Transcript of 1954 Oppenheimer Hearing Declassified in Full

The transcript of the momentous 1954 Atomic Energy Commission hearing that led the AEC to revoke the security clearance of J. Robert Oppenheimer, the physicist who had led the Manhattan Project to produce the first atomic bomb, has now been declassified in full by the Department of Energy.

“The Department of Energy has re-reviewed the original transcript and is making available to the public, for the first time, the full text of the transcript in its original form,” according to a notice posted on Friday.

The Oppenheimer hearing was a watershed event that signaled a crisis in the nuclear weapons bureaucracy and a fracturing of the early post-war national security consensus. Asked for his opinion of the proceedings at the time, Oppenheimer told an Associated Press reporter (cited by Philip Stern) that “People will study the record of this case and reach their own conclusions. I think there is something to be learned from it.”

And so there is. But what?

“No document better explains the America of the cold war — its fears and resentments, its anxieties and dilemmas,” according to Richard Polenberg, who produced an abridged edition of the hearing transcript in 2002 based on the redacted original. “The Oppenheimer hearing also serves as a reminder of the fragility of individual rights and of how easily they may be lost.”

It further represented a breakdown in relations between scientists and the U.S. government and within the scientific community itself.

“The Oppenheimer hearing claims our attention not only because it was unjust but because it undermined respect for independent scientific thinking at a time when such thinking was desperately needed,” wrote historian Priscilla J. McMillan.

First published in redacted form by the Government Printing Office in 1954, the Oppenheimer hearing became a GPO best-seller and went on to inform countless historical studies.

The transcript has attracted intense scholarly attention even to some of its finer details. At one point (Volume II, p. 281), for example, Oppenheimer is quoted as saying “I think you can’t make an anomalous rise twice.” What he actually said, according to author Philip M. Stern, was “I think you can’t make an omelet rise twice.”

The Department of Energy has previously declassified some portions of the Oppenheimer transcript in response to FOIA requests. But this is said to be the first release of the entire unredacted text. It is part of a continuing series of DOE declassifications of historical records of documents of particular historic value and public interest.

The newly declassified portions are helpfully consolidated and cross-referenced in a separate volume entitled “Record of Deletions.”

At first glance, it is not clear that the new disclosures will substantially revise or add to previous understandings of the Oppenheimer hearing. But their release does finally remove a blemish of secrecy from this historic case.

Nuclear Attribution and Hot Cognition

The challenges of identifying the perpetrators of a nuclear attack on the United States and communicating that information to senior leadership were considered in a 2009 workshop sponsored by the Office of the Director of National Intelligence. A declassified report on the workshop was released last week in heavily redacted form. See “Transforming Nuclear Attribution: Culture, Community, and Change (SHARP 2009)” (redacted), Office of the Director of National Intelligence, July 2009.

One of the challenges is that the task may be impossible. “The outcome from the assessment of all the evidence and sources may be that a definitive answer is not achievable.”

In the best of cases, “There will almost certainly be a disconnect between the speed at which the national leadership must respond to the policy/political environment and the slower pace at which forensic evidence, technical analysis, and law enforcement investigations can proceed. This gives rise to an anchoring problem (i.e. a tendency to anchor on the usual suspects in attributing responsibility for an event).”

“Given the magnitude of the likely national response to any substantial WMD event, those involved in the attribution process need to be cautious of leaping to conclusions ahead of the evidence.”

The report considers the problem of “hot cognition,” referring to analysis that is performed under conditions of emotional agitation or distress.

“Hot cognition has an immense potential for distorting our perceptions of the environment and how we interpret information. It leads us to more extreme judgments of information, perhaps far beyond what they warrant. And it may lead us to fill in the gaps of missing or ambiguous information with emotional filler that could seriously distort our assessments.”

The workshop was conducted as part of the ODNI Summer Hard Problem (SHARP) program. In the roughly 50% of the resulting report that was not redacted by ODNI and the Department of Energy, there are a number of passages of interest concerning the psychology of intelligence analysis, and other topics. For example:

*  “Resolving an information need is not just about finding a ‘nugget.’ Information must be actively incorporated into the mind. New information has to be assimilated into a person’s preexisting context or state of information about the world. ‘Meaning construction’ takes place when this new information can connect with what is already understood. Our ability to absorb new information is limited. People selectively attend to new information that connects, and may be oblivious to the rest.”

*  Assembling an “all-star” team of outstanding intelligence analysts to tackle the attribution problem may not be the right approach. “It has been observed in a number of professional level sporting events that all-star teams — that is, teams created by joining the most exceptional players from across the league — rarely produce the best team overall. While their members have exceptional skills and are tremendous atheletes individually, these all-star teams typically do not perform as well as expected, nor do individual all-stars perform as well as they performed on their originating team.”

*  “In the case of a nuclear event, it is likely that individual private citizens will have images stored on cell phones or digital cameras that could help [resolve] the attribution question. [Word deleted - AFTAC?] should make arrangements in advance of any actual emergency that would give the public a way to send information to government servers for analysis.”

*  “For every one casualty actually caused by a [WMD] event, as many as fifty other individuals may descend upon local medical facilities presenting with psychosomatic symptoms.”

*  “Current limits to information sharing exist for good reasons, including the need to protect sources, the need to avoid tainting legal prosecution, and the need to protect rights to privacy. These reasons will remain important in a nuclear emergency, but cannot be allowed to impede the higher priority of protecting thousands or millions of human lives…. We must prepare IT tools and approaches now, that when activated for a nuclear emergency, allow relevant players to share knowledge at the speed of technology, not the speed of bureaucracy.”

*  “Having examined the range of capabilities that the US Government will bring to the issue of nuclear attribution, we conclude that IC, LE, and TNF [intelligence community, law enforcement, and technical nuclear forensics] capabilities, as currently configured, are likely to result in eventual success. By this we mean that we are confident that these efforts would eventually result in identification of those who mounted and sponsored any nuclear-related attack on the US or engaged in related activities. We are far less confident that as currently configured these agencies will be able to deliver meaningful, rapid success.”

 

CIA Says Redaction of Commodore Amiga Cost was an Error

The CIA should not have redacted the amount that was paid for a Commodore Amiga portable computer in 1987 from a recently declassified article, a CIA official said today. (CIA: Cost of Personal Computer in 1987 is a Secret, Secrecy News, September 29).

“The redaction of the cost of the Commodore Amiga computer was in fact an error,” said Joseph W. Lambert, Director of CIA Information Management Services.

“Although we would normally redact budget figures, this clearly does not constitute a budget figure and should not have been redacted. The mistake was made in a high volume court deadline environment,” he said, referring to a FOIA lawsuit brought by former CIA official Jeffrey Scudder.

“I have instructed my folks to make the appropriate corrections by lifting the redactions in question and then subsequently re-post the document to our website,” Mr. Lambert said via email. The revised document should be posted tomorrow. (Update: The document with cost figures restored is now posted here.)

The Scudder lawsuit was not settled by the latest releases of hundreds of articles from CIA’s Studies in Intelligence journal. The parties told the court on Monday that Scudder intends to challenge some of CIA’s withholdings.

CIA Posts Hundreds of Declassified Journal Articles

The Central Intelligence Agency has posted hundreds of declassified and unclassified articles from its in-house journal Studies in Intelligence, in an effort to settle a lawsuit brought by a former employee, Jeffrey Scudder. Until lately, the CIA had resisted release of the requested articles in softcopy format (Secrecy News, March 17), but the Agency eventually relented.

“Of the 419 documents that remain in dispute in Scudder, the CIA has produced 249 in full or in part by putting them up on the CIA website,” the government informed Mr. Scudder’s attorney, Mark S. Zaid, this week. They are posted here. [Update: The preceding link is dead. CIA has integrated the Scudder release into this larger collection of declassified Studies articles].

The newly posted articles cover a wide range of topics, and vary considerably in substance and originality. The CIA said that 170 other articles sought by Scudder had been withheld in full.

Jeffrey Scudder was profiled recently in the Washington Post (CIA employee’s quest to release information ‘destroyed my entire career’ by Greg Miller, July 4, 2014).

New Exemptions from 50 Year Declassification Approved

Most of the national security agencies in the executive branch have now been granted approval to exempt certain 50 year old classified information from automatic declassification.

The national security classification system normally requires declassification of classified documents as they become 25 years old, with several specified exemptions to allow continued classification up to 50 years.

Only “in extraordinary cases” may agency heads propose to exempt information from declassification when it is 50 years old, says President Obama’s 2009 executive order 13526. They must request and receive approval from the Interagency Security Classification Appeals Panel (ISCAP).

So it was somewhat disconcerting to see an updated Notice from the Information Security Oversight Office last week indicating that dozens of executive branch agencies have now been granted exemptions from declassification for 50 year old information, including all of the major national security agencies. The United States Mint, among others, was even granted an exemption for 75 year old classified information.

It appeared that the extraordinary had become quite ordinary.

But that initial impression is not correct, said John P. Fitzpatrick, director of the Information Security Oversight Office, which oversees the national security classification system.

In the first place, the exemptions from declassification are limited to specific categories of information that the ISCAP was persuaded “would clearly and demonstrably cause damage to national security.”

“Blanket exemptions were not approved,” Mr. Fitzpatrick said.

And proposed exemptions for particular categories of information were critically reviewed by the ISCAP members, he said. “They often required agencies to make specific changes to their proposed declassification guide before granting approval.”

Because the ISCAP is a presidential body (of which he is the Executive Secretary), Mr. Fitzpatrick said he could not provide detailed information about its deliberative process. But he responded to several questions on the subject in general terms.

“During the evaluation of agency exemptions the ISCAP required that certain agencies significantly narrow their submissions,” he said. “In some cases, the ISCAP required that an agency remove a requested exemption element.”

Moreover, exemption from “automatic declassification” does not necessarily mean exemption from declassification altogether. Individual “records exempted from automatic declassification remain subject to mandatory declassification review,” he noted.

Why does the U.S. Mint need an exemption from declassification for 75 year old information? Is it some sort of anti-counterfeiting issue? No, he said, that’s not it.

The U.S. Mint declassification exemption, “which is perhaps the most [narrowly] targeted of all ISCAP-approved exemptions,” applies solely to “security specifications from the U.S. Bullion Depository at Fort Knox, which was built in the late 1930s,” Mr. Fitzpatrick said.

“Think ‘Goldfinger’,” he said.

WWII Atomic Bomb Project Had More Than 1,500 “Leaks”

The Manhattan Project to develop the first atomic bomb during World War II was among the most highly classified and tightly secured programs ever undertaken by the U.S. government. Nevertheless, it generated more than 1,500 leak investigations involving unauthorized disclosures of classified Project information.

That remarkable fact is noted in the latest declassified volume of the official Manhattan District History (Volume 14, Intelligence & Security) that was approved for release and posted online by the Department of Energy last month.

In several respects, the Manhattan Project established the template for secret government programs during the Cold War (and after). It pioneered or refined the practices of compartmentalization of information, “black” budgets, cover and deception to conceal secret facilities, minimal notification to Congress, and more.

But wherever there are national security secrets, it seems that leaks and spies are not far behind.

During the course of the Manhattan Project, counterintelligence agents “handled more than 1,000 general subversive investigations, over 1,500 cases in which classified project information was transmitted to unauthorized persons, approximately 100 suspected espionage cases, and approximately 200 suspected sabotage cases,” according to the newly declassified history (at pp. S2-3).

Most of the 1,500 leak cases seem to have been inadvertent disclosures rather than deliberate releases to the news media of the contemporary sort. But they were diligently investigated nonetheless. “Complete security of information could be achieved only by following all leaks to their source.”

In 1943, there were several seemingly unrelated cases of Protestant clergymen in the South preaching sermons that alarmingly cited “the devastating energy contained in minute quantities of Uranium 235″ (while contrasting it with “the power of God [that] was infinitely greater”). The sermons were eventually traced back to a pamphlet distributed by a Bible college in Chicago, which was determined to be harmless. Other disclosures cited in the history involved more serious indiscretions that drew punitive action.

“Since September 1943, investigations were conducted of more than 1500 ‘loose talk’ or leakage of information cases and corrective action was taken in more than 1200 violations of procedures for handling classified material,” the history said (p. 6.5).

“Upon discovery of the source of a violation of regulations for safeguarding military information, the violator, if a project employee, was usually reprimanded, informed of the possible application of the Espionage Act, and warned not to repeat the violation.”

Fundamentally, however, information security was not to be achieved by the force of law or the threat of punishment. Rather, it was rooted in shared values and common commitments, the Project history said.

“Grounds for protecting information were largely patriotism, loyalty to the fighting men, and the reasoning that the less publicity given the Project, the more difficult it would be for the enemy to acquire information about it and also, the greater would be the element of surprise” (p. 6.13).

The only other remaining portion of the official history, Foreign Intelligence Supplement No. 1 to Manhattan District History Volume 14, was also published online last month. It provided an account of U.S. wartime intelligence collection aimed at enemy scientific research and development. Some information in that volume was deleted by the Central Intelligence Agency.

The entire thirty-six volume Manhattan District history has now been declassified and posted online.

Congress Grapples with Classification Issues

A bill introduced in the House of Representatives by Rep. Bennie Thompson (D-MS) would direct the President to reduce the amount of classified information by 10%. It is one of several new congressional initiatives seeking to rectify perceived defects in the national security classification system.

Most prominently, the Senate Intelligence Committee is engaged in an ongoing dispute with the Administration over declassification of the Committee’s report on the CIA’s post-9/11 detention and interrogation program.

Sen. Dianne Feinstein, the Committee chair, said the Administration’s proposed redactions to the executive summary of the report were unacceptably broad.

“I have concluded the redactions eliminate or obscure key facts that support the report’s findings and conclusions,” she said on August 5. “Until these redactions are addressed to the committee’s satisfaction, the report will not be made public.”

With this contentious experience fresh in mind, one might have expected the Senate Intelligence Committee to have acquired special insight into the failings of the existing classification system and to have devised some well-considered remedial measures to address them.

But that does not appear to be the case.

In its new intelligence authorization bill for Fiscal Year 2015 (S. 2741, sec. 311), the Committee weakly requires the Director of National Intelligence to prepare a report “describing proposals to improve the declassification process throughout the intelligence community.”

Under current circumstances, this proposed reporting requirement seems like a failure of imagination and leadership, and probably a waste of everyone’s time. Perhaps it is just a placeholder for something more ambitious that is still to come.

By contrast, the bill introduced by Rep. Thompson in the House and by Sen. Ron Wyden in the Senate is prescriptive and solution-oriented in its treatment of the issue.

Among its several provisions, the new bill (HR 5240) would require the President “to establish a goal for the reduction of classified information by not less than 10 percent within five years through improved declassification and improved original and derivative classification decision-making,” according to a Fact Sheet on the bill, dubbed the CORRECT Act. (It is unclear how the 10 percent reduction in information would be measured, whether in pages or bytes or number of classification decisions or by some other standard.)

The Thompson/Wyden bill would also bolster and expand the Public Interest Declassification Board, assigning it the responsibility to evaluate the continuing validity of all current classification guidance. Though this provision may seem innocuous, it is a clear challenge to the autonomy that is currently enjoyed by executive branch agencies regarding what is to be classified. As such, it represents the kernel of a solution to the problem of overclassification.

The bill would further direct the Privacy and Civil Liberties Oversight Board to establish standards for the emerging insider threat program, and it would decisively break from current practice by authorizing the Merit System Protection Board to review agency denials or revocations of security clearances.

However, the deliberative effort that has gone into preparing the bill is not going to yield any near-term reward. In all likelihood, Rep. Thompson’s CORRECT Act will not even receive a hearing in the remainder of this expiring Congress.

Another modest but potentially useful legislative effort is an amendment to be introduced by Sen. Jeanne Shaheen that would enhance the authority and capacity of the National Declassification Center.

If the Senate Intelligence Committee wants a report on “improving declassification,” as the new intelligence authorization bill requires, then there is already a report with that very title that was prepared by the Public Interest Declassification Board in December 2007.

Several of the report’s recommendations have still not been acted on. Among them is a proposal that “formal procedures should be established for the declassification review of classified [congressional] committee reports and hearing transcripts.”

Because such records are produced and held by congressional committees, such as the Senate Intelligence Committee, they are not eligible for declassification unless and until the originating committee takes the initiative to have them reviewed and declassified. Yet this is rarely done, despite the importance of these materials.

“Frequently, closed sessions of congressional committees are the only occasion when executive branch policy in the national security area is explained, challenged (by members), and defended by administration representatives. The exchanges at these hearings, as well as the views of Congress (elaborated in classified committee reports), often affect the policy choices of the executive branch. Yet, because the records of the committees involved are classified and never subjected to declassification review, the public and historians are largely unaware of their existence,” the PIDB report said.

“Despite their historical significance, classified records created by the Congress are reviewed for declassification only on a hit-or-miss and relatively limited basis. As a result, the public is denied a valuable source of historically significant information,” the report said.

So, for example, not a single classified annex to the annual intelligence authorization bills produced by the congressional intelligence committees has ever been declassified.

When the Administration Asks Itself to Declassify

In preparing its recent report on the Section 702 surveillance program, the Privacy and Civil Liberties Oversight Board (PCLOB) demonstrated an unusual mode of declassification, in which one executive branch agency asks another agency to declassify information.

In this case, the process was remarkably productive, and it may offer a precedent for future declassification efforts.

“During the process of preparing this report we sought and obtained declassification of facts about this still highly classified [Section 702] program in order to allow us to put in context how the program operates and clarify some public misconceptions,” said PCLOB Chairman David Medine at a July 2 public meeting.

“As a result, over one hundred new facts were declassified by the government to provide needed context for the program’s operation,” he said.

In what the PCLOB staff termed a “lateral declassification” model, it was an executive branch agency (i.e., the PCLOB itself) — rather than Congress or members of the public — that pressed another government agency (ODNI, NSA, CIA, FBI or Justice) to declassify specific information.

Such an interagency request for declassification differs from the “referrals” that agencies routinely direct to one another. In those cases, the receiving agency is simply asked to review records to identify its own classified information (or “equities”) and then to advise the originating agency what must be withheld and what may be disclosed.

Here, the PCLOB didn’t merely ask agencies to screen for classified information under existing classification standards. It urged them to actually change those standards. And in more than 100 specific cases, the agencies did so.

Most of the declassified facts in the PCLOB Section 702 report are not specifically flagged as having been declassified at the Board’s request, and they may therefore be easily overlooked. A partial compilation of such newly declassified facts, prepared by a participant in the process, was obtained by Secrecy News.

Several features appear to have contributed to the efficacy of the lateral declassification approach.

For one thing, the requesting agency (the PCLOB) already possessed the requested information in classified form. So it knew exactly what it was asking for, and why it was asking for it to be declassified.

And then the fact that the declassification requests originated within the executive branch itself (the PCLOB is an independent executive branch agency) made it harder for the recipient agencies to ignore the request and easier for them to fulfill it.

By contrast, public requests through the Freedom of Information Act often seem to decline into an adversarial contest, in which the agency adopts a defensive posture and offers only minimal, grudging compliance with disclosure requirements.  (At CIA, one gets the impression that asking for a record to be declassified can make it less likely to be disclosed.) Requests from Congress also inevitably have a political overlay, and may be seen to serve an agenda that does not coincide with the Administration’s own.

But as part of the Administration, the PCLOB’s many declassification requests did not trigger the sort of immune response that any outside request would have done.

Of course, the PCLOB’s work, including its declassification proposals, did not take place in a vacuum.

“A lot of political wind was at our back,” said Peter Winn, acting general counsel for the Board.

Not only had related classified details entered the public domain through the Snowden disclosures, but calls for declassification of more information regarding current surveillance programs had been explicitly endorsed by the Director of National Intelligence and other senior officials.

Because of these competing factors, the role played by the Board’s “lateral declassification” approach cannot be precisely delineated or clearly distinguished from them.

But its apparent effectiveness is consistent with the productive declassification work performed by another executive branch body, the Interagency Security Classification Appeals Panel (ISCAP), which has declassified information in a large majority of the mandatory declassification review appeals presented to it.

Perhaps most important, the Board’s experience with declassification in the Section 702 report may serve as a precedent for similar initiatives in the future.

“For us, it’s a model,” said Sharon Bradford Franklin, executive director of the PCLOB.

She noted that more than 90% of the Board’s requests for declassification had been granted, and that they preceded completion of the Board’s report. (That is, the declassification actions were not predicated on any agency’s review of the Board’s conclusions or recommendations.)

Enough information about the 702 program was declassified that a classified annex — which had earlier been assumed to be necessary — turned out to be unnecessary, Ms. Franklin said.

She also credited the intelligence agencies for their diligent engagement and cooperation in the declassification process, as did the published PCLOB report.

“In the preparation of this Report, the Board worked with the Intelligence Community to seek further declassification of information related to the Section 702 program,” the report noted (at p. 3).

“Specifically, the Board requested declassification of additional facts for use in this Report. Consistent with the Board’s goal of seeking greater transparency where appropriate, the request for declassification of additional facts to be used in this Report was made in order to provide further clarity and education to the public about the Section 702 program.”

“The Intelligence Community carefully considered the Board’s requests and has engaged in a productive dialogue with PCLOB staff. The Board greatly appreciates the diligent efforts of the Intelligence Community to work through the declassification process, and as a result of the process, many facts that were previously classified are now available to the public.”

The final PCLOB report on the Section 702 program included several recommendations concerning transparency, including proposals for further specific declassification actions. Those proposals remain pending.

 

NSA Releases NSPD-54 on Cybersecurity Policy

In January 2008, the Bush Administration issued the Top Secret National Security Presidential Directive 54 on Cybersecurity Policy which “establishes United States policy, strategy, guidelines, and implementation actions to secure cyberspace.”

Despite its relevance to a central public policy issue, both the Bush and Obama Administrations had refused to release the Directive.

But last week, in response to a five-year Freedom of Information Act effort by the Electronic Privacy Information Center, the National Security Agency released a lightly redacted version of the document, most of which had been unclassified all along.

“This Directive, which is the foundational legal document for all cybersecurity policies in the United States, evidences government efforts to enlist private sector companies, more broadly monitor Internet activity, and develop offensive cybersecurity capability,” said EPIC in its release of the document.

House Intelligence Bill Fumbled Transparency

Intelligence community whistleblowers would have been able to submit their complaints to the Privacy and Civil Liberties Oversight Board (PCLOB) under a proposed amendment to the intelligence authorization act that was offered last week by Rep. Tulsi Gabbard (D-HI).

This could have been an elegant solution to the whistleblowing conundrum posed by Edward Snowden. It made little sense for Snowden to bring his concerns about bulk collection of American phone records to the congressional intelligence committees, considering that they had already secretly embraced the practice.

The PCLOB, by contrast, has staked out a position as an independent critical voice on intelligence policy. (And it has an unblemished record for protecting classified information.) The Board’s January 2014 report argued cogently and at length that the Section 215 bulk collection program was likely unlawful as well as ineffective.

In short, the PCLOB seemed like a perfect fit for any potential whistleblower who might have concerns about the legality or propriety of current intelligence programs from a privacy or civil liberties perspective.

But when Rep. Gabbard offered her amendment to the intelligence authorization act last week, it was not voted down– it was blocked. The House Rules Committee declared that the amendment was “out of order” and could not be brought to a vote on the House floor.

Several other amendments on transparency issues met a similar fate. These included a measure proposed by Rep. Adam Schiff to require reporting on casualties resulting from targeted killing operations, a proposal to disclose intelligence spending at the individual agency level, and another to require disclosure of the number of U.S. persons whose communications had been collected under FISA, among others.

In dismay at this outcome, Rep. Rush Holt (D-NJ) and I lamented the “staggering failure of oversight” in a May 30 op-ed. See The House Committee on Intelligence Needs Oversight of Its Own, MSNBC.

The House did approve an amendment offered by Rep. John Carney (D-DE) to require the Director of National Intelligence “to issue a report to Congress on how to improve the declassification process across the intelligence community.” While the DNI’s views on the subject may indeed be of interest, the amendment failed to specify the problem it intended to address (erroneous classification standards? excessive backlogs? something else?), and so it is unclear exactly what is to be improved.

However, a more focused classification reform program may be in the works.

Rep. Bennie Thompson (D-MS), the ranking member of the House Homeland Security Committee, said that he would introduce “a comprehensive security clearance reform bill” that would also address the need to shrink the national security classification system.

The Thompson bill, which is to be introduced “in the coming weeks,” would “greatly expand the resources and responsibilities of the Public Interest Declassification Board,” Rep. Thompson said during the House floor debate on the intelligence bill on May 30.

“A well-resourced and robust Board is essential to increasing accountability of the intelligence community,” he said.