NSA Ordered to Tell Secrets

[John Young <jya@pipeline.com>]

In an April 30 Memorandum Opinion and Order Senior US 
District of New Mexico Judge Santiago Campos has ordered 
the National Security Agency to produce in camera evidence 
that it can refuse to respond to allegations of NSA intercepts 
of Libyan and Iranian encrypted messages in the 1980s.

   http://jya.com/whp043098.htm  (102K)

This order was issued in repsonse to cryptographer Bill Payne's 
FOIA request for the information as part of his wrongful 
termination suit against NSA and Sandia National Laboratory. 

In the 56-page order Judge Campos reviews the principal 
actions in the suit, and to buttress the order for NSA to 
tell him what it knows about the intercepts invokes recent 
FOIA regulations which more stringently require intelligence 
agencies to substantiate the use of the "Glomar response" 
in refusing to affirm or deny the existence of information on 
the grounds that to do so would  harm national security.

He states that case law requires more diligent review in the case 
of "Glomarization," so he is obligated to make a review in
this instance. He states that based on what NSA has heretofore
provided the court, withholding of information on these intercepts 
does not appear justified.

Campos has reviewed public documents on allegations of 
the Swiss firm Crypto AG's "spiking" of its cryptographic 
equipment (with direction by NSA for backdoors) then 
selling it to Libya and Iran, Crypto AG's employee Hans 
Buehler's story of the work, Reagan's statement on the intercepts,
and other reports, and finds that while the stories are not
authoritative of the USG position, they do warrant his detailed 
review of NSA's Glomar response. 

Campos says, paraphrased, "if NSA continues to have the right 
it claims in this case to determine what is secret and what is not,
then it can declare anything secret and thereby undercut the very 
purpose of the FOIA. That is not acceptable."

It's an impressive summary of the legal conflict between the 
public's right to know and governmental secrecy. And may 
help ease access information on NSA global surveillance 
operations. Or, if Campos decides in NSA's favor, may shut 
the door more securely.