Student Pugwash USA's 12th Annual National Conference Speech
Remarks of J. William Leonard Director, Information Security Oversight Office (ISOO)
Student Pugwash USA's 12th Annual National Conference
Washington, DC
October 26, 2002
Panel on National Security and Scientific Research
Good Morning! I appreciate the opportunity to be here with you today to discuss with you a very important and timely issue: Government secrecy and scientific research, especially in light of the global war on terrorism. In this context, before I get into any of your questions or discussion points, I would like to briefly discuss my view of the current environment and review some of the relevant policies and issues that relate to how we can ensure an open scientific environment in the United States while at the same time maintaining the security of our homeland.
I would like to begin by asking you to reflect upon a world situation in which violence seems to flare in almost every corner. The American homeland is threatened in a manner never before known in its history. Much of the world's troubles seem to be embodied in a single individual who most regard as a madman. America's complacency and that of the world is shoved into upheaval at the prospect of this madman leveraging open scientific research and harnessing it into weapons that can inflict horrendous and unprecedented harm on mankind. An American President resolutely commits this nation to preclude this unthinkable prospect and its unfathomable consequences.
What seems to be a scenario ripped directly from today's headlines actually took place over 60 years ago. In 1939, Albert Einstein, concerned about the possibility that Nazi Germany might produce atomic bombs, warned President Franklin D. Roosevelt that work that scientists had openly conducted in the 1920s and the 1930s had progressed to such a state that it "may become possible to set up nuclear chain reactions in a large mass of uranium that...would also lead to the construction of bombs..." Einstein's warning to Roosevelt, of course, lead to the birth of the most classified scientific project of all time - the Manhattan Project - and the subsequent development of nuclear weapons followed. It was not long after that Einstein, Bertrand Russell and other eminent scientists subsequently issued their famous manifesto calling for scientists to "appraise the perils that have arisen as a result of the development of weapons of mass destruction."
It was the Einstein-Russell Manifesto that gave rise to the first Pugwash conference in 1957 that eventually led directly to the creation of your organization. And here we are, several generations later, still wrestling with many of the same issues that have tremendous implications - not only in remote corners of the world, but in our own neighborhoods as well.
Our President summed it up succinctly when he stated to the Congress and the American people in the recently promulgated National Security Strategy of the United States of America that "the gravest danger our Nation faces lies at the crossroads of radicalism and technology." The enemies of the United States have openly declared that they are seeking weapons of mass destruction and the President has resolutely declared that the United States cannot allow them to succeed.
Today's enemies are no longer just nation states such as those we confronted in the Warsaw Pact during the Cold War, but rather radical, transnational terrorist organizations that could possess a deadly combination of fanaticism and technology that could bring great harm to the United States and its citizens.
With this as a dramatic backdrop, how do we achieve the appropriate balance between scientific openness and restrictions on public information? I, nor anyone else, have all the answers. If this were easy, folks a lot smarter than us would have struck upon the ideal solution a long time ago. But clearly, in the months and years to come, both the scientific and national security communities will have to struggle with this issue. The one thing that is clear, failure to strike the right balance on either side can have significant deleterious effects for our country and our fellow citizens.
In this context, I would like to outline for you what I consider to be just a few of the relevant issues at hand and ask you to keep these in mind as we progress through the morning.- If there is no Government control on the dissemination on certain information, does that mean that possessors of that information should be free to disseminate it at will? Are the choices solely Government control or nothing?
- Is there sufficient trust between the scientific and national security communities? What lessons are to be learned with respect to recent efforts to enhance security at our National Laboratories?
- In an open exchange of information - to what extent should we know and understand the motives of the recipients or the exchanging parties?
- When it comes to taxpayer funded scientific research - whose information is it anyway?
- With the varied constituencies within the Government, can and should the Government speak with one voice? Who should be that voice and would be credible to the scientific and academic communities?
- What is the impact of the expanding number of Federal agencies that have original classification authority?
- Under what circumstances, if any, should declassified information be reclassified?
- To what extent does information technology affect the sensitivity of information - i.e., does the ability to use technology to access and exploit vast amounts of information to create new knowledge in unprecedented ways increase the sensitivity of the information?
- If the universe of classified information is expanded, to what extent does that place information traditionally included in the system (i.e., information relating to intelligence sources and methods, national defense and foreign relations) at increased risk?
Keep these issues in mind as I now briefly review some of the relevant policies that have an impact in this area.
First, there is the Andrew Card Memo related to Weapons of Mass Destruction. Much attention has been focused on the memo sent to agencies on March 19, 2002, by the White House Chief of Staff with respect to protecting information related to weapons of mass destruction. Some have interpreted this memo as expanding the concept of sensitive but unclassified information or as ordering the reclassification of previously declassified information. In actuality, what the memo accomplishes is that it reminds agencies of the authority they have under existing laws and policy to take action to protect or continue protection of information related to weapons of mass destruction. It emphasizes that agency heads must consider the need for safeguarding information together with the benefits that result from the open and efficient exchange of scientific, technical, and other information.
Specifically, the memo refers to E.O. 12958's provisions related to reclassification and exempting older information from automatic declassification. In addition, the memo refers to protecting sensitive information related to homeland security through appropriate exemptions to the Freedom of Information Act. It does not urge agencies to restrict information or to withhold information that would otherwise be releasable under the Freedom of Information Act.
It is not the intent of this memo to urge agencies to classify basic scientific research. In fact, the referenced E.O. 12958 prohibits just that. Further, the Federal Government continues to follow the policy first laid out in a Reagan Administration policy document NSDD 189, concerning the products of fundamental research.
Which brings to me the second principal policy related to this area, specifically, National Security Decision Directive (NSDD) 189 dated September 21, 1985, Subject: "National Policy on the Transfer of Scientific, Technical and Engineering Information." This policy document states that fundamental research is generally exempt from controls, except as provided in applicable U.S. statutes or if the Government agency determines that there are national security concerns with this type of information that requires protection through classification.
NSDD 189 defines "fundamental research" as "basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons."
The third basic policy document to impact this topic is E.O. 12958, "Classified National Security Information." The policy on how information is classified, safeguarded and declassified is set out in this Executive order issued by the President in April 1995. This Order sets forth four standards for classifying information:
- Only an original classification authority can classify the information. An original classification authority is an individual who is authorized in writing, either by the President, or by an agency head or other official designated by the President, to classify information in the first instance. These are exceedingly limited designations. Within the Federal Government, only 4,132 individuals are designated as an original classification authority. Only 30 Departments and Agencies have this authority.
- The information must be owned by, produced by or for, or under the control of the United States Government. Control means the authority of the agency that originates the information, or its successor in function, to regulate access to the information.
- The information must fall within one or more of the categories of information listed in the Order and shown on this view graph;
[Sec. 1.5. Classification Categories.]
Information may not be considered for classification unless it concerns:
- military plans, weapons systems, or operations;
- foreign government information;
- intelligence activities (including special activities), intelligence sources or methods, or cryptology;
- foreign relations or foreign activities of the United States, including confidential sources;
- scientific, technological, or economic matters relating to the national security;
- United States Government programs for safeguarding nuclear materials or facilities; or
- vulnerabilities or capabilities of systems, installations, projects or plans relating to the national security.]
- The original classification authority must determine that the unauthorized disclosure of the information reasonably could be expect to result in damage to the national security and the original classification authority must be able to identify or describe the damage.
There are prohibitions and limitations concerning classification. For example, the Order specifically states that "Basic scientific research information not related to the national security may not be classified" (Section 1.8(b)). The definition of "national security" is the national defense or foreign relations of the United States.
Other prohibitions include section 1.8 which states: "In no case shall information be classified in order to: (1) conceal violations of law, inefficiency, or administrative error; (2) prevent embarrassment to a person, organization, or agency; (3) restrain competition; or (4) prevent or delay the release of information that does not require protection in the interest of national security."
Sometimes the combination, compilation or aggregation of items of information creates a sensitivity that the individual parts by themselves do not have. The Order provides for classifying such information under very limited conditions. Those conditions are laid out in section 1.8 (e) which states: "Compilations of items of information which are individually unclassified may be classified if the compiled information reveals an additional association or relationship that: (1) meets the standards for classification under this order; and (2) is not otherwise revealed in the individual items of information." As used in this order, "compilation" means an aggregation of pre-existing unclassified items of information.
A highly effective element of the current executive order is the Interagency Security Classification Appeals Panel. This Panel, which includes membership from the Secretaries of State and Defense, the Attorney General, the Director of Central Intelligence, the Archivist of the United States, and the Assistant to the President for National Security Affairs decides on classification challenges and appeals filed by interested parties. It is an integral part of the process designed to ensure the proper balance between secrecy and openness in Government.
E.O. 12958 is currently undergoing review for possible changes. There are no plans to change the policy concerning basic scientific research, nor is the automatic declassification program for older permanent records likely to change, other than to possibly extend the "drop dead" date for its onset.
Another relevant policy is, of course, the Freedom of Information Act (FOIA). There are a number of categories in the FOIA, which exempt records from mandatory disclosure. For example, Exemption (b) (2) of the FOIA exempts records that are "related solely to the internal personnel rules and practices of an agency;" "Low 2" internal matters are of a relatively trivial nature; "High 2" are more substantial internal matters, the disclosure of which would risk circumvention of a legal requirement.
Exemption (b) (4) protects "trade secrets and commercial or financial information obtained from a person (that is) privileged or confidential."
Over the recent past, action has been taken to seek statutory authority (under the (b) (3) exemption) for exempting certain information relating to the protection of critical infrastructures from mandatory disclosure under FOIA.
The final basic policy I would like to briefly touch upon is the Atomic Energy Act of 1954. Nuclear weapons-related information is of such critical importance to the national security of the United States that it is often considered "born classified" as soon as it is created. The Atomic Energy Act protects nuclear weapons-related information by providing a unique system of classification (Restricted Data and Formerly Restricted Data (RD/FRD)). This statute-based system is separate from the system established by E.O. 12958 for all other Government classified information. RD and FRD are specifically exempted from all provisions of E.O. 12958. In particular, RD is never subject to automatic declassification but can only be declassified by the Secretary of Energy or delegated Department of Energy (DOE) authority. FRD may be declassified by either DOE or the Department of Defense (DOD), depending upon the originating agency. DOE and DOD must coordinate if joint guidance does not exist.
I'd like to close my formal comments by addressing what I believe are some fundamental principles that must be kept in mind to ensure an effective classification system at any time, but especially when dealing with issues such as secrecy and war.
First, More is Not Necessarily Better:
Much the same way the indiscriminate use of antibiotics reduces their effectiveness in combating infections, classifying either too much information or for too long can reduce the effectiveness of the classification system, which, more than anything else, is dependent upon the confidence of the people touched by it.
There is always a temptation to err on the side of caution - and this is especially true in times of war, when the potential for the loss of life if national security information is improperly disclosed is more than theoretical. Effective secrecy can save the lives of our men and women of the Military Services who place themselves in harm's way to defend our Nation. Effective secrecy can protect the intelligence source or method required to detect and preclude the next terrorist event. Yet, classification is effective only to the extent it is used discerningly.
In this regard, both consumers and producers of classified information, as well as the general public, need to be assured that the classification system is discerning enough to capture only the truly sensitive information. If the system is not perceived as being discerning, then people begin to substitute their own judgement in terms of what is sensitive and requires protection and what is not - leading to a lack of accountability, chaos and an environment conducive to the "leak" of classified information. As such, the lack of discernment in applying classification protection not only places the "suspect" information at risk; it places all classified information included in the system of protection at increased risk of improper disclosure.
Second, Impediments to Information Sharing Can Place National Security at Risk:
While great emphasis is often placed on the consequences of the improper disclosure of classified information, what is often overlooked is how national security can be put at as much if not greater risk if pertinent information is not shared with appropriate parties in a timely manner. Whether within the Federal Government or between the Federal Government and State, local and private sector personnel, the ability to share information rapidly and seamlessly can make all the difference in the world in precluding or responding to the next terrorist event.
Classification can be a significant impediment to information sharing. Furthermore, the disclosure of classified information to a limited number of people can create "information haves and have-nots." Unless carefully managed, this can place entities not a part of this select group at a distinct disadvantage with adverse consequences for all.
Third, The Relationship Between Declassification and Accountability:
In time of war, it can often be difficult to recognize the relevance of an effective declassification program for historically significant information to the immediate challenges on hand. However, it is precisely at times such as this that Americans tend to place even more trust and confidence in their leaders, even if the very nature of conflict dictates that the American public will not necessarily have access to the full story if only to ensure that critical information is denied the enemy.
This acceptance of having "less than the full story" does not reduce the degree of accountability that the American public expect of their government and their leaders. After all, an open society in which an American public informed by a free flow of information holds its government accountable is a defining factor of our democracy. Oftentimes, especially in cases of armed conflict, ultimate accountability will take place through history. It is in this vein, however, that viable declassification programs provide the American populace with assurances that they can confidently provide support to their government and leaders today, oftentimes without benefit of the complete picture, while still preserving our hallmark degree of accountability in the future.
In closing, I would like to emphasize that the challenge now to you, the members of Student Pugwash USA, is to put your voice forward in the debate on government secrecy and scientific research. There needs to be a balance between security and the free flow of basic scientific information; otherwise either scientific debate will be stifled or information that could harm the United States could fall into the wrong hands. Your assistance is needed in devising solutions to this debate that make sense to both the scientific and national security communities and that strike the appropriate balance between secrecy and openness.
Thank you for inviting me to speak your conference.
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