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F.A.S. Public Interest Report

Journal of the Federation of American Scientists (F.A.S.)

Volume 53, Number 1   January/February 2000

Openness and Secrecy at the Department of Energy
After the China Espionage Investigations

By Steven Aftergood

Contents

The impulse towards openness and declassification in nuclear weapons matters dates back to the early days of the nuclear age, and is almost as old as the more familiar impulse towards nuclear secrecy.

Henry De Wolf Smyth wrote, at the conclusion of his 1945 volume on Atomic Energy for Military Purposes, that "[in] a free country like ours, ... decisions must be made by the people through their representatives. This is one reason for the release of this report.... The people of the country must be informed if they are to discharge their responsibilities wisely."

The release of the Smyth report -- two days after the bombing of Nagasaki -- was all the more remarkable because it is not self-evident that all of its technical content was actually required to inform the public.

But controversy over increased "openness" also materialized early on, especially in connection with the creation of a civilian Atomic Energy Commission (which was advocated at the time by FAS), and it would soon be exacerbated by reports of atomic espionage.

As Jessica Wang observed in her recent book American Science in an Age of Anxiety (University of North Carolina Press, 1999), "Conservative members of Congress repeatedly linked American security to the protection of secrets..." while scientists argued that there was no fundamental secret to protect and that "attempts to maintain the atomic monopoly would fail."

This early oscillation between nuclear openness and conservative reaction, roiled by charges of espionage, would be recapitulated several times up to the present day, and most clearly over the past year.

The DOE Openness Initiative

The DOE Openness Initiative, introduced in December 1993 by then-Secretary Hazel O'Leary, was not simply a rejection of the usual bureaucratic impulse towards secrecy; rather, it arose from a reevaluation of the agency's own self-interest, which required an improved relationship with the public, which in turn was perceived to depend upon greater openness. According to DOE, "...the Openness Program was initiated with a simple objective in mind: to make the DOE open, responsive and of service to its customers, the citizens of the United States. No less than the future of the department was at stake, for unless the DOE could operate in an environment of trust and fruitful dialogue with its stakeholders, the essential missions of the Department were in jeopardy either of being terminated outright or of being diminished in effectiveness to the point of abandonment."

The Openness Initiative included a number of salient achievements and characteristics:

Fundamental Classification Policy Review. This was a systematic reconsideration of the validity of the classification categories used by the Department to control access to information. The fact that DOE undertook this effort is as significant as any of the results that emerged. One might suppose that such a periodic reconsideration would be an obvious component of any rational security program-- but no other government agency has undertaken a comparable review of its classification policies and practices.

Declassification. Information was declassified at an unprecedented rate -- though never as quickly as public consumers wanted or as officials seemed to promise -- in the course of the Openness Initiative. Whole new classes of information entered the public domain concerning the history of nuclear explosive testing, the production of nuclear materials, and many other topics.

Opennet. The creation of an online bibliographic database of declassified documents was another first for the DOE Openness Initiative, facilitating public access to hundreds of thousands of historically valuable documents.

The Role of Top-Level Leadership. Contrary to a common presumption of critics and supporters alike, the original impetus for classification reform at DOE preceded the Clinton Administration and the tenure of Secretary O'Leary. Nevertheless, it is doubtful that the Openness Initiative would have been carried out but for the leadership of O'Leary, who made it something of a personal crusade. At other agencies, and at DOE since O'Leary's departure, there has been no equivalent effort. An ongoing commitment from top-level leadership is evidently a prerequisite for this kind of bureaucratic reform.

The Openness Initiative was bolstered by new policies prohibiting classification of environmental, safety and health information; by the establishment of Site Specific Advisory Boards; by the promulgation of a new regulation governing classification; and more.

Though none of these measures constituted a complete solution to any important problem, collectively they manifested a seriousness of purpose, and a determination to fundamentally alter the character of DOE's relations with the American public.

Early Opposition to Openness (Dementia Pre-Cox)

Long before the Cox Committee report on Chinese espionage, opposition to openness and declassification at the Department of Energy became evident.

Within days of Secretary O'Leary's first Openness Initiative press conference on December 7, 1993, at least one conservative opponent likened the new initiative in all seriousness to the Japanese attack on Pearl Harbor. Washington Times columnist Frank Gaffney wrote that O'Leary "chose Pearl Harbor Day to launch what was, arguably, the most devastating single attack on the underpinnings of the U.S. national security structure since Japan's lightning strike on the 7th Fleet 52 years ago."

One might be tempted to dismiss such a remark as hopelessly ignorant or perhaps a poor joke, except that it accurately represents the views of significant portions of the Republican leadership. It is such views -- and not the public interest in efficient, accountable government -- that would come to dominate Congressional reaction to the DOE Openness Initiative, especially after Republicans took control of Congress following the 1994 elections.

Congress Resists Clinton Administration Declassification Policy

Even though nuclear weapons information was specifically exempted from President Clinton's 1995 executive order on classification and declassification policy, conservative criticism of that order would focus on the Department of Energy and its declassification of information concerning nuclear weapons.

Executive Order 12958 on "Classified National Security Information" made significant changes in policy that all tended to reverse prior presumptions in favor of open-ended secrecy, and to promote accelerated declassification. Most remarkably, section 3.4 of the order instructed that most historically valuable information more than 25 years old "shall be automatically declassified whether or not the records have been reviewed." This revolutionary provision was deemed necessary in order to break the longstanding declassification logjam, which had led to the buildup of over a billion pages of classified 25 year old documents, and to enable their cost-effective declassification and release.

The immediate impact of the automatic declassification requirement was cushioned by an allowance for several exempted categories of information -- including nuclear weapons information, which is governed by the Atomic Energy Act -- and by a five year implementation period that would allow for the most sensitive records to be identified and reviewed in the traditional fashion.

But Congress (at the instigation of certain DOE officials) refused to countenance automatic declassification. Although most DOE documents were already exempt from declassification under the executive order, the FY 1996 defense authorization bill included a provision urging abolition of automatic declassification and prohibiting declassification of any DOE documents without review: "The conferees are concerned that some classified documents may contain restricted data information without reflecting that fact on the classification records. Therefore, there is no practical means to ensure the protection of restricted data and apply an automatic declassification system."

This assessment was firmly disputed by the Information Security Oversight Office (ISOO), which oversees classification policy and implementation in the executive branch: "...Historical experience disproves the gravity of the threat.... Over a period of 25 years, the executive branch has declassified over 300 million pages of agencies' records in equivalent file series, most of which were declassified without page by page review. This bulk declassification has resulted in no evidence of harm to the national security generally, or proliferation of nuclear weapons information specifically...."

Opposition to automatic declassification -- on asserted nonproliferation grounds -- surfaced again in 1998. Senators Kyl, Shelby and Smith wrote to National Security Adviser Berger: "...It has been brought to our attention that, as a result of attempting to comply with E.O. 12958, some Restricted Data and/or Formerly Restricted Data [RD/FRD] has been improperly released and that much more is in danger of improper release in the near future."

The concern was reiterated by Kenneth Baker of the Department of Energy: "Highly sensitive RD/FRD has been found embedded in documents in file series subject to declassification and released to the public under Executive Order 12958. Obviously, the intent of the Executive order was not to compromise our most sensitive nuclear secrets. It is equally clear that this problem poses a great national security risk..."

From a different perspective, National Archivist John Carlin warned against overreaction:

"To require that every classified document in any file be reviewed visually for RD and FRD would be prohibitive in terms of resources. As we attempt to institute risk management principles into our security classification system, such a requirement would be more retrogressive than has ever been practiced since declassification efforts began in earnest in 1972...."

The outcome of this controversy was the passage of the so-called Kyl Amendment (section 3161 of the FY 1999 Defense Authorization Act) which required a plan for protecting against inadvertent disclosures of RD and FRD. The plan prohibited any declassification of classified records that had not been reviewed unless they had been inspected and certified to be "highly unlikely" to contain RD or FRD.

Reaction Intensifies: The Impact of the China Espionage Investigations

By the time that allegations of Chinese espionage came to public knowledge, the dominant political climate in Congress was already hostile to declassification. By the end of FY 1998, the major innovation of President Clinton's Executive Order 12958 -- automatic declassification -- had yielded an unprecedented, almost unimaginable 600 million pages of declassified documents. The declassification process had already been constrained by the 1998 Kyl Amendment, but Congressional reaction to the Chinese espionage scandal now threatened to slow declassification further, even to reverse it.

The most direct impact of the China espionage investigation is contained in a legislative amendment offered on May 26 by Senate Majority Leader Trent Lott.

Declaring that "the damage to U.S. national security as a result of China's nuclear espionage is probably the greatest I have seen in my entire career," Senator Lott claimed to discern a relation between this damage and Hazel O'Leary's Openness Initiative a few years before. As part of a package of amendments offered in response to the espionage scandal, Senator Lott introduced one amendment concerning declassification:

"The amendment proposes a mechanism for determining the extent to which then-Secretary of Energy Hazel O'Leary's 'Openness Initiative' resulted in the release of highly-classified nuclear secrets. We already know, for example, that some material has been publicly-released that contained highly-sensitive 'Restricted Data' or 'Formerly Restricted Data'."

"While we are rightly concerned about what nuclear weapons design or other sensitive information has been stolen through espionage, at the same time we must be vigilant in ensuring that Mrs. O'Leary's initiative was not used, and any future declassification measures will not be used, to provide nuclear know-how to would-be proliferators in Iran, North Korea, and elsewhere."

The amendment applied the review requirements of the 1998 Kyl Amendment retroactively to documents that had already been declassified under E.O. 12958. That is, it required development of a plan to re-review the hundreds of millions of pages of documents declassified between 1995-1998 to determine if they contained Restricted Data, unless they were certified as "highly unlikely" to contain such information. (Contrary to Senator Lott's remarks, the amendment has nothing to do with the declassification under the DOE Openness Initiative.) The amendment was included in the final version of the FY 2000 defense authorization bill and signed by President Clinton.

This provision will drastically slow the impressive momentum of the declassification program at DOE and elsewhere. Further, it will divert substantial resources from future declassification to the review of records that have already been declassified, negating at least in part the progress that had been made until now.

Declassification at DOE: "Worse Than The Rosenbergs"

Generally speaking, the controversy over openness poses an awkward challenge to conservative thought. One strand of conservatism, which is traditionally suspicious of concentrations of government power, tends to be hostile to government secrecy as an arrogation of authority. Another school of conservative thought seems to value an ever-expanding military and security infrastructure (and budget) over anything else, and accepts indiscriminate secrecy as an acceptable price to pay for this goal. Another, increasingly vocal element is committed above all to delegitimizing government. In opinion pieces in the Washington Times and on the floor of Congress, these "radicals" attack personalities as much as particular policies, and bend or invent facts to poison the political process.

An Aside
"For us lab employees, 1999 was a year in which our sane world metamorphosed into one that had been described by authors like Kafka and Orwell. They had written about worlds in which omnipotent bureaucracies reign ruthlessly, inventing reasons why every citizen's loyalty and credibility must be questioned and therefore monitored. Sound familiar?"

--from the Dec. 1999 Newsletter of the Society of Professional Scientists and Engineers, an association of employees of Lawrence Livermore National Laboratory

The unfolding of the Chinese espionage scandal provided a pretext for several members of Congress to suggest, as Senator Lott had already done, that there was a link between espionage and the Energy Department's declassification program -- and to tarnish the Openness Initiative by association.

The following floor statement by Rep. Dana Rohrabacher (R-CA)on June 8, 1999, is notable for its fervor and malicious fantasy:

"Hazel O'Leary, President Clinton's Secretary of Energy from 1993 to 1997, was the grand poobah of nuclear openness.... In fact, she massively declassified secrets and put them on the Energy Department's web site, including the diagrams of some advanced nuclear weapons.... See, the idea is if everybody had all this information, information about deadly weapons technology that we had spent hundreds of billions of dollars developing, that if everyone had it, well then, it might be a more peaceful world. This is worse than the Rosenbergs. This is looney tunes. This is someone who has a fanatical anti-American attitude in a position to hand over to our worst enemies secrets that put our young people and our country in jeopardy.... This was not a going-out-of-business sale on the part of the United States Government; this was a going -out- of- sanity sale on the part of the United States Government. Those who benefitted the most were the minions of the People's Republic of China, the Communist Chinese...."

Rep. Curt Weldon (R-PA) was even more committed to this form of attack. On at least four occasions, he took to the House floor to (falsely) attack Hazel O'Leary and the Clinton Administration for having leaked the design of the W-87 warhead to U. S. News & World Report:

"On July 31, 1995, this administration, not the Reagan administration, not the Bush administration, not the Carter administration, this administration leaked the design for our W-87 warhead to U. S. News & World Report. Not just the Chinese, the North Koreans, the Iraqis and Iranians, anyone who would buy U. S. News & World Report on July 31, 1995 got a documented diagram of the W-87, which up until that point in time was classified."

"Here is the color version of what the Department of Energy released to U. S. News & World Report. This design shows in some detail the way our most capable nuclear warhead works. It shows and explains the process, it shows and locates the technology, the fuel, the process, the activity, the physics of the way America's most capable warhead would work. This was not secretly stolen by the Chinese, that this administration maintains they found in 1995. This diagram was given to U. S. News & World Report by this administration in 1995, and reproduced in U. S. News & World Report." (6/8/99)

Every assertion in this harangue is wrong. The "design" of the W-87 warhead that appeared in U. S. News & World Report is not a design at all. It is an artist's conception based entirely on sources in the public domain. It was not a DOE document and could not have been given to the magazine by anyone in the Clinton Administration. Since it was never a government document, it was never classified. Nor did the underlying information originate with Hazel O'Leary or the Department of Energy. It was not "leaked" at all; rather, it came from the Natural Resources Defense Council (NRDC), which was explicitly credited by the U. S. News & World Report graphic artist. Christopher Paine of NRDC confirmed that in 1995 he had indeed provided the information on which the illustration was based in 1995, and in retrospect he voiced doubts about the accuracy of the U. S. News & World Report artist's rendering.

Although plainly false, the allegation was evidently too seductive for Rep. Weldon, an influential member of the Republican right wing, to let pass, and he erupted again and again:

"Mr. Speaker, I say to Bill Richardson, tell the truth.... Hazel O'Leary leaked the plans, which are in this magazine, for the W-87 nuclear warhead. Tell the truth, Bill Richardson." (6/8/99)

Disappointingly, no one in Congress would stand up to say that Weldon's charges were false. If Weldon and his colleagues intended to defame O'Leary and to place the DOE Openness Initiative in disrepute, they succeeded.

Inadvertent Releases of Classified Information

A new report to Congress from Energy Secretary Bill Richardson notes that inadvertent releases of classified nuclear weapons information -- known as Restricted Data (RD) or Formerly Restricted Data (FRD) -- have occurred in recent years. Significantly, however, these releases appear to have had no proliferation consequences whatsoever. In the following excerpt from the report, DOE assesses the implications of the inadvertent releases:

From a generic perspective, it is well known that potential strategic adversaries, emerging proliferant nations and terrorist groups aggressively target U.S. nuclear weapon information and that official documents and records are often regarded as having significantly more value than other sources of information about nuclear weapons related information.

Information regarding older nuclear weapons is of value since it is often technically less sophisticated. With sufficient information and materials, a proliferant could construct an old design more easily than current weaponry with a greater probability of undergoing successful detonation.

Proliferants and potential adversaries can benefit from credible authenticated information about nuclear weapons. This information can provide improvements in design confidence in untested designs, and corroboration of information obtained from intelligence sources and other inadvertently released classified information. Minor details and authoritative qualitative evaluations both contribute to technical base capability and understanding needed for successful development of nuclear weapons. Inadvertently released nuclear weapons design information (RD) can provide useful design parameters to emerging proliferant nations and to terrorist groups. Pieces of information can contribute to the effectiveness of mosaic and compilation techniques of intelligence sources.

Additionally, the nuclear weapons utilization information (FRD) could assist potential strategic adversaries in assessing the strengths and weaknesses of the U.S. nuclear arsenal. Revelations of deployment of nuclear weapons outside of the U.S. may violate international agreements and harm diplomatic ties with some nations, which could undermine our nuclear deterrent.

Even though the classified documents described in this report were declassified inadvertently, only in one case is there compelling evidence that classified information was compromised, i.e. obtained and used by a researcher. In this one case, the compromised information related to the deployment of nuclear weapons in a foreign country in the early 1950s (FRD) rather than the design or production of a nuclear weapon. [ PIR Sun tag ]

Where Are We Today?

In a significant symbolic action, then-Secretary Hazel O'Leary renamed the former Office of Classification as the Office of Declassification in 1993 in order to emphasize the new priority of openness and declassification. In an equally significant response to the Chinese espionage scandal, Secretary Bill Richardson announced that it would be redesignated the Office of Nuclear and National Security Information. The declassification program that DOE once boasted of has become almost unmentionable.

Declassification review -- which is required under the Atomic Energy Act -- still continues at the Department of Energy, but under a cloud and under some difficult constraints.

More fundamentally, the recent mania over security has itself damaged security insofar as it has curtailed international cooperative relationships on nuclear nonproliferation matters.

A productive and promising U.S.-China Arms Control Technical Exchange program was suspended early last year, in the wake of allegations publicized by a congressional select committee (the Cox Committee) that China was engaged in espionage. "The program's payoff to national security was just beginning," wrote Marco di Capua of Lawrence Livermore National Laboratory, "and its suspension... is a setback to U.S.-China progress on arms control." In a recent critique of the Cox report, Wolfgang Panofsky noted that the espionage controversy may also jeopardize the "lab to lab" program "under which scientists at American nuclear weapons laboratories collaborate with their counterparts in the countries of the former Soviet Union... in strengthening the safeguards against diversion of weapons-usable materials."

Meanwhile, in what might be considered a right-wing program for nuclear disarmament, new security measures are undermining the already tenuous efforts of the national laboratories to recruit and maintain scientific talent.

"The nuclear weapons workforce is aging and, indeed, is considerably older than the national average of scientific, engineering, and technical personnel engaged in other endeavors," according to the March 1999 Report of the "Chiles Commission" on Maintaining Nuclear Weapons Expertise, which also identified the cumbersome, time-consuming security clearance process as an obstacle to recruitment.

"The situation is particularly critical for the small group of nuclear weapons designers, 60% of whom are over 50 years old," one senior Los Alamos scientist told FAS on condition of anonymity. "It is hard to find first-rate scientists willing to become designers. These are the people directly responsible for ensuring the safety and reliability of the nuclear stockpile. They are also responsible for the safety of the disassembly and remanufacturing processes being introduced as the U.S. downsizes its nuclear arsenal."

"To join this elite group, a Ph.D. scientist must train for five years under an experienced designer. Weapons design is mostly an oral tradition. If the chain of transmission from mentor to student is broken, the knowledge is lost. The majority of designers will be retiring in the next ten years. We need new recruits now in order to preserve the knowledge that is in the heads of the people who designed the weapons in the nuclear stockpile."

"The new security regulations and other changes enabled by the espionage scare that are being implemented at the nuclear weapons labs are dramatically decreasing the number of new recruits. These changes could well have the unintended consequence of destroying the very knowledge they are meant to secure."

Conclusion

The momentum in favor of openness and declassification at the Department of Energy has by now largely dissipated. The champions of the DOE Openness Initiative and their considerable achievements have been mocked and slandered. The same congressional leaders who are eager to dismantle the arms control regime of the past several decades with no viable substitute warn ominously of the proliferation consequences of the inadvertent release of a stray document at the National Archives.

One unknown factor is the impact on openness and declassification of the new National Nuclear Security Administration, the entity established by Congress in the FY 2000 Defense Authorization Act to oversee the nuclear weapons production complex.

Anticipating a worst-case scenario, Rep. John Dingell warned that by creating the new semi-autonomous sub-agency, Congress was leading the country back into the darkest days of cold war secrecy and corruption: "This proposal ... recreates essentially the Atomic Energy Commission, one of the most secretive, one of the most sneaky, and one of the most dishonest agencies in government. They lied to everybody, including themselves, and the Congress of the United States ... the Executive Branch...."

"We spent years trying to open this process to see to it that the Congress and the Members of this body know what is going on so that we could protect our constituents against the rampages of that kind of agency in the future... If we do not learn from history, we are going to repeat it. In just a few years the secrecy they are going to engage in ... is going to lead to further abuses."[ PIR Sun tag ]

 


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