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Part II

Chapter 13


National Security and Governmental Prestige: The Legal Tradition Inherited by Cold War Agencies

The Practice of Secrecy

The Records of Our Past


Chapter 13: National Security and Governmental Prestige: The Legal Tradition Inherited by Cold War Agencies

To many citizens, the idea of secrecy in government is linked to the idea of "national security secrets" or "classified information." As we have noted, the government also keeps secrets that fit in neither of these categories. The system of classification, nonetheless, occupies a special place in governmental secrecy. Classified information is accessible only to those who have been "cleared" following investigation and who agree to abide by the rules regarding access to this information; the violation of these rules can result in severe criminal penalties.[3]

Today, classification is limited to matters of national security. At the start of the Cold War, however, the legitimate reasons for classification were not so limited. The legal tradition that information can only be classified for reasons of national security was just beginning to displace a tradition that allowed classification for other interests of state.

The authority to classify information derives from legislation and from presidential executive order. In 1917, Congress passed the Espionage Act to address wartime spying,[4] and further legislation providing for military secrets was enacted in 1938.[5] In 1940 President Franklin D. Roosevelt issued the first executive order on classification, which was based on the authorization of the 1938 law enacted to protect military installations and equipment.[6]

The regulations that interpreted the World War I law declared that secrets could be kept not only for national security reasons but also for other reasons. In 1936, for example, the Army issued rules that provided for Secret, Confidential, and Restricted information. The definition of Confidential provided that

A document will be classified and marked "Confidential" when the information it contains is of such nature that its disclosure, although not endangering our national security, might be prejudicial to the interests or prestige of the Nation, an individual, or any governmental activity, or be of advantage to a foreign nation [emphasis added].[7]

Similarly, data could be classified Secret where it might endanger national security "or cause serious injury to the interests or prestige of the Nation, an individual, or any government activity [emphasis added]."[8]

The Manhattan Project's "Security Manual" followed the Army rules, requiring classification of information as Confidential, and even at the higher level of Secret, in the absence of likely harm to national security.[9] Before the end of World War II, therefore, there was precedent for using the classification system to do more than protect national security.

The era of atomic energy presented the government with unique questions of secrecy. The government built the atomic bomb behind an extraordinary shield of wartime secrecy. The very existence of the newly created communities surounding AEC laboratories in Los Alamos, New Mexico; Hanford, Washington; and Oak Ridge, Tennessee; was a secret. Children at Oak Ridge schools did not use their full names, and houseguests were introduced as "Mr. Smith."[10] Following the Hiroshima bombing, the government faced the somewhat paradoxical task of protecting its single most important military secret while having to inform the public, if not the world, about both the hazards and peacetime spinoffs that the creation of the bomb had engendered--from radiation fallout and waste to nuclear power and radioisotopes for medical research and treatment.

At the war's end, a committee (known after its chair as the Tolman Committee)[11] convened to determine what information from the Manhattan Project should be declassified. In its report, the Tolman Committee concluded that "in the interest of national welfare it might seem that nearly all information should be released at once."[12] But national welfare had to be considered in light of national security. Still, "it is not the conviction of the [Tolman] Committee that the concealment of scientific information can in any long term contribute to the national security of the United States."[13] The progress of science, the committee reasoned, depends on the free flow of information, and long-term national security depends on the progress of science. In the short term, however, the security of the nation required some secrecy. Thus, the Tolman Committee concluded that secrecy could be justified for reasons of national security and then only if "there is a likelihood of war within the next five or ten years."[14] Applying this general philosophy to the question of secrecy in medical research, it recommended that "all reports on medical research and all health studies" be immediately declassified except for those reports that contained information independently classified in the interest of short-term national security.[15]

While the Tolman Committee report generally advocated openness, it also set the precedent for keeping declassification guides secret. The report recommended that "the whole of the Declassification Guide should not, however, be generally distributed since it gives an overall picture of the whole project and makes mention in certain instances of extremely secret matters. The portions of the Declassification Guide needed for the work of anyone concerned with declassification should be made available."[16] By following this recommendation, the AEC, and later the Department of Energy, would keep from the public the ever-accumulating rules governing weapons-related information. Indeed, the first three declassification guides covering information on nuclear weapons, published in 1946, 1948, and 1950, were declassified only in 1995.[17]

In 1946 Congress enacted the Atomic Energy Act, which, in creating the AEC, expressly addressed the protection of atomic energy information. The act provided that all information related to atomic energy was to be considered as Restricted Data (RD) until the AEC reviewed it and decided that it should be unprotected (RD was, therefore, said to be "born secret").[18] The act prohibited the unauthorized disclosure of RD (making it a capital crime to do so in the course of espionage) and prohibited anyone from receiving access to it without first receiving a security clearance. At the same time, however, the act instructed the AEC not to protect information if the AEC did not consider its disclosure harmful to the national security. Thus, the statute defined RD to mean "all data concerning the manufacture or utilization of atomic weapons, the production of fissionable material, or the use of fissionable material in the production of power, but shall not include any data which the Commission from time to time determines may be published without adversely affecting the common defense and security [emphasis added]."[19]

As we look back on a Cold War that spanned four decades, the Tolman Committee's view that secrecy could be justified for reasons of national security only if there is a "likelihood of war within the next five or ten years" may seem quaint. In the decades following the Tolman Committee's work, the possibility of nuclear war would loom as a reality, and information on nuclear weapons design and development would be, and remains today, most closely guarded. But, in the immediate postwar period in which the Tolman Committee worked and the Atomic Energy Act was passed, the question of whether information on atomic energy could, as a practical matter, long be kept secret by one nation, or whether international control of atomic energy and atomic energy information was the best course to national security, was itself a subject of highest-level policy discussion. Most notably, this question was addressed in 1946 by a committee appointed by Secretary of State James F. Byrnes, and chaired by future Secretary of State Dean Acheson. Acheson selected David Lilienthal (soon to be the first chairman of the new AEC) to chair a board of consultants, which included J. Robert Oppenheimer, the Manhattan Project's senior scientist. In early 1946 the "Acheson-Lilienthal Report" proposed international control of atomic energy under an "Atomic Development Authority." The story of how this proposal was overtaken by the dawning of the Cold War is beyond this report's purview.[20] Nonetheless, as we turn to the new AEC's treatment of information on biomedical research, it is important to recall that in the immediate aftermath of Hiroshima and Nagasaki, there was a window in our history in which the most basic questions of the role of secrecy in nuclear weapons development were an open subject of high-level and public debate.

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