Posts from May, 2010

GAO Report on the 1965 NUMEC Affair Declassified

Updated below

In 1965, over 200 pounds of weapons-grade highly enriched uranium went missing from the Nuclear Materials and Equipment Corporation (NUMEC) plant in Apollo, Pennsylvania.  Circumstantial evidence and popular lore suggested that the material had been clandestinely diverted to Israel for use in its nuclear weapons program, either with or without the acquiescence of the U.S. Government.

A secret 1978 review of the episode (pdf) that was performed for Congress by the General Accounting Office (as it was then known) has recently been declassified and released.  But instead of resolving the mystery of the missing uranium, it only highlights it.

The Department of Energy and the Nuclear Regulatory Commission cooperated fully with the GAO, but the CIA and the FBI did not.  “GAO was continually denied necessary reports and documentation on the alleged incident by the Central Intelligence Agency and the Federal Bureau of Investigation…. The lack of access to CIA and FBI documents made it impossible for GAO to corroborate or check all information it obtained,” the GAO report said.

“Based on its review of available documents held by DOE and discussions with those involved in and knowledgeable about the NUMEC incident, GAO cannot say whether or not there was a diversion of material from the NUMEC facility…. Agents from the FBI involved in the current investigation told GAO that while there exists circumstantial information which could lead an individual to conclude that a diversion occurred, there is no substantive proof of a diversion.”

“All investigations of the alleged incident ended with no definitive answer and GAO found no evidence that the 200 pounds of nuclear material has been located,” the GAO said.

The GAO report was obtained by the Institute for Research: Middle East Policy, a group critical of pro-Israel advocacy in the U.S.  See “Nuclear Diversion in the U.S.?  13 Years of Contradiction and Confusion,” U.S. General Accounting Office report EMD-79-8, December 18, 1978.

Update: The most recent account of the case is “Revisiting the NUMEC Affair” (sub. req’d) by former NRC officials Victor Gilinsky and Roger J. Mattson, Bulletin of the Atomic Scientists, March/April 2010.

“The circumstantial evidence supports the conclusion that the HEU ended up in Israel,” said former NRC Commissioner Gilinsky. “Our conclusion, which was based on a lot more information and analysis than was available to the GAO in 1978, thus goes well beyond that of the just released report. Moreover when we talk about the HEU we include not only the unexplained losses found in the famous 1965 inventory, but also unexplained losses for the subsequent few years, which are even larger.”

“The bottom line of the article,” said Dr. Mattson, “is that it is time to end FBI and CIA secrecy on the now 40+ year old Apollo/NUMEC affair.”

Nuclear Nonproliferation, Safeguards, and Enrichment

“South Africa repeatedly has stated its commitment to nuclear nonproliferation since it ended its nuclear weapons program and signed the Nonproliferation Treaty in July 1991,” observes a brief new report from the DNI Open Source Center, which also notes that “South Africa has a history of backing Iran’s ‘peaceful’ nuclear development.”  See “South Africa’s Nuclear Nonproliferation Posture Remains Consistent” (pdf), Open Source Center Report, 9 April 2010.

“The implementation of international safeguards at the Rokkasho Reprocessing Plant (RRP) in Japan has been the largest challenge the International Atomic Energy Agency (IAEA) has faced to date,” according to a recent report on the development of nuclear safeguards.  See “Lessons Learned in International Safeguards — Implementation of Safeguards at the Rokkasho Reprocessing Plant” (pdf), Oak Ridge National Laboratory, December 2009.

An overview of uranium enrichment programs around the world was prepared last year for the Department of Energy, based exclusively on open source information.  See “Profile of World Uranium Enrichment Programs – 2009″ (pdf), Oak Ridge National Laboratory, April 2009.

A New Push for the Office of Technology Assessment

Ever since the Office of Technology Assessment (OTA) was eliminated in 1995 by the resurgent Republican majority, some members of Congress, science policy advocates, and others having been searching for a way to replace the depth of expertise and and the often trenchant policy analysis that it once provided to Congress and the public.  Now the possibility of reconstituting OTA itself is gaining new momentum.

For the second year in a row, Rep. Rush Holt (D-NJ) has requested funding that $35 million be allocated to restore OTA.  For FY 2011, Rep. Holt requested $2.5 million for an initial restart, with the expectation that the budget would later grow to around $35 million. Last week, dozens of scientific, environmental, labor and other organizations endorsed funding for OTA in a letter to Congress.  “Revitalizing the OTA would enable members of Congress to more fully understand the advantages and implications of the science and technologies in which they are asked to invest,” said the May 7 letter (pdf), which was coordinated by the Union of Concerned Scientists.

The possibility of new funding for OTA and related discussion of technology assessments for Congress including were noted by the Congressional Research Service in “Legislative Branch: FY2011 Appropriations” (pdf), April 28, 2010 (at pp. 18-19).

A comprehensive archive of OTA publications from 1972-1995 is available on the Federation of American Scientists web site.

A 2004 report from the Federation of American Scientists entitled “Flying Blind: The Rise, Fall, and Possible Resurrection of Science Policy Advice in the United States” by Henry Kelly, Ivan Oelrich, myself and Benn H. Tannenbaum is here (pdf).

In the absence of an OTA, Congress has assigned technology assessment problems of varying scope and complexity to the National Academies of Science, the Government Accountability Office, and the Congressional Research Service.

A 2008 CRS report — that may conceivably have some relevance to the explosion of the Deepwater Horizon oil drilling rig off the Gulf Coast last month — examined the value and hazards of natural gas in the form of solid gas hydrates.  “Offshore drilling operations that disturb gas hydrate-bearing sediments could fracture or disrupt the bottom sediments and compromise the wellbore, pipelines, rig supports, and other equipment involved in oil and gas production from the seafloor,” the report said.  See “Gas Hydrates: Resource and Hazard” (pdf), November 26, 2008.

Burma, Greece, Arizona and More from CRS

Each year, Congress inserts language in the Legislative Branch Appropriations Act prohibiting the Congressional Research Service from “pay[ing] any salary or expense in connection with any publication” that has not been specifically approved by the House Administration Committee or the Senate Rules and Administration Committee.  The intent of the language is to prevent CRS from making its products directly available to the public.

The following CRS publications obtained by Secrecy News fall under this strange prohibition, since they have not been approved for public dissemination by the House or Senate Committees (all pdf).

“Burma’s 2010 Elections: Implications of the New Constitution and Election Laws,” April 29, 2010.

“Greece’s Debt Crisis: Overview, Policy Responses, and Implications,” April 27, 2010.

“State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070,” May 3, 2010.

“Legislative Approaches to Defining ‘Waters of the United States’,” April 30, 2010.

“State, Foreign Operations, and Related Programs: FY2011 Budget and Appropriations,” May 5, 2010.

“Latin America and the Caribbean: Illicit Drug Trafficking and U.S. Counterdrug Programs,” April 30, 2010.

A Tutorial on the Classified Information Procedures Act

Last week, prosecutors in the case of Thomas A. Drake, the former NSA official who is charged with unlawfully retaining classified information that he allegedly disclosed to a reporter, asked the court to hold a pre-trial conference on the use of the Classified Information Procedures Act (CIPA) in that case.

CIPA was passed by Congress in 1980 to regulate the disclosure of classified information in criminal prosecutions, such as espionage cases, and to prevent so-called “graymail,” in which a defendant threatens to release classified information in the hope of forcing the government to abandon the case.

In a nutshell, CIPA requires the defense to notify prosecutors and the court of any classified evidence it intends to introduce.  Courts must then determine if the classified evidence is admissible. If so, the government may propose an unclassified substitution that does not involve classified information.  But if the court finds that the unclassified substitution is inadequate to preserve the defendant’s right to a fair trial, and if the Attorney General objects to disclosure of the classified version, then the indictment may be dismissed.

Perhaps assuming that the judge (or the defense) was unfamiliar with the law, prosecutors in the Thomas Drake case filed a motion (pdf) explaining the meaning of each section of CIPA.

The purpose of their CIPA tutorial was “to inform the Court of the applicability of CIPA and its procedures to issues involving classified information that will arise before and during the trial of this case,” they wrote. See “Government’s Motion for Pretrial Conference Under Section 2 of the Classified Information Procedures Act,” May 5, 2010.

The development and early history of CIPA were reviewed by the Congressional Research Service in a March 2, 1989 report entitled “Classified Information Procedures Act (CIPA): An Overview.”

The use of CIPA to preserve defendants’ rights while protecting classified information in criminal trials presents a stark contrast with the absence of any comparable procedure in civil trials, particularly those in which the government invokes the state secrets privilege to prevent the use of classified evidence.

“For almost 30 years, courts have effectively applied [CIPA] to make criminal trials fairer and safer,” the Senate Judiciary Committee noted in a 2008 report on the pending State Secrets Protection Act.  “Yet in civil cases, litigants have been left behind.”

“Congress has failed to provide clear rules or standards for determining whether evidence is protected by the state secrets privilege. We’ve failed to develop procedures that will protect injured parties and also prevent the disclosure of sensitive information. Because use of the state secrets privilege has escalated in recent years, there’s an increasing need for the judiciary and the Executive to have clear, fair, and safe rules,” the Judiciary Committee report said.

A legislative response to the problems posed by the unilateral use of the state secrets privilege by the executive branch remains to be accomplished.

The New START Treaty, and More from CRS

New reports on nuclear policy prepared by the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

“The New START Treaty: Central Limits and Key Provisions,” May 3, 2010.

“2010 Non-Proliferation Treaty (NPT) Review Conference: Key Issues and Implications,” May 3, 2010.

“Securing Nuclear Materials: The 2010 Summit and Issues for Congress,” April 16, 2010.

EPA Said to Have Suppressed, Misclassified Records

Officials of the Environmental Protection Agency intentionally stopped keeping records concerning potentially hazardous landfills in New Mexico in order to circumvent the disclosure requirements of the Freedom of Information Act.  They also marked unclassified records as “confidential” in order to restrict their dissemination, a report (pdf) from the EPA Inspector General found.

One EPA official told the IG that “her section discontinued record keeping in favor of undocumented phone calls and conversations … to prevent the production of documents…. [She] informed us that her section had discontinued record keeping… because of … requests for information under the Freedom of Information Act” that had been filed by Citizens Action New Mexico, a public interest group investigating potential contamination of Albuquerque’s groundwater.

The Inspector General report said that failure to document agency activities is a violation of EPA policy and federal law, which require the preparation and preservation of “adequate and proper” records of agency functions, decisions and transactions.

Another EPA official “withheld [a document] from the public by marking it Confidential, a security classification category” even though it “contained no classified information.”  Officials said they only meant to indicate that the document was a deliberative draft, not that it was classified.  But the IG said that too is a violation of agency policy, which prohibits the use of classification markings on unclassified records.

The Inspector General said that because of defective record keeping, it was unable to determine whether EPA oversight of the New Mexico landfills was actually satisfactory or not.

In a response to the IG, the regional EPA office firmly “denied its staff took inappropriate steps to withhold information from the public.”  But the EPA response “did not address evidence presented in the report that … staff intentionally stopped documenting discussions to avoid responding to the public’s FOIA requests,” the IG countered.

The EPA also replied that “the term ‘confidential’ is commonly used throughout the Agency for many documents” and does not imply that the documents are classified.  But if so, this practice is “in violation of EPA security policies,” the IG said, since the “confidential” label is strictly reserved for classified records.

In a lengthy reply appended to the IG report, the regional EPA office said it did not concur with the findings or the recommendations of the Inspector General, and that local EPA officials had done nothing wrong.  Because of the non-concurrence and the resulting impasse, the issue will be elevated to the EPA deputy administrator for resolution.  See “Region 6 Needs to Improve Oversight Practices,” Office of Inspector General, U.S. Environmental Protection Agency, April 14, 2010.

The IG report was first reported by John Fleck of the Albuquerque Journal on April 16, and was also covered by Superfund Report on May 3.

From a secrecy policy point of view, the new report illustrates the potential for active Inspector General oversight of agency classification practices, but also the possible limitations of such oversight.  The IG pursued its mandate fearlessly and relentlessly, and presented its conclusions forthrightly, even though they were unwelcome to the agency.  On the other hand, the IG investigation did not succeed in resolving the issues it raised, at least not yet.  Worse, “the estimated cost of this report… is $272,846,” the 28-page IG report stated, which is equivalent to an astounding and unsustainable $10,000 per page.

After a Six Year Declassification Review, A New FRUS Volume

The latest volume of the official “Foreign Relations of the United States” (FRUS) series was published by the State Department yesterday on the topic of Korea, 1969-1972.  It covers U.S. relations with the Republic of Korea as well as disputes with North Korea during the Nixon Administration.

Remarkably, declassification of the 489-page FRUS volume (pdf) took no less than six years.

“The declassification review of this volume, which began in 2003 and was completed in 2009, resulted in the decision to withhold 1 document in full, excise a paragraph or more in 5 documents, and make minor excisions of less than a paragraph in 17 documents,” according to the Preface of the new volume.  Another FRUS volume on Japan during the same period also entered declassification review in 2003, but has still not emerged into the light of day.

This is no way to run a history program, historians and archivists agree.  But without profound changes in declassification procedures the current backlog of records awaiting declassification is going to grow, not shrink, said Michael J. Kurtz of the National Archives.  The Archives typically processes 11 million pages per year for declassification, Mr. Kurtz told the Public Interest Declassification Board on April 22, but it takes possession of an additional 15 million pages of classified records each year, for a net increase in classified historical files.

In December 2009, President Obama ordered that the backlog of more than 400 million pages of 25 year old classified records must be declassified and made publicly available by the end of December 2013.  Meeting that deadline will require the new National Declassification Center to increase the current declassification capacity tenfold to 100 million pages per year, Mr. Kurtz said.  To achieve this ambitious goal, the Archives is subjecting its declassification practices to a “business process reengineering” review that is supposed to eliminate repetitious, wasteful or counterproductive declassification activities and improve productivity.

Groups Thank SECDEF for Unclassified NPR, Stockpile Data

Leaders of more than a dozen public interest organizations and professional societies wrote to Defense Secretary Robert M. Gates to applaud two recent achievements in nuclear weapons transparency: the publication of the Nuclear Posture Review Report for the first time in unclassified format and the disclosure of the size of the U.S. nuclear stockpile.

“We believe that the public release of the unclassified NPR Report is a significant and long-overdue step in the maturation of our national nuclear policy,” the public interest groups wrote.  “Release of the unclassified NPR Report will not resolve the continuing debate over the future of nuclear weapons policy, but it will enable it to proceed on a more informed basis.”

“Similarly, the declassification of the current nuclear stockpile is an historic milestone both in nuclear weapons policy and in classification policy…. We believe this disclosure will serve to strengthen what should be an international norm of increasing transparency on nuclear matters.  By leading through example, we hope the U.S. action will elicit a response in kind from other nuclear nations.”

“We also look forward to further steps, including the Department’s future implementation of the Fundamental Classification Guidance Review that was required by the President’s executive order…. This initiative should help to eliminate other obsolete or unnecessary classification restrictions.”

The May 4 letter was coordinated by OpenTheGovernment.org.

Size of Nuclear Stockpile to be Disclosed

Updated below

In an historic step, the U.S. Government will formally reveal the number of nuclear weapons in the U.S. arsenal.

Until now, the shifting size of the nuclear arsenal had only been declassified from 1945 up to 1961.  Current stockpile figures were the subject of more or less informed speculation.  The pending disclosure was first reported by the Washington Post.

Among other things, the declassification of the nuclear stockpile is a milestone in secrecy reform.  It means that what must be the single most significant number in the domain of national security policy will now be in the public domain.  It will also set a standard by which the nuclear transparency policies of other nations may be assessed.

If there is any cause for dismay in today’s announcement, it is that it took so long to accomplish.  The Department of Energy, which has the highest concentration of nuclear weapons expertise in the federal government, had proposed declassification of stockpile size as early as 1992, as noted in a 2000 DOE fact sheet on the subject.  But the DOE proposal was blocked by the Department of Defense.

Other DOE declassification proposals that have been stymied would have disclosed the explosive yield of retired or dismantled nuclear weapons (blocked by DOD), and the locations of former nuclear weapons storage sites abroad (blocked by DOD and State).  An Energy Department classification official told Secrecy News last week that the Department also favors public disclosure of the budget of the DOE Office of Intelligence (which had been public information up until 2004), but that the Director of National Intelligence had vetoed the move.

“We get blamed for a lot of stuff that’s not our fault,” the DOE official said.

Update: The newly declassified stockpile data were released by the Department of Defense in Fact Sheet: Increasing Transparency in the U.S. Nuclear Weapons Stockpile (pdf), May 3, 2010. A DoD background briefing on the new disclosure is here.