SECRECY NEWS
from the FAS Project on Government Secrecy
August 6, 2001

WEN HO LEE AND PREPUBLICATION REVIEW

A front page story in the Sunday New York Times illustrated widespread confusion about whether government employees who have had access to classified information are obliged to submit to government censorship of their publications even after retirement.

The August 5 Times story reported an allegation that former Los Alamos scientist Wen Ho Lee may have violated censorship rules by disclosing the draft of his forthcoming memoir to his co-author and to his editor before gaining government approval.

But it turns out that the entire controversy is predicated on an error.

"Individuals like Dr. Lee who receive security clearances, especially high-level ones that give access to nuclear secrets, pledge to submit any manuscripts to federal censors before letting other people see them," the Times stated.

That is not correct. As a former employee or contractor, Wen Ho Lee had no legal obligation to submit his manuscript for pre-publication review, according to Energy Department officials and former Lab employees.

"Essentially, the requirement to submit for review only applies to those with active access authorizations (clearances)," said Jim Danneskiold of the Public Affairs Office at Los Alamos National Laboratory. This requirement is found at 10 CFR 1045.44.

"However, when anyone with a clearance leaves service with the DOE or a contractor, and gives up the clearance, he or she signs a statement acknowledging that they are still prohibited under penalty of law from revealing classified information," he noted.

"Therefore," Mr. Danneskiold continued, "not to have a manuscript reviewed that had even a remote possibility of containing classified would be foolish, since it would open up the person to potential prosecution."

Fortunately, however, not everything that is foolish is illegal.

The statement (DOE Form 5631.29) that all cleared Energy Department employees and contractors must sign upon retirement acknowledging their continuing responsibility to protect classified information may be found here:

"Note that the form says nothing about submitting manuscripts for review prior to publication," said engineer William Sullivan, who retired from Sandia National Laboratory earlier this year and who has been an outspoken defender of Wen Ho Lee.

"I can understand why," Mr. Sullivan said. "Such a regulation would be so unworkable it isn't funny. Could you imagine all ex-employees sending everything they write to DOE to determine whether or not the material is classified?"

The upshot is that the "controversy" over whether Wen Ho Lee's handling of his manuscript complied with security procedures is out of place. Although Lee has a continuing obligation to protect classified information, he has no obligation to submit any manuscripts for pre-publication review. The fact that he did so voluntarily only demonstrates an abundance of caution on his part.

Government-wide, the overwhelming majority of cleared personnel are not subject to prepublication review after their clearance is terminated.

This is spelled out in the briefing book on Standard Form 312 (SF 312), which is the "Classified Information Nondisclosure Agreement" that is signed by most employees and contractors when they are approved for authorized access to classified information:

"There is no explicit or implicit prepublication review requirement in the SF 312, as there is none in the SF 189 and SF 189-A. However, if an individual who has had access to classified information is concerned that something he or she has prepared for publication may contain classified information, that individual should be encouraged to submit it to his or her current or last employing agency for a voluntary review. In this way the individual will minimize the possibility of a subsequent action against him or her as a result of an unauthorized disclosure."

See the SF 312 briefing book, published by the Information Security Oversight Office, here:

The situation is different for CIA employees, who do pledge in their nondisclosure agreements to submit any draft publications for government review, "either during my employment...or at any time thereafter, prior to discussing it or showing it to anyone who is not authorized to have access."

The CIA performs such reviews several hundred times a year, according to John Hollister Hedley, who formerly chaired the CIA Publications Review Board. The submissions from CIA employees ranged "from 1,000-page book manuscripts to one-page letters to the editor. There are speeches, journal articles, theses, op-eds, book reviews, and movie scripts. There are scholarly treatises, works of fiction, and, recently, a cookbook."

See Mr. Hedley's article "Reviewing the Work of CIA Authors" from the CIA journal "Studies in Intelligence" (Spring 1998) posted here:

CIA CONTRETEMPS IN KOREA

The U.S. intelligence liaison relationship with Korea has been rocked in the last two weeks by the discovery that a CIA officer illicitly obtained sensitive information about North Korea through unauthorized contacts with a Korean intelligence officer.

"The National Intelligence service (NIS) voiced its displeasure to the U.S. Central Intelligence Agency over its contact with an NIS official that led to the leakage of top secret information, and demanded measures to prevent the recurrence of such an incident," according to an August 2 report from the Yonhap news agency in Seoul.

The Korean officer, identified only as Ahn, was fired on July 23 due to his unauthorized contacts with the CIA official, described as a Korean-American named Yoon who was serving as first secretary at the U.S. Embassy in Seoul.

The newspaper Chungang Ilbo, which disclosed the location of the CIA station in Seoul (on the fifth floor of the U.S. Embassy), the number of CIA staff, and the name of the station chief, said "It's an unprecedented controversy."

For other Koreans, however, there was an obvious parallel in the case of Korean-American Robert Kim. Kim was an employee at the U.S. Office of Naval Intelligence who was arrested in 1996 for providing classified information to a military attache at the Korean Embassy in Washington. He was sentenced to a nine-year prison term. Repeated Korean appeals for his pardon have been rebuffed.

The official web site of Korea's National Intelligence Service is silent on the latest events. But it may be found here:

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

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