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The Washington Post
February 13, 2000

Sloppy Secrecy

Last year's National Defense Authorization Act contains a curious provision that allows the Energy Department to fine its contractors up to $100,000 for mishandling classified or "sensitive information." It may seem like common sense, in the wake of the Chinese espionage scandal, to hold contractors accountable for keeping secrets.

But there's a catch: According to a memo last month from DOE's general counsel, Mary Anne Sullivan, "sensitive information" doesn't exist under either the Atomic Energy Act or existing department regulations. The law, rather, appears to require the department to define a new category of non-classified information that is nonetheless "sensitive"--so that it can begin penalizing contractors for mishandling that information. It is precisely the kind of misplaced reaction to security failures that produces overclassification and secrecy run amok.

Senate staffers say the provision was merely intended to let the secretary of energy assess fines against contractors who mishandle various types of non-classified information whose disclosure other Energy Department rules already forbid. If that was the purpose, Congress should have been more explicit. Its lack of clarity has left contractors confused and has forced the Energy Department to hold up enforcement of the provision until it figures out what the term means.

The goal of secrecy policy should be to protect rigorously information whose disclosure would be truly damaging and to identify that information clearly. The result of this sloppy legislative process is a law whose meaning is unclear but that appears to protect information not in need of more protection. That doesn't protect secrets. It just breeds contempt for them.

Copyright 2000 The Washington Post Company

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