In your letter of April 22, 1980, you requested all correspondence relating to my decision to grant the Department of Energy (DOE) an exemption from the portion marking requirements of Executive Order 12065. Attached are 42 pages" of correspondence regarding the issue of portion marking documents containing Restricted Data (RD)/Formerly Restricted Data (FRD) and National Security Information (NSI). You will note that the correspondence involves DOE and the Department of Defense (DOD) and their involvement in joint DOE-DOD projects as they relate to RD/FRD and NSI matters. 42 U.S.C. Section 2162 places responsibility for the control of Restricted Data, including classification and declassification, with the Atomic Energy Commission (now DOE). The DOE and predecessor agencies have consistently followed a policy of not portion marking Restricted Data based on their position that such markings could result in damage to the common defense and security. They have, however, in the interest of uniformity, elected to participate to the maximum extent possible in the President's information security program established by E.O. 12065. Our major concern with the DOE program was centered around the Executive Order requirement that National Security Information (NSI) be portion marked. While DOE complies with this requirement for documents containing only NSI, they adopted the position that documents containing a mix of Restricted Data/Formerly Restricted Data and NSI would not be portion marked. Our initial reaction was to require the DOE to change this policy. However, following extensive briefings by the DOE, including a detailed examination of documents and technical manuals, I became convinced that requirements for portion marking this highly complex, technical and sensitive information could lead to inadvertent disclosures detrimental to the national security. This was true even when the markings are applied by extremely well-qualified experts of DOE. Thus, the waiver from portion marking for mixed RD/FRD and NSI documents was granted. To preclude any improper or unnecessary classification of derivative documents based on the classification of mixed RD/FRD and NSI material, I prohibited the use of such documents as the source for derivative classification. This action forces the use of approved classification guides and should result in greater consistency in classification of like information. Congressman Richardson Preyer You also requested copies of agency reports to the Information Security Oversight Office (ISOO) involving misapplication of the Executive Order involving RD and FRD matters within the last four years. This information was not requested in any ISOO reporting requirements during the last four years because of the responsibility of DOE for this information and because of the following constraints levied on ISOO in Section 6-2 of the Order: "Nothing in this Order shall supersede any requirements made by or under the Atomic Energy Act of 1954, as amended. 'Restricted Data' and information designated as 'Formerly Restricted Data' shall be handled, protected, classified, downgraded, and declassified in conformity with the provisions of the Atomic Energy Act of 1954, as amended, and regulations issued pursuant thereto." I hope the information provided meets all your requirements. If further information is required, please contact my office. Sincerely, Kehrt W. Wells ROBERT W. WELLS Attachments *Available in subcommittee files. On March 26 of this year United States District Court judge Robert W. Warren issued an unprecedented ruling restraining the Progressive from publishing an article entitled "The H-Bomb Secret: How We Got it, Why We're Telling It". On June 15, in a secret opinion, Judge Warren reaffirmed his earlier decision in response to the Progressive's motion to lift the injunction. This ruling is the first case in the history of this country in which a Federal Judge has imposed prior restraint on the press on national security grounds. This case generated three major constitutional concerns. The first, and possibly most important of these is when, if ever, the government can justifiably resort to prior restraint in order to halt the publication of potentially harmful materials. Advance censorship is the most serious attack on freedom of expression possible. It puts the burden of proof upon the person who desires to communicate information instead of upon the government officials attempting to suppress it. It forces the defendent to comply with the censor or to be found in violation of the law. And it corrodes the right to freedom of expression, even if the supression order is eventually overruled, because it delays the thought's timely expression. In past decisions the Supreme Court has ruled that prior restraint may be appropriate in a few narrowly defined situations such as one in which a member of the media intended to publish the number and location of troops in a time of war. However, until this decision, that rigorous standard has never been satisfied. GOVERNMENT OPERATIONS: GOVERNMENT INFORMATION AND INDIVIDUAL RIGHTS MANPOWER AND HOUSING EDUCATION AND LABOR: ELEMENTARY, SECONDARY AND VOCATIONAL EDUCATION • LABOR AND MANAGEMENT RELATIONS EMPLOYMENT OPPORTUNITIES THIS STATIONERY PRINTED ON PAPER MADE WITH RECYCLED FIBERS Page 2 Preyer The second constitutional issue dealt with in this opinion is whether the definition of "restricted data" as "all data concerning 1) design, manufacture, or utilization of atomic weapons; 2) the production of special nuclear material; 3) the use of special nuclear material in the production of energy, but shall not include data declassified or removed from the Restricted Data category pursuant to section 2162 of this title" is unconstitutionally vague and over-broad. Essentially, this definition presupposes all nuclear information to be restricted unless otherwise specified. In effect, this stands one of the most basic precepts of the Constitution on its head; all information should be available to the public unless the government can prove that it should not be, not vice versa. The third question generated by this case is whether the concept that ideas can be "born secret" is a constitutionally viable one. In this case all the information used in the article was in the public domain. The government contended that even though the facts used were public knowledge, they were combined by the author in such a way that they created "classified concepts". The danger of assuming that certain original ideas should not be expressed because the thought ought to have been a secret, is obvious. The "born secret" concept, if upheld on appeal, could conceivably be used to stifle much of the scientific inquiry in this country. The controversial nature of Judge Warren's ruling has been compounded by the recent finding that documents revealing "the essential secret of the H-bomb" had been crroneously declassified and on the public shelves of the Las Alamos scientific library for four years. Discoveries such as this one critically weaken the government's contention that the publication of this article would have devestating effects on our national security. In fact, the Justice Department's refusal, after such a discovery, to withdraw their request for advance censorship of a markedly less. informative article, shows a basic misunderstanding of the concept of prior restraint, and of the tremendous care and reluctance with which it should be imposed. Page 3 In a case such as this one, in which such basic Constitutional issues are at stake, it is important that Congress not fail to exercise its oversight functions. As the subcommittee authorized to oversee the day-to-day functioning of the First Amendment, it is well within our jurisdiction to investigate this matter. Every day that the publication of this article is delayed constitutes a further violation of the fundamental right of freedom of expression. It is our responsibility to ensure that the most basic rights of our citizenry, to speak and to be heard, are not violated. I know that you share these convictions and hope you will convene hearings on this subject at the earliest possible date. Sincerely, Jed TED WEISS Member of Congress TW: 1s |