Conclusion

Chapter 5: The AEC's Reaction: Preserving Secrecy while Requiring Disclosure

In December 1946, as the civilian AEC was about to open its doors, Hymer Friedell, who had been deputy medical director of the Manhattan Engineer District, recommended the declassification of one of the plutonium reports, "CH [Chicago]-3607--The Distribution and Excretion of Plutonium in Two Human Subjects." The report, Friedell argued, "will not in my opinion result in the release of information beyond that authorized for disclosure by the current Declassification Guide."[101]

Friedell's recommendation was soon reversed. Officials with the new AEC had learned of the human injection experiments, and on February 28, 1947, an AEC declassification officer concluded that declassification was out of the question. The reasons are revealed in a previously classified document recently found at Oak Ridge:

The document [CH-3607] appears to be the most dangerous since it describes experiments performed on human subjects, including the actual injection of the metal plutonium into the body. The locations of these experiments are given and the results, even to the autopsy findings in the two cases. It is unlikely that these tests were made without the consent of the subjects, but no statement is made to that effect and the coldly scientific manner in which the results are tabulated and discussed would have a very poor effect on the public. Unless, of course, the legal aspects were covered by the necessary documents, the experimenters and the employing agencies, including the U.S., have been laid open to a devastating lawsuit which would, through its attendant publicity, have far reaching results.[102]

It is not clear to the Advisory Committee on what basis the declassification officer who wrote this comment concluded that it was unlikely that consent was not obtained from the Chicago subjects. This statement could be read as careful bureaucratic language, intended to leave an appropriate paper trail in the event of subsequent legal problems. On the other hand, the statement does support the claim, noted earlier, made by one of the Chicago doctors in 1974 that some form of oral consent for the injections had been obtained from the Chicago subjects. It is clear that there was no documentation of disclosure or consent on which the AEC could rely. As a consequence, secrecy was to be maintained, not as a defense against foreign powers, but to avoid a "devastating lawsuit" and "attendant publicity." Upon further review the report was "reclassified 'Restricted' on 3/31/47."[103] In a March 19, 1947, memorandum, Major Brundage, by that time chief of the AEC's Medical Division, explained:

The Medical Division also agrees with Public Relations that it would be unwise to release the paper 'Distribution and Excretion of Plutonium' primarily because of medical legal aspects in the use of plutonium in human beings and secondly because of the objections of Dr. Warren and Colonel Cooney that plutonium is not available for extra Commission experimental work, and thus this paper's distribution is not essential to off Project[104] experimental procedures.[105]

In July 1947, Argonne National Laboratory's declassification officer, Hoylande D. Young, inquired about possible declassification of this report as well as Hamilton's report on the CAL-1 injection. She stated that the directors of Argonne's Biology and Health Divisions (including J. J. Nickson, one of the authors of the Chicago report on the injections) believed that declassification of these reports would not be "prejudicial to the national interests."[106] The AEC continued to withhold declassification of these reports, however, on the grounds that they involved "experimentation on human subjects where the material was not given for therapeutic reasons."[107] Thus, there was clearly no expectation at the time that the plutonium injections would benefit the patient-subjects but some expectation that the general public might be disturbed by human experimentation in the absence of a prospect of offsetting benefit.

In 1950, Wright Langham and the Rochester doctors undertook to prepare a "Plutonium Report"[108] that would be "the last word on the plutonium situation."[109] It would be the "last word" to only a select few. In 1947, Rochester's Andrew Dowdy had urged Los Alamos to give advance notice of declassification of the Rochester part of the experiment "because of possible unfavorable public relations and in an attempt to protect Dr. [Samuel] Bassett from any possible legal entanglements."[110] This is likely a reference to the same concern raised in the discussion of Dr. Bassett's seminar about his having experimented upon his own patients, except in this case the context is the plutonium rather than the uranium injections. "We think," Langham wrote to Stafford Warren, "the classification will be 'Secret,' and the circulation limited, depending on Dr. Shields Warren's [the head of AEC's Division of Biology and Medicine] wishes."[111] In August, Shields Warren approved the report for "CONFIDENTIAL classification and limited circulation as [Dr. Langham] requested."[112]

Even though its data and analysis were the basis for widespread plutonium safety procedures, the report remained unavailable to the public until 1971 when, at the urging of Dr. Patricia Durbin, it was downgraded to "Official Use Only."[113] (This categorization means that while the document was not likely to be released to the public absent specific request, it could be disclosed.)

What was it that was so potentially embarrassing about the plutonium experiments? The answer appears to lie in the 1947 letters from General Manager Wilson, discussed in detail in chapter 1. These letters state rules for both the conduct of human experiments and the declassification of previously conducted secret experiments.[114]

In his April 1947 letter, Wilson stated the requirements that there be expectation that research "may have therapeutic effect" and that at least two doctors "certify in writing (made part of an official record) to the patient's understanding state of mind, to the explanation furnished him, and to his willingness to accept the treatment."[115] In his November 1947 letter, Wilson reiterated these terms for human experiments, again calling for "reasonable hope . . . that the administration of such a substance will improve the condition of patient" and this time calling for "informed consent in writing" by the patient.[116] All of the seventeen plutonium injections conducted prior to the letters violated both these terms. As a consequence, they would have to stay secret. The only secret experiments that could be declassified were those that satisfied these requirements; to do otherwise was to risk adverse public reaction. Thus, the decision to keep the plutonium reports secret was itself an example of the way in which the AEC's assertion of conditions for human experimentation was coupled with the decision to keep secret those experiments that evidently did not adhere to these conditions (see chapter 13).