Chapter 4
CLASSIFICATION UNDER THE
ATOMIC ENERGY ACT
INTRODUCTION
The Atomic Energy Act of 1946 was
the first and, other than its successor, the Atomic Energy Act of 1954, to date
the only U.S. statute to establish a program to restrict the dissemination of
information. This Act transferred control of all aspects of atomic (nuclear)
energy from the Army, which had managed the government’s World War II Manhattan
Project to produce atomic bombs, to a five-member civilian Atomic Energy
Commission (AEC). These new types of bombs, of awesome power, had been
developed under stringent secrecy and security conditions. Congress, in
enacting the 1946 Atomic Energy Act, continued the Manhattan Project’s
comprehensive, rigid controls on U.S. information about atomic bombs and other
aspects of atomic energy. That Atomic Energy Act designated the atomic energy
information to be protected as “Restricted Data” and defined that data. Two
types of atomic energy information were defined by the Atomic Energy Act of
1954, Restricted Data (RD) and a type that was subsequently termed Formerly
Restricted Data (FRD).
Before discussing further the
Atomic Energy Act of 1946 and its unique requirements for controlling atomic
energy information, some of the special information-control activities that
accompanied the research, development, and production efforts that led to the
first atomic bomb will be mentioned. Realization that an atomic bomb was
possible had a profound impact on the scientists who first became aware of that
possibility. The implications of such a weapon were so tremendous that the U.S.
scientists conducting the initial, basic research related to nuclear fission
voluntarily restricted the publication of their scientific work in this area.
Such restrictions on scientific publications were extraordinary, considering
the long tradition of academic scientists (the early “atomic energy”
researchers were mostly associated with universities) to disseminate research
results freely.
In addition to reviewing events
preceding establishment of the Manhattan Project, a brief look at this
project’s information-control activities is of interest because the totality of
this project’s information-control activities was unprecedented in the United
States. That rigorous information control encompassed not only military and
civilian government employees but also included, for the first time, many
employees of private corporations, colleges, and universities. The Manhattan
Project is also the most outstanding example, because of its size and the
far-reaching effect of its efforts, of the rapid application of basic
scientific research and technology to provide a weapon that influenced the
ending of a major war. One of the consequences of the depth and breadth of the
active participation of many top U.S. academic scientists in this very secret
wartime project was that the subsequent peacetime control of scientific and
technical information did not seem as unusual or unacceptable to those
scientists as similar measures would have been prior to World War II.
ATOMIC ENERGY
INFORMATION CONTROL BEFORE THE ATOMIC ENERGY ACT OF 1946
The possibility of generating large
amounts of energy by the neutron-induced fission of relatively small amounts of
uranium was first recognized in the December 1938–January 1939 time period.
Experiments at the Kaiser-Wilhelm Institute in Berlin in December 1938 by
chemists Otto Hahn and Fritz Strassmann proved that the nucleus of the uranium
atom was split by neutrons. Those results were soon confirmed at laboratories
in other countries, where the large amount of energy released during fission
was also measured. Additional experimental and theoretical studies, in February
and March 1939, indicated that two or three neutrons were produced during
uranium fission and that U-235 was probably the fissionable uranium isotope.[1] This
knowledge led many physicists to recognize the distinct possibility that an
extremely powerful bomb might be made with uranium enriched in the U-235
isotope and that such a bomb would have a revolutionary effect on warfare.
Some scientists working in the
United States, especially those who were emigrés or refugees from Germany,
Hungary, Italy, and other European countries, were very concerned that Nazi
Germany, where the basic discovery was made, would rapidly exploit this
possibility. Therefore, those scientists sought, by informal agreement
(primarily between U.S., English, and French physicists), to withhold
voluntarily from publication that scientific information (experimental results
and theoretical studies) related to the fission of uranium and production of
plutonium. Leo Szilard, then at Columbia University, was one of the first to
initiate such efforts,
beginning in February 1939. Because of communication difficulties, principally
with Frederic Joliot (Joliot-Curie), the leader of the French research in that
area, the initial attempts did not succeed. However, most of the U.S. and
English scientists working in this area were receptive to a proposal that they
submit their results for publication (to establish priority of discovery) but
request the journal to withhold publication until a later date. The editors of
the major scientific journals also agreed to that procedure. However, because of
the communication difficulties noted above and because there was not complete
agreement among U.S. scientists of a need to withhold such information, the
procedure was not implemented in 1939.
After unsuccessful initial attempts
to restrict the dissemination of nuclear-fission information, Szilard and other
U.S. scientists continued to press for voluntary controls on this information.
The subject was discussed with a U.S. Government committee (The Advisory
Committee on Uranium) that was formed in October 1939 to coordinate nuclear
fission work in the United States.[2] The
Advisory Committee on Uranium was not interested in establishing controls on
information. However, Admiral H. Bowen, present as an observer at an April 27,
1940, Committee meeting, suggested that the scientists themselves impose
whatever censorship they felt necessary; the government would do nothing.2
The scientists did, in fact, withhold several significant papers from
publication, Szilard perhaps being the first to do so, in February 1940.[3]
Probably the most important of those papers to be voluntarily withheld was a
report concerning the neutron-absorption cross-section of carbon. That report
indicated that carbon (e.g., graphite) would be an excellent moderator for a
nuclear reactor. The subsequent, very successful, U.S. nuclear-reactor effort
was therefore oriented toward using graphite as a moderator. German scientists
made similar measurements, obtained erroneous results, and concluded that
graphite was not a good moderator.[4] For
the remainder of World War II, the Germans ignored graphite as a moderator,
turning instead to heavy water (deuterium oxide). They were never able to
obtain sufficient quantities of heavy water to do key experiments. Had German
scientists learned of the U.S. results, their efforts to develop nuclear
weapons might have been significantly different from their actual program.
Another significant paper
voluntarily withheld from publication by U.S. scientists concerned the
preparation of a new, fissionable element (plutonium) by a new process,
bombarding U-238 with neutrons in a nuclear reactor. Information in this paper,
written by Princeton physicist L. A. Turner, might have led German scientists
to try to use plutonium in a nuclear weapon, a different and, perhaps in some
aspects, easier path for obtaining fissionable materials than using uranium
highly enriched in U-235.2,
The secrecy issue concerning
scientific papers on nuclear fission was finally resolved in early June 1940.
At the initiative of Gregory Breit, a
member of the National Academy of Sciences, the National Research Council
established a committee to control the publication of militarily significant
research.[5] Breit
was chairman of a subcommittee on uranium (Reference Committee[6]) and
he put into effect a procedure whereby papers concerning nuclear fission would
be reviewed by his committee before their publication.[7]
“Sensitive” papers would be distributed only to a limited number of
researchers. Those papers would ultimately be published with their original
date, to establish priority of discovery. Therefore, long before the United
States entered World War II, U.S. scientists were severely restricting the
dissemination of certain scientific information,
without governmental urging or participation.[8],[9],
In June 1940, the government’s
Advisory Committee on Uranium became a subcommittee of the National Defense
Research Council (NDRC), which was established, largely through the efforts of
Vannevar Bush, by the Council of National Defense with the approval of
President Roosevelt on June 27, 1940.[10]
President Roosevelt appointed Bush (president of the Carnegie Institution in
Washington, D.C.) as chairman of the eight-member NDRC. Other appointees were
R. C. Tolman (Vice-Chairman, professor of physical chemistry and
mathematical physics at the California Institute of Technology, although then
in Washington working for the Navy[11]), K.
T. Compton (president of the Massachusetts Institute of Technology), J. B.
Conant (president of Harvard University), C. P. Coe (Commissioner of Patents),
Adm. H. G. Bowen (Department of the Navy), F. B. Jewett (president of the
National Academy of Sciences and also president of Bell Telephone
Laboratories), and Gen. G. V. Strong (War Department).[12]
The NDRC’s purpose was to have civilian
scientific and technical experts become familiar with the military’s weapons
needs so that these civilian experts could inform the military on how the
latest advances in science could help the military.[13]
Although this arrangement had the approval of the top military leaders, many in
the lower echelons were skeptical of such a program. The NDRC leaders
recognized that they would have to gain the confidence of the military to
establish an effective working relationship. In this regard, the NDRC realized
that one of the first things they had to do was to convince the military that
this organization of civilian scientists could keep secrets. Therefore, each
committee member took an oath of allegiance to the United States and required
all staff members and appointees to do likewise.[14]
Chief investigators were required to sign secrecy pledges.[15] “The
Committee felt it desirable to place such stress upon secrecy because the
tradition of scientists in academic institutions is to give wide distribution
to the results of their research.”[16]
The NDRC also adopted the
“compartmentalization” principle: no person “would be given any classified
information except that needed for the performance of the particular tasks
which had been entrusted to him.”[17]
Although, in retrospect, the secretary of the NDRC stated that the rigid
compartmentalization practiced by the NDRC was not needed,,[18]
he also stated, “It is highly probable, however, that the existence of
compartmentalization made the armed services more willing to entrust their
classified information to the NDRC during the early period when the ability of
the organization to keep secrets had not yet been demonstrated.”[19]
Thus, it appears that rigid “compartmentalization” of scientific and technical
information on military projects, about which many scientists involved in the
Manhattan Project later complained, was not first instituted by the military,
as has been so often presumed, but was initially imposed by some of the
nation’s top scientific and technical administrators to convince the military
that scientists and engineers could be trusted to keep secrets.
Procedures for classifying
information and for handling classified information were adopted by the NDRC at
its second meeting, held in August 1940.[20] Army
and Navy procedures were adopted. In case of conflict, the more stringent rule
was to be used. Originators of information would provisionally classify it; the
NDRC secretary made the final classification decision.[21] The
NDRC also required security clearances from the Army and the Navy, depending
upon which service was sponsoring the research, for all key NDRC employees.[22]
On June 28, 1941, the NDRC and its
Committee on Uranium became part of the Office of Scientific Research and
Development (OSRD), which was
established by President Roosevelt’s Executive Order 8807.[23] The
name of the Committee on Uranium was changed to “Section on Uranium” to
correspond to OSRD terminology. Later, the name “uranium” was dropped (for
security reasons), and the organization was called Sect. S‑1.[24]
Classification and security arrangements remained about the same because the
OSRD patterned its classification and security systems after those implemented
earlier by the NDRC.[25],[26]
Security clearances were required of all OSRD employees before they could have
access to classified information.[27]
On October 9, 1941, Bush briefed
President Roosevelt and vice-President Henry A. Wallace on the uranium program.
President Roosevelt decided that the work should be expedited. He also created
a Top Policy Group to guide atomic energy matters. That group included
Secretary of War Stimson and Army Chief of Staff George C. Marshall, thereby
essentially deciding that the Army would manage administration and construction
when the effort became a “major” project.[28] This
responsibility was transferred to the Army on June 17, 1942.[29]
However, the Army had begun planning for assumption of this responsibility some
time earlier, perhaps in mid-to-late March 1942.[30]
The U.S. Army Corps of Engineers’
Manhattan Engineering District was subsequently formed to manage the atomic
bomb project (the Manhattan Project). The Army reorganized and expanded the
OSRD (NDRC) security system and brought it under the control of the Manhattan
Engineering District. “The system that finally evolved was in many respects
unique and introduced a number of innovations in technique and organization
that subsequently would be adopted as standard features of government security
programs.”[31] Secrecy
conditions within the Manhattan Project were said to be “quite exceptional as
compared with those in other scientific projects engaged in the work of the war
just ended.”[32] The degree
of control and secrecy imposed was “unprecedented in the annals of military
technological development.”[33]
Information concerning
the Manhattan Project was tightly controlled by the Army throughout that
project. In applying Army Regulation 380-5 (see Chapter 2), which dealt with
safeguarding military information, particular emphasis was placed on limiting
the amount of classified information available to individuals or groups.
General Groves insisted on strict compartmentalization of knowledge—the “need
to know” requirement. He
was said to have “a passion for ‘security’ exceptional even in a military
commander.”[34] The
Manhattan Engineering District established two basic rules on access to
classified information: (1) “a person must need the information to carry out
his job,” and (2) a person could “have access only to the amount of information
‘necessary for him to execute his function.’ ”[35],[36]
This stringent compartmental-ization policy was applied to all aspects of the
Manhattan Project and caused a significant delay in progress in at least one
instance.
Compartmentalization may also have
been used to keep the scientists’ attention focused on their particular task
and to keep them from becoming interested, at the expense of their primary
responsibilities, in other intriguing scientific questions not directly related
to their tasks. Because
of this compartmentalization policy, extensive protocols had to be established
to regulate information exchange between, for example, the Los Alamos
laboratory and the Metallurgical Laboratory in Chicago. Also because of
compartmentalization, a nuclear criticality incident allegedly almost occurred
at the Y-12 electromagnetic separation plant in Oak Ridge.
As a consequence of the previously
mentioned classification and security restrictions, the Manhattan Project was
one of the best-kept secrets of World War II.
Relatively few persons, even in the highest levels of government, knew its
purpose until the first atomic bomb was dropped on Hiroshima, Japan, on August
6, 1945.,
Administratively, classification
aspects of the Manhattan Project were initially the responsibility of the
District’s “Protective Security Section.”[37] By
February 1943 a “Protective Security Manual” had been prepared. In August 1943
the Plant Security Section for Safeguarding Military Information (SMI) was
established. An intelligence bulletin issued in November 1943 detailed how
military information was to be safeguarded. In May 1944, a separate SMI section
was established, and an expanded classification and security program was
implemented. This section was designated the SMI Branch in 1945.
In November 1945, the Manhattan
District issued a security manual that covered all aspects of classification
and security.[38]
“Classified information” was defined as information that had been officially
designated Top Secret, Secret, Confidential, or Restricted. Examples were given
of information that should be classified as Secret Matter, Confidential Matter,
or Restricted Matter. Examples of Top Secret information were given in another
document. Restricted Matter encompassed “relatively unimportant administrative
matters” and also “relatively unimportant technical and operating information,”
both of which “should not be disclosed to the general public except on a
controlled basis.”
ATOMIC ENERGY
INFORMATION CONTROL UNDER THE ATOMIC ENERGY ACT OF 1946
The devastating power of the atomic
bomb, its dramatic role in ending the war, and the secrecy surrounding its
development had a major impact on Congress and the American public.
Postwar discussions on the control of the U.S. atomic-energy program produced
consensus that some special statutory control over atomic energy was necessary.
Some persons wanted continued tight control on all information related to
nuclear weapons. Others were concerned that continued strict control of basic
research in this area would hinder progress in the development of atomic
energy, to the detriment of the nation.
The first draft of what was to become the Atomic Energy Act of 1946, introduced
by Senator McMahon on December 20, 1945, attempted to distinguish between
“basic scientific information” and “related technical information.” Information
concerning basic nuclear energy research would not be controlled, but the
dissemination of related technical information would be restricted. However, it
was found to be difficult to establish a dividing line between those two types
of information, and the
final version of the Atomic Energy Act of 1946 (also known as the McMahon Act),
which became law on August 1, 1946, stringently controlled all atomic-energy
information.
The legislative history of the
Atomic Energy Act of 1946 indicates that Congress was, at that time, much more
interested in tight control of atomic-energy information than in its
dissemination. Congress was influenced, during its deliberations on this Act,
by concerns that the Espionage Act of 1917 was inadequate to protect
atomic-energy information to the extent determined necessary by Congress. Those
worries were reinforced by the news, in early 1946, of Soviet espionage
activities in the United States and Canada that were directed toward atomic-energy
information. Congress ultimately decided that the subject of atomic energy
required unique controls because its component parts (atomic weapons, atomic
power, and atomic science) were largely inseparable. Consequently, Congress
adopted controls on this subject that went beyond those ever imposed by
Congress, before or after.[39]
In the final version of the Atomic
Energy Act of 1946, Congress established a special category of information
called “Restricted Data.” Restricted Data (RD) was defined to encompass “all
data concerning the manufacture or utilization of atomic weapons, the
production of fissionable material, or the use of fissionable material in the
production of power.” Thus, by operation of law, nearly all atomic (nuclear)
energy information fell within the definition of RD. The Atomic Energy Act
authorized the AEC to control the dissemination of RD, specifying as a
prerequisite to access to this information that an individual must have a
security clearance. The controls imposed by Congress on the dissemination of RD
were unusually rigorous, leading two authors to comment as follows on the
information-control provisions of the Atomic Energy Act:
The information section of the Act reveals the
atavistic depths that have been stirred by the release of atomic energy. The
response to this greatest of all triumphs of scientific method and creative
intelligence has been in some respects closely akin to the practice of magic
among the most primitive of tribes. Having in their possession a fearful image
of the god of war, which makes them stronger than all their enemies, the tribe
is obsessed with the fear that the image may be stolen or duplicated and their
exclusive claim to the deity’s favor lost. So a temple is built, ringed about
by walls, and guarded by untiring sentinels. Those whose function it is to
attend the deity are carefully chosen and subjected to purification rites; they
are forbidden ever to look upon the whole image or to speak of what they have
seen. They are guarded with unceasing vigilance, and at the slightest sign of
defection condign punishment is visited upon them.[40]
Two particularly unique and
significant aspects of RD warrant emphasis. First, a positive action is not
required to put information into the RD category. If information falls within
the Act’s definition of RD, it is in this category from the moment of its
origination; that is, it is “born classified.” The government has no power to
determine that information is RD,
only the power to declassify RD. (The Atomic Energy Act of 1954 gave the AEC
the power to remove RD to another classification category, to transclassify
RD.) The “born classified” concept is unique with RD.
This concept assumes that newly discovered atomic-energy information might be
so significant with respect to the nation’s security that it requires immediate
and absolute control.[41],
Information classified by executive order (currently termed classified national
security information) is not so designated until an original classifier makes a
positive determination that the information falls within the definition of
classified national security information.
Donald B. Woodbridge, former Department of Energy Contractor Classification
Officer, has characterized the term “born classified” as words that “give the
professional classificationist unanswerable authority.”[42]
Although RD is said to be born
classified, the Atomic Energy Act does not specifically designate it as
“classified” information. The Act defines RD and prescribes very strict methods
for its control without stating that it is “classified” information. However,
the Act does describe declassification of RD; therefore, by implication, RD is
“classified.”
A second unique aspect of RD is
that information does not have to be owned or controlled by the government to
be classified as RD.
Private individuals or organizations may originate RD, which then becomes
controlled by the Atomic Energy Act.[43] The
circumstance could even arise in which an individual could originate RD and
then not be allowed to possess it because of lack of security clearance or
“need to know.” The Atomic Energy Act does not forbid an individual to generate
RD, but, once RD is generated, the Act prohibits its communication to persons
not authorized to receive it. Recent (1998) DOE regulations state that “In order for information privately generated
by persons to be classified as RD, the Secretary or Deputy Secretary shall make
the determination personally and in writing. This authority shall not be delegated.”[44]
The first
classification of privately generated RD under this regulation occurred on June
26, 2001. The Secretary of Energy determined that certain privately generated
information concerning the Separation of Isotopes by Laser Excitation (SILEX)
process was RD.[45]
Controversies over the governmental
control of privately generated RD have arisen several times. In March 1950, the
AEC requested the magazine Scientific
American to delete certain portions of an article by H. A. Bethe concerning
the hydrogen bomb. The magazine complied with the AEC’s request by deleting
several sentences from the article, destroying the printing plates of the
deleted material, and destroying 3000 copies of the magazine that had already
been printed.[46] In the
mid-to-late l960s, four companies, initially granted access permits to carry
out private research on gas-centrifuge uranium enrichment, were requested by
the AEC to discontinue this research. The companies complied.[47] In
the late 1960s and early 1970s, questions arose about the control of RD
generated by a private company that was investigating controlled thermonuclear
reactions. Another instance occurred in 1979 when The Progressive magazine planned to publish an article on the
hydrogen bomb. The government obtained a preliminary injunction, at the Federal
District Court level, preventing publication of that article. This is the only
instance of governmental litigation dealing with the control of RD against a
noncomplying private party.[48] The
government discontinued the lawsuit, and the injunction was lifted when
essentially the same information was published elsewhere.[49]
The Atomic Energy Act of 1946 was
amended by Congress in 1951 to make certain atomic-energy information available
to other countries. The information that could be provided included “refining,
purification, and subsequent treatment of source material; reactor development;
production of fissionable materials;” and related research and development.[50]
Before providing other countries with such data, the President had to obtain a
written recommendation from the National Security Council and then determine,
in writing, that the information transfer would not endanger the common defense
and security of the United States.[51] The
Joint Committee on Atomic Energy had to be fully informed of these matters.[52]
ATOMIC-ENERGY
INFORMATION CONTROL UNDER THE ATOMIC ENERGY ACT OF 1954
The Atomic Energy Act of 1946 was
replaced on August 30, 1954, by the Atomic Energy Act of 1954.[53]
Major changes from the 1946 Act included an increased emphasis on wider
dissemination of atomic-energy information to make more of it accessible to
U.S. industry and to the world. Access to more atomic-energy information by
U.S. industry was necessary for the development of nuclear reactors for
commercial production of electric power. U.S. industry showed considerable
interest in the commercial possibilities of atomic energy, and Congress showed
significant support for industry’s participation in the development of atomic
energy. This information was provided to the rest of the world as a consequence
of President Eisenhower’s Atoms For Peace initiative, which was presented in a
speech to the United Nations on December 8, 1953, and the President’s desire to
provide certain RD concerning industrial applications of atomic energy to
“friendly” nations.[54],
With the passage of the Atomic
Energy Act of 1954, the United States had changed a basic assumption on
atomic-energy information control. Whereas in the 1946 Act the assumption was
that helping countries to build nuclear reactors helped them to build atomic
weapons
and that such help should not be provided except under very special
circumstances, the 1954 Act supported assistance to other nations to build
reactors and relied on the use of safeguards to prevent diversion for military
purposes.[55] Because of
the generally accepted fact that nations with nuclear reactors would gain the
capability to produce nuclear weapons,,[56]
a consequence of the 1954 Atomic Energy Act was an implicit acceptance of the
risk that nations that the United States provided with nuclear reactors would
use them to make nuclear weapons.
With respect to
atomic-energy-information classification,
the Atomic Energy Act of 1954 substantively differed little from the 1946 Act.
Atomic-energy information continued to be “born classified,” and it remained in
the total control of the AEC. Restricted Data was defined in the 1954 Act as
“all data concerning (1) design, manufacture, or utilization of atomic weapons;
(2) the production of special nuclear material; or (3) the use of special
nuclear material in the production of energy, but shall not include data
declassified or removed from the Restricted Data category pursuant to section
2162 of this title.”[57] This
definition of Restricted Data differed only slightly from that in the 1946
Atomic Energy Act, which stated that “the term ‘restricted data’ as used in
this section means all data concerning the manufacture or utilization of atomic
weapons, the production of fissionable material, or the use of fissionable
material in the production of power, but shall not include any data which the
Commission from time to time determines may be published without adversely
affecting the common defense and security.”[58] Note
that the 1954 Act included information on the design of atomic weapons as being RD. The 1946 Act mentioned only
information on the manufacture or utilization of atomic weapons as being RD.
Also, the term “fissionable material” in the 1946 Act was replaced with the
term “special nuclear material”
and its use in the production of “power” was replaced with production of
“energy.”
With respect to the control of
information, the 1954 Act stated:
It shall be the policy of the Commission to control
the dissemination and declassification of Restricted Data in such a manner as
to assure the common defense and security. Consistent with such policy the
Commission shall be guided by the following principles:
(a) Until effective and
enforceable international safeguards against the use of atomic energy for
destructive purposes have been established by an international arrangement, there shall be no
exchange of Restricted Data with other nations except as authorized by section
2164 of this title; and
(b) The dissemination of
scientific and technical information relating to atomic energy should be
permitted and encouraged so as to provide that free interchange of ideas and
criticism which is essential to scientific and industrial progress and public
understanding and to enlarge the fund of technical information.[59]
It
is interesting to compare Sect. (b) with the comparable section of the 1946
Act, which stated that
the dissemination of
scientific and technical information relating to atomic energy should be
permitted and encouraged so as to provide that free interchange of ideas and
criticisms which is essential to scientific progress.[60]
The
1954 Act added “industrial progress,” “public understanding,” and “enlarge the
fund of technical information” as reasons to disseminate atomic-energy
information. Those additions provided the basis for the subsequent
declassification or downgrading of much atomic-energy information.
With
respect to declassification of information, the 1954 Act stated:
The Commission shall from
time to time determine the data, within the definition of Restricted Data,
which can be published without undue risk to the common defense and security
and shall thereupon cause such data to be declassified and removed from the
category of Restricted Data.[61]
The
1946 Act had permitted declassification of RD only when the AEC determined that
it could be published without “adversely affecting the common defense and
security.”,[62]
The 1954 Act changed “adversely affecting” to “undue risk,” thereby shifting
the balancing test towards declassification of more information. The “without
adversely affecting” test was a severe one. The “undue risk” test allows more
judgment in a declassification decison
and was intended to allow declassification of more atomic-energy information.[63]
The
increased emphasis of the 1954 Act in disseminating atomic energy information
is further exemplified by a continuous review requirement:
The Commission shall
maintain a continuous review of Restricted Data and of any Classification
Guides issued for the guidance of those in the atomic energy programs with
respect to the areas of Restricted Data which have been declassified in order
to determine which information may be declassified and removed from the
category of Restricted Data without undue risk to the common defense and
security.[64]
The
1954 Act allowed the removal of certain weapons-related information from the RD
category and specified that this information could be placed in a new category
(subsequently designated as Formerly Restricted Data,
or FRD):
The Commission shall remove
from the Restricted Data category such data as the Commission and the
Department of Defense jointly determine relates primarily to the military
utilization of atomic weapons and which the Commission and the Department of
Defense jointly determine can be adequately safeguarded as defense information:
Provided, however, That no such data so removed from the Restricted Data
category shall be transmitted or otherwise made available to any nation or
regional defense organization, while such data remains defense information,
except pursuant to an agreement for co-operation entered into in accordance
with Section 2164(a) of this title.[65],
“Defense
information” was defined by the Act to mean “any information in any category
determined by any Government agency authorized to classify information respecting,
relating to, or affecting the national defense.”,[66]
This new FRD category of atomic energy information dealt mainly with military utilization of nuclear weapons, not
their design and development. FRD could be made accessible to military personnel
on the basis of their military security clearances; special security clearances
required for access to atomic energy information were not required.
The
1954 Act provided that RD placed in the FRD category may also be published
(presumably after being declassified):
In the case of Restricted
Data which the Commission and the Department of Defense jointly determine to
relate primarily to the military utilization of atomic weapons, the
determination that such data may be published without constituting an unreasonable
risk to the common defense and security shall be made by the Commission and the
Department of Defense jointly, and if the Commission and the Department of
Defense do not agree, the determination shall be made by the President.[67]
Note
that the test for declassification of FRD is “unreasonable risk” as contrasted
to “undue risk” for declassification of RD. The same “unreasonable risk” test
is used in the sections of the 1954 Act dealing with international cooperation.
Restricted Data may, if special conditions have been met, be shared with other
nations if such sharing “will not constitute an unreasonable risk to the common
defense and security.”[68] Yet
another test is described with regard to access to RD by employees of the AEC
(now the Department of Energy and the Nuclear Regulatory Commission) and its
contractors. For such access, a determination must be made that such access
“will not endanger the common defense and security.”[69]
Information
concerning atomic-energy programs of other countries is also encompassed by the
1954 Act:
The Commission shall remove
from the Restricted Data category such information concerning the atomic energy
programs of other nations as the Commission and the Director of the Central
Intelligence Agency jointly determine to be necessary to carry out the
provisions of Section 403(d) of Title 50 and can be adequately safeguarded as
defense information.[70]
Thus,
the Atomic Energy Act specifically implies that atomic-energy information
originating from foreign countries is RD
and that this RD may be placed in the “classified national security
information” category by joint DOE-Central Intelligence Agency (CIA)
determination.,
Prior
to the Atomic Energy Act of 1954, access to RD by private persons for
commercial purposes (e.g., development of commercial nuclear power reactors)
was very limited. Generally, the only reason for allowing private persons to
have access to such data was on a need-to-know basis, in connection with
national-defense work. However, in 1951 the AEC initiated a program of “study
group agreements” allowing private industry to participate on the study
teams; eighteen such study teams had
been established by December 1954.[71]
Although the 1954 Act envisioned the commercial development of nuclear energy,
the Act contained no express provisions permitting access to RD for commercial
purposes. This hurdle was overcome when the AEC used its administrative powers
to establish, on April 20, 1955, an Access Permit Program.[72],[73]
Under this program, a permittee is able to have access to RD “applicable to
civil uses of atomic energy for use in his business, trade or profession.”[74] A
description of the Access Permit Program shortly after it was established is
contained in an article by H. P. Green.[75]
The
1954 Act also encouraged wider dissemination of classified atomic-energy
information to commercial enterprises by establishing different kinds of
personnel clearances that depended upon the classification of the information
that an individual could receive. Full clearances (access to any classified
data) continued to require “Q” clearances, but under the 1954 Act the
Commission established “L” (limited” access) clearances whose holder could have
access to Confidential atomic-energy information (also termed, at that time,
“gray areas” of information).[76]
The
cumulative effect of the above-mentioned changes in the Atomic Energy Act were
substantial, although the statutory expression of policy changes were mostly
implicit, rather than explicit, in the 1954 Act.[77] The
Atomic Energy Act of 1954 neither significantly changed the definition of RD
nor relinquished the AEC’s statutory control of RD. However, the Act loosened
restrictions on providing RD or FRD to others and on its declassification,
thereby ultimately releasing much atomic-energy information to the public.
The
Energy Reorganization Act of 1974[78]
divided the AEC into the Energy Research and Development Administration (ERDA)
and the Nuclear Regulatory Commission. ERDA became operational on January 19,
1975.[79] One
major purpose of the split was to separate the regulation of commercial uses of
atomic energy from the government’s programs that promoted such uses. ERDA was
assigned authority for the control and declassification of atomic-energy
information. ERDA was abolished by the Department of Energy Organization Act of
August 4, 1977,[80] and its
activities were assigned to the Department of Energy (DOE). Statutory authority
to declassify RD and FRD was assigned to the Secretary of Energy. That
authority was subsequently delegated to the Director of Security Affairs.
DEPARTMENT OF ENERGY
CLASSIFICATION REGULATIONS - 10 CFR 1045
In 1998,
DOE published regulations concerning its policies and procedures on the
identification of classified information and its declassification.[81]
Those regulations encompassed RD and FRD as well as information classified
under Executive Order 12958. This was the first time that regulations on
classification and declassification of RD and FRD were codified by DOE or its
predecessors.
Section
1045.15 of the regulations establishes presumptions about classification and
declassification. Information in 14 identified areas is to be presumed
unclassified unless application of specified criteria indicate otherwise.
Information in 6 identified areas is presumed to be classified unless
application of specific criteria indicate otherwise.
Criteria for evaluating information
with respect to RD and FRD matters are in Sect. 1045.16. Section 1048.16(d)
lists six criteria to be considered when determining whether to “classify” information as RD or FRD or
whether to declassify RD or FRD. One
“directive” in Section 1045.16 is particularly noteworthy:[82]
The DOE Director of Declassification shall not
classify information and the DOE Director of Security Affairs shall declassify
information if there is significant doubt about the need to classify the
information.
This “directive”
implies that an individual has authority to
“classify” information as RD or FRD. However, such classification is by
the Atomic Energy Act (RD and FRD are
“born classified”). In practice, when newly identified atomic-energy
information is
evaluated to determine whether it fits within the definition of RD or FRD, then
it is also evaluated (if it fits within that definition) to determine whether it
should be classified (i.e., to determine whether it can be immediately “declassified”). The Director of
Declassification determines whether newly identified atomic-energy information
is RD or FRD. The Director of Security Affairs is the only authority who can
make the declassification decision. Therefore, in order to comply with the
Atomic Energy Act, the above-quoted section should read “The DOE Director of
Declassification shall not determine that
information falls within the definition of RD and the DOE Director of
Security Affairs shall declassify information if there is significant doubt
about the need to classify the information.” However, there is “significant
doubt” that the Atomic Energy Act allows the Director of Declassification such
discretion or whether the Director of Security Affairs can use such a standard
to declassify RD.
Another section of this regulation
that is of interest is Sect. 1045.18. That section states that the Director of
Declassification may evaluate newly generated information in a previously
declassified subject area and classify it as RD if warranted and if the
information has not been widely disseminated in the public domain. Previous
interpretations of the Atomic Energy Act were that once RD was declassified, it
could not be reclassified.
UNCLASSIFIED
INFORMATION CONTROLLED BY THE ATOMIC ENERGY ACT
Because
this chapter concerns classification under the Atomic Energy Act, a section
entitled “Unclassified Information
Controlled by the Atomic Energy Act” may seem out of place. However, two
sections of the Atomic Energy Act of 1954, as amended, specifically permit the
control of unclassified information related to atomic-energy matters. The first
such section, Sect. 147, “Safeguards Information,” was added in 1980 at the
request of the Nuclear Regulatory Commission (NRC). The second such section,
Sect. 148, was added in 1981 at the request of DOE. Those two types of
controlled atomic-energy information will be discussed in the following
subsections.
Safeguards Information
In the late 1970s, the NRC
concluded that, in the interest of public health and safety, it was desirable
to protect certain unclassified information on safeguarding special nuclear
material.
The information was licensee information about protection, against sabotage or
other terrorist acts, of nuclear facilities (e.g., commercial nuclear power
reactors), of the shipment and storage of reactor fuels (new and highly
radioactive spent fuel), and of other licensee activities. Although the NRC had
authority under then-applicable Executive Order 12065[83] to
classify United States Government programs for safeguarding nuclear materials
or facilities, the information of concern to the NRC did not concern a
government progam. Therefore, the NRC sought specific statutory authority to
protect this type of unclassified
information. Congress granted this authority in 1980 by adding Sect. 147[84] to
the Atomic Energy Act.
Section 147 of the Atomic Energy
Act gave the NRC authority, for materials and facilities under NRC cognizance
(i.e., commercial nuclear production or utilization facilities), to control
certain information (i.e., “Safeguards Information”) concerning (1) safeguards
or security measures for the physical protection of special nuclear material at
fixed sites or in transit; (2) security measures for the physical protection of
source material or by-product material at fixed sites or in transit; and (3)
security measures for the physical protection of and location of certain plant
equipment vital to the safety of production or utilization facilities involving
special nuclear material, source material, or by-product material.
Safeguards Information (not usually
owned by the government) was defined by the NRC as:[85]
[I]nformation not otherwise classified as National Security
Information [currently, “classified national security information”] or
Restricted Data which specifically identifies a licensee’s or applicant’s
detailed (1) security measures for the physical protection of special nuclear
material, or (2) security measures for the physical protection and location of
certain plant equipment vital to the safety of production or utilization
facilities.
Section 147 of the Atomic Energy
Act prohibits the unauthorized disclosure of certain Safeguards Information “if
the unauthorized disclosure of such information could reasonably be expected to
have a significant adverse effect on the health and safety of the public or the
common defense and security by significantly increasing the likelihood of
theft, diversion, or sabotage of such material or such facility.”[86]
Concerning the adverse-effect test,
it is interesting that the initial version of Sect. 147 had a broader standard
under which the NRC could withhold information. That standard was that the
unauthorized disclosure “could have a significant adverse effect.”[87] The
Senate-House Conference Committee was concerned that this “could have” standard
would allow the NRC “to withhold information without demonstrating even the
slightest probability that disclosure of the information would have a
significant adverse effect.”[88] An
“is likely to” standard was considered as an alternative but was rejected
because that standard would require the NRC “to find that there would be a
better than 50-50 chance that a significant adverse effect would result from
the disclosure.”[89] Congress
adopted as the standard “could reasonably be expected to have” because that
standard had been applied by judicial interpretation to another statutory
exemption from the Freedom of Information Act (FOIA) [Phillippi v. CIA, 546
F.2d 1009 (D.C. Cir 1976)] and because it was the standard used in Executive
Order 12065 (a predecessor of Executive Order 12958) to protect classified
national security information from disclosure.[90] The
“could reasonably be expected to have” standard requires showing some
probability that unauthorized disclosure would have a significant adverse
effect but does not require a showing that there would be a greater than 50-50
chance of such an adverse effect.[91]
Section 147 is codified in the U.S.
Code at 42 U.S.C. Sect. 2167. The NRC’s requirements for the protection of
certain Safeguards Information are given in 10 CFR Part 73, §73.21. The initial
version of §73.21 required all Safeguards Information to be protected against
unauthorized disclosure.[92]
Subsequently, the scope of the regulations was reduced so that the regulations
are imposed only upon licensees who handle “a formula quantity of strategic
special nuclear material,”
more than 100 grams of irradiated reactor fuel, or operate a nuclear reactor,
and upon others who possess Safeguards Information.[93]
Unclassified
Controlled Nuclear Information
Seventeen months after granting the
NRC authority to control certain unclassified information as Safeguards
Information, Congress added Sect. 148 to the Atomic Energy Act, thus granting
to DOE information-control authority comparable to that granted to the NRC by
Sect. 147 (i.e., authority to control certain unclassified information
concerning security measures for the physical protection of production and
utilization facilities, nuclear material in those facilities, and nuclear
material in transit). However,
additional information-control authority was granted to DOE in Sect. 148 so
that it was much broader in scope than Sect. 147. Section 148 allowed DOE to
control certain technical information in addition to safeguards and security
information [i.e., authority to control (1) certain production and utilization
facility design information; and (2) certain information concerning the design,
manufacture, or utilization of any atomic weapon or component if that
information was once Restricted Data (RD) but which had been declassified or
removed from the RD category]. Atomic-energy information controlled under Sect.
148 is termed Unclassified Controlled Nuclear Information (UCNI).
The Atomic Energy Act Sect. 148
authority to control declassified RD represented a significant departure from
past practices with respect to the control of atomic-energy information. Prior
to the addition of Sect. 148, declassified RD could not be controlled by the
government.
This is in contrast to declassified information that was
originally classified under an Executive Order (formerly designated as National
Security Information, or NSI, now called “classified national security
information”), which can be reclassified under certain circumstances.
More recently (i.e., effective June 29, 1998), DOE regulation 10 CFR Part 1045,
Nuclear Classification and
Declassification, permits reclassification of newly generated information in a previously declassified subject
area (but not if that information has been widely disseminated in the public
domain).[94]
In the early 1980s, some
governmental control over declassified RD seemed appropriate because of the
realization that some RD that had been declassified during the extensive
declassifications of RD in the years 1955 through 1978, in retrospect should
not have been declassified. Principal incentives for declassification during
that period included the desire to “commercialize” nuclear energy for the
production of electricity and other purposes and to exert some influence over
the development of nuclear energy in other nations.
However, in some instances, declassification proceeded further than
subsequently proved desirable. Some declassified RD provided
greater-than-expected assistance towards proliferation of nuclear-weapons
capabilities in other countries. India’s “peaceful” nuclear explosion in 1974
was one factor that contributed to the increased proliferation concerns. The
inability to reclassify declassified RD of nuclear-weapon-proliferation
significance was probably the reason Congress gave DOE the Sect. 148 authority
to control certain declassified RD.
The Sect. 148 authority for DOE to
control certain unclassified atomic-energy information was somewhat reduced in
scope by a 1983 amendment[95] to
Sect. 148 that limited the application of Sect. 148 to information concerning
“atomic energy defense programs.”
Section 148(a)(1) of the Atomic
Energy Act gives DOE the authority, with respect to atomic-energy defense
programs, to prohibit the unauthorized dissemination of unclassified
information pertaining to:
(A) the design of production facilities or
utilization facilities;
(B) security measures (including security plans,
procedures, and equipment) for the physical protection of (i) production or
utilization facilities, (ii) nuclear material contained in such facilities, or
(iii) nuclear material in transit; or
Security Classification of Information: Table of Contents