Improper Use of the Classification System to Suppress Public Debate on the Gulf War Performance of the Patriot Air-Defense System

Statement of Theodore A. Postol
Professor of Science, Technology, and National Security Policy
Massachusetts Institute of Technology

Committee on Government Operations
U.S. House of Representatives
March 18, 1992

Thank you very much for the opportunity to testify before this committee on this most disturbing question of the abuse of classification and security rules and procedures to suppress public debate on issues of importance to our national security.

Prior to taking an academic position at the Massachusetts Institute of Technology at the rank of full professor I was the Assistant for Weapons Technology in the Office of the Chief of Naval Operations. In that job, it was my duty to identify technical issues that have policy implications in both Navy and National nuclear weapons programs. Because I supported the Chief in his role as a member of the Joint Chiefs of Staff, I was directly involved in detailed analyses of Soviet Anti-Ballistic Missile systems, the Closely Spaced Based MX, the President's Strategic Defense Initiative, the TRIDENT weapon system, nuclear war planning, and the like. I have held clearances, that allowed me special access to intelligence information, to nuclear weapons design information, to NATO planning documents, and to every detail of the SIOP, America's plans for general and limited nuclear war. I have a full and deep appreciation and respect for the importance of secrecy in military planning, and I have no reservations about the Government's need to be able to classify information. However, I have serious reservations about the implications of abuse of the classification system, as such abuses pose one of the most serious and overiding threats to democracy and its institutions. Thus, I fully agree with the Supreme Court's judgement that information must be shown to have a grave, direct, and immediate harm to the national security if a free society is to tolerate its suppression. I further agree that the burden of proof for this test should be on the Government.

Last week I was contacted by the Defense Investigative Services and told that an article I had published more than two months ago contained classified information. The subject of that article was the performance of the Patriot air-defense system in the Gulf War. In my opinion, the article lays out an overwhelming case, based solely on the analysis of unclassified public data, that the technical performance of the Patriot in the Gulf War was very low, and in fact, the system almost certainly failed to intercept almost all warheads it attempted to engage. I have further argued that the public perception of Patriot success is purely based on misconceptions and misinterpretations of observations by the television and print press during the Gulf War. ABC News was so impressed with the evidence that it ran a nearly unprecedented four and a half minute story on this issue in their prime time national news broadcast. The MacNeil/Lehrer National News program also ran a major story on this subject, and this committee began an investigation of Patriot performance that was initiated in part due to the information brought to light by my analysis.

T. A. Postol -page 2- March 18, 1992

Today, as I sit before you, I cannot talk about my own article. In fact, it is my understanding, according to the claims of the Defense Investigative Services, that I cannot even sit before you and read from my article, without, according to them, violating the terms of my secrecy contract. Let me tell you the story of this outrageous and dangerous use of the security system to suppress free speech.

Last Friday, March 13, I was contacted by telephone by Mr. Bart Crawley of the Defense Investigative Services. He told me that the Defense Investigative Services (DIS) wanted to meet with me to discuss my recently published article Lessons of the Gulf War Experience with Patriot. He indicated that the DIS was told that the paper contained classified information. He would not tell me who or what organizations had made this claim. He also indicated that he wanted to have a classified meeting with me in order to discuss specific classified material in the article. I explained to him that my article was based on an analysis of unclassified public data and that I had intentionally not used my security access to obtain any data on Patriot performance so I would not be constrained by the knowledge that certain data might be classified. I had also intentionally avoided access so that I could speak freely in the public debate on this matter and that if he identified information that was regarded as classified by the Government I would then no longer be able to discuss this data in public, even though I had obtained this by totally legal means and independent of my security access. He agreed with me that this would be the situation but insisted that I was obligated to have a classified meeting with him to discuss the article. Throughout this conversation, I went to special efforts to be clear with Mr. Crawley that I was in no way trying to avoid my duty to cooperate with the DIS. I made it clear that I was anxious to cooperate in establishing that I in fact had not had access to the data in question, and if need be, I would cooperate in helping the DIS understand how I derived the information contained in my article. When I pointed out that the article contained more than 100 references which could be checked by the DIS, Mr. Crawley complained that this would be a lot of work for the DIS. Thus, if I understand the position of Mr. Crawley and the DIS, they believe that I am obligated to give up my first ammendment rights to save their organization the effort of analysing and understanding my article.

On Monday March 16, just two days ago, Mr. Crawley came to my office to have an unclassified discussion with me about my article. During that meeting we had a good discussion about issues that were clearly appropriate and relevant to a DIS investigation of possible misuses of security access. I pointed out that there were at least six individuals who had almost certainly had partial or complete access to classified information on Patriot performance who had seen drafts of the article months before its publication. I raised questions about why I was being approached about this article months after its publication when a more appropriate time to raise such questions would have been prior to its publication.

I also pointed out to Mr. Crawley that all of the people with classified access to Patriot data who saw these drafts know me. All of them know that I have active clearances. All of them saw multiple versions of the article while it was in preparation. Yet none of them had raised the possibility that the article might contain classified information.

T. A. Postol -page 3- March 18, 1992

Among these people with classified access to Patriot performance data was Professor Joseph Shea, a former Raytheon manager of the Patriot program and currently of M.I.T.'s Aeronautics and Astronautics Department; Dr. Robert Stein, Raytheon's current Director of Advanced Programs; Mr. William P. Delaney, an Assistant Director of the M.I.T. Lincoln Laboratory and the acting Chair of a recent Defense Science Board report that extensively examined Patriot; Mr. Charles A. Zraket, a former Chief Executive Officer of the MITRE Corporation who has made a public issue of his classified knowledge of the Patriot's performance in the Gulf War; and Professor Ashton B. Carter, a member of the Ballistic Missile Defense Panel of the Defense Science Board and Chair of the Editorial Board of International Security, the Harvard University based journal which published my article. I indicated to Mr. Crawley that all of these people had seen multiple drafts of my article months before its publication and none had even mentioned the possibility or expressed the slightest concern that it contained classified information.

At the end of the interview, Mr. Crawley informed me that because my article was classified, and because I would not agree to be told which publicly derived information in my articie was classified, I could not speak about any part of my article in public without being in violation of my secrecy agreement with the Government. I sought clarification of this point for several minutes with Mr. Crawley, as the position appeared so extreme as to not be believable. When I was satisfied that I had not misunderstood Mr. Crawley I made it clear to him that I did not accept his interpretation of my contract obligations and I wanted confirmation in writing of this position. I further indicated that I wanted this confirmation from the individual who had generated this interpretation and that I needed the confirmation immediately as I intended to fight the DIS interpretation in court if need be. Mr. Crawley indicated that the originator of this interpretation was Mr. Dale Hartig, in the Washington office of the DIS. I made a phone available to Mr. Crawley and asked that he call Mr. Hartig and indicate to him that I expected a letter by FAX formally notifying me of the DIS position. After completing his phone call Mr. Crawley indicated that I would be receiving that notification by FAX the next day, which was yesterday.

Let me turn to some of the questions raised by this extraordinary and outrageous conduct of the DIS.

It is now clear that Raytheon, the prime contractor for the Patriot system and the U.S. Army, the purchaser and operator of Patriot, are the sources of the complaints against me. It appears that the Army took my unclassified article, derived from open sources and technical analysis of those sources, and classified it paragraph by paragraph as it would an internally derived document. Furthermore, the Army and Raytheon are now using the DIS, which appears to be more than an unwitting partner, to suppress my speech on the subject of Patriot performance in the Gulf War.

Let me now make a few comments on some of the questions raised by the DIA order that I not speak about any information in my article.

I am a professor at M.I.T., which in my opinion is the greatest center of Science and Technology enterprise the world has yet seen. I teach technology and national security. My approach to this subject is highly technical, because I believe great truths can be derived by a deep and serious understanding of the technical issues, as well as the policy issues raised by the capabilities and limitations of technology. I believe that the work I have done on Patriot demonstrates that this view has some merit.

T. A. Postol -page 4- March 18,1992

The DIS claims that I am obligated to treat my article as a secret document, whether or not the information and analysis was generated by unlawful means. According to them, I will violate my contract with the Government if I stand in front of student or faculty colleagues and discuss Patriot performance in the Gulf War. This interpretation of security procedures and obligations raises some interesting questions.

For example, if I see a student or faculty colleague who does not have a security clearance with a copy of my article, am I obligated to report this to the DIS? If I cannot speak about the information and analysis in my article, am I allowed to read passages from it in my classes? If I am not allowed to read passages from it in my classes, am I allowed to hand the article out to my students in silence and indicate that they should read it? When another scholar or a reporter requests a copy of the article, can I legally send it to them? If I hand the article to a colleague who has clearances and ask them to take care of requests for the article, is that colleague now in violation of his or her contract with the Government? Where does this claim of authority by the DIS end?

I believe there is a straightforward way to deal with this problem. The only legitimate reason to classify information is because it is possible to protect certain categories of information the release of which could do harm to the national security of the United States and/or its friends and allies. Legitimately classifiable information could be technical details of weapons systems that would aid an enemy in planning countermeasures, diplomatic information that could damage our relations with other governments, war plans, and the like. Information that hides ineptness, waste, abuse, and unlawful conduct of Government officials and contractors, is clearly not a candidate for classification. Information that is deduced from applications of logic and/or technical arguments is not protectable, so it too is not a candidate for classification. If information is not protectable, the only result of classifying it would be the extremely dangerous suppression of discussion of the security issues associated with it. Thus there is a clear set of sensible rules and guidelines for examining whether a given piece of information is a candidate for classification.

However, it is also necessary to consider the practical dimensions of how to set up a system of checks and balances that properly weigh the publics right to know against legitimate needs for secrecy. I believe that the handling and timing of this matter strongly suggests the possibility of misconduct and abuse of the security system by the DIS, Raytheon, and the U.S. Army. An investigation into this matter could well reveal misconduct and abuse of the system at the highest levels of Raytheon's management. It could also reveal misconduct and collusion between managers of the Corporation, a Federally Funded Research and Development Corporation with responsibilities to monitor the Government's contracts with private companies and Raytheon, one of the private companies it is supposed to monitor. It is also possible that an investigation could expose misconduct and incompetence in the U.S. Army and the DIS.

In my opinion, the Congress should enact legislation that provides for stiff penalties against abusers of the system when they are caught. There are two important factors that should be considered in the drafting of such legislation. I believe that both such factors have conspired to create the situation I am now in.

T. A. Postol -page 5- March 18, 1992

First, it is my guess that the information in my article that the Government claims is classified does not meet the tests of being either protectable or critical for the use of an adversary to defeat the system. That is to say, the information was improperly classified.

Second, security procedures and the rules for enforcing protection of classified information have been stretched to include suppression of alternative thought, not to mention rights of speech guaranteed under the first amendment.

Two days ago, Mr. Dale Hartig's warnings caused me to cancel a scheduled radio interview with the American Association for the Advancement of Science. I think it would serve the country well if there were laws that subjected officials like Mr. Hartig to stiff penalties for his outrageous and malicious claims of authority over an independent scholar who had no access to the information in dispute.

The danger of not dealing with this extraordinary abuse of the security system should not be underestimated. Almost all the scholars I know who publish regularly on matters that are vital to our national security have clearances. These people not only contribute substantially to the public debate over matters of national security, but they represent a vital and important resource for the U.S. Government. If the DIS, Raytheon, and the Army are allowed to succeed in their efforts to suppress my lawfully derived analysis of Patriot's Gulf War Performance, the foundations of democracy in Arnerica will be faced with an extraordinary threat. That threat would be far more dangerous and pernicious than any conceived by the most vicious and malevolent enemies that democracy has yet to face. Thank you very much for your time.