[Intelforum] Secrecy News -- 01/17/12
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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
** DETAINEE POLICY, AND MORE FROM CRS
** TESTIMONY OF REPORTER SOUGHT IN STERLING LEAK CASE
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
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
"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
"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
"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
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
"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
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.
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.
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