Enacted at the height of the Cold War, the NSA Act gives the agency radically sweeping powers to withhold any information from public disclosure. Specifically, Section 6 of the Act states “…nothing in this Act or any other law…shall be construed to require the disclosure of the organization or any function of the National Security Agency, or any information with respect to the activities thereof, or of the names, titles, salaries, or number of the persons employed by such agency.”
NSA has used that blanket authority to try to keep secret details about its lethal 9/11 intelligence failure. A Freedom of Information Act (FOIA) lawsuit I brought on behalf of the Cato Institute against the Defense Department (NSA’s parent organization) in January 2017 has, after over three-and-a-half years in federal court, partially punctured NSA’s veil of secrecy over the cancelled TRAILBLAZER and THINTHREAD digital network exploitation (DNE) programs.
In brief, during the five-year period leading up to the 9/11 attacks, a bureaucratic war raged inside of NSA over the best way to handle the exploding volume of digital communications the agency was trying to keep up with. On one side was a group of veteran NSA cryptographers, mathematicians and computer scientists who developed a cheap, extremely effective, and Constitutionally compliant in-house DNE system codenamed THINTHREAD. On the other side was then-NSA Director Michael Hayden, who favored an unproven, external, contractor developed DNE system called TRAILBLAZER. When then-GOP House Intelligence Committee staffer Diane Roark got the THINTHREAD team development money and language in the FY 2002 Intelligence Authorization bill directing wider deployment of the cheaper, off-the-shelf THINTHREAD system, Hayden refused to deploy it as directed — even though THINTHREAD, still in prototype development, was already producing intelligence NSA couldn’t get from any of its other existing systems.