':- .

.,y:..(.. .:
...... ':.'. UNITED STATES DISTRICT COURT
.~. FOR THE DISTRICT OF COLUMBIA

· "., )
,..... :
· ..". ':." CITIZENS AGAINST UNIDENTIFIED )
· .~ '.' .'. FLYING OBJECTS SECRECY )
: '; ... ;
........ )
"

--..
,' '~­
Plaintiff )
::~«".:
)
v. ) CIVIL ACTION NO. .....
) BO-1562
NATIONAL SECURITY AGENCY )
)
_Defendant )

----------------)
AFFIDAVIT OF EUGENE F. YEATES

State Of Maryland )
) SSe
County Of Anne Arundel)

Eugene F. Yeates, being duly sworn, deposes and says:

1.. I am the Chief, Office of Policy, of the National

Security Agency (NSA). As Chief, Office of Policy, I am

responsible for processing all initial requests made pursuant

to the Freedom of Information Act (FOIA) for NSA records.

Complaint in this case. The statements herein are based upon

my knowledge, upon my personal review of information available

.
to me in my official capacity, and upon conclusions reached in
-'.
accordance therewith.

2. I submit this affidavit regarding all records that

have been ~ocatedby the BSA pursuant to the plaintiff's ForA

requests, in support of the Agency's Motion for Summary Judgment.

To supplement this testimony, I will execute an additional

affiBavit, classified TOP SECRET, to provide highly classified

information which is not available in the public realm and

which specifically identifies the NSA records being withheld

from the plaintiff for the Court's in camera consideration.

roved. f o
'\ I .- \

~ ; <t":
 . -.~~~ ~:.: ... ~ .,

··.i~_·.;' .~
" ;fo

11

..
d
'i, THE REI. EVANT DOCUMENTS .: ~}~~~ :i;~
....... ''''l'~. .•.~
.~ .-; ..':1~: -.~;;;
I 3. This Agency received four separate referrals (described '; .:.3
'.: ;",.;: v. !.... .~.
below') from the Central Intelligence Agency (CIA) concerning'NSA~'~
• -f" i'~ ·:f~".
. . .....! -'.,;~." :.~.~
documents located by that Agency when 1t was engaged an FOIA ",~~~~ ,-;,;;t
. '. . .S;:t.-;~;'::1 _..~
.1 litigation concerning information pertaining to UFOs. (Ground :.'/: .i·'C~:
II
.;:. • 'I '.-
• r. :." y .•~(~
Saucer Watch v. CIA, D.D.C'- 17B-859.) The first was on Noven;b~'r:':~ ..",
I
'. . '. ':'..; ~! <:....
I 9, 1~7B when this Agency received copies of· fifteen Agency documen

I
• I .' .. ~~ .•.

located by CIA. The NSA also received two other referrals from
I . :~t~='~j'~~
CIA on December 4, 197B which provided three additional NSA . ,. -c , ~
\ I
I documents. Subsequently by

,I attorney for the plaintiff, Peter A. Gersten

rJ attorney of record in the CIA litigation) was

the referral of the documents to this Agency.
'.
'jl filed a request with NSA for the eighteen do~~ents- in his own
,

"
~i
name on December 22, -1978 •. In a letter dated 'January 9, '1979; - -.
l'" . . .

Roy R. 'Banner, thief, ~olict Staff, advised Mr. Gers~en that·~·

,II the NSA records that had been referred to this Agency by CIA
II were exempt from release under 5 U.S.C.S 552(b)(1) because they.. .' -.......

11.) are classified in their entirety, and exempt from release under

·
,
5 U.S.C. S 552(b)(3) because they are exempt from release

I by 18 C.S.C. S 798, 50 U.S.C. S 403(d)(3) ~nd Section 6 of

I! Public Law 86-36 (50 U.S.C. 402 (note». j '~A copy of this ~etter
I is
I
attached to the Complaint as Exhibit C.
I
A true and correct
copy is also attached to this affidavit ~s Exhibit 1.)
4. By letter dated January 29, 1979 Mr. Gersten appealed
Ii the denial of the documents referred by the CIA. (A copy
Iof this letter is attached to the Complaint as Exhibit D. A
i true, and correct copy of this letter (less enclosures) is also
II attached to this affidavit as Exhibit 2.) On .1arch 2" 1979
1\ the NSA Freedom of Information Act/ Privacy Act Appeals Authority
! affirmed the denial of the request for release of the information
IIII 2
 ~ ..., li<:' ,
E=-~.
~~"
on the same grounds, i.e., that the information is classified in ~~,-.
"\ f?'~~,:.
" ..: ::.
,:':::~.:J './~::
,
'

its entirety and therefore exempt from release under 5 U.S.C.· ~-5i' ,
~;
f:"~'f")

5 552(b)(1) and that the information is exempt from release unde~ ~'.'.

5 U.S.C. s 552(b)(3) for the reason that other statutes prevent , "'.' i,;,.. ,;;- '.:", 'le"', ,
.
its disclosure, to wit: 18 U.S.C. § 798, 50 U.S.C. S 403(d)<'3}·. F,;i."
"":"'.
and Section 6 of Public Law 86-36. (A copy of this letter is ~" . . . . ,"

Sft:., ,
attached to the Complaint as Exhibit E.
is also attached to this affidavit as Exhibit 3.)
A true 'and correct copy

t.' . .1 ~,.. ,'"

~r~,
' "

5,. On February 16, 1979 plaintiff in the instant case,

. \. 1J?
it.i.:' ,,;',
<,

docum~nts, ':'~\

I
by counsel, filed an rcrx request with NSA for all

in possession or under the control of NSA relating to UFOs :';"~':':',/::':.'~ .';.~.~ I~{
.",-. r. -;
and the UFO phenomena. (A copy of this letter is attached ,to '::";","'"
,,:~ . ~"' t4 ~/
:..: ~!;:
.

':.
"
, ...:.:.:..:~. ,:';':':,I,L
the Complaint as Exhibit F. A copy is also attached hereto and --:' :;5~ f(i;

:::::: ':::::::d4:~0 ::c:::::: :::::nJ::~a::o::'0:9::: :::u~i;~:;;.t '[~ ~

: .. :-:0: .. ,;.!.~ ~~.
deletions of information exempt under the provisions of 5 . ,·:·:o;~~:.!,;:;i:~' .. ,.~ I\% '
:·:;:~··~,,·;·t:·~ ." ·:~c tl~ . .:
U.S.C. s 552(b)(1) and (b)(3) were taken prior to that rel~a~e.~;~ >};j' ~. ',:':

Plaintiff was also advised in this letter that other NSA,:./\~~;.):;~:,I~l

documents existed but were exempt from release und~r 5 U,S:C'-". s.:. j c_.~ If~;
l' 552(b) (1) because they are classified in their errt r r e cy r exempt ,:' ~;'.'
- .'. . ,~~.
I: from release under 5 U.S.C. 5 552(b)(3) because disclosure of
'. :.:.. ~~1· .
~

I:
Ii
themwas prohibited by 18 U"S'C~ 5798, 50 U.S.C. 5 403(d)(.3~;>·~'~':J.:.i ~l1 ..
Publl.c Law 86-36; exempt from d a s c Lo su r e under 5 U.S.C. 5·':·,.'~;;'~';-!:i.; ,:~,~ ~~
•.''. '~~j.:':",~. ~~~-:::. ff~'
1\ 552 (b) (5) because they are intra agency memoranda, or letters ~ .•.> ::;~ ff;;.
iI
which would not be available by law to a party other than ~'~:~':"::i~;J .~ m.
, ,'~'" ,t
~: "
-.h , ....,
I
Ii agency in Ii tiga tion wi th this Agency; ·or exempt under 5 U. S:';~:~~i /~~ ~ . '.
§ SS2(b) (6) because they are to personnel or similar files the ',0: ~".
I -£ ;:':f;~: ::t~:i~
e ,.:-.
Q~~~ . -.
unwarrante~...,.:::~\,~~:~ "~1 ~~':' >.',:;' ':.::,
I

I, disclosure of which would constitute a clearly

II
I invasinn nf personal privacy. (A copy of this 1eter is ~tt;;;~e;. . ". ~. '.' . . . .
t

\: to the Complaint as Exhibit G. A true and correct copy is :"~~'>:;j. r~"~;; I,'" , ":.:, ,_,
I;
I'
I',I
II
I'
also attached to this affidavit as Exhibit 5.)
letter also advised the plaintiff that certain l.nformatl.on,
.The Jan~a~Y;{:.f..:if~ ,~\:i
::.".'': ,....
g..
pot::

3:;f~N;~
I;

"
I.
I'
1I
i:

.
I·
Ii
I:
.~. :':~:l: ~~i:~
:.:,r:',
1.:?
&'.'
~
~.'
,
.•••.
II
..
. ",
'

originating with other Federal agencies or components would be

referred to the originating agency. A total of seventy-nine

documents were referred to various agencies for their direct

.:
response to plaintiff. ~

.: :

6. An additional NSA document was referred to the NSA' by ,

the CIA on July 27, 1979. (The fourth and final CIA referral.)

In a letter dated December 19, 1979, Mr. Banner responded to the

referral by again advising Mr. Gersten that this record is

exempt from release under 5 U.S.C. § 552(b)(1) because it was

'\ classified in its entirety, and exempt from release under 5

U.s.C. S 552(b)(3) because disclosure of it was prohibited by 18

u.S.C. § 798, 50 U.S.C. § 403(d)(3) and Public Law 86-36. (A

true and correct copy of this letter is attached as Exhibit 6.)

- 7. By letter dated January 23, 1980, plaintiff ~ppealed

" -'
i, the denial of the information referred by CI~ and the subsequent
!.
, .,'

:1 denial of ·his general FOIA, request of February:16, 1979. 'By

. .
reply letter dated March 24, 1980, the NSA Freedom o~ Informa- ,
~:: .
tion Act/Privacy Act Appeals Authority affirmed the denial of

plaintiff's request for release of information on the same

'... I
grounds as cited above. (A copy of this letter is attached to
I
the Complaint as Exhibit K. A true and correct copy is also I
IiII attached to this affidavit as Exhibit 7.)

I
8. Finally, a portion of a document which is respon:ive . I
I to the plaintiff's request was rece~tly declassified and released
I
to counsel for the plaintiff by letter dated September 15, 1980.
(A true and correct copy of this letter less the enclosure ·.:·I~~'.:-
.. ' ..
Ii is attached as ~xhibit 8.)
I!.,
II THE STATUS AND MISSION OF NSA

9~ NSA was established by Presidential Directive in

,
I
October 1952 as a separately organized Agency within the
,I Department of Defense under the direction, authority, and
Ii
II
control of the Secretary of Defense, who was designated by the
I,
,
j; President as Executive Agent of the Government for conducting
11
4
ii

Ii
 ".i.;:~~~ ~l~
..
"

the communications security activities and signals intelligen~e;~(~

activities of the United States. A primary signals intell~g~~~~A~.
. '~~"I.;7v:~.~ -l'~~
(S~GINT) mission of NSA is to intercept radio communications' t~ ~~~
, ':':":'J~-:,--:~:~
sent to or from foreign governments in order to obtain foreign ~q ~;..~
in telligence information necessary to the national defense,
· '::::~"::!;~f~~
-~'.~.~-:.:.;:.:.
:;:H
national secur ity, or the conduct of foreign affairs. Th~·.:!:'fl!f~~:~
intelligence information derived from the intercept of fore1.gn·''''
'.;:~~~~.4:l~~"~ :J>01
·-t·~····~
communications is called communications intelligence .(COMINT):~~\! ~~~
.... : .. .-.. .. '.,;..', ~
"' .. : .::.~.:"':..:!': .':~,,:;
Of the NSA records at issue in this case, only four are not ~~~~~~ .~~
. .. .~~~:..::::. '~':'.~:'.
......... ..~"!

COMIN~ reports and will be addressed separ~tely. All of the '':;:-;~2 -:~:
. ,...;. :~·~·jk;)· .~:.~~
remaining records sought in this civil action are the product (~,~.~
.;. "1~~ L,.... .01'

". :.:"::':'::~~;'.;-; ;...:".;;

of signals intelligence activities.
j.

:~
";.~~./.~!:ff~.i:!il :;72.
10. These COMINT activi ties include the. targeting of .~~:;~:~7t~I?::
.,:'r I' :~:';: ...-..'~ ~ ~.l

,-:::' . ;:.
", f;.
foreign governments' communications both within their borders. :--:?~ ~
,-~: .: .~: "'~:~ /':·:f,~. ~ J;:
. . :-:
... : ",

'. " ~ "

II and to and from communicants abroad involving the use of their .: ~ ~:.:::-~
· . :::', ,~..~.:~.i' .~~\;~
, r '
L own radio transmitter and receiver facilities not available for' '':{';:
. .. ~ ... ;,,:"f~;~,~i.._:~.; r ....:
.::,;.:<:'~. public use. Such communications links are known as agovernme'nt .-: ~1~
".' .,:.r. net" communications. A foreign government may use other means
~ ::;;;'..:.~::';,':
.~
... , ,.-::..:..;.:~ ...

, I: for sending and receiving international radio communicatio~~••.!~.:~.;r_

: roo.
"I '
~:
i, addition to or instead of its own government facilities. ···'··~·~>~~r··
Ii
iil: (International radio communications as used here includes ':"<:';:1,',:
,;
i' communications passed at least in part by wire.) This i~~~~~~~:;1:2:
the foreign government's use of the facilities of an international ~~
.. " . I!
'\ communications common-carrier which is also available fo~'~;~~'~;':~{?HI~
I!, ;'~'7:.
-. i
. ;::.':':i:; .",'"'
by the public. such common-access carriers supply the means by"~:;·.:;'71
,. I
! which more than half the encrypted. and plain text radio ~~~mt;!:l .~.
ca tions of foreign governments, foreign organiza tions, and:" :~~t~~~l· ~l
.. ~~;.:...:. ,.' :i;tc
their representatives are carried. .. ....:t~~~1~~ :}
'.-" .•..•~'.:",~~:'~•.~.'. ....;,~fo

..... 11. It is common knowledge that the total volume of radio 'l~~
'." ". ..... : ..": .';'~.~: ·J.;~I ].",~
.. signals transmitted on a given day is vast. It is also gen~r~UX .;.;.'~~
'" .
· ..': :; ~~~;.~~! ./~
known that radio transmissions can be received by anyone". :'~~:::-~:r,{..~ :.~~

.: "': ..
...
~ -
5
':.~~~.~
.-. • '. : :r".. ~ -.,;ftr
:. ' '.:' :·~·~:;;~f;~i~~ /~:~£.'
.: ·:·~\.:?~t~~~
.. \ .
~
.. ;...

". '
... ~.:
... -. ....
. .:~~~.
"
:~ ". '
.~'

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 . -: tti ...
f~' ~:"~.'.
.'!"

~ ..

P:::: ,:.; .'

." .
.~.';-'"
"
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:::r::;:: :::e~ro:::S:e::~v:::t e::::m::: ::nt::t::::k:t o'~:df1 '.~ f"''~" :~L.':"

communications is generally known. so, too, a s ~t nown to ..... :~*
~.: ~.:
•:..•. . . :.,•.••.:.•.;. .•.•. .•. .•.•;.• .•.

foreign offici.'s that such .interception of radio communica.~~.~.~;J"t~ .I.;.,_. ;.: :.·
is a prima~y mission of the NSA. ':'.;: ~H~., :fi~
·.'J.: .;-.· ••
". '.
Foreign officials may be
expected to know, ~lso, that NSA cannot possibly intercept eV~~:~f';,:; &'~ ':.
;.'.J.'.:
.:.".::'-;
~. ". ~~ ~:f: .:- ."
a significant percentage of all such communications, espeCiaIIY.·~·:~:~
:.~ ..
."
'.
".
taking account of the fact that NSA's activities involve: .:<~:~~~.::~; :\~
":".1
worldwide communications, not solely those having a United .'.:::;)). ,j~
States terminal. The number is simply too vast to be handled" ;;S :'~j!
." "_:.f. ~ . ~~.;:~ ~',~~
with any reasonable amount of personnel and equipment. Moreover~ :'::~
...... ; .a:.; .....':', ~ ...:: ~:i:
.-....

i
·
.:
II
the cost and effort of such interception would be disproportiori~1:~~
,.

ate _t:2~he,:::::~i::n:: :::~: ::r:::nr:::::::gence. target~~.,~~

II

t,

......

pO:. presumably know well' -- NSA must focus its interception ac·tivi-.;,~~ .,:,-::~
. -' '. - ...': :-. ;...",~-I·~;;~' ;~;~
.ties on those particular communications lines,- channels, links '.J~' .;~1
. .' '::'.~~ .j:.i. ...··4,:;
",
,-'I
-. or systems which yield the highest proportion of useful foreigri··:~ ~·:~t
. '-. '.;..~' :.~:~, -...,~~
.-.'
intelligence information. What foreign government official~ }:.;~.:.;-=:t~
not know, however, is which of the vast numbe~ of radio commun.~:~·I"(::
cations NSA attempts to intercept, which are intercepted, and, ','
I~ .. ~,.':". : ~.:
I! of those that are intercepted, which yield. to NSA procesSing.:-, <~.::. )
.1 methods and techniques. It is the protection of this critical ,.~: .:';':••
I: ..': . ~~~:! .~:.;~
· ..
· ......
.' .
~

.. ·.1
;,[r "information that is at the heart of the instant ~ase • . ,·:,:.);;~t~::i1
-..
.~. ..-. " li! 13. The continued efficacy of NSA' s vi tal ~ntell~g~~C~,;·./:t$3:'~i~{
.,,:
j activities requires that the lines, channels, links and systems -; ~'i':';
~~iden·tified.jf a gO~:~'~i;~i~ij
'.
......
" ~
II actually monitored remain foreign

· . .' ~ \1 obtains suffic"fe'nt reason to suspect that NSA is able to' <~'.t~~i§: :~~
intercept and process that government's radio communications,' '.::~~•. ~.:
'.~. :.:: ' ..~ .: ...
that "government would be expected to take immediate steps to '~)"',7: ',''';~
. :~'.::: :.".".:- .~ .!.
defeat that capability. This can be accomplished in a number. iJ;~~':':d
. .,.~·.i~~Y~~~.: ;7~·
of ways. A foreign government might shift to communications .:·:·;rr· .:;.:
1. : ..:. <:~:(l~~:~~: "~:
I'

.~i;,~~ .~
6
=.'--
.' Ii;~
"
... .~.
~:
r:
'I ". . " -~ ... ~.....'1 '1 ~.,

. <S;,~~~·~
I
..... : i
I
., I
.!.'.~
I .',

I
 ~:. .

I
~
links the U.S. cannot intercept. It may also choose to use
alternate methods of communications. The foreign governments Tori
may possess the technical capability to either upgrade or .;: : -". ,"

!; initiate cryptography to secure its communications. Finally, a

'. ., .',
!.
!i
communication channel believed to be targeted by NSA can
!:
, ,;
~ I 'be used by a foreign government to pass misleading information.
:i
;.
'. r 14. If a foreign power is successful in defeating an
'. !"~
; t; interception operation, all of the intelligence from tha~
i:
p source is lost unless and until NSA can establish a new and
"

~!
\ i~ equivalent intercept. The risk involved is great. The infor-
;,
j:
I'. mation produced by NSA includes political, economic, scientific . .... :: .

:\
r:
I. and military data which is of im~easurable value to the Presiden~
I
i!,.
"I, the Secretary of Defense, the Secretary of State and other
t • f
policymakers. Obviously, if a ~OMINT source used by the Agency
I:I'
,.
r:
becomes unavailable, policymakets must operate without the .
I: . ."

information that source produced. Sometimes it is impossible

!:
i:
I"'
to establish a new and equivalent intercept and the source is ,.
I

i,r : lost permanently. Those losses are not only extremely harmful I

i
,". to the national security but also impose a heavy burden on the I
!
"
r:
!
limited resources of NSA which must attempt to recover the old
I,
I' source or establish an equivalent source of information.
I!
"
': 15. Even after targeting only a small proportion of
i,
:t
II , .
all available electromagnetic communications for interception, .
the number of n~ssages intercepted is extremely large. NSA
Ii
"I
thus is faced with a considerable task in selecting out those
\
messages that will be reviewed for pos~ible intelligence.
I
I' interest. The manner in which NSA does this selection and the
nII
~ I degree of reliability and success its methods enjoy are SUbjects
P
l: about which virtually no authoritative information has ever
Ii
;, been released to the pUblic. Information about these subjects
I
i,
would enable foreign observers to further assess, and thus take

7
"/-.

I!
o·
I:
t,

_jESSiE] j£ 2 ELI, £ 2212",122£ .ZWU UU.C 2 JSJ ; ttJSi 52iU.ibU &I.e •

,
 ~
~, ..
~~1~
steps to defeat, the capabilities of NSA's intelligence gathering
~~
!;
;j techniques. ~.

.I:' RELEASE OF COMINT REPORTS ~~'

\0 • •

~i~·
,- :

.~~ li~ ,
"

16. The COMINT reports being withheld from the plaintiff ",~
~'

are all based on intercepted foreign communications. The

B:
p' ,
~:

If
disclosure of these records would identify the communications
:

I that had been successfully intercepted and processed for intelli- ..

;; .'
I gence
- II purposes. No meaningful portion of any of the records
....:
s:
'

I<lit
II could be segregated and released Without~entifYing the ~,:: . "

I ,~ ~:

I communications underlying the communications intelligence f#

~,
~~'
};::..
:
:

repo~~~j Also disclosed would be the communications lines, ..

'(I~

I~~
..
t:~,
-I ~...r.i
~
11 channels, links, and sys~ems targeted and intercepted and NSA's lor,
.

I
J,

/I capa~ilities to successfully process the underlying communica-

r~

~~
.....
11 tions. These communications targets and the processing techniques! ~¥: ..
1!r are, current intelligence sources and methods. __ Disclosing . . "
I~~~.
C,r,of.
. ;:;.:~
•• :0'

i~
11 them would' permit foreign intelligen~e officials to draw ~~
f·":'
l! inferences and
I collection make assessments about this nation's COMINT ~}1'
I
and processing activities that would enable them to
r·'
;r~
I r~
,~,

I capabilities
take counter-measures, as described above, to defeat the

of NSA's intelligence gathering techniques. ~

klY.' -
17. The COMINT reports being withheld from the plaintiff ~ u;~·
r:.{
,-'
~: .

sources and methods. When originated, certain of the recosds

~~-
I!> '
~.,t
were properly classified Top Secret pursuant to Executive Order
, ~;;:
~1.

10501, Section lea), providing Ifor the application of that ~~~. ,

I?:
classification to information, the unauthorized disclosure of ~~'
.~~
which could res~lt in exceptionally grave damage to the nation, ~ "

~"-
-'!.-
such as ,the ·compromise of ••• intelligence operations ••• ~~~: .
~~ .

tiiiJ :
~.,
vi tal 'to the national defense.· Other documents were properly .",..
~~, :
f' ,
~1; " "

classified Secret pursuant to Executive Order 10501, Section

ffi'~~
L'
" :

l(b), providing for the application of that classification to 1'\,

pI.
"
IIi:J
..
, information, the unauthorized 1isclosure of which could result in w,'
}~ .. ..
'I ~-
;..J.
1}~':
~,
~:
"

f.'~
r.- ~
I

6',
I
 '.'t
tI
'I serious damage to the nation, such as by "compromising •••
ji
d information revealing important intelligence operations." The
Ii,- rest, which were originated after June 1, 1972, were properly
,II'
il
classified TOp Secret pursuant to Executive Order 11652, Section
.. : .
I,'I
I,
lCA), providing for the application of that classification to
.. ", '.;;:
....'e,
I'
'I
Ii information, the disclosure of which could resuI~ in exceptionally
"
I'fl
I:II
IJ
I"!
I!
\ \I
.. '~'.' :".;
il'J 11652,' Section I(B), providing for the application of that
_~i .; .
"

h . ...... ~~~~~. / ...

.. :- " classification to information, the unauthorized disclosure of. :?~~.~;.
II ...........".

I! which could result in serious damage to the national security, ,I~~

.. ..: .~

:: ~""~~l ".I~
! sucfi ~s the revelation of significant intelligence operations.
I

I Each
I
COMINT record was appropriately marked

na ted. Each cOMINT record and each portion

when it was origi-

thereof remains
. -' .. :,
" ~',

Ii
dproperly so classified. These cOMINT records meet the criteria
I'(I
for classification in Section 1-3 of Executive Order 12065, and
II, they are properly classified 'dthin the categories provided-'-
II in Section 1-1 of the Order. I have reviewed all of the COM IN; . I
I

I,
records being withheld from the plaintiff for possible declassi-
I
I fication or downgrading according to the provisions of Sections
I

. ..
-, ~ . !I 3-1 and 3-3 of Executive Order 12065 and I find each portion of
:.. . " . • _:v ;·;~··'l
,~

each record remains properly classified and thetefore exclu~.e,~.",.:~.±

r-
I from declassification or downgrading. In conducting this ':~:~~~.';:.~
\ .
review, I weighed the significant ne~d for openness in governmen~
. ,"; :.:~I·~~~"~·':.:!
.. ~'--'.:";~
against the likelihood of damage to our national security at .~·cf'f:i(.'
··:~.~··. !JJ.~."':··:t/
this time and determined that the records should continue to be,,':..;.;
. ..~.-:;:~ ~~~ ~\
classified because of the damage their unauthorized disclos~re...
•.~ \. ~.': !:=.' !Ii

in~elli~,~ ,~
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would reasonably be expected to cause to communications

l!
. ~\.::.,t..-::,::. .~.~

they.. :.::~~ ':~.0:;1

-~. e ,

gence activities of the United States Government. Because

;~?~~
..
.... .
..; . are properly classified und:r Executive Order 12065. the
, .

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., records are exempt from disclosure pursuant to 5 U.S.C.§552(b) (1)'.:
I·
I' 18. ~ele~se of the COMINT records being withheld from
.",
.~.:,,=--
1
"1 the plaintiff or any portion of any of them would disclose
-.
II
information about the nature of NSA's activities including
I'
.": ... I'
I! its functions and thereby jeopardize the intelligence collection
t~ :~.:'.: ~,':\
.-:- .
mission of the Agency. (See paragraphs 11 through 15 above.) W·:····,·
.i : I! d~«
:;r.. II This mission of the NSA is singular and unique.

l sure of specific information about the records in the context

Public disclo-
~ .......
....<" I

II
I of that singular mission would reveal certain functions and
";;!:
~.<>,
Ii'I
activities of the NSA which are protected from disclosure by

.• '
II

l!
II
Section 6 of Public Law 86-36, 50 U.S.C. S 402 (note).

the disclosure of these classified records or of specific

Moreover,

-infor~ "I;';
matiun about them would reveal information protected by 18 U.S.C.
~,
I
I
.\1 S 798 prohibiting the unauthorized disclosure of classified I
i
~. :.:.
II
·Ii info rrna tion concernin·g. the communications intelligence act'ivi ties' ! ~;~ o

nr of the United States. The disclosure. of these records or any por- ~....
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, : .. :

~~ .: .. ';

~
!l tion of them would also compromise classified information per-
'~ .~ ..::'.
II taining to intelligence sources and methods protected from .~,
,:;,
O{. ..

I!! disclosure by Section 103(d){3) of the National Security Act of ;;L::

t.~~
f:'.:
1947 (50 U.S.C. s 403(d) (3». Accordingly, it was determined ~~' ..
that the COMINT records are exempt from release under 5 U.S.C. § ! t=~:
l';;
552(b) (3) of the Freedom of Information Act because each portion ~ .'

of each record is protected from disclosure by Section 6 ~f the ~%

'11
,
Public Law 86-36, 18 U.S.C. § 798, and by Section 103{d)(3) of ~~ .

I
the National Security Act of 1947. ~!. .' .. ~ ~

..... .
19. It should be noted that the classification of these ~
of • • • • •
'.
. I COMINT .--_ ... ~" ".:

': , .'
'

records and the withholding of them pursuant to FOIA

~L~:.: '~
.'

1
~.,:::)::
I exemptions (b) (1) and (b)(3) are not based only on the subs tan-
I •• o

i I~{>-·
:

I tive content of the documents but also on the characteristics of

the reports that identify the intelligence sources and methods

.. .i I
!
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..
!~ that would be seriously jeopardized by the disclosure plaintiff I

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 .,
'j seeks. That is, all of the COMINT reports at issue here (with

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one exception)' are based on messages which were intercepted from

government net communications systems. (See paragraph 10, above.

Moreover, almost all of these messages were enciphered when

.
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./
•1
originally transmitted. Thus, release of any portion of the
'I
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!
-.~
I
I
sUbstantive .. message would not only risk identifying the ability
,
. II of NSA to intercep.t a particular line of communications but
would also risk revealing the capability of NSA to read a
I
-\ foreign government's enciphered messages. Similar harm 'would

result from the disclosure of any material that might help to

I
identify the communications intercepted by· NSA, such as infor-

mation about date, time, origin or manner of transmission or

receipt. Also, the revelation of the substantive content of

the reports would allow foreign officials to determine which

channels or types of communications are being monitored. The

public disclosure of either the content of the reports or of any

identifying characteristics would have the same adverse conse-

quences on the communications intelligence activities of the

United States. All such information relates to classified

communications intelligence functions of NSA that have not been

pUblicly disclosed by the Agency in any other conte~t.

RELEASE OF NON-COMINT RECORDS

20. Three of the four non-COMINT records at issue here

were released in large part, with certain deletions. On~ of

these records was withheld in its entirety. These documents are:

a. A document entitled UFO Hypothesis and Survival

Questions which ~as prepared by an Agency employee. The

--_.-
entire report has been released except for the name and or-

ganization of the preparer of the document. This is not a

COMINT report and contains no reference to SIGINT activities.

It is a draft of a monograph that was located in an Agency

11
 file where it had been retained for historical reference

purposes. The deletion was made pursuant to 5 U.S.C. § 552(b)(3)

which provides that the FOIA does not apply to matters that
are specifically exempted from disclosure by statute. The , ,.

..
" ..
,
I'
applicable ~tatute in this instance is Section 6 of Public Law
~'. -,
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i:
86-36 which specif~cally exempts from disclosure the names and
;:
i.
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titles of NSA employees.
':
o!:
b. The second non-COMINT document is a memorandum

which discusses the UFO phenomena as the author believes they

may r~late to the intelligence community. ,This document was
I;
.' I
I
released with deletions of the descriptive references to the
"
i~
COMINT operations of the Agency. The deletions contain informa~
I!:
~
tion -which I have determined ,to be curr~n!-ly and prop_erly
classified and, thus, exempt from disclosure under 5 U.S.C.
!
S 552(b)(I). _ Portio~s of the material deleted also ~oncern i

.information witr respect to the organization and operational,

:'
," activities and functions of NSA which are exempt from disclosure
i

" pursuant to 5 U.S.C"S 552(b)(3) which provides that the FOIA

I:
does not apply to matters that are specifically exempted from
I disclosure by another statute. Section 6 of Public Law 86-36
I,
I
provides that no law shall be construed to require disclosure
I:
I: of the organization or any function of the NSA or any information
I: I
Ii with respect to the activities thereof. Moreover disclos~re of I
i
this information would reveal information protected by 18 I
u.s.c. §798 which prohibits the unauthorized disclosure of

classified information concerning COMINT activities and by the

,! National secur1iy Act of 1947 (50 U.S.C. S403(d)(3» which

I,
I
i: prohibits the disclosure of information pertaining to intelli-
!i
I'
I'
gence sources and methods. A portion of this document was
.,
;
deleted pursuant to 5 U.S.C. §552(b)(S) because it represe?ts
'.
this employee's expression of opinion on how the topic relates

12

I,

I,

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.~.- to the mission of the Agency. This deletion is non-factual and

does not represent finalized Agency policy. It includes the

: ..•~ .. kind of an~lysis, frank comment and recommendations, which· an

agency must encourage and protect from public disclosure to avoid

a chilling effect upon free and candid internal discussions in

....
.. \ .
I: support of optimum decision making wi thin the Agency. Finally, ..
a portion of this record in addition to being. exempt from dis-
.. ~

....:..' closure under 5 U.S.C. S552(b)(l) and (b){3) is being withheld

:'.~ .
for the reason that it is not within the scope of plaintiff's
.- .
:~. request.
c. The third non-COMINT document is a memorandum for
the record by an NSA assignee that was originally withheld in
its entirety pursuant to 5 U.S.C. S 552(b)(5) and (b)(6).· In

my review today I have ascertained, however, that this memorandum

. "
is neither in whole nor in part responsive to the plaintiff's

request. It does not deal with UFOs or the UFO phenomena.

Rather, it is a document voluntarily prepared by the assignee

I.
to report an incident that occurred during his attendance at a

UFO symposium. It is the assignee's personal account of his

II.1 ~ctivities and does not include reference to any UFO sighting or
Ii
il
Ii ph~nomena •
.i /
d. The final non~COMINT record is a report which
lj
Ii! \ was addressed in paragraph 8, above. The portion of the record
I
I;
responsive to this FOIA request has been released to plaintiff's
.:: . p attorney, (See Exhibit 8, attached hereto). The remaining ' ..... :.
r f·· ...

, .'.'
~'•..... :"
~ .
Ii portions of the record contain no reference relating to UFOs or .:' '. :~ ..:...
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UFO 'phenomena and are, therefore, not responsive to plaintiff's

I;i: request.
p
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13

.....

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 :: '... ,

21. Further information about the records or portion's:'.

thereof being withheld is contained in the in camera affidavit
executed by me.
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"

_---:~~~e.11J e.u t "-I

EU NE F. Y~ES
Chief, Off1ce of Polley .
NSA .
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• !
Subscribed and sworn to" before ..... :

me this ~~~ay of September 1980.

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