Classification is the process of identifying that information which requires protection in the interests of preserving national security. Examples of classification abound in history, both ancient and modern. One of the most effective classification actions of technological information occurred in ancient times. "Greek Fire" was a material that was catapulted from one wooden naval combatant to another during the height of the Bronze Age when Greek city states warred continuously against one another and any other foes who might appear. The material was composed of some sort of flaming pitch, naphtha, or similar flammable organic compound and behaved much like napalm. The effects of "Greek Fire" on wooden hulled, oar and sail propelled invading vessels were catastrophic. The actual ingredients were a closely held secret?so closely held, in fact, that they are not known even today. An example of classification for purely a military advantage occurred during the Trojan War when Greek soldiery was concealed within a wooden horse. That classification action was rather quickly declassified when they appeared and opened the gates of the ancient city of Troy.
The classic example of classification occurred in 300 BC when Sun Tzu wrote The Art of War. He identified that "the formation and procedure used by the military should not be divulged beforehand." As you can see, history abounds with examples of classification. While the term "classification" was probably not in use, the concept appears to have been well known and well understood. Effective classification has assisted nations, in both ancient and modern times, in both peace and war.
As a rather interesting footnote, classification of information concerning the potential for nuclear weapons was initiated by the physicists themselves, not the military. Leo Szilard, the physicist who urged Albert Einstein to write President Roosevelt in 1939, apparently started the secrecy effort. Enrico Fermi, stated that:
"At that particular time (1939 - 1940), with the war impending .... I joined with a group of others, the leader of the group or the most active member of the group was Leo Szilard, in voluntary censorship to keep (secret) certain results that could lead in the direction of the atomic bomb."
Secrecy and classification have their drawbacks. The very lack of available information sometimes points to areas of research. During 1940 and 1941, Russian intelligence analysts studying American scientific publications noted that there was a lack of information and articles appearing on aspects of the atomic nucleus. They knew from previous editions of the same or similar publications that work was being performed in this area. This lack of data led them to believe, correctly, that the United States had classified information in this area.
The American classification system dates back to the late 1700's. Some of the first instances of "civilian" governmental control of information in the United States were by the Continental Congress (1774 - 1789). Members of the First Continental Congress (1774) were requested to keep proceedings secret, in accordance with the following resolution passed on September 6, 1774.
"Resolved, that the doors be kept shut during the time of business, and that the members consider themselves under the strongest obligations of honor, to keep the proceedings secret, until the majority shall direct them to be made public."
Another example occurred in 1775 when the Articles of War prohibited unauthorized correspondence by soldiers of the Continental Army with the enemy. In 1790, President George Washington transmitted information about negotiations with several Indian tribes to Congress with the notation that this was a "confidential communications." The first peacetime governmental directives concerning the classification of information were issued in 1869. In that year the Army issued an order which restricted the availability of information on Army fortifications.
More modern and relevant classification systems came into being immediately prior to World War II (WWII) when Executive Order (EO) 8381, dated March 22, 1940, established a classification system with differing levels. This classification system saw the United States through WWII. Work on the Manhattan Project was also classified under this EO.
In 1946, the American classification system split. The Atomic Energy Act of 1946 (and subsequently 1954) was enacted to control technological data on nuclear information. The Act transferred control of all aspects of atomic energy from military control to the civilian Atomic Energy Commission (AEC). It continued the Manhattan Project's comprehensive and rigid controls on American information about atomic weapons and other aspects of atomic energy. A separate category of classified information was established by this legislation. This category, Restricted Data (RD), was specifically targeted at controlling atomic energy information. As will be discussed later, EOs for controlling sensitive information were promulgated beginning in the 1940's. Thus, from 1946 to the present, our classification system has been founded on both legislation and EOs.
Legislation passed by Congress, a statute, has greater applicability than an Executive order. A statute is the law of the land and applies to all citizens. The provisions of the Atomic Energy Act were enacted as legislation rather than an EO because Congress and the President felt that this sensitive information about nuclear weapons needed the strict regulation and enforcement afforded by statute.
Domestic legislation to control nuclear energy was first introduced in Congress on October 3, 1945. The May?Johnson bill would have allowed the military to retain control over the Manhattan Engineering District and the nation's nuclear research and development program. Strict controls were to be established over nuclear information and impressive sanctions would have been imposed for violations. Support for the bill weakened in late 1945 and on December 20, 1945 a new bill was introduced. This bill, known as the McMahon bill transferred control of the nation's nuclear weapons and research and development efforts to civilian control. It passed on July 20, 1946 and became the Atomic Energy Act (AEA) of 1946.
The very nature of atomic weaponry dictated that information concerning this devastating power be rigidly controlled. The 1946 AEA established the RD category and defined what could be controlled as RD. RD was defined in section 10 of the Atomic Energy Act of 1946 as:
"...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."
The definition is broad and encompasses all information dealing with atomic power. It is of historical interest that section 10 of this Act was first titled "Dissemination of Information" but was later changed to "Control of Information." The AEA of 1946 gave the AEC unilateral authority over this information. As such, only those individuals cleared by the AEC could receive RD. The clearance process was lengthy and included a complete background investigation. It must be remembered that at the end of WWII, the United States had almost completely depleted its existing stock of atomic weapons. Major efforts were underway to increase the production of special nuclear material and assemble new weapons. As time progressed, a stockpile of weapons was produced and the military was eager to have these weapons transferred to its control. However, the AEC clearance process substantially reduced the number of military personnel who could have access to these weapons. In some cases, military enlistments were up before clearances were granted. The AEA of 1946 also placed severe limits on the transfer of RD to any other nation. This effectively prevented the transfer of atomic weapons information to our allies in Europe and around the world. This hampered the ability of United States forces to train adequately and operate effectively with allied armies such as the British and French.
When revision to the Atomic Energy Act was first contemplated, the Department of Defense (DoD) lobbied Congress to relax control over RD. Congress however, essentially maintained the same level of control, but established a new category of information, Formerly Restricted Data (FRD), for information concerning the military utilization of nuclear weapons. While the AEC retained control over RD, the new legislation did allow some transfer of RD to a new category for military utilization known as FRD. It relaxed the foreign transfer proviso, allowed DoD access to FRD with DoD clearances and to concur in the declassification of FRD. The revision of the Atomic Energy Act in 1954 resulted in several significant changes related to the handling and dissemination of RD. The Act made some selected atomic energy information more accessible to the U.S. military, to U.S. industry, and to the international community. Passage of the Act followed President Eisenhower's Atoms for Peace initiatives reflected in his 1953 speech to the United Nations. Modification of the Act did not substantially alter the definition of RD nor did it relinquish the AEC's control over RD. The definition of RD, as contained in section 11y, read:
"The term "restricted data" means all data concerning
- (1) Design, Manufacture, or Utilization of Atomic Weapons;
- (2) The Production of Special Nuclear Material; or
- (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 142."
Any information which fits into the definition of RD is considered to be classified by the Act upon its generation. This is generally referred to as being "born classified." No specific action is required to classify this type of information.
The 1954 revision to the AEA also allowed the military access to certain RD with DoD clearances rather than AEC clearances. The military was granted further access to specific RD which dealt mainly with the military utilization of atomic weapons. The security measures surrounding this type of RD were significantly reduced.
FRD is defined in the AEA, as amended in 1954, as follows:
"Classified information which has been removed from the Restricted Data category after DOE and DOD have jointly determined that it relates primarily to the military utilization of atomic weapons, and can be adequately safeguarded in the same manner as National Security Information."
The revision also allowed the intelligence community to discuss acquired intelligence information which fit the RD definition, with the source of that information, even if that source was a foreign nation.
"Classified information concerning the atomic energy programs of other nations which has been removed from the Restricted Data category after the DOE and the Director of Central Intelligence have jointly determined that it can be adequately safeguarded as defense information"
The provisions of the Atomic Energy Act of 1954 that affect classification and dissemination of RD information remain essentially unchanged, and represent the legal foundation upon which the DOE RD classification system is based. There have been several modifications to the AEA since 1954, most notably the addition of section 148 on Unclassified Controlled Nuclear Information (UCNI) in 1981, and the modification to section 144 regarding the dissemination of RD to other nations in 1995.
Section 141 of the Atomic Energy Act of 1954, as amended, establishes the policy for the control of RD. It reiterated that the AEC is to have total control over the dissemination and declassification of RD. Section 142, deals with the transfer of data, fitting the RD definition, out of the RD category. The AEC would declassify RD data no longer requiring protection in the interests of national security. If that data related to the "military utilization of atomic weapons" (i.e., FRD) the declassification decision would be made jointly with the DoD. If RD information mainly was concerned with the military utilization of atomic weapons, that information could be jointly "transclassified" by the DOE and DoD into FRD. Finally, RD information obtained by intelligence sources which dealt with the atomic weapons programs of other nations could be "transclassified" to permit it to be shared with the source of the information, if both the AEC and the Director of the Central Intelligence Agency agreed. Section 143 allowed the military access to RD/FRD with their existing clearance structure. Section 144 allowed the exchange of certain RD with other nations as long as an agreement for cooperation was in place. RD weapon design information could be exchanged to facilitate weapon delivery or training in employment, or protection, or to assist in the development of a coherent defense plan. Sections 144 (b) and (c) allowed the U. S. to exchange RD with certain international organizations and countries such as NATO and the U. K. This section was modified in 1995 to allow the United States to exchange data with Russia to facilitate treaty verification, nonproliferation, and safety issues. Section 145 establishes safeguards and security measures for access to RD.
EOs form the basis of the NSI classification system. National Security Information is defined as
"...information which pertains to the national defense and foreign relations (National Security) of the United States and is classified in accordance with an Executive Order."
There have been nine EOs which sought to control the dissemination of certain information.
President Roosevelt signed the first, EO 8381, on March 22, 1940. This EO formalized and provided a basis for existing classification systems then being used by both the Army and Navy. Very broad definitions on what could be classified were specified. In essence, all information pertaining to the military, its facilities, or plans could be classified. It also expanded upon the initial regulations and allowed the classification of commercial production facilities. Classification authorities included any member of the military and any governmental civilian employee. This EO was in effect throughout WWII. In September 1942, the Office of War Information issued a classification regulation which substantially expanded the type of data which could be classified. Any information which could endanger national security, impair the prosecution of the war, or should be limited for administrative privacy could be classified. This war-time regulation affected all information whether or not it dealt with defense. Informationdeveloped during the Manhattan Project was classified under this EO. Interestingly, this EO provided for three classification levels, none of which was Top Secret. The established levels were Secret, Confidential, and Restricted.
The next EO was issued by President Truman on February 1, 1950. EO 10104 limited classification authority to the DoD. It essentially continued the policies of EO 8381 and added the classification level of Top Secret to the existing three levels of Secret, Confidential, and Restricted.
EO 10290, issued by President Truman on September 24, 1951, substantially broadened the classification system to include allowing non-military agencies to classify information. Thus, classification authority was granted to all Executive Agencies (to include such agencies as the Departments of Commerce, Agriculture, Interior, etc.). It was the first EO to recognize and define RD and exempt it from EO provisions. This was also the first EO to say specifically that information was to be protected at its lowest level consistent with national security and provided for downgrading and declassifying said data either automatically or upon review. Classification levels remained Top Secret, Secret, Confidential, and Restricted. Because classification authority was granted to so many agencies, both Congress and the press quickly attacked this EO as being overly broad.
On December 15, 1953, President Eisenhower's EO 10501 effectively replaced the second Truman EO. EO 10501 remained in effect essentially until 1972 and reduced the number of agencies which could classify data. The new EO eliminated the Restricted level leaving only Top Secret, Secret, and Confidential. Experienced persons were to coordinate the classification programs of various agencies and they were to maintain active training and orientation programs. There were provisions for downgrading and declassifying data as warranted, and automatic declassification was predicated on a date or event specified by the initial classifier.
EO 10501 was modified in 1961 by EO 10964, the Kennedy EO. The Kennedy modification recognized the essential strengths of EO 10501 and left these intact. It did establish four groups of information, of which one group was to be declassified automatically at 12 year intervals; the second group would be downgraded every 3 years until declassified; and the third and fourth groups were exempt from declassification. The Kennedy EO also added a new section specifying that any individual who knowingly revealed classified information was subject to administrative sanctions.
On March 8, 1972, President Nixon issued EO 11652. It became effective on June 1, 1972. This EO was greatly affected by misclassification and subsequent discovery of the Pentagon Papers. The EO again reduced the number of agencies that could classify information, established automatic declassification time tables, established mandatory review provisions on classified information, identified specific types of information which were prohibited from being classified, identified a requirement to portion mark documents, established an implementation and monitoring process, and reiterated the need for a training and orientation requirement. The three classification levels of Top Secret, Secret, and Confidential were reaffirmed.
President Carter continued relaxing classification requirements with the signing of EO 12065 on June 28, 1978. It became effective on December 1, 1978. This EO changed the definition for "Confidential" to require "identifiable damage" rather than just damage, established a balance test to determine if public interest outweighed possible damage to national security, identified seven areas in which information could be classified, continued automatic declassification, enacted a policy of less restrictive designation when in doubt, and established the Information Security Oversight Office (ISOO) to monitor compliance with EO 12065. The three classification levels were retained.
On April 2, 1982, President Reagan signed EO 12356 which became effective on August 1, 1982. This EO adopted a more conservative approach to classification than the last two EOs. It deleted the requirement for "identifiable damage," identified ten areas of classification, retained the classification prohibitions, enacted a policy of more restrictive designation when in doubt, and allowed reclassification of National Security Information under certain conditions. The three classification levels were retained.
EO 12958 was signed by President Clinton on April 16, 1995. It effectively replaced EO 12356 on October 16, 1995. This EO adopted a more liberal policy toward classification and declassification. The EO prescribes a uniform system for classifying, safeguarding, and declassifying national security information. It restores the Carter requirement that the original classifier be able to identify or describe what damage could occur if the information in question were to be released. It retains the three classification levels of Confidential, Secret, and Top Secret and reduces the number of potential classification categories from ten to seven. These areas are (a) military plans, weapons systems, or operations; (b) foreign government information; (c) intelligence activities (including special activities), intelligence sources or methods, or cryptology; (d) foreign relations or foreign activities of the United States, including confidential sources; (e) scientific, technological, or economic matters relating to the national security; (f) United States Government programs for safeguarding nuclear materials or facilities; or (g) vulnerabilities or capabilities of systems, installations, projects or plans relating to the national security.
The major changes which have occurred have been in the declassification area. Where EO 12356 had no provisions for automatic declassification based upon time elapsed from original classification, EO 12958 establishes automatic declassification times for National Security Information designated as having permanent historical value. EO 12958 specifies that at the time of original classification, the original classification authority shall attempt to establish a specific date or event for declassification based upon the duration of the national security sensitivity of the information. The date or event will not exceed 10 years from the date of the original decision. However, recognizing that certain information may retain sensitivity, an original classification authority may extend the duration of classification or reclassify specific information for successive periods not to exceed 10 years at a time if such action is consistent with the standards and procedures established under this order.
Certain information may be exempt from automatic declassification if, at the time of original classification, the original classification authority expects that the declassification of this information would still cause damage to national security after the 10 year time period and the release could reasonably be expected to: (1) reveal an intelligence source, method, or activity, or a cryptologic system or activity; (2) reveal information that would assist in the development or use of weapons of mass destruction; (3) reveal information that would impair the development or use of technology within a United States weapons system; (4) reveal United States military plans, or national security emergency preparedness plans; (5) reveal foreign government information; (6) damage relations between the United States and a foreign government, reveal a confidential source, or seriously undermine diplomatic activities that are reasonably expected to be ongoing for a period greater than 10 years;(7) impair the ability of responsible United States Government officials to protect the President, the Vice President, and other individuals for whom protection services, in the interest of national security, are authorized; or (8) violate a statute, treaty, or international agreement.
DOE has reviewed these exemptions and has identified 11 areas which are potentially exempt from automatic declassification. Some of these areas relate to RD, others do not. They are:
(1) information concerning details of any compromise of RD or FRD, (2) transportation safeguards systems used for transporting nuclear weapons and components and special nuclear material, (3) Nuclear Emergency Search Team assets, capabilities, equipment, procedures or operations, (4) foreign government or international organization information provided to the DOE with the understanding that such information be kept in confidence, (5) safeguards and security information related to current security measures at DOE sites or security programs, (6) proliferation of nuclear weapons information, (7) unrecovered classified nuclear weapons and components, (8) vulnerability hardening technology against nuclear weapons, (9) high altitude nuclear weapons effects information, (10) naval nuclear propulsion information, (11) DOE intelligence information revealing sensitive information related to nuclear weapons programs.
President Clinton's EO defines each of the classification levels in much the same manner as they have been previously defined. Top Secret represents exceptionally grave damage to the security of the United States should the information be divulged. Secret data represents serious damage and confidential represents damage.
This EO also specifically exempts RD and FRD from all provisions of the EO. It specifies that nothing in this order shall supersede any requirement made by or under the Atomic Energy Act of 1954, as amended. The EO stipulates that "Restricted Data" and "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 under that Act.
Prepared by: N. Cathy Maus