SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 79
August 22, 2011

Secrecy News Blog: http://www.fas.org/blog/secrecy/

SOME NEW WRINKLES IN NUCLEAR WEAPONS SECRECY

A newly released intelligence guide to document classification markings explains the meaning and proper use of control markings to designate classified information. See "Authorized Classification and Control Markings Register," CAPCO, Volume 4, Edition 2, May 31, 2011:

This material is very detailed, comprehensive and quite informative, with only a few redacted passages pertaining to some code word usages.

But though it is only three months old, it is already out of date due to the constant churning within the classification system that regularly generates new marking requirements and cancels old, familiar ones. This has been particularly true lately with respect to changes in markings for "Restricted Data," or classified nuclear weapons information.

Thus, the intelligence guide to classification marking refers to the so-called "Sigma" system for marking Restricted Data. Each Sigma level refers to a particular aspect of nuclear weapons design. According to the intelligence community guide, the Sigma system extends from Sigma 1 to Sigma 15 and also Sigma 20. But that is no longer accurate.

In a July 2011 order, the Department of Energy determined that Sigma levels 1 through 5 and 9 through 13 are now obsolete. So they have been disestablished. Meanwhile, a new Sigma category, Sigma 18, has been created to address "Control of Complete Designs" and to protect "past and present U.S. nuclear weapons, nuclear devices and weapon designs." See "Control of Nuclear Weapon Data," DoE Order 452.8, July 21, 2011:

At this late date in the nuclear era, there are still other "innovations" in nuclear technology and nuclear secrecy. The New York Times reported last weekend on an apparent breakthrough in the use of lasers to enrich uranium. This laser enrichment process, known as SILEX (Separation of Isotopes by Laser Excitation), also poses new proliferation issues. See "Laser Advances in Nuclear Fuel Stir Terror Fear" by William J. Broad, August 21.

Though the Times story did not mention it, the SILEX process is also a unique case in which information that was privately generated was nevertheless classified by the government. As far as could be determined, the decision to classify this non-governmental information under the Atomic Energy Act is the first and only time that such authority has been exercised. See this 2001 "Record of Decision to Classify Certain Elements of the SILEX Process as Privately Generated Restricted Data."

(See also "A Glimpse of the SILEX Uranium Enrichment Process," Secrecy News, August 22, 2007.)

For its part, the Department of Defense issued a new Instruction last week on "Disclosure of Atomic Information to Foreign Governments and Regional Defense Organizations" (DoDI 5030.14, August 17, 2011).

STERLING DEFENSE ARGUES AGAINST SECRET EVIDENCE

Prosecutors in the case of former CIA officer Jeffrey Sterling, who is accused of leaking classified information, should not be permitted to present their evidence at trial in modified or redacted form and should also not be able to employ other extraordinary security measures, defense attorneys argued in an August 19 pleading.

Specifically, the defense team said that prosecutors should not be allowed to use the provisions of the Classified Information Procedures Act (CIPA) to introduce unclassified substitutions for classified evidence that they wish to present.

The purpose of CIPA, the defense said, is to allow the defendant to present exculpatory classified evidence in an unclassified form while preventing "graymail," i.e. the threat to disclose classified information as a tactic for evading prosecution.

But CIPA does not entitle prosecutors to introduce their own classified evidence in redacted form, the defense argued, particularly since "the Government... cannot 'graymail' itself." Instead, the prosecution "must either declassify information it wishes to use in its case-in-chief or forego using that information."

"What CIPA does not provide is the ability of the Government to prosecute a defendant using substitute or redacted evidence against him in its case-in-chief," the defense said.

The Sterling defense also objected to the prosecutors' proposed use of the "silent witness" rule, by which classified information is shared with the jury but not disclosed in open court.

The silent witness rule is fundamentally unfair, is not authorized by law, is possibly unconstitutional, and should not be approved by the court, the defense said. (The proposal to invoke the silent witness rule was first reported by Josh Gerstein in Politico on August 10.)

"It will be impossible effectively to contest and challenge the Government's evidence before a jury if the Court permits use of the silent witness rule, which would impermissibly provide the stamp of secrecy and national security importance to information that the Government has elected to disclose in a criminal trial where those very issues are contested. The Court must decline this invitation to conduct an unfair and constitutionally impermissible trial," the defense said.

For similar reasons, the defense also objected to the proposed use of security measures such as initials and screens to conceal the identities of government witnesses.

"The Department of Justice, surely after consultations with the CIA, approved this prosecution," the defense pleading said. "In doing so, it should have expected an open and public trial that featured all of the Constitutional protections afforded a defendant in the United States."

EUROPEAN UNION SECURITY POLICY, AND MORE FROM CRS

Recent reports from the Congressional Research Service that have not been made readily available to the public include the following.

"The European Union: Foreign and Security Policy," August 15, 2011:

"Standard & Poor's Downgrade of U.S. Government Long-Term Debt," August 9, 2011:

"The Obama Administration's Cybersecurity Proposal: Criminal Provisions," July 29, 2011:

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

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