SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 3
January 17, 2012

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

DOE WANTS TO RESTORE INFO TO "RESTRICTED DATA" STATUS

The Department of Energy has asked Congress to amend the Atomic Energy Act to allow certain nuclear weapons information that has been removed from the "Restricted Data" classification category to be restored to that category.

"Restricted Data" (RD) pertains to classified nuclear weapons design information. It is distinguished from "Formerly Restricted Data" (FRD) which generally concerns the utilization of nuclear weapons. (Despite the use of the word "formerly," FRD is also a category of classified information.)

In a letter to Congress requesting the proposed amendment, Energy Secretary Steven Chu suggested that the current arrangement leaves some nuclear weapons design information inadequately protected.

"There is sensitive nuclear weapons design information embodied in some FRD... that should be subject to the more stringent security protections afforded RD now than current programmatic capabilities of DoD and the Intelligence Community permit," Secretary Chu wrote in an August 4, 2011 letter that was released last week. Energy Department officials did not respond to a request from Secrecy News for elaboration on this point.

But in a July 2010 statement to the Public Interest Declassification Board, Andrew Weston-Dawkes of the Department of Energy Office of Classification said that FRD today contains not only information on nuclear weapons utilization but also "some of the most sensitive design information." Specifically, he said that FRD includes design information on "safing arming and fuzing, use control information, [and] hardening."

Such design information was removed from the RD category in order "to support the mission requirements of the Department of Defense and the Intelligence Community," Secretary Chu explained in his letter. But once removed, the information by law cannot be redesignated as RD without an amendment to the Atomic Energy Act. Hence the DOE proposal to Congress.

The immediate implications of the proposal are probably quite limited, particularly since it applies only to "design information" and "foreign nuclear information" that is currently classified in any case (albeit as FRD or "TFNI," for Transclassified Foreign Nuclear Information).

In the longer term, the authority to reclassify certain narrow categories of FRD as RD, if granted, may help to reduce DOE opposition to the elimination of the entire FRD category -- which critics including the Federation of American Scientists have advocated -- and its integration into the normal national security classification system.

The Public Interest Declassification Board, an advisory body on classification and declassification policy, has proposed that FRD records that are more than 25 years old should be treated like any other classified records for purposes of declassification review and processing.

But these changes would also require legislative action, which has not been requested by DOE. Nor has Congress acted on Secretary Chu's August 2011 proposal to date.

* * *

On January 10, the White House announced the appointment of Amb. Nancy E. Soderberg as chair of the Public Interest Declassification Board and the re-appointment of Elizabeth Rindskopf Parker as a member of the Board.

* * *

"Restricted Data" is the name of an informative new blog written by historian Alex Wellerstein "about nuclear secrecy, past and present." It often features fascinating archival discoveries along with the author's historical insights.

* * *

"Born Secret" by Alexander DeVolpi, et al, is a thoughtful and meticulous account of the 1979 "Progressive" case in which the U.S. government sought to prevent the publication of H-Bomb design information gathered by researcher Howard Morland. It has recently been reissued as an e-book.

DETAINEE POLICY, AND MORE FROM CRS

Recent legislative action on military detention of suspected enemy combatants perpetuates an ambiguity in the law as to whether U.S. citizens may be so detained, a new report from the Congressional Research Service says.

"The circumstances in which a U.S. citizen or other person captured or arrested in the United States may be detained under the authority conferred by the AUMF [the post-9/11 Authorization for Use of Military Force] remains unsettled," wrote CRS analyst Jennifer Elsea. "The 2012 NDAA [National Defense Authorization Act] does not disturb the state of the law in this regard."

"Section 1021 [of the NDAA] does not attempt to clarify the circumstances in which a U.S. citizen, resident alien, or other person captured within the United States may be held as an enemy belligerent in the conflict with Al Qaeda. Consequently, if the executive branch decides to hold such a person under the detention authority affirmed in Section 1021, it is left to the courts to decide whether Congress meant to authorize such detention when it enacted the AUMF in 2001," the CRS report said.

See "The National Defense Authorization Act for FY2012: Detainee Matters," January 11, 2012:

Some other new CRS reports that have not been made readily available to the public include these:

"F-35 Alternate Engine Program: Background and Issues for Congress," January 10, 2011:

"Horn of Africa Region: The Humanitarian Crisis and International Response," January 6, 2012:

"Building Civilian Interagency Capacity for Missions Abroad: Key Proposals and Issues for Congress," December 22, 2011:

TESTIMONY OF REPORTER SOUGHT IN STERLING LEAK CASE

In a brief filed Friday in the case of former CIA officer Jeffrey Sterling, who is accused of leaking classified information, prosecutors told the U.S. Court of Appeals that New York Times reporter James Risen should be compelled to testify at Mr. Sterling's trial and to reveal whether it was Mr. Sterling who leaked information to him about a CIA program to disrupt Iran's nuclear weapons program.

A lower court found that Mr. Risen had a "qualified reporter's privilege" which exempted him from disclosing his sources in this case. But prosecutors said the lower court ruling was in error and they asked the Appeals Court to overturn it. They said that unlike in certain civil cases, there is no reporter's privilege to protect confidential sources in criminal cases.

Here, however, the disclosure of classified information *is* the alleged crime. As a consequence, what is at stake in this case, beyond the individual fate of Mr. Sterling, is the ability of reporters to protect their sources of classified information. The Appeals Court is poised to either strengthen that ability or to significantly weaken it.

Prosecutors also disputed two other lower court rulings, which they said were "erroneous" and would cripple their case against Mr. Sterling, which has been suspended until the appeal is resolved.

"In three pretrial rulings, the district court severely circumscribed the government's ability to prove these allegations and effectively terminated the prosecution," prosecutors wrote in their 99-page pleading on January 13.

"First, the court held that Risen -- the only eyewitness to the crime and the only person who could identify Sterling as the perpetrator -- had a First Amendment right to refuse to identify his source. This ruling suppressed the only direct evidence of Sterling's crime."

"Second, the court suppressed the testimony of two of the government's key witnesses as a sanction for the late disclosure of alleged Giglio information [i.e. information pertaining to deals or promises made to the witnesses in exchange for their testimony]. The court found no evidence that the disclosure (which occurred less than 12 hours after the expiry of the district court's discovery deadline and several days before trial) was the result of bad faith, and it never meaningfully considered granting a continuance or any other remedy before striking the witnesses. This decision had the effect of terminating the prosecution."

"Third, the court announced that the government was required to disclose to the defendant and the jury the true names of several covert CIA officers and contractors who it intended to call to testify at trial. The court reached this conclusion despite having previously held that the government need not identify the witnesses by name in discovery or at trial because that information (which is classified) would not be useful or necessary to Sterling's defense, could place the witnesses in significant danger, and could damage national security."

"The district court's rulings are erroneous. The government respectfully requests that this Court reverse those rulings and remand this case to the district court for trial," prosecutors wrote.

The new prosecution brief, which was redacted for public release, provides a detailed account of the facts and the law of the Sterling case from the government's perspective.

The brief says that Mr. Risen himself is not accused of engaging in criminal activity. "Nonetheless, at Risen's request, the government has agreed to grant Risen immunity from prosecution in exchange for his testimony, and thus the subpoena raises no Fifth Amendment [self-incrimination] concern," the brief said.

Attorneys for Sterling and Risen will each respond with their own opening briefs on February 14.

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

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