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A Review of the Department of Energy Classification Policy and Practice CHAPTER 1 CONTEXT An assessment of the Department of Energy's (DOE) classification system must be guided in part by awareness of the forces for change, the competing interests, and the practical challenges confronting the Department. A. The Forces for Change The present classification system was established during World War II and evolved during the Cold War. Profound changes in international conditions affecting the role of the Department have put new pressures on the system. With the end of the Cold War, U.S. national security policy is no longer directed against the overarching threat of the Soviet Union and its allies. The nation's primary concern relating to the secrecy of nuclear weapons information has shifted from bilateral nuclear confrontation with the Soviet bloc to a growing concern with nuclear proliferation. The new international conditions may make some aspects of maintaining a classification system more difficult. Because the former Soviet Union had a sophisticated nuclear weapons capability, extreme measures were not necessary to prevent its access to old designs or outdated production techniques for the simple reason that Soviet technologists already possessed such information. The new priority given to nonproliferation requires keeping information from nations or parties that are less technically sophisticated than the former Soviet Union. This creates a continuing need to protect older (or generally simpler) designs and production techniques, because the older approaches might be more commensurate with the capabilities of a potential proliferator. A workable World War II-era bomb design, while perhaps having a lower and less reliable yield than a more modern design, is nonetheless extremely dangerous. In addition, other categories of information—such as data, planning documents, and instructions pertaining to ongoing negotiations
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A Review of the Department of Energy Classification Policy and Practice with foreign powers; technical design items relating to nuclear delivery and defensive systems; and safeguards information—still merit security protection. On the other hand, the elimination of the threat of nuclear war with the Soviet Union means that certain information that could have benefitted Soviet bloc war planners no longer needs such careful protection. No foreseeable proliferator poses a comparable nuclear threat to the U.S. and its allies. Our concern with potential proliferators (and their concern with us) will be independent of the specifics of the vastly superior nuclear stockpiles of Russia and the United States. Thus, for example, information about the size and composition of fissionable material inventories is no longer as sensitive as it once was believed to be. Similarly, data concerning past nuclear weapons activities that would reveal our present total capability are no longer sensitive because our capability greatly exceeds that of any potential adversary. Changing world circumstances have also had indirect effects on the Department, altering the balance of costs and benefits that must guide the declassification system. The end of the Cold War, current federal budget realities, and other public forces have changed DOE's mission. DOE is now working to address the environmental legacy of its past activities. That process includes the remediation of contaminated facilities in the weapons complex; the evaluation of the environmental, safety, and health (ES&H) consequences of the facilities; and the public acknowledgment of past activities, some of which were wholly at odds with current requirements. While DOE's stewardship for the nuclear weapons complex remains an important responsibility, the Secretary has correctly decided that the Department cannot restore the confidence of the public that it is forthrightly confronting its past without a policy of greater public access to information. There are also strong external pressures on DOE for increasing access to information. Public interest groups and citizens continue to believe that information necessary for discussions of safety and health is inaccessible because of classification or other information controls. Moreover, according to the U.S. Congress Office of Technology Assessment, "[v]irtually all public interest groups concerned with nuclear weapons issues . . . share common concerns about . . . the public's access to
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A Review of the Department of Energy Classification Policy and Practice relevant information. . ."1 States affected by DOE weapons complex sites are seeking more rapid declassification of documents that could contain important information relevant to the cleanup of those sites. 2 DOE's changing mission and the public pressures on it thus reinforce the modifications in the declassification system's focus already arising from the end of the Cold War. B. The Competing Interests DOE's classification policy must reflect a balance of opposing values. On the one hand, there are powerful and compelling justifications for protecting certain information from public disclosure. A core mission of DOE has been the development of nuclear weapons. Although considerable information concerning the design and construction of nuclear weapons is in the public domain, access to a portion of it must be severely restricted because it could be exploited by a terrorist or by a state seeking to develop or improve nuclear arsenals. DOE would fail in its responsibilities if it did not protect such information. An effective classification system to define and control such information serves the interests of this country as well as those of other nations. Indeed, limiting access to some types of nuclear information is essential for the welfare of all mankind. It is difficult to define appropriately the scope of the information that should be subject to classification. All agree that it should encompass information that is not in the public domain and that is essential to the design and construction of a nuclear weapon. But how widely should the classification net extend? Should it include the numbers, kinds, or disposition of existing nuclear weapons? operational plans for employing nuclear weapons? data relating to the existence, nature, and results of nuclear tests? information about measures to prevent nuclear accidents? information on foreign nuclear programs? information on dual-use technologies that could be applied both to nuclear weapons and to civilian products or processes? 1 Office of Technology Assessment, 1993, p. 113. 2 Oregon Department of Energy, 1994; Morin, 1994.
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A Review of the Department of Energy Classification Policy and Practice In defining appropriate boundaries for the classification system, the costs and benefits of secrecy must be weighed with the costs and benefits of openness. Although the benefits of secrecy in some areas may be paramount, the full consideration of costs and benefits will certainly justify openness in others. The benefits of disclosure and dissemination are significant. Fundamentally, the proper functioning of democracy depends on an informed citizenry. Making information available that in part has been kept classified—ES&H effects of the weapons complex on the public; the numbers, kinds, or disposition of existing nuclear weapons; and the verifiability of nuclear testing—would illuminate the debate on and scrutiny of important public issues. Public confidence in governmental institutions is furthered if independent scrutiny and careful accountability are assured. Governmental secrecy undermines confidence in public institutions.3 Indeed, classification can be a "refuge for scoundrels" because there is danger that information might be classified simply to prevent disclosure of imprudent, unethical, or illegal actions. Secrecy in some areas is also inimical to scientific and technical progress. The source of valuable ideas cannot be predetermined, and therefore secrecy, in limiting the number of persons who can have access to specific items of information, can have a serious impact on progress and creativity. Open communication on technical issues not only allows the expansion of scientific and technical knowledge, but also expedites opportunities for commercial applications. The direct financial costs associated with maintenance of the classification system are substantial. Classified information must be protected until public release, and personnel allowed access to the information must be cleared for this access. Creating a classified document thus imposes a mortgage on DOE to pay for protection of that document. DOE estimates that the direct costs of its classification system (e.g., costs of physical and electronic security measures, classification management, and personnel security) are almost $100 million a year. This is a small but significant fraction of the nearly $2.3 billion spent government-wide on 3 Office of Technology Assessment, 1993, p. 109-123.
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A Review of the Department of Energy Classification Policy and Practice classification-related activities, most of it by the Department of Defense.4 The indirect costs, in terms of productivity and public accountability, are very difficult to quantify, but may be many times larger. In defining the appropriate balance between secrecy and openness, one must also consider the effectiveness of measures designed to assure secrecy. One example shows the effectiveness of past classification of restricted nuclear information. The Congressional Research Service reported, and sources from DOE laboratories confirmed, that while the United Nations inspectors in Iraq discovered an extensive nuclear-weapons enterprise and noted egregious violations of export regulations, they found no evidence of significant Iraqi knowledge of classified information at the level of restricted data (RD).5 This is gratifying information, but it provides little guidance for evaluating the overall effectiveness of security measures. The chain of protection surrounding classified information is no stronger than its weakest link. Although the Iraqis do not appear to have gained access to U.S. classified information relating to nuclear weapons, numerous instances of outright criminality by people with access to classified information can be cited. These spy cases make the limits of the classification system evident. While the administration of classification controls is not within the purview of this Committee, we cannot assume that classification serves as a long-term, assured system for denying a potential adversary access to information. Moreover, a great deal of nuclear information is already publicly available. The fundamental principles of nuclear weapons construction are well understood and exist in the open literature. Basic physical and chemical data on materials, including fissionable materials at high temperatures and high pressures, are largely unclassified. The process for separating plutonium from spent fuel is covered in unclassified treatises on the chemistry of such methods. Access to classified information is not necessary for a potential proliferator to construct a nuclear weapon. Such access makes it easier to construct a nuclear device or to construct a more effective weapon, but the fundamental information needed for making a 4 Office of Management and Budget, 1994. 5 Zimmerman, 1993.
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A Review of the Department of Energy Classification Policy and Practice very destructive device is widely available. The classification system alone cannot keep the nuclear monster in its cage. In sum, defining the boundaries of the classification system requires consideration of a variety of competing factors. Achieving an appropriate balance is all the more difficult because some of the factors cannot be quantified or evaluated with confidence. C. Practical and Institutional Obstacles to Change DOE's efforts to achieve greater public access to information face a number of significant practical and institutional obstacles. The first, as mentioned, is the huge and still growing collection of classified documents held by the Department and its contractors. Many of the documents may have been classified under guidance that has since been revised and hence are no doubt appropriate for declassification and public release without any change in Departmental policy. But the process of declassifying such documents is time-consuming and expensive. Another obstacle is the fact that any change in Department-wide policy may have only limited and delayed practical impact at the level at which classification actions are taken. All government programs have a certain measure of "momentum," by which we mean that changes in actual behavior occur slowly and only with the application of significant public, political, or other force. The usual pattern of incremental, grudging acceptance of change can be expected in connection with changes in classification policy. From its beginnings, DOE and its predecessor agencies maintained a culture in which, for understandable reasons, protecting information was dominant. That environment has had an impact on personnel. The prestige, status, and perceived self-worth of staff are related to access to information that is denied to others. 6 Changing such practices, deeply embedded in DOE's reward and status structure, is not a trivial undertaking, but without such changes, simply altering policies may have limited effect. Third, there is a "ratchet effect" in the handling of classified information. Although policymakers may seek to place the burden on those who would classify information, the reality may be different. 6 Gusterson, 1992.
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A Review of the Department of Energy Classification Policy and Practice Information, once released to the public, is difficult or impossible to recapture.7 This provides practical pressure to maintain classification, because the perceived consequences of an incorrect decision are unequal—that is, an incorrect decision to classify information can be corrected, but an incorrect decision to release information may be irreversible. The natural response to such a situation is to be very cautious about declassification. The avoidance of overclassification requires a process that minimizes errors in connection with either classification or declassification decisions. But setting up a procedure to give such assurances serves only to increase the cost and personnel demands associated with the effort. In addition, DOE does not have autonomy regarding all the types of information it classifies and declassifies. As discussed in the next chapter, DOE must coordinate policies and procedures for certain types of nuclear weapons information with other departments, particularly DOD. Achieving interagency consensus on greater openness and public access to information can be difficult. Finally, policies regarding classified information are now being reviewed throughout the federal government. Although DOE can act alone with respect to some kinds of classified information, its program should be developed in a fashion that harmonizes with the overall approach. 7 In addition to the practical difficulties of recapturing released information, DOE interprets the Atomic Energy Act as prohibiting reclassification of information once an area of Restricted Data (RD) has been declassified (U.S. Department of Energy, 1994, p. 20).
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