SECRECY NEWS
from the FAS Project on Government Secrecy
June 26, 2001

DOE CLASSIFIES PRIVATELY HELD INFO

The Department of Energy (DOE) announced today that it has classified as Restricted Data "certain privately generated information concerning an innovative isotope separation process for enriching uranium."

This is the first time in over twenty years that the government has invoked the Atomic Energy Act to classify privately held information that originated outside of government. It is a highly unusual infringement on freedom of speech that has been criticized in the past as unconstitutional.

Under the executive order on national security classification, information cannot be classified unless it is "owned by, produced by or for, or is under the control of the United States Government."

But under the Atomic Energy Act, Restricted Data is defined as "all" information concerning nuclear weapons design and related topics that has not been declassified -- regardless of who owns or possesses it. So if a private citizen were to conceive of a nuclear weapon design and scribble it down on a napkin, the government could hypothetically claim a lawful right to seize control of the napkin.

The Atomic Energy Act and the Invention Secrecy Act of 1951 are the only instances in which national security controls on private information are asserted by the government. The constitutionality of such laws has not been tested in court. However, in 1979 the government did win a preliminary injunction to block publication of freelance writer Howard Morland's article on "The H Bomb Secret" in The Progressive magazine, claiming that it contained Restricted Data. An appeal of that decision was mooted when the information was published elsewhere.

In the case announced today, the government classified certain aspects of the Separation of Isotopes by Laser Excitation (SILEX) process, developed by SILEX Systems, Ltd. of Australia and acquired by USEC, Inc. The SILEX process represents a new and reputedly cheaper alternative to current uranium enrichment methods such as gaseous diffusion or gas centrifuge technology.

Since SILEX could facilitate uranium enrichment for nuclear weapons as well as for nuclear power plants, officials explain that there is a national security interest in protecting details of the technology.

Classification of the SILEX technology was achieved through a "non-adversarial" process, a DOE official said, and will not be contested by the owners.

In response to criticism by public interest groups of the whole concept of "privately generated Restricted Data," DOE adopted a regulation in 1998 dictating that only the Secretary or Deputy Secretary of Energy could classify privately generated information, that he or she must do so in writing, and that public notice must be given in the Federal Register whenever such authority was exercised.

The classification of the SILEX technology provided the occasion for the first such Federal Register notice, which was published today. See the text of the notice here:

Related background concerning the SILEX process and nuclear cooperation between the US and Australia is available in this 1999 letter to Congress from President Bill Clinton:

DOE WITHHOLDS HEU STUDY

In 1996, the Department of Energy pledged to publish a comprehensive report entitled "Highly Enriched Uranium (HEU): The First 50 Years." The report was in fact completed in 1997 and formally declassified earlier this year, but it is still being withheld by DOE.

The HEU report, originally requested by the Secretary of Energy in February 1996, describes the history of US production, disposition, and inventories of highly enriched uranium.

"This report will provide assistance to worldwide nonproliferation efforts," according to a 1997 DOE statement, by promoting increased transparency and accountability. "It will also assist regulators in environmental, health, and safety matters at domestic sites where this material is stored or buried."

Yet for no valid reason, and despite its legal obligations under the Freedom of Information Act, DOE has still failed to disclose the 1997 report, which by now is four years out of date. No explanation for the continued withholding of the document could be elicited from a DOE spokesman.

Meanwhile, the United Kingdom has surpassed the United States in transparency on this front. In 1998, the UK disclosed its total stockpiles of uranium and plutonium in an unclassified memorandum to the International Atomic Energy Agency (IAEA).

"The United Kingdom is the first State among Nuclear Weapon States ... to take this step," the memo stated. See the text of the memo in IAEA Information Circular (INFCIRC) 570, dated 21 September 1998, here:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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