UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIADANNY B. STILLMAN * * Plaintiff, * * v. * Civil Action No. 01-01342 (EGS) * DEPARTMENT OF ENERGY et al. * Washington, D.C. 20585 * * Defendants. * *********************************
The undersigned hereby declares as follows: DECLARATION OF DANNY B. STILLMAN
1. I am a person over eighteen (18) years of age and competent to testify. I am the plaintiff in this action and I am providing this declaration in support of my Motion for Partial Summary Judgment.
2. I served as an employee of the University of California's Los Alamos National Laboratory ("LANL") from 1965-1993. I was the leader of LANL's intelligence division from July 1978 to January 1992. I retired from LANL in November 1993. During my employment at LANL, I often personally briefed high-level government officials including, but not limited to, three Directors of Central Intelligence (William J. Casey, William Webster and Robert Gates), William Sessions, Director of the Federal Bureau of Investigation, Henry Kissinger, former Secretary of State, Zbigniew Brzezinski, President Carter's National Security Adviser, Caspar Weinberger, President Reagan's Secretary of Defense, then Congressman Dick Cheney, and several Chairmen of the Joint Chiefs of Staff, Directors of both the National Security Agency and the Defense Intelligence Agency ("DIA").
3. In December 1991, I received the Director's Public Service Award from the Director of the DIA, and in June 1992, I was awarded the Intelligence Community Seal Medallion - the highest non-employee award - from the Director of Central Intelligence.
4. As a condition of my employment with LANL, I executed various standard secrecy agreements. See Exhibit "3". These agreements obligated me to prevent the release of any classified information I obtained through the course of my employment unless I received official authorization. Because I also had access to Sensitive Compartmented Information (SCI), I am required to submit anything I write (even unclassified data) for prepublication review. I have never shirked this responsibility.
5. Between Spring 1990 and Summer 1999, I made nine trips to China where I visited nearly all of China's nuclear weapons facilities including their nuclear weapons test site and participated in extensive discussions with Chinese scientists, government officials, and nuclear weapon designers. During my time in China, I maintained a personal journal in which I documented my experiences; basically what I saw and heard, and who I met.
6. My first three trips to China occurred while I was still working for the University of California at LANL. However, the trips were not undertaken at the behest of the United States government, nor were they requirements of my LANL employment. In fact, the Chinese government was financially responsible for all expenses I incurred within China.
7. The fourth, fifth and sixth trips occurred after I retired from LANL in 1993. I was traveling as a private American citizen. As it so happened, an agency of the United States government voluntarily reimbursed me for the costs of my airfare to/from China. On each occasion, payment was made to me only after I had returned. I never had a contractual agreement or obligation with the United States government with respect to these trips. Indeed, I never honestly knew whether in fact I would receive reimbursement after each trip until I actually did receive the funds in question. Moreover, the fact that I received reimbursement had no impact whatsoever on my decision to return to China for the subsequent trip. The airfare reimbursement was an unexpected gift from the United States government apparently for their appreciation for being able to debrief me. As with my first three trips, the Chinese government again assumed financial responsibility for all expenses incurred within China.
8. My final three trips had absolutely no United States government involvement. These trips were arranged through Stanford University and they covered all expenses associated with the trip.
9. After each trip to China, I did voluntarily meet with a representative of a United States government agency to inform this individual on what I had seen and heard in China. This is a common intelligence tactic of the United States government that is widely reported in the public domain. Scientists, in particular, like myself, are often used. I was not operating as an intelligence officer or agent of the United States government. I was merely a loyal American citizen who served as a voluntary source of information. I was never compensated for my activities, nor was I ever given any assignments or requests on what to see or do. In order to save time and so that I did not have to sit for hours with the agency official, I would simply give this person a copy of my typed trip summary that I had rewritten from my journal notes. If the person had follow-up questions, he knew how to reach me.
10. Based entirely on my own personal experiences in China, I wrote a manuscript - tentatively entitled Inside China's Nuclear Weapons Program - that is approximately 506 pages in length. The manuscript details my nine visits to China. Quite frankly, I went to places where few people, even those within the Chinese political and scientific community, have ever gone. In fact, more Americans have walked on the moon than been to the nuclear facilities and test sites I have visited in China. In my opinion, nothing in my manuscript was or is classified. During my 13-1/2 years as the leader of LANL's Intelligence Division, I was one of only three people at LANL authorized as an original classifier. The two other people were the LANL Director and the head of the LANL classification Office. Essentially, the United States government trained me to be the person to know what is and what is not classified. I wrote my manuscript from the vantage point of specifically excluding any classified information which is why I did not include any analysis or comparison between the nuclear weapons programs of China and the United States. More to the point, none of the information I obtained on my fourth through ninth trips to China was through the course of or as a result of my employment with LANL. My security clearance and the obligations that result therefrom - which I take very seriously - was not at issue. These were private trips.
11. Notwithstanding the fact that I do not believe the manuscript contains classified information, I was fully aware of my obligation - which I willingly honored - to submit my manuscript for prepublication review. Although the same secrecy agreement that requires me to submit my manuscript to the government obligates the government to complete its review within thirty days, I expected there would be some delay, particularly because of the length. However, I never envisioned that the process would take 19 months before I would be able to even show someone partial pages from my manuscript, and in order even to accomplish that, I would be required to retain the services of an attorney.
12. On January 5, 2000, I submitted a copy of my manuscript to the DIA. See Exhibit "4". The Department of Energy (DOE) was provided a copy one week later. See Exhibit "5". On April 11, 2000, I met with Jeff Zarkin, Document Declassification Division, Office of Nuclear and National Security Information, DOE. Zarkin presented the DOE's classification concerns and asked that eleven items be either deleted or reworded. I had absolutely no problems with any of these recommendations and willingly incorporated them into the manuscript. I resubmitted the manuscript to DOE with all of the changes incorporated on June 26, 2000.
13. Although DOE had at least provided some substantive recommendations within three months of my submitting the manuscript, DIA was silent. I finally wrote a letter dated June 7, 2000, to the DIA's Office of Public Affairs inquiring as to how I could appeal the long delay in reviewing my manuscript. See Exhibit "7". Apparently coincidentally, by letter dated June 2, 2000 (though I did not receive it until June 15, 2000), Charles W. Hoing, Public Affairs Office, DIA, wrote me and indicated that the manuscript review was still ongoing. He also informed me that several other agencies were now involved in the review process and that the Office of the Secretary of Defense had identified a number of concerns "resulting in a complete objection to publication of the manuscript." DIA promised to conduct a line-by-line assessment in order to permit publication of as much information as possible but concern was expressed that "some information in your manuscript if disclosed would cause damage to U.S. intelligence operations and U.S. national security." Finally, Hoing noted that he was "unable to offer a specific anticipated date for completion of the review, but significant progress is being made." See Exhibit "8". I am still at a loss as to exactly what concerns the government was talking about.
14. Subsequently, I received a letter dated June 16, 2000, from Betsy K. Scrivner, Chief, Public Affairs, DIA, who was responding to my earlier letter. She assured me that my manuscript has "NOT been denied for publication" and that it was "premature to bring an appeal right now." See Exhibit "9". By this time I was so frustrated that I had contacted Senator Pete Domenici's office and enlisted his help. His office had made some calls and by letter dated June 25, 2000, I notified Scrivner that I had been informed that the DIA's review will be completed no later than the end of July 2000. See Exhibit "10".
15. Two months later, by e-mail dated August 2, 2000, Hoing contacted me to say that DIA had completed its review but was required to await the results of a review by the Department of Defense Directorate for Freedom of Information and Security Review ("DFOISR"). See Exhibit "11". This message was followed by a letter dated August 31, 2000, from Laurie S. Kelly, Chief Public Affairs, DIA, in which she notified me that:
[d]ue to the manuscript's content and the significant extent of Department of Defense (DoD) equities beyond the purview of DIA, DFOISR determined it necessary to take responsibility for the review of the manuscript. The review process is not being delayed, but DFOISR has assumed responsibility for the overall DoD review and final determination of the DoD position regarding publication of your manuscript.
Now I was being told that processing was expected to be completed by September 15, 2000. See Exhibit "12".16. Time continued to pass by without word from the government. Finally, nearly two months later, I was provided a Memorandum dated October 23, 2000, from Roger K. Heusser, Acting Director, Office of Nuclear and National Security Information, DOE. The DOE was responding on behalf of itself and the DoD. See Exhibit "14". Heusser provided me with a DoD Memorandum dated September 12, 2000, which noted that DoD objected to the "public release of any part of the manuscript". See Exhibit "13". Because of the DoD position, the DOE decided not to review the manuscript's revised pages since it apparently deferred to DoD. I was stunned. I still do not understand what the concerns were about the contents of my manuscript. I was never provided with any specific reasoning, nor was I informed on how to appeal these decisions. Even worse, it appeared both DOE and DoD mistakenly believed that I was a DOE employee and that all of my trips to China were paid for by the United States government. Neither, of course, was true. Id. I also found out for the first time that the Central Intelligence Agency ("CIA") was part of the problem and had asked that the manuscript not be published. The DoD Memorandum indicated that the CIA had listed its concerns, but this CIA document is classified and neither I nor my attorney have ever seen it. Id.
17. After receiving the Heusser Memorandum, I never heard from any of the government agencies again. As I still believed there was no classified information in my manuscript, I finally retained legal counsel in March 2001. My attorney, Mark S. Zaid, immediately initiated contact with the DIA, DoD and DOE. His activities and communications with the government are detailed in the pleadings and exhibits.
18. Following my attorney's unsuccessful repeated good-faith efforts to negotiate an amicable resolution of this dispute, I filed this action against DOE, DoD, DIA and CIA for injunctive and declaratory relief on June 18, 2001. The DoD attempted to persuade me to back away from litigation at the last minute, but since the defendants had all but ignored every effort we had made I saw no reason to agree to a further delay. I thought 19 months was sufficient time enough to wait! Amazingly, just two weeks after filing the lawsuit, the government agreed to release approximately 85% of the manuscript. Not only do I interpret this act as largely vindicating my original position, but I am absolutely flabbergasted by the gall of the government to have reversed its position so completely. For nearly 19 months, I was continually told that not a single word of my manuscript could be published because of the dire national security dangers it posed to the United States, but now all of those concerns had simply vanished simply because I filed a lawsuit. The time and money that was wasted by the government throughout this process is a travesty. The problem is that this travesty still continues with respect to the remaining 15% of the manuscript.
19. Now that the "classified" portions of my manuscript had been narrowed, I had hoped the government would engage my counsel and I in substantive discussions. However, the government refused (and still refuses) to permit me to even show my manuscript to my attorney, even though he possesses the required security clearance. Despite the uncooperativeness of the government, I agreed once more to enter good-faith negotiations regarding the remaining portions of the manuscript that were still being withheld. Unbelievably, the DOE requested only four minor changes. I accepted those without hesitation. As a result, DOE notified me by letter dated July 11, 2001, that "[w]hen these four changes have been made, all DOE classification concerns with the current version of the manuscript will have been resolved." See Exhibit "1".
20. On July 19, 2001, I participated in a conference call with representatives of the remaining government defendants. The agreement was that no attorneys would participate. However, my attorney had made it clear to the government that if this conversation was going to take place it had to involve a discussion of any specific redaction from within the manuscript. See Exhibit "37". I had to drive to a secure facility at Sandia National Laboratories in Albuquerque, New Mexico, which is three hours each way, in order to participate in this conference call. Additionally, I spent several days preparing questions and responses to each and every concern, and was fully in a position to discuss every redaction and possibly arrive at mutually acceptable accommodations. The conference call, which only lasted 83 minutes, was a complete waste of time. The government representatives absolutely refused to engage in any substantive discussions whatsoever. They would neither discuss specific withholdings or even entertain potential language modifications. Instead, they made it clear that their classification positions were non-negotiable. I know the government may claim that difficulties arose during the meeting due to technical problems. That is, in fact, quite true. Their secure telephone did not properly work. However, the telephone was the least of the problems in that meeting. In order for the telephone to work, the government representatives needed to say something, and they did not.
21. Following the telephone conversation, and despite the fact that it was extremely unproductive, I compiled a list of documents that I believed demonstrated that some of the information in my manuscript was already within the public domain. I mailed this information to the government, which received the package on August 3, 2001. As far as I know, no response has been received.
22. I have every right to publish my manuscript. The government has imposed a prior restraint on my ability to exercise my First Amendment right. There is information in this manuscript that will reveal important data about the activities of the Chinese government with respect to nuclear weapons. Most importantly, the manuscript reveals insight about the modus operandi of the Chinese in their efforts to obtain nuclear weapons information, particularly from the public. The Chinese officials and scientists willingly provided me with the information that made it very clear to me that they wanted the information brought before the American people. I am trying to do just that, but the United States government is blocking me for its own unlawful purposes. This manuscript is about the Chinese nuclear weapons program, not the US nuclear weapons program!
I do solemnly affirm under the penalties of perjury that the contents of the foregoing paper are true to the best of my knowledge.
Date: August 15, 2001
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Danny B. Stillman