Nuclear Weapons Secrecy Policy Relaxed, a Bit

The fact that a now-retired nuclear weapon was once located at a now-closed location in the United States shall no longer be considered classified information, the Department of Defense announced last week.

This may seem so trivial and insignificant as to be hardly worth deciding or announcing, but it could have positive practical consequences for current and future declassification efforts.

“The repeated discoveries of this kind of [information] in numerous records [have] impeded the prompt declassification of many documents,” the National Declassification Center said last week, praising the move.

So with the categorical declassification of such information, the declassification of some historical records should now be facilitated and accelerated.

“Secrecy itself is more dangerous than the possession of atomic weapons,” said Edward Teller in a 1989 presentation at Lawrence Livermore National Laboratory. The Department of Energy posted a transcript of his remarks last week.

Number of New Secrets in 2015 Near Historic Low

The production of new national security secrets dropped precipitously in the last five years and remained at historically low levels last year, according to a new annual report released today by the Information Security Oversight Office.

There were 53,425 new secrets (“original classification decisions”) created by executive branch agencies in FY 2015. Though this represents a 14% increase from the all-time low achieved in FY 2014, it is still the second lowest number of original classification actions ever reported. Ten years earlier (2005), by contrast, there were more than 258,000 new secrets.

The new data appear to confirm that the national security classification system is undergoing a slow-motion process of transformation, involving continuing incremental reductions in classification activity and gradually increased disclosure.

Thus, the number of officials who are authorized to generate new national security secrets (“original classification authorities”) dropped to an all-time reported low of 2,199, the new ISOO report said.

Meanwhile, “derivative classification activity,” or the incorporation of existing secrets into new forms or products, dropped by 32%.

The number of pages declassified increased by 30% over the year before.

Of particular interest, the number of internal ”classification challenges” — in which government employees who are authorized holders of classified information themselves challenged the classification status or level of the information — reached an all-time high of 952 formal challenges in FY 2015. Of those, 411 (or 43%) were granted in whole or in part, ISOO reported. This internal challenge procedure has the potential to create an entire new dynamic of self-correction within the classification system.

See 2015 Report to the President, Information Security Oversight Office, transmitted by ISOO Acting Director William A. Cira, July 15, 2016.

Not all is well, however.

The cost of the national security secrecy system reached an all-time high of $17.44 billion in FY 2015, up 8% from the year before — a rate of growth that seems hard to sustain.

The average number of days to respond to a mandatory declassification request increased to 270 days, and the number of MDR requests that have gone unresolved for more than a year increased significantly to more than 14,000.

The use of the “declassify in ten years or less” instruction on newly classified documents dropped sharply down to 15%, making it harder to implement automatic declassification procedures in the future.

Overall, however, the good news — a reduced scope for secrecy and increased disclosure activity — seems to dominate. The sustained reductions in new classification activity are likely to be extended further with the implementation of the second Fundamental Classification Guidance Review that is now underway.

Interestingly, the impressive changes in national security classification policy over the past several years have occurred primarily at the agency level. The White House seems barely cognizant of those changes, and did not mention them at all in a recent description of the Obama Administration’s efforts “to drive openness and transparency in government.”

Intelligence Reform in the Jimmy Carter Era

“Public trust and confidence in the Intelligence Community have been seriously undermined by disclosures of activities in the past that were illegal, injudicious or otherwise improper by today’s standards,” according to a 1977 interagency memorandum circulated by National Security Advisor Zbigniew Brzezinski.

“Moreover, many disillusioned persons who have come to believe the worst of their government tend to accept at face value exaggerated imputations of impropriety to legitimate foreign intelligence activities. In some quarters there is a persistent belief that U.S. foreign intelligence activities have still not been brought under adequate control. Clearly the Intelligence Community must earn wider acceptance of its legitimacy and role within our democratic form of government if a viable U.S. foreign intelligence effort is to be sustained over the longer term.”

These observations were included in an impressive collection of declassified documents on intelligence reform in the Jimmy Carter administration that was published by the State Department yesterday as part of a new volume of the Foreign Relations of the United States series (Organization and Management of Foreign Policy: 1977-80, volume 28).

The 365-page section on Intelligence Policy and Reform presents often-candid discussion of topics such as: the role and authority of the Director of Central Intelligence, the perennial problem of leaks of classified information, the vexed relations between ambassadors and CIA chiefs of station abroad, covert action, the role of PFIAB and the Intelligence Oversight Board, and more. While some of the documents have appeared previously, many of them were declassified for this volume in 2012-2014.

A few samples:

A 1977 memorandum from CIA General Counsel Anthony Lapham stated that when it comes to prosecuting leaks of classified information to the press, “It is extremely doubtful that the provisions [of the Espionage Act] were intended to have application in such situations, and as a matter of historical fact, leaving aside the unsuccessful Ellsberg prosecution and possibly one or two other cases, they never have been so applied.”

Moreover, added Lapham, “Under current Justice Department procedures, unauthorized disclosures of national security information, in other than espionage situations, are almost never even investigated, let alone prosecuted.”

“It seems to us that the universe of classified information is quite simply too large, and encompasses such a great variety of material of so many different degrees of importance to the national security, as to make impractical the idea of extending criminal sanctions to the unauthorized disclosure of all such information,” he wrote (document 34, pp. 156, 159).

*

In one particularly thoughtful and reflective document in the new collection, NSC staffer Paul Henze observed: “While we now enjoy nearly real-time photography from satellites [less than 1 line not declassified] we are not much closer than we were thirty years ago to knowing what goes on in the minds of the top men in Moscow or Madrid, Peking, Algeria or Brasilia, what Arab leaders say to each other when they get together or how French elections are going to come out.”

“CIA greeted the Carter Administration with a keen expectation that with new leadership it would leave behind a period of strain and controversy and be able to rebuild its own capabilities and redirect its energies to real USG priorities. . . . Eight months later all this sense of excitement and optimism has dissipated. The prevailing mood of CIA, both on the operational and analytical sides of the agency is apprehension, depression, frustration,” Henze wrote (document 63 at p. 321).

*

In a remarkable 1978 memorandum “On the Psychology of President Power,” National Security Advisor Brzezinski advised President Carter that he should demonstrate a capacity for irrational and impulsive behavior (document 13, page 45).

“I suspect that an impression has developed that the Administration (and you personally) operates very cerebrally, quite unemotionally. In most instances this is an advantage; however, occasionally emotion and even a touch of irrationality can be an asset. Those who wish to take advantage of us ought to fear that, at some point, we might act unpredictably, in anger, and decisively. If they do not feel this way, they will calculate that simply pressing, probing, or delaying will serve their ends. I see this quite clearly in [Israeli prime minister Menachem] Begin’s behavior, and I suspect that Brezhnev is beginning to act similarly.”

“This is why I think the time may be right for you to pick some controversial subject on which you will deliberately choose to act with a degree of anger and even roughness, designed to have a shock effect,” Brzezinski suggested.

According to the new book “Jimmy Carter in Africa: Race and the Cold War” by Nancy Mitchell of North Carolina State University, this advice was prompted by Brzezinski’s alarm at the scale of Soviet and Cuban intervention in Ethiopia.

Updated Nuclear Stockpile Figures Declassified

The size of the U.S. nuclear stockpile as of September 30, 2015 — 4,571 weapons — and the number of U.S. nuclear weapons that were dismantled in FY 2015 — 109 of them — were declassified and disclosed last week.

The latest figures came as a disappointment to arms control and disarmament advocates who favor sharp reductions in global nuclear inventories.

The new numbers “show that the Obama administration has reduced the U.S. stockpile less than any other post-Cold War administration, and that the number of warheads dismantled in 2015 was lowest since President Obama took office,” wrote Hans M. Kristensen in the FAS Strategic Security blog.

But precisely because the new disclosure casts an unflattering light on the Obama Administration, it also represents a triumph of transparency. Since it is at odds with the Administration’s own declared agenda, the release enables the press and the public to exact a measure of accountability.

“The new figures […] underscored the striking gap between Mr. Obama’s soaring vision of a world without nuclear arms, which he laid out during the first months of his presidency, and the tough geopolitical and bureaucratic realities of actually getting rid of those weapons,” wrote William J. Broad in the New York Times on May 26.

“Obama calls for end to nuclear weapons, but U.S. disarmament is slowest since 1980,” as a Washington Post headline put it on May 27.

News stories credited the Department of Defense for the “annual public release” of the stockpile information. But it is a bit more complicated than that.

The nuclear stockpile size was classified as “Formerly Restricted Data” (FRD) under the Atomic Energy Act. As such, it had to be cooperatively declassified by both the Department of Defense and the Department of Energy. And the declassification of FRD does not occur regularly or spontaneously.

“It is not the policy of the DoD/DOE to release such numbers automatically,” said Andrew Weston-Dawkes, the director of the DOE Office of Classification. Instead, consideration is given to declassification of specific information as it is requested. In this case, release of the 2015 stockpile figures was requested by the Federation of American Scientists in an October 2015 petition.

“The declassification of stockpile numbers was a direct result of your request for the information,” Dr. Weston-Dawkes wrote in an email. “Your request was reviewed by the DoD-FRD working group and in turn approved by the DoD and the DOE.”

Until the Obama Administration declassified it for the first time in 2010, the current size of the U.S. nuclear arsenal had never been officially made public. (Historical stockpile numbers up to 1961 were released in the 1990s.)

Columnists and commentators are in the habit of mocking President Obama’s promise that his would be the most transparent Administration in history. But when it comes to nuclear stockpile information, that promise has been fulfilled.

ODNI Revises Costly Declassification Rule

As promised, the Office of the Director of National Intelligence (ODNI) last week formally withdrew a new rule on requesting declassification of classified ODNI records after receiving public complaints that it would have imposed onerous costs on requesters. A revised rule was then issued.

“ODNI received comments regarding the fee provisions [with] the recommendation that those provisions be withdrawn and replaced with fee provisions comparable to those in ODNI’s Freedom of Information Act program,” ODNI said in an April 22 Federal Register notice. (Comments to that effect from the Federation of American Scientists are here; comments submitted by Openthegovernment.org are here.)

“ODNI agrees and therefore is withdrawing its direct final rule.”

A revised rule with amended fee provisions was published in the Federal Register today.

Under the revised rule:

*    photocopying charges would be 10 cents per page instead of 50 cents per page;

*    fees would be waived whenever costs incurred were $10 or less;

*    and the revised rule now allows for a public interest waiver of fees when “the disclosure is likely to contribute significantly to the public understanding of the operations or activities of the United States Government and is not primarily in the commercial interest of the requester.”

DoD Directs “Equal Attention” to Secrecy, Declassification

Declassification of national security information should be pursued on a par with classification, according to a Department of Defense directive that was reissued yesterday.

“Declassification of information will receive equal attention as the classification of information so that information remains classified only as long as required by national security considerations,” said DoD Instruction 5200.01, dated April 21 and signed by Marcel Lettre, the Under Secretary of Defense for Intelligence.

This seems commendable as an aspirational goal, but it is hard to consider it an accurate description of existing DoD policy. (The “equal attention” language has been in force since 2008, when it appeared in a prior iteration of the Instruction.)

Nor is it clear what DoD means by “equal attention” in this context. Equal resources devoted to classification- and declassification-related activities? Surely not. Equal numbers of personnel engaged in classification and declassification? No. Equivalent quantities of records being classified and declassified? Also no.

Still, in a rules-based bureaucracy like the Pentagon, a directive from the Under Secretary of Defense has some intrinsic weight and cannot be entirely dismissed.

It is also noteworthy that the Instruction goes beyond requiring some sort of equilibrium between classification and declassification and calls for an actual reduction in the amount of classified material: “The volume of classified national security information and CUI [controlled unclassified information], in whatever format or media, will be reduced to the minimum necessary to meet operational requirements.”

In a new provision, the Instruction emphasizes the need to address unauthorized disclosures of classified information:

“Commanders and supervisors at all levels must consider and, at their discretion, take appropriate administrative, judicial, contractual, or other corrective/disciplinary action to address negligent discharges of classified information commensurate with the seriousness of the security violation.”

A “negligent discharge” sounds like something that is frowned upon in the Book of Leviticus. But it is actually an officially-sanctioned DoD term for certain types of unauthorized disclosures. An August 14, 2014 memorandum from the Deputy Secretary of Defense explains its origin:

“A negligent spillage or unauthorized disclosure of classified information is categorized as a Negligent Discharge of Classified Information (NDCI), which is based on the familiar firearms term ‘Negligent Discharge,’ to connote its seriousness.”

U.S. Declassifies Highly Enriched Uranium Inventory

Corrected below

The White House announced last week that the U.S. inventory of highly enriched uranium (HEU) as of September 2013 has been declassified.

“The newly declassified information shows that, from 1996 to 2013, U.S. HEU inventories decreased from 740.7 metric tons to 585.6 metric tons.  This reflects a reduction of over 20 percent,” according to a March 31 White House fact sheet.

The White House added that “This announcement marks the first time in fifteen years that the United States has declassified and released information of this kind.”

But that assertion is in error.

In 2006, the Department of Energy declassified and released data on US HEU inventories dating from 2004. See Highly Enriched Uranium Inventory: Amounts of Highly Enriched Uranium in the United States, Department of Energy, January 2006.

Moreover, the DOE report from a decade ago shows that almost all of the 20% reduction in HEU inventories cited by the White House last week had already been accomplished by 2004, when the HEU total was 590.5 metric tons. Thereafter, in the period between 2004 and 2013, the total HEU inventory evidently declined by only about 5 additional metric tons (less than 1%) to 585.6 metric tons. [See correction below.]

But the White House added that “further reductions in the inventory are ongoing; the U.S. Department of Energy’s material disposition program has down-blended 7.1 metric tons of HEU since September 30, 2013, and continues to make progress in this area.”

The latest disclosure was made to enhance nuclear transparency so as to encourage reciprocal disclosures by other nuclear weapons states.

“The U.S. commitment to sharing appropriate nuclear security-related information has also been demonstrated by recent actions such as the declassification of information on the U.S. nuclear weapons stockpile and transparency visits by officials from non-nuclear weapons states to Los Alamos and Sandia National Laboratories,” the White House said. “These actions show that countries can increase transparency without revealing sensitive information.”

Correction I mistakenly wrote that the inventory of HEU in 2004 was 590.5 Metric Tons. But that number was the amount of U-235. (I read the 2006 DOE report wrong.) The actual inventory of HEU at the time was 686.6 Metric Tons.

Therefore, between 2004 and 2013 there was a reduction in the U.S. HEU inventory of 101 Metric Tons. Thanks to Prof. Alan Kuperman for pointing out the error.

ODNI Will Revise Declassification Fee Policy

In response to criticism of the hefty fees that could be charged to public requesters in its new Mandatory Declassification Review (MDR) rule, the Office of the Director of National Intelligence has agreed to modify the rule.

The revised rule will adopt the more flexible and forgiving approach used in ODNI’s Freedom of Information Act (FOIA) program.

“We will pull back the MDR rule and swap out the fee structure there for the fee structure in the FOIA policy,” said Jennifer Hudson, director of the ODNI Information Management Division.

This represents a substantial change. In comments on the rule submitted yesterday by the Federation of American Scientists, we recommended such a change. We noted that the MDR fee schedule was inconsistent in several respects with existing law and policy and, in particular, that it differed from the cost recovery procedures in ODNI’s FOIA program:

*     The MDR rule would charge 50 cents per page for photocopying, but ODNI charges only 10 cents per page for responses to FOIA requests.

*     The MDR rule would have made requesters responsible “for paying all fees,” but ODNI always waives costs of $10 or lower under FOIA.

*     The MDR rule did not provide for discretionary fee waivers for public interest or other reasons, but the FOIA policy does.

Now all of these discrepancies will be eliminated. Perhaps most significantly, “We will also make sure that there is room [in the MDR process] for discretion in charging fees,” Ms. Hudson said in an email message. “I’m sure you know from looking at our FOIA reports that we have exercised our discretion to not charge fees quite a bit in the past.”

She noted, however, that “The search/review charges are identical” under the proposed MDR rule and under FOIA. “FOIA just breaks [the charges] down into 15 minute increments where the MDR rule is by the hour. The end result is the same.”

“At the end of the day, I don’t think it will make as much of a difference as people think,” she said.

ODNI Erects Cost Barrier to Mandatory Declassification

Updated below, twice

Anyone who submits a mandatory declassification review request to the Office of the Director of National Intelligence seeking release of classified records “shall be responsible for paying all fees” resulting from the request, according to a new ODNI regulation.

And those fees are considerable.

A search for a requested document costs from $20-$72 per hour. Document review runs $40-$72 per hour. And photocopying costs fifty cents per page, the new ODNI regulation said. It was published in the Federal Register on Friday, with a request for public comments.

The mandatory declassification review (MDR) process was established by executive order 13526 to permit requests for declassification of information that no longer meets the standards for national security classification. The executive order’s implementing directive states that fees may be charged for responding to MDR requests for classified records.

But the proposed ODNI fees seem extravagant on their face. No commercial enterprise charges anything close to fifty cents to photocopy a single page. Neither do most of ODNI’s peer agencies.

The Department of Defense permits (though it does not require) DoD agencies to charge fees for search, review and reproduction (pursuant to DoD Manual 5230.30-M). But the DoD schedule of fees is well below the proposed ODNI rate.

Instead of fifty cents per page, DoD charges thirteen cents. Instead of up to $72 per hour for search and review, DoD charges no more than $52.60 per hour. ODNI wants $10 for a CD, but DoD asks only $1.25. (See DoD 7000.14-R, Volume 11A, Chapter 4, Appendix 2, Schedule of Fees and Rates, at page 4-13).

And while ODNI would make requesters liable for “all fees,” DoD says that “Fees will not be charged if the total amount to process your request is $30.00 or less.”

Similarly, at the Department of State, “Records shall be duplicated at a rate of $.15 per page.”

In a 2011 rule, the Central Intelligence Agency did mandate a fifty cent per page photocopy fee for MDR requests, as well as a $15 minimum charge. But the CIA policy was suspended in response to public criticism and a legal challenge from the non-profit National Security Counselors. That challenge is still pending.

“There is nothing unusual about these [search and review] fees,” CIA told a court in 2014 in response to the legal challenge. “And the reproduction costs are similar to those employed by other agencies.” CIA noted that a National Archives regulation sets reproduction costs as high as 75 cents per page. (Last year it reached 80 cents, although a self-service copier is sometimes available for 25 cents per page.)

Furthermore, CIA said in 2014, “neither set of costs reimburses the CIA for the full cost of providing the declassification review service to the requester.”

Public comments on the new ODNI rule are due by March 28.

Update, 3/3/16: FAS comments on the ODNI rule are available here.

Update, 3/4/16: ODNI agreed to amend its MDR fee structure and to replace it with the same fee policy used in its Freedom of Information Act program.

“Fact of” Nuclear Weapons on Okinawa Declassified

Updated below

The Department of Defense revealed this week that “The fact that U.S. nuclear weapons were deployed on Okinawa prior to Okinawa’s reversion to Japan on May 15, 1972” has been declassified.

While this is indeed news concerning classification policy, it does not represent new information about Okinawa.

According to an existing Wikipedia entry, “Between 1954 and 1972, 19 different types of nuclear weapons were deployed in Okinawa, but with fewer than around 1,000 warheads at any one time” (citing research by Robert S. Norris, William M. Arkin and William Burr that was published in 1999 in the Bulletin of the Atomic Scientists). As often seems to be the case, declassification here followed disclosure, not the other way around.

If there is any revelation in the new DoD announcement, it is that this half-century-old historical information was still considered classified until now. As such, it has been an ongoing obstacle to the public release of records concerning the history of Okinawa and US-Japan relations.

Because this information had been classified as “Formerly Restricted Data” under the Atomic Energy Act rather than by executive order, its declassification required the concurrence of the Department of Defense, the Department of Energy, and (in this case) the Department of State. Any one of those agencies had the power to veto the decision to declassify, or to stymie it by simply refusing to participate.

Instead, the information was declassified as a result of a new procedure adopted by the Obama Administration to coordinate the review of nuclear weapons-related historical material that is no longer sensitive but that has remained classified under the Atomic Energy Act by default. The new procedure had been recommended by a 2012 report from the Public Interest Declassification Board, and was adopted by the White House-led Classification Reform Committee.

Also newly declassified and affirmed this week was “The fact that prior to the reversion of Okinawa to Japan that the U.S. Government conducted internal discussion, and discussions with Japanese government officials regarding the possible re-introduction of nuclear weapons onto Okinawa in the event of an emergency or crisis situation.”

Such individual declassification actions could go on indefinitely, since there are innumerable other “facts” whose continued classification cannot reasonably be justified by current circumstances. A more systemic effort to recalibrate national security classification policy government-wide is to be performed over the coming year.

Update: The National Security Archive posted the first officially declassified document on nuclear weapons in Okinawa, which was released in response to its request. See Nuclear Weapons on Okinawa Declassified, February 19, 2016.