affadavit_yeates by Robert Dave Myrland

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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CITIZENS AGAINST UNIDENTIFIED FLYING OBJECTS SECRECY

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Plaintiff

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CIVIL ACTION NO. BO-1562

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NATIONAL SECURITY AGENCY _Defendant

----------------) AFFIDAVIT OF EUGENE F. YEATES State Of Maryland

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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 '\

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THE REI. EVANT DOCUMENTS

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This Agency received four separate referrals (described ';

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below') from the Central Intelligence Agency (CIA) concerning'NSA~'~ .

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documents located by that Agency when 1t was engaged an FOIA

litigation concerning information pertaining to UFOs.

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Saucer Watch v. CIA, D.D.C'- 17B-859.)

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The first was on Noven;b~'r:':~

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when this Agency received copies of· fifteen Agency documen

located by CIA.

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The NSA also received two other referrals from

CIA on December 4, 197B which provided three additional NSA

I documents.

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Subsequently by

attorney for the plaintiff, Peter A. Gersten

attorney of record in the CIA litigation) was the referral of the documents to this Agency.

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filed a request with NSA for the eighteen do~~ents- in his own

dated 'January 9, '1979; name on December 22, -1978 •. In a letter . . . - -. Roy R. 'Banner, thief, ~olict Staff, advised Mr. Gers~en that·~·

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,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..

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

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

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

I! Public Law 86-36 I is I

(50 U.S.C. 402 (note». j

attached to the Complaint as Exhibit C. I

copy is also attached to this affidavit 4. Ii

'~A

copy of this

A true and correct Exhibit 1.)

By letter dated January 29, 1979 Mr. Gersten appealed

the denial of the documents referred by the CIA.

Iof

~etter

(A copy

this letter is attached to the Complaint as Exhibit D.

i true, and

correct copy of this letter (less enclosures) is also

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to this affidavit as Exhibit 2.)

1\ the

NSA Freedom of Information Act/ Privacy Act Appeals Authority

! affirmed

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On .1arch 2" 1979

the denial of the request for release of the information 2

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on the same grounds, i.e., that the information is classified in its entirety and therefore exempt from release under 5 U.S.C.·

5 552(b)(1) and that the information is exempt from release

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552(b)(3)

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unde~

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for the reason that other statutes prevent , "'.' i,;,..

its disclosure, to wit:

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5 U.S.C.

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18 U.S.C. § 798, 50 U.S.C. S 403(d)<'3}·.

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and Section 6 of Public Law 86-36.

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(A copy of this letter is

attached to the Complaint as Exhibit E.

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is also attached to this affidavit as Exhibit 3.) 5,.

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On February 16, 1979 plaintiff in the instant case,

by counsel, filed an

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A true 'and correct copy

request with NSA for all

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docum~nts, ':'~\

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

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the Complaint as Exhibit F.

A copy is also attached hereto and --:' :;5~ f(i;

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deletions of information exempt under the provisions of 5 . ,·:·:o;~~:.!,;:;i:~' .. ,.~ U.S.C.

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documents existed but were exempt from release und~r 5 U,S:C'-".

552(b) (1) because they are classified in their errt r r e cy r exempt

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5798, 50 U.S.C. 5

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from release under 5 U.S.C. 5 552(b)(3) because disclosure of themwas prohibited by 18

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552(b)(1) and (b)(3) were taken prior to that rel~a~e.~;~

Plaintiff was also advised in this letter that other

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Publl.c Law 86-36; exempt from d a s c Lo su r e under 5 U.S.C. 5·':·,.'~;;'~';-!:i.; ,:~,~ ~~

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552 (b) (5) because they are intra agency memoranda, or letters ~ .•.>

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SS2(b) (6) because they are to personnel or similar files the -£

disclosure of which would constitute a clearly

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which would not be available by law to a party other than agency in Ii tiga tion wi th this Agency; ·or exempt under 5

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unwarrante~...,.:::~\,~~:~ "~1 ~~':' >.',:;' ':.::,

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

also attached to this affidavit as Exhibit 5.)

.The

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letter also advised the plaintiff that certain l.nformatl.on,

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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.

An additional NSA document was referred to the NSA' by , (The fourth and final CIA referral.)

the CIA on July 27, 1979.

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.

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

By letter dated January 23, 1980, plaintiff

the denial of the information referred by

CI~

~ppealed

-' and the subsequent .,'

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 grounds as cited above.

(A copy of this letter is attached

the Complaint as Exhibit K.

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A true and correct copy is also

attached to this affidavit as Exhibit 7.)

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Finally, a portion of a document which is respon:ive

to the plaintiff's request was

rece~tly

declassified and released

to counsel for the plaintiff by letter dated September 15, 1980.

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(A true and correct copy of this letter less the enclosure is attached as

~xhibit

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8.)

THE STATUS AND MISSION OF NSA

NSA was established by Presidential Directive in

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

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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~ ~~~

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sent to or from foreign governments in order to obtain foreign ~q ~;..~

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in telligence information necessary to the national defense,

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national secur ity, or the conduct of foreign affairs.

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intelligence information derived from the intercept of fore1.gn·''''

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communications is called communications intelligence

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Of the NSA records at issue in this case, only four are not .

COMIN~

reports and will be addressed

separ~tely.

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All of the '':;:-;~2 -:~:

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remaining records sought in this civil action are the product

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own radio transmitter and receiver facilities not available for'

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public use.

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Such communications links are known as agovernme'nt .-: ~ ::;;;'..:.~::';,':

net" communications. A foreign government may use other means ... ,

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These COMINT activi ties include the. targeting of .~~:;~:~7t~I?::

foreign governments' communications both within their borders. :--:?~ ~ ,-~: .: .~: "'~:~ /':·:f,~. ~ J;: and to and from communicants abroad involving the use of their .: ~ ~:.:::-~

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of signals intelligence activities.

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for sending and receiving international radio communicatio~~••.!~.:~.;r_ addition to or instead of its own government facilities. ···'··~·~>~~r··

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(International radio communications as used here includes

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communications passed at least in part by wire.)

This

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the foreign government's use of the facilities of an international ~~ ..

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communications common-carrier which is also available

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by the public.

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! which more than half the encrypted. and plain text radio ca tions of foreign governments, foreign organiza tions, their representatives are carried.

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It is common knowledge that the total volume of radio 'l~~ ..... : ..": .';'~.~: ·J.;~I ].",~ It is also gen~r~UX .;.;.'~~ signals transmitted on a given day is vast.

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such common-access carriers supply the means by"~:;·.:;'71

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known that radio transmissions can be received by anyone". :'~~:::-~:r,{..~ :.~~ 5

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:::r::;:: :::e~ro:::S:e::~v:::t e::::m::: ::nt::t::::k:t o'~:df1 '.~ f"''~" :~L.':" foreign offici.'s that such .interception of radio communica.~~.~.~;J"t~ .I.;.,_. ;.: :.·

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communications is generally known.

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is a

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prima~y

mission of the NSA.

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Foreign officials may be

expected to know, ~lso, that NSA cannot possibly intercept eV~~:~f';,:; &'~ ~.

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taking account of the fact that NSA's activities involve: .:<~:~~~.::~;

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a significant percentage of all such communications, espeCiaIIY.·~·:~:~

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worldwide communications, not solely those having a United

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The number is simply too vast to be handled" ;;S :'~j! ." "_:.f. ~ . ~~.;:~ ~',~~ with any reasonable amount of personnel and equipment. Moreover~ :'::~

States terminal.

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the cost and effort of such interception would be disproportiori~1:~~

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

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presumably know well' -- NSA must focus its interception ac·tivi-.;,~~ .,:,-::~

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.ties on those particular communications lines,- channels, links '.J~' .;~1 .

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or systems which yield the highest proportion of useful foreigri··:~ ~·:~t

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intelligence information.

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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~

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methods and techniques.

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It is the protection of this critical

"information that is at the heart of the instant ~ase • .

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The continued efficacy of NSA' s vi tal ~ntell~g~~C~,;·./:t$3:'~i~{

activities requires that the lines, channels, links and systems -; ~'i':';

actually monitored remain

obtains suffic"fe'nt reason to suspect that NSA is able to'

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foreign

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intercept and process that government's radio communications,' '.::~~•. ~.: '.~.

that "government would be expected to take immediate steps to

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of ways.

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This can be accomplished in a number. iJ;~~':':d

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A foreign government might shift to communications .:·:·;rr· .:;.: : ..:. <:~:(l~~:~~: "~: 6

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defeat that capability.

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links the U.S. cannot intercept.

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It may also choose to use

alternate methods of communications.

The foreign governments

may possess the technical capability to either upgrade or

initiate cryptography to secure its communications.

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Finally, a .,

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communication channel believed to be targeted by NSA can

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'be used by a foreign government to pass misleading information.

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If a foreign power is successful in defeating an

interception operation, all of the intelligence from

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source is lost unless and until NSA can establish a new and

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equivalent intercept.

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mation produced by NSA includes political, economic, scientific

The risk involved is great.

The infor.

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and military data which is of im~easurable value to the Presiden~ I

the Secretary of Defense, the Secretary of State and other policymakers.

Obviously, if a

~OMINT

source used by the Agency

becomes unavailable, policymakets must operate without the .

information that source produced.

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to establish a new and equivalent intercept and the source is

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lost permanently. Those losses are not only extremely harmful

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to the national security but also impose a heavy burden on the

limited resources of NSA which must attempt to recover the old

Sometimes it is impossible

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source or establish an equivalent source of information.

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Even after targeting only a small proportion of

all available electromagnetic communications for interception, , the number of n~ssages intercepted is extremely large.

NSA

thus is faced with a considerable task in selecting out those

messages that will be reviewed for pos~ible intelligence.

interest.

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degree of reliability and success its methods enjoy are SUbjects

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The manner in which NSA does this selection and the

about which virtually no authoritative information has ever

been released to the pUblic.

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Information about these subjects

would enable foreign observers to further assess, and thus take 7

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techniques.

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RELEASE OF COMINT REPORTS

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purposes.

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Without~entifYing the

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These communications targets and the processing techniques!

them would' permit foreign

inferences and I collection and I

intelligen~e

officials to draw

make assessments about this nation's COMINT processing activities that would enable them to

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to successfully process the underlying communica-

are, current intelligence sources and methods. __ Disclosing

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targeted and intercepted and NSA's

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repo~~~j Also disclosed would be the communications lines, sys~ems

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communications underlying the communications intelligence

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No meaningful portion of any of the records

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could be segregated and released

The

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disclosure of these records would identify the communications

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The COMINT reports being withheld from the plaintiff

are all based on intercepted foreign communications.

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steps to defeat, the capabilities of NSA's intelligence gathering

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

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of NSA's intelligence gathering techniques.

The COMINT reports being withheld from the plaintiff

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sources and methods. When originated, certain of the recosds were properly classified Top Secret pursuant to Executive Order ,

10501, Section lea), providing Ifor the application of that 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 ••• vi tal 'to the national defense.·