Mr. PREYER. Mr. Fygi, on the question of compensation, your statement points out the Invention Secrecy Act provides that the owner of an invention who is damaged by the application of a secrecy_order may obtain compensation from the Federal Government. There is no such provision in the Atomic Energy Act. Suppose an inventor dutifully reported to the Department research leading toward a potentially important discovery. The department classifies it. But because of the classification, the individual who is privately financed is not able to develop the invention sufficiently to the point of applying and receiving a patent on the device or the process. Under current law he could get no compensation. Should there be compensation for him under those circumstances, assuming that the classification has caused harm and in fact would compensation be constitutionally required?

Mr. FYGI. It could be, depending upon the circumstances. We do have, as I mentioned, the Patent Compensation Board that was established by the 1954 act. In context of the secrecy orders, of course, as my prepared statement indicates, the vast majority of secrecy orders are imposed with respect to inventions conceived by the Government or by a foreign government. There is a very, very small remainder that is truly the result of private activity. Our experience is such that it is my understanding that we have had two instances in which the issue of compensation was considered. In one of those instances an administrative judgment was made by the Compensation Board that in effect compensation be provided, although the grounds for the decision did not specify with precision whether the rubric was compensation or award, since that statute permits financial renumeration to be based on grounds other than compensation.

The other case, as I understand it, is in litigation and resulted in an adverse judgment with respect to the claimant in the court of claims that may still be pending further review. In the court of claims opinion the judgment was that in the facts of that case there had not been such an encroachment upon the claimant's property rights to amount to a compensable taking.

Mr. PREYER. How about in the Howard Morland and the Progressive Magazine case? Should they be compensated for any loss of revenue or value from the delay in publication because of the restricted data?

Mr. FYGI. That question suggests several reactions, some of which are personally guess and speculative. One, I don't think it has been demonstrated that the magazine suffered any loss of revenue as a result of the publicity that was associated with their efforts to publish the article. But notwithstanding that, of course they sustained significant expenses in terms of their litigation. So perhaps it is a wash.

Second, the information at issue in the Morland article was weapon design information. So that is precisely the category that in 1954 Congress decided was information not capable of private ownership. So under current law I would say with some vigor that there is no question but that neither Morland nor the magazine is entitled to compensation of any sort.

Mr. PREYER. On that general subject, Mr. Sewell's testimony at the bottom of his page 2 points out that "The Atomic Energy Act

does provide specifically for the declassification of restricted data when its publication no longer constitutes an undue risk to the common defense and security." Has DOE begun a review of the Morland Progressive magazine article to declassify the portions of the article that the department considred restricted atomic energy information?

Mr. SEWELL. We have reviewed the article obviously in quite some detail and have taken action at this time to declassification so that the papers that are in camera, in the court, can be properly evaluated. Since the case is still going on, that is all I can say about it right now. But yes, we have taken action.

Mr. PREYER. How about the article itself?

Mr. SEWELL. In what sense, Mr. Chairman?

Mr. PREYER. Well, how is that article classified today? What is the state of the classification?

Mr. SEWELL. Well, let me try to answer that by getting into a situation of the philosophy first of the classification actions and our actions where we give out no comment. There is, in a sense, this question of the amount of information that is in "the public domain." In fact, the whole issue of the Morland case was based on that. And it does require a judgment on our part in looking at information that is released to determine whether it is easily accessible and understandable as being important information and therefore important information that is recognizable in the public domain.

There is a lot of information in the public domain, some of it good, much of it bad, as far as design of nuclear explosives is concerned. Therefore, it is not wise for us in many cases to make statements that in any way point to the good information. You see, the objective of this whole thing, as you recognize, is to try to prevent the dissemination of information that would help someone design a nuclear or hydrogen explosive.

Now with respect to the article itself, obviously it has been printed. I do not think it would be wise for us to go through that point by point and say this is good information and that is bad information. There are certain fundamental ideas, as I say, that I have taken action on so that the court can proceed with the case where it stands right now.

Mr. PREYER. Thank you.

Mr. Butler.

Mr. BUTLER. Thank you, Mr. Chairman.

Mr. Sewell, would you consider it unfair if I indicated some criticism of your failure to get your statements up here until 5 o'clock yesterday afternoon?

Mr. SEWELL. No, I would not consider that. You are giving me information that I was not aware of. I apologize for that, if that is the case. We certainly knew that you wanted them at least 24 hours before time and I thought we had taken care of that. If we did not, I apologize for it.

Mr. BUTLER. Well, you took all the wind out of my sails with that. It is kind of rough for those of us who have a little difficulty absorbing the whole scientific world.

Mr. SEWELL. I certainly appreciate that.

Mr. BUTLER. Mr. Chairman, we will have an opportunity to submit additional questions in writing? That is my understanding. Mr. PREYER. Yes. I do think that we should require agencies in the future to observe the 24-hour period. I don't think we should listen to their testimony until they do. I will say in fairness to the gentlemen before us here today that I don't think the delay is all their fault. I think the delay comes from OMB delaying testimony. Mr. BUTLER. Well, that was the answer I wanted, Mr. Chairman, because that seems to be the problem. In fact, it seems to be an administration policy not to let it get here in time for it to be imminently digested.

Mr. FYGI. As a veteran of the bureaucracy, sir, I don't believe it is driven by any conscious policy.

Mr. BUTLER. Well, I think I have taken enough time on that issue.

Let's turn to page 7 of your statement. I really do find that difficult. "While the Executive Branch's effort to prevent publication of the Morland and Hansen material did not succeed because of unfortunate factual developments, the Department of Energy believes that the Atomic Energy Act served as an effective legal mechanism for achieving Executive Branch goals."

It did not prevent disclosure of the verified restricted data. How can you say the act was effective? If the goal was not to prevent disclosure, what was the goal? What were the executive branch goals that you speak of here?

Mr. SEWELL. The goals were to prevent disclosure of the information in the Morland article and for approximately 6 months the Government was successful in carrying that case forward. The separate action that occurred with Mr. Hansen, and we attempted there and did prevent-where we had knowledge prior to the actual publication of who had that information-we did prevent it from being published.

The fact that we had no knowledge that the Madison Press Connection newspaper had a copy of it and was even going to publish it, certainly put us in a position where we could not take the action as we had in the other two cases that I mentioned. But for 6 months we did prevent the publication of information that we knew was in the hands of the Progressive magazine and for a few days the Hansen article in the hands of a certain newpaper in the country.

Mr. BUTLER. I yield to Mr. McCloskey.

Mr. MCCLOSKEY. The problem I have with that answer is that Mr. Hansen was an ordinary private citizen who had asked his Congressman to get answers on this matter from your Department. I think I had written you last spring asking on this question, the Progressive case, the classfication. When I could not get answers from you and Hansen couldn't get answers from me, he then wrote to Senator Glenn, Senator Percy and to newspapers describing the same things that apparently you were trying to prohibit in the Progressive case. That is where I have problems with the act working.

Here is an ordinary citizen that through his Congressman could not get an answer from the Department of Energy, who sent a letter out which destroyed your whole purpose under the Atomic

Energy Act. That is why I have difficulty with your statement. The act is fine and worked, but your refusal to give me answers in effect triggered a private citizen to do something which destroyed your case.

Mr. SEWELL. Let me back up and give some of the sequence that had occurred and then ask Mr. Duff to follow me on that. We had had a fair amount of communication directly with Mr. Hansen prior to the time that his letter to Senator Percy came out. In fact, there had been a number of exchanges of information that he had put together.

On April 10, 1979, in evaluating a piece of information we had, I felt it was appropriate to give him some information and some guidance because of the type of information he was generating and the direction that he seemed to be going in. I would like to quote from this April 10 letter that was sent to Mr. Chuck Hansen by John Griffin, the then head of the Office of Classification. The last two paragraphs:

The Department of Energy has reviewed your material and has concluded that they are unclassified. However, I believe that you should be aware that if your work in this area results in the generation of restricted data on the design and operation of either fission or thermonuclear weapons, unlawful communication of such information may place you in violation of the criminal prohibition of the Atomic Energy Act. If you do intend to publish any articles on this subject in the future, I strongly recommend that they be submitted to the Department of Energy for review prior to publication.

Mr. MCCLOSKEY. But that is a recommendation. That is not putting him on notice that he violates the law.

Mr. SEWELL. I understand that. Let me get through the sequence on this and try to answer you question. Subsequent to that, the next communication that we had from Mr. Hansen was that he was putting advertisements in a number of college newspapers advertising a contest to design thermonuclear explosives with a $200 reward for the best design and instructions to send all designs to the Department of Energy for appropriate evaluation and classification. This obviously rather surprised me to get that reaction from Mr. Hansen. We wrote back to him and again quoted the law and told him that we in essence were going to refer all submissions to the Justice Department for evaluation for the possible unlawful dissemination of restricted data.

Now let me turn to Mr. Duff for the chronology and direct answer to your question of information about the article and the letter to Senator Percy.

Mr. DUFF. I became involved in this in September of this year, 1979. I think I was on the job about 72 hours when I had my first contact with Mr. Hansen. That was the proposal for the article. Immediately thereafter our office received a copy of the letter to Senator Percy, not from Mr. Hansen, but from the Livermore Laboratory. So I took action with our general counsel's advise and on the 12th of September. I called Hansen and officially notified him that his material contained restricted data.

Now, Mr. Hansen, as you indicated, was very responsive. Our security agents from our San Franciso office visited Chuck Hansen. He agreed to turn over his papers, which he did. Then he gave us the names of the newspaper who had also received the copies of his letters to Senator Percy. So that was the sequence of events from

our point of view. From the time we received Hansen's article and the letter to Senator Percy there was a reaction in our office almost within hours.

Mr. MCCLOSKEY. Still, how do you go back to Dr. Sewell's testimony? Here you have a perfectly understandable series of events, but how does the Atomic Energy Act work in this case? It didn't work. It didn't suppress the information. In fact the Government was frustrated and in fact no law has been violated.

Mr. SEWELL. Let me turn to Mr. Fygi.

Mr. FYGI. Let me respond that we have not conceded that no law has been violated.

Mr. MCCLOSKEY. Who do you feel violated the law? It is now March 1980. This information was published in September 1979. Mr. FYGI. Well, I am not in a position to discuss the merits of the pending case right now since it is pending in the Justice Department.

Mr. MCCLOSKEY. Let me stop you just at that point. Would it be fair to suggest that it is the threat of use of the law rather than the law itself which you find to be the key weapon in your armory at this point?

Mr. FYGI. That may very well be true in this case as in other

cases.

Mr. MCCLOSKEY. And by delaying the enforcement of the law, the attempted test of the law, by holding the threat available, you are trying to chill the scientists in this case and the individuals from further communication. When you say that, it may very well be the case that the threat of the enforcement is greater than the law itself, because if the law were tested you could not convict anybody. Doesn't that accurately describe the present situation?

Mr. FYGI. It may describe a result of consequences, but not any deliberate policy.

Mr. MCCLOSKEY. Mr. Chairman, this is my problem because I am afraid that this hearing cannot really reach the ultimate fact until the Justice Department makes a determination, yes, we will prosecute or no, we will not.

Mr. PREYER. I think we may well want to recall the witnesses after such a determination has been made. That might be the proper time to purse some of these questions.

Mr. BUTLER. Mr. Chairman, I feel like I have used all my time but when the gentleman from Massachusetts completes I would like to have more time.

Mr. PREYER. All right, Mr. Drinan.

Mr. DRINAN. Mr. Sewell, do you still state today what you stated to Mr. Hensen as shown in your statement on page 6 where you said that the article and the letter would injure the United States or secure an advantage to a foreign nation? If you still hold that, do you have any specifics?

Mr. SEWELL. Do I have any specifics of how it would endanger. Mr. DRINAN. Yes, secure an advantage to a foreign nation. Mr. SEWELL. I will have to respond to that in generalities. Mr. DRINAN. I asked for specifics. Just tell us why you thought it then and apparently you still hold it. If it is so, give us some facts where it has injured the United States. I just read Mr. Hensen's article and I can't conceive how this can-this is similar to Dr.