FAS | Secrecy | S&G Bulletin ||| Index | Search | Join FAS

Secrecy & Government Bulletin

Issue Number 80
August 1999

Twenty Years After: Echoes of The Progressive Case

Two decades after the landmark legal proceeding known as the Progressive case, some of the same issues of nuclear weapons secrecy that were raised then have resurfaced, confounding experts in nuclear weapons technology and providing a new pretext for political mudslinging.

In 1979, freelance journalist Howard Morland wrote an article for The Progressive magazine on "The H-bomb secret." Based on interviews and a review of the unclassified literature, Morland described in broad conceptual terms and with some errors how an H-bomb works. It drove the government crazy. Arguing that the article contained classified information, Justice Department lawyers pressed for and won an unprecedented preliminary injunction barring its publication. But following some unpredictable twists and turns, the government eventually dropped the prior restraint case against The Progressive and the Morland article was published in the magazine's November 1979 issue.

The case and its implications were explored in Born Secret by Alex DeVolpi, et al (Pergamon Press, 1981); and by Howard Morland in The Secret That Exploded (Random House, 1981). The Federation of American Scientists, incidentally, did not favor publication and attempted to broker a compromise that might have forestalled the prior restraint ruling, as described by FAS President Jeremy J. Stone in ‘Every Man Should Try' (Public Affairs, 1999).

Today, controversy over the publication of information about thermonuclear warhead design has again emerged and some of the disputes that first arose in the Progressive case are being reenacted, in a somewhat farcical way, in the most unlikely places.

The Cox Committee's "Outrageous Revelations"

This time, it is not a crusading journalist and a muckraking left-wing magazine who are being denounced for exposing U.S. nuclear secrets. Instead, the accused culprit is the House Select Committee on U.S. National Security and Military/Commercial Concerns with the People's Republic of China, better known as the Cox Committee.

The recent report of the Cox Committee on Chinese espionage included "highly classified information" whose disclosure constitutes "a gross security violation," according to Sam Cohen, a former nuclear weapons designer who invented the neutron bomb in 1958. Cohen authored a harshly critical review of the Cox Committee report that was published in the August 9 issue of the Washington Times' Insight magazine.

Among numerous other defects, Cohen writes, "the Cox report presents a beautiful multicolored diagram that details the workings and components of [the] highly classified [W87] warhead." The reference is to an illustration of the W87 thermonuclear warhead that appears in Volume I of the Cox Committee report at page 78.

"The [diagram] provides an extremely useful blueprint for use by Pakistan or India ... that they can use to advance their thermonuclear warhead programs," writes Cohen. "Why would the United States, a dedicated proponent of the Nuclear Non-Proliferation Treaty, want to enhance proliferation of thermonuclear warheads by publishing a detailed, classified design of one of its most advanced models in an unclassified congressional report?"

Upon inspection, however, the W87 illustration in the Cox report does not seem to qualify as either a "blueprint" or "a detailed, classified design." To the untutored eye, the drawing appears to contain little more than the information that was previously published by the Progressive in 1979, including at least one of Howard Morland's original errors.

"The [numerical] data are missing," Cohen admits, "but any competent nuclear scientist could use this schematic to work back to the actual design. Were I, who once had access to this classified design along with practically all other such warhead designs, publicly to reveal such details about the workings of the W87, I assuredly would be punished severely."

Former CIA scientist Allen Thomson gently disputed Cohen's interpretation. "I do understand, in some measure, the feeling of old-timers that the illustration represents a breach of secrecy, maybe even one of national security significance," Thomson told S&GB. "In earlier days, say the '50s and '60s, one could plausibly have made the case that the picture, simplified as it is, gives away important design concepts. But that was then, and things have changed considerably." Thomson observed further that "there are crucial design features that simply aren't shown" in the drawing.

In a telephone conversation July 23, Cohen reiterated his concerns about the Cox Committee's "outrageous revelations." He also noted amicably that "I was one of the original members of the Federation of American Scientists, though I'm generally in the opposite camp nowadays."

Cohen invited FAS to join forces with him to help expose the Cox Committee's malfeasance. But S&GB explained that Cohen's wrath was misdirected, at least in part, since the illustration in question had previously been published in the July 31, 1995 edition of U.S. News & World Report, a fact of which he said he was unaware. By republishing the W87 drawing from U.S. News, the Cox Committee had done nothing more than what Insight magazine did when it reprinted the drawing alongside Cohen's article.

Rep. Weldon Fans the Flames

Rep. Curt Weldon was also exercised by the same drawing of the W87 warhead. But he did not blame the Cox Committee, of which he was a member, for publishing it. Instead, he lashed out at the Clinton Administration which, he insisted, had leaked the W87 design to U.S. News.

Rep. Weldon told the House on June 7 that "in 1995, this [W87 illustration] was classified. This administration leaked this document to U.S. News & World Report, giving the entire populace of the world... access to the design of the W87 nuclear warhead."

Rep. Weldon even pinpointed the supposed source of the leak: "I have been told... that it was Hazel O'Leary herself who gave U.S. News & World Report the actual diagram of the W87 nuclear warhead in 1995."

For those who missed it the first time, Rep.Weldon came back to the House floor the next day to recapitulate: "This administration leaked the design for our W87 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 W87, which up until that point in time was classified.... The assumption was that this diagram came from Hazel O'Leary's office herself."

In yet another statement to the House, Rep. Weldon dispensed with any qualifiers and said it plainly: "Hazel O'Leary leaked the plans, which are in this magazine, for the W87 nuclear warhead."

That is not true.

"It's just ridiculous," said Christopher Paine of the Natural Resources Defense Council on July 28. "NRDC provided the information on the W87 to a U.S. News graphic artist," he said. Indeed, that organization is explicitly identified as the source in the credit line of the original U.S. News drawing and in the Cox Committee reprint.

Moreover, "It's just a conceptual drawing," Paine said, "and there's nothing new in it." He added that he now believes the specific W87 configuration portrayed in the U.S. News artist's rendering may be inaccurate.

Rep. Weldon's office did not return a phone call seeking explanation or comment. Given the degraded level of congressional discourse, there is little reason to expect an apology for the repeated, demonstrably false accusations against Secretary O'Leary.

What does it all mean? Twenty years after the Progressive case, nuclear secrecy is once again in a period of turbulent transition, such that even an honest and experienced scientist like Sam Cohen may be uncertain about what is in the public domain. Meanwhile, classification policy has become a battleground for the crudest of political vendettas, an unwelcome development that does not serve the interests of freedom or security.

Kerrey Favors Disclosure of Intelligence Agency Budgets

Sen. Robert Kerrey, Vice Chairman of the Senate Intelligence Committee, for the first time has expressed support for disclosure of the budgets of individual intelligence agencies. While many members of Congress have supported disclosure of a single aggregate figure for all agencies combined, only a few such as Sen. Arlen Specter have advocated more detailed disclosures.

"According to published accounts, we spend $28 billion a year," said Sen. Kerrey on July 19. "I wish I could provide that number as well as some additional details."

A Kerrey aide on the Intelligence Committee elaborated: "The Vice Chairman thinks that at a minimum, the individual agency budget figures should be disclosed," the aide told S&GB. "He believes that this information is necessary for public debate. And he doesn't think the debate would turn out badly [for the intelligence agencies]."

Although Sen. Kerrey did not make this point, declassification of at least the budget for the CIA is also required on constitutional grounds because the concealment of the CIA budget in the Pentagon budget leads to a false statement of Pentagon spending. If the Constitution's "statement and account" clause means anything at all, it means the government cannot legitimately publish a false account of its expenditures, as it currently does.

The new position represents a departure for Kerrey, who had stated in a press release following disclosure of the 1997 aggregate intelligence budget that the government should "hold the line against disclosing more than the aggregate figure in the future."

Sen. Kerrey argued on the Senate floor that continuing budget secrecy is harmful. "Keeping this secret from the American people has caused difficulty in retaining their consensus that we ought to be spending an amount of money they do not know in order to collect, analyze, produce, and disseminate intelligence. I think that is a problem for us."

A Federation of American Scientists FOIA lawsuit seeking disclosure of the 1999 intelligence budget total now awaits a decision in federal court. Notwithstanding prior budget disclosures in 1997 and 1998, DCI George Tenet has declared under penalty of perjury that disclosure of the 1999 total budget figure could reasonably be expected to cause damage to national security.

In a June 28 speech, DCI Tenet said "I believe that when you hear about our commitment to the safety of Americans everywhere ... you will conclude that as a taxpayer, the best dollar your government spends is spent on intelligence." But as long as the public does not know how much is spent on intelligence, no one could conclude any such thing.

FBI Oversight

The need for improved FBI oversight is slowly gaining new attention. "It's very important that there be an external oversight body that has full and unlimited jurisdiction" to investigate the FBI, said outgoing Justice Department Inspector General Michael Bromwich in a July 29 interview with the Associated Press. "Because of the FBI's enormous power and support, particularly in Congress, the issue of expanding oversight has never gotten any traction."

James X. Dempsey and David Cole examine the role of the FBI in Terrorism & The Constitution: Sacrificing Civil Liberties in the Name of National Security (First Amendment Foundation, 1999). "Our concern is not so much with illegal FBI conduct, but rather with how much the FBI can do legally to intrude on political freedoms," the authors write. The book offers a penetrating analysis that shows how far current law and policy have drifted from their constitutional moorings. As such, it will be of interest even to readers who do not share a civil libertarian outlook. It is available for $10 plus $1.50 postage from the First Amendment Foundation (1313 West 8th Street, Suite 313, Los Angeles, CA 90017) or from Amazon.com.

Presidential Directives Online

On July 1, the National Security Council made available a list of "1,624 NSC policy documents from the Kennedy through the Bush Administrations," identified by subject and date. A new compilation of the documents themselves is now available on the FAS web site.

These presidential directives and memoranda are, in effect, a body of "secret law" that define and govern U.S. policy in a wide range of national security policy areas. In most cases, they are issued on a classified basis and are frequently withheld even from Congress. Their policy significance can hardly be overstated.

While the large majority of directives from the Bush and Clinton Administrations are still classified, some are not, and many earlier directives have gradually been declassified though they are typically hard to find, and have not generally been available in cyberspace. Many still are not.

But a newly expanded collection of presidential directives and study memoranda, compiled by John Pike of FAS, is now available at www.fas.org/irp/offdocs/direct.htm. This is a work in progress, currently unfunded, that with luck and money will continue to grow.

Secrecy Reform on the Ropes

Last year, the Clinton Administration agreed to support the Government Secrecy Reform Act, a bill introduced by Senator Daniel P. Moynihan, if certain changes could be made in the bill. This year, grudging accommodation has changed to unyielding opposition. Defense Secretary Cohen, DCI Tenet, and others are now seeking to block any attempt to legislate secrecy reform.

The bill's requirement that classifiers should weigh the public interest in disclosure against the need for secrecy when making classification decisions drew particular scorn from security officials. Deputy Secretary of Defense John Hamre put it memorably: "The ‘public interest' in the content of the information should not be a consideration."

The Pentagon's analysis of the bill is posted at www.fas.org/sgp/news/1999/07/hamre.html.

Secrecy & Government Bulletin is written by Steven Aftergood and published by the Federation of American Scientists.

The FAS Project on Government Secrecy is supported by grants from the John S. and James L. Knight Foundation, the Rockefeller Family Fund, and the HKH Foundation.

FAS | Secrecy | S&G Bulletin ||| Index | Search | Join FAS