SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 51
May 30, 2012

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

CONGRESS WILL ALLOW ENERGY DEPT TO RECLASSIFY NUKE INFO

Congress is poised to amend the Atomic Energy Act to allow certain nuclear weapons-related information that is classified as Formerly Restricted Data (FRD) to be restored to the Restricted Data (RD) category.

FRD and RD are both classified under the Atomic Energy Act, but FRD generally pertains to the utilization of nuclear weapons, whereas RD mostly deals with nuclear weapons design information.

Last year, Secretary of Energy Steven Chu wrote to Congress to propose legislation that would permit moving FRD back into the RD category, something that is currently not permitted by the Atomic Energy Act, in order to provide improved security. See Dept of Energy Wants to Reclassify Some Info as 'Restricted Data', Secrecy News, January 17, 2012:

"There is sensitive nuclear weapons design information embodied in some FRD... that should be subject to the more stringent security protections afforded RD," Secretary Chu wrote.

The requested legislative language was approved by the House in its version of the FY2013 National Defense Authorization Act (HR 4310, section 3153), and was also incorporated in the Senate Armed Services Committee markup of the bill (S. 2467, the full text of which is not yet available).

The legislation would also permit information about foreign atomic energy programs known as Transclassified Foreign Nuclear Information (TFNI) to be transferred to the RD category, with the consent of the Director of National Intelligence.

The immediate public impact of the policy change would be negligible, since both FRD and RD are classified and in practice are equally inaccessible to the public.

But in the longer term, the move could have positive implications. It would facilitate the elimination of the cumbersome and superfluous Formerly Restricted Data (FRD) category, a move that has been favored by critics for years. Doing so would both streamline the unworkably complicated classification apparatus and help to expedite the declassification process.

The entire FRD category could in principle be depopulated if the most sensitive information were restored to RD, as Congress will soon permit; if the least sensitive information (e.g. information about historical nuclear depot sites that no longer exist) were declassified; and if the rest were "transclassified" to national security information, i.e. the "regular" (non-Atomic Energy Act) classification system.

Eliminating FRD would in turn reduce one of the most vexing barriers to declassification of historical government records, which by law must be surveyed for the presence of FRD (and RD) before they can be publicly released.

However, the removal of information from the FRD category (either to declassify or transclassify it) requires the consent of both the Department of Energy and the Department of Defense. To gain the cooperation of both agencies, it is likely that White House leadership would be needed.

CONGRESS'S CONTEMPT POWER, AND MORE FROM CRS

Newly updated reports from the Congressional Research Service include the following.

Congress's Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, May 8, 2012:

The Financial Action Task Force: An Overview, May 9, 2012:

Reauthorization of the Export-Import Bank: Issues and Policy Options for Congress, May 7, 2012:

The National Nanotechnology Initiative: Overview, Reauthorization, and Appropriations Issues, May 22, 2012:

U.S.-EU Cooperation Against Terrorism, May 21, 2012:

DECLASSIFICATION OF THE HISTORICAL BACKLOG - A CORRECTION

Secrecy News stated yesterday that the decline in the number of pages reviewed for declassification last year (as reported by the Information Security Oversight Office) means that the goal set by President Obama of reviewing the entire backlog of 25 year old historical records by December 2013 will not be achieved.

But that is not correct, an Archives official said. Progress in reducing the backlog is independent of progress in conducting declassification review since only a fraction of the hundreds of millions of pages of backlogged records require formal declassification "review." (In theory, at least, most of them have already been "reviewed," and reported as such in previous ISOO reports).

Instead of being "reviewed" for declassification, the official said, the backlogged records are being "assessed" for the presence of exempted information (such as RD or FRD), in which case they will not be released. The records are also undergoing "declassification processing" for public access. But not "declassification review." Only in a minority of cases are backlogged records being referred for "declassification review."

We regret adding confusion to an already confusing situation.

In contrast to our somber view of the contents of the new ISOO annual report, the National Archives issued a rather upbeat press release on the report.

But the Archives press release does not mention that total declassification activity declined in 2011 from the year before, which seems like a significant omission.

As to whether the President's December 2013 deadline for elimination of the backlog of historical records will be met, with or without "review," it is hard to be optimistic.

The National Declassification Center stated in its last semi-annual report that the diversion of resources necessary to screen for Restricted Data and Formerly Restricted Data in the backlogged records "will certainly impact our ability to complete all declassification processing by the deadline."

But it would be a mistake to anticipate failure, the Archives official said, adding "It's not over until it's over."

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

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