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putting together a gadget, because I think that is an important distinction.
Mr. PREYER. Fine.
Mr. WEISS. Thank you, Mr. Chairman.
Dr. Wagner, I don't know if you have had a chance to read the letter that was submitted as one of the exhibits with Mr. McCloskey's testimony from the six scientists at the Argonne National Laboratory. He stated in his testimony that the letter was only declassified yesterday, so you may well not have had a chance to read it.
Dr. WAGNER. I believe I read that letter and some of the other correspondence many months ago. I have not read it since then.
Mr. WEISS. All Right. The most significant thing to me about that letter, and there are a number of significant areas in it, is that these distinguished scientists say that in 1976 an article was written by Dr. Edward Teller and published in the Encyclopedia Americana, on the H-bomb which discussed a possible solution to the problem of how efficient trigger and fusion materials might be arranged relative to each other within the casing of a thermonuclear weapon. It is even outlined in a diagram.
They say that the configuration was conceptually similar to a diagram which the Government wanted to suppress in the Morland article. They state how the Government allowed release of affidavits committed by these scientists in which they pointed out the similarly. Even further, the Government itself solicited an affidavit from one Jack Rosengren in which he stated that the Morland diagram and therefore, according to the scientists, Teller's diagram, reveals "the nature of the particular design used in the thermonuclear weapons in the U.S. stockpile."
They draw a dual conclusion from it, at least a dual one. One conclusion is that the Government itself so terribly mishandled this situation that if, in fact, there were secrets involved in the Morland article, they were corroborated and validated by the Government's release of its own affidavits in the course of its lawsuit against Morland.
The second conclusion they draw inferentially. They say that the danger lies in the political use of the classification system which allows only the release of information by certain self-selected classifiers, Dr. Teller, for example: This process then shapes the nature of debate and nature of information available to the broad American public as to what the policy judgments ought to be on the most fundamental decisions that American society has to determine. So, my question to you is how do you rationalize Dr. Teller's ability without any hindrance to publish in a public encyclopedia the same information which 3 years later the Government says can't be published because it is disclosing secret information.
Dr. WAGNER. I will have to answer by giving you information that I don't know firsthand. I do, however, know that Edward Teller responded to a letter from Congressman McCloskey along those same lines by pointing out that he, himself had written the words to the article, had had them checked or thought he had, by the classification people at the laboratory. I understand that he may not be certain of that now. But he said that he had never seen
the drawing before, that it was supplied by the editors or the writer of the article without his knowledge. So, I think perhaps I can separate the drawing from the issue. The words are trivial. It is a sentence or two. I urge you to read the words yourself. He gave no information that was not at that time and now and perhaps a long time before truly common knowledge, I mean well removed from this boundary line that we are trying to explore.
Mr. WEISS. Accepting what you have just said as the facts, arguendo, regardless of who prepared the diagram and even regardless of whether the diagram accompanying the Teller article was prepared exclusively on the basis of the Teller article or using additional public information which the preparer of the diagram may have brought to his work, the fact is that for some 21⁄2 or 3 years this information was broadly disseminated. I understand the Morland article was in part based on the information in this piece.
It seems to me that selective enforcement of perceived secrecy by the Government puts people in our society at great risk of not knowing when they may run afoul of the Government because it picks and chooses whom it will allow to publish what, when, and under what circumstances. Isn't that a great concern to us or shouldn't it be?
Dr. WAGNER. It should be, but it is not clear to me that there was a selective judgment made at the time. Actually it was 10 years earlier. I think there is a misprint. I think it was 1966 rather than 1976, and I was not really even aware of the issue at the time. Had it come up then and if I had to deal with it, I would have worried considerably about just the point that you raised in the first part of your question; that is, drawing attention to the secret by having a Government agency try in some way to withdraw it. In fact the encyclopedia, as I understand it, had been published and distributed by the time Teller or anyone else saw the drawing. So it may well have been that rather than some selective judgment by Edward Teller, as opposed to someone else that there was a judgment not to shine the spotlight on that drawing by attempting to withdraw it.
Now if you go onto that question-
Mr. WEISS. Before you go onto that, though, wouldn't you think, that the greater concern that foreign nations or individuals who have interests inimical to the United States would be much more likely to pursue what is labeled as the work of Dr. Teller, who is one of the giants in this field, rather than Howard Morland who goes out and says, "Listen, all I have done is gather a lot of public information together and here is the result of my public research"
Dr. WAGNER. I would certainly worry more about that. As I say, perhaps at the time the concern about it appearing to come from Teller weighed on the side of the case; the concern not to shine the spotlight on the drawing weighed on the other. That question of acknowledging that information is endorsed as correct by knowledgeable people is one that bears on a question that was discussed earlier having to do with the cases where material may be published but continues to be protected as classified. It seems to me that that is in fact done just to avoid endorsement by someone knowledgeable.
Even though it is out and published, if it was published by somebody who may not know, that is a much less worrisome situation than if you classify it, which would lead to its authentication by a knowledgeable person.
But to return to the Teller issue, I am not sure what the two sides of the argument may have been at the time. I think that there is not a large enough data base to assess whether or not over the years there has been any systematic discrimination based on the prestige of the person involved. I just don't know how to assess that. My experience leads me to believe that there has not been. Mr. WEISS. You raised the other side of it which is shown by the apparent fact that in the Teller case the Government, or some representative, looked at that article and diagram, knew it presented problems, and made the decision to let it lie. Wouldn't you think that for the same reasons the better part of wisdom would have been to allow the same thing to happen in the Morland situation rather than the Government itself disclosing all this buttressing material which removes any question as to whether or not this man is merely guessing or if it is for real?
Dr. WAGNER. I think you put your finger on the fundamental decision that had to be made at the time. There is more involved in the Morland case than just the Teller-like diagram. I am sure that that weighed on the side of taking unusual action, that is, setting aside the "no comment" approach and actually following the course that was followed. So it clear to me that they are in fact parallel.
Mr. WEISS. Thank you, Mr. Chairman.
Mr. PREYER. Thank you very much, Dr. Wagner. We appreciate your being here today. We wish to thank all of the witnesses for their testimony today.
The committee will stand in recess until the call of the Chair. [Whereupon, at 1:17 p.m., the subcommittee adjourned, to reconvene subject to the call of the Chair.]
THE GOVERNMENT'S CLASSIFICATION OF
THURSDAY, AUGUST 21, 1980
HOUSE OF REPRESENTATIVES,
AND INDIVIDUAL RIGHTS SUBCOMMITTEE
OF THE COMMITTEE ON GOVERNMENT OPERATIONS,
Washington, D.C. The subcommittee met, pursuant to notice, at 10:10 a.m., in room 2203, Rayburn House Office Building, Hon. Richardson Preyer (chairman of the subcommittee) presiding.
Present: Representatives Richardson Preyer, Robert F. Drinan, David W. Evans, and M. Caldwell Butler.
Also present: Representative Paul N. McCloskey, Jr.
Staff present: Timothy H. Ingram, staff director; Gerald Sturges, professional staff member; Euphon Metzger, clerk; and Thomas G. Morr, minority professional staff, Committee on Government Operations.
Mr. PREYER. The committee will come to order. This is the third day of hearings by the subcommittee on the ability of the Government to classify, restrict, or assert ownership rights over privately generated information-the policy issue highlighted by the Progressive magazine case.
Today's hearing will explore the interlock between invention secrecy orders, atomic energy restricted data, and the national security information system.
Since its inception in 1940, the Armed Services Patent Advisory Board has requested more than 41,000 secrecy orders on patent applications. About 3,500 new and renewed secrecy orders are in force today-the lowest number since the summer of 1951.
One thing we hope the Pentagon witness team will make crystal clear this morning is how and why defense agencies classify patent applications as national security information before they request a secrecy order pursuant to the Invention Secrecy Act.
We will also explore the Department of Energy's use of national security information in conjunction with the Invention Secrecy Act and the Atomic Energy Act, and are pleased to have with us testifying again, the DOE Assistant Secretary for Defense Programs, Mr. Duane Sewell.
I might note that Mr. Sewell has given us as we requested-a sanitized version of the "Study on Government Control of ICF Research"-that is, the so-called Moe report on inertial confinement fusion activities. However, this unclassified version has been marked, "Official Use Only," despite this subcommittee's aversion to the use of administrative markings to limit the distribution or
utility of unclassified information. We will take up this matter a bit later.
Our witnesses from the Defense Department are headed by Richard Sciascia, Chairman of the Armed Services Patent Advisory Board. Mr. Sciascia, I welcome you, and will ask you to introduce the other departmental witnesses, but I wish to express my regret that the Office of the Secretary of Defense is not represented here this morning, inasmuch as the principal authority for invention secrecy is vested in Defense Secretary Harold Brown.
Mr. Sciascia, it is the custom of the committee to swear in witnesses in fact-finding hearings. If you and anyone accompanying you who will be answering questions will stand, I will administer the oath.
Do you and each of you solemnly swear that the testimony you are about to give before this subcommitee will be the truth, the whole truth, and nothing but the truth, so help you God?
Mr. SCIASCIA. I do.
Colonel HOUGEN. I do.
Mr. SINGER. I do.
Mr. NIEMAN. I do.
Mr. PREYER. Mr. Sciascia, we will recognize you at this time. Perhaps first you would introduce your associates.
STATEMENT OF RICHARD SCIASCIA, CHAIRMAN, ARMED SERVICES PATENT ADVISORY BOARD, DEPARTMENT OF DEFENSE; ACCOMPANIED BY LT. COL. HOWARD M. HOUGEN, INTELLECTUAL PROPERTY DIVISION, OFFICE OF JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE ARMY; DONALD J. SINGER, PATENTS DIVISION, OFFICE OF JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE AIR FORCE; AND FRANK G. NIEMAN, PRINCIPAL PATENT STAFF ATTORNEY, OFFICE OF NAVAL RESEARCH, DEPARTMENT OF THE NAVY
Mr. SCIASCIA. Mr. Chairman, thank you for the opportunity to address you and your subcommittee. With me today are Lt. Col. Howard M. Hougen, Intellectual Property Division, Office of the Judge Advocate General, Department of the Army, my predecessor as Chairman of the ASPAB; Donald J. Singer, Acting Chief, Patents Division, Office of the Judge Advocate General, Department of the Air Force; and Mr. Frank G. Nieman, Principal Patent Staff Attorney, Office of Naval Research, Department of the Navy.
Mr. Chairman, with respect to your regrets regarding someone from the Office of the Secretary of Defense being here, the responsibility for administering and processing matters under the Invention Secrecy Act has been delegated down through the Secretaries of the services and to this Board, and in past history, if you will look at what has happened during the late 1940's and early 1950's, witnesses before congressional subcommittees and committees were approximately at the level of the personnel here. What I would like to do is to give you an idea as to how we operate. Under the provisions of chapter 17 of title 35, United States Code, the Secretary of Defense and the heads of other designated agencies have authority to cause a secrecy order to be imposed on patent applications pending in the United States Patent and Trademark Office (PTO). Within the Department of Defense, this authority has been