 @ 10:51pm

reference
uff :) properly classified
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Anonymous Coward, 17 Jun 2014 @ 3:06am

"We have determined that the fact of the existence or nonexistence of the materials you request is a currently and properly classified matter..."

So the Executive Branch is stating that "everything" is classified. Even the nonexistent stuff. Talk about abusive over classification in the most extreme way possible!

"We'll just classify everything. Problem solved."

It's too bad average citizens can't use this excuse when questioned by government agencies.

"I can't answer that question, or any of your questions, because all my answers are classified."

It's impossible to take the US Government seriously anymore. Their refusal to be held accountable or answer to the American People, is causing them to become illegitimate tyrants who lack the credible authority.
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Michael, 17 Jun 2014 @ 8:18am

Re:
If the NSA actually built a working Death Star, I would completely forgive all of their past transgressions.
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Michael, 17 Jun 2014 @ 8:21am

Re: Re: Re: Re:
I disagree. The OP is correct, they slipped up. Their response should read:

F*** You! We aren't telling you anything.

It would save us a lot of time trying to interpret what they are saying if they stated it clearly. It would also use less ink.
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John Fenderson (profile), 17 Jun 2014 @ 9:50am

Re: Re: Re: Re: Re:
That was their response. It was just cloaked in the traditional political language. This tradition goes back to (at least) the '40s.
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Anonymous Coward, 17 Jun 2014 @ 5:59pm

You already covered this
Here's the problem:

https://www.techdirt.com/articles/20130613/01395323446/dod-if-you-see-leaked-nsa-document-pr ess-shift-delete-to-get-rid-it.shtml

Classified information, whether or not already posted on public websites, disclosed to the media, or otherwise in the public domain remains classified and must be treated as such until it is declassified by an appropriate U.S. government authority. It is the responsibility of every DoD employee and contractor to protect classified information and to follow established procedures for accessing classified information only through authorized means.
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The Wanderer (profile), 18 Jun 2014 @ 6:03am

Re: Does that EVER work?
Assuming you're talking about the "cannot confirm or deny" response, in this case specifically "cannot confirm or deny the existence of that information":

Theoretically, if someone were to ask for the release of any information they have on something which genuinely does not exist, they would be able - and quite possibly required - to make the same response.

It's the same rationale under which your lawyer might advise you to refuse to answer questions from law enforcement even when the answer is "no, I'm not guilty of that".

If you answer "not guilty" to most questions, and "no comment" to a few, that reveals information; if you answer "no comment" to all questions, even if no one believes a word of it, you haven't revealed anything they didn't already know.

Similarly, if they answer "the information you have requested does not exist" to requests where that is true, and "we cannot confirm or deny" (or even "we refuse to turn over any such information") to ones where the information does exist, that reveals something about which requests are about information which does exist.

That may be a relatively unimportant point in the present context, depending on whether any of the requests which are being made are about information which happens to actually not exist. But the same governing principle still applies.
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A Sasaki (profile), 18 Jun 2014 @ 8:08am

Just a thought
In theory, wouldn't it be legal to use enhanced interrogation techniques on Keith Alexander to get a straight answer?
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