DISCLAIMER The following is a staff memorandum or other working document prepared for the members of the Advisory Committee on Human Radiation Experiments. It should not be construed as representing the final conclusions of fact or interpretation of the issues. All staff memoranda are subject to revision based on further information and analysis. For conclusions and recommendations of the Advisory Committee, readers are advised to consult the Final Report to be published in 1995. MEMORANDUM TO: Members of the Advisory Committee on Human Radiation Experiments FROM: Advisory Committee Staff DATE: May 1, 1995 RE: Official Classification Policy to Cover up Embarrassment In a December Briefing Book update we provided newly declassified documents showing that, at its creation in 1947, the AEC classified data on human experiments conducted during the Manhattan project (and other data on human exposure to radiation) secret on grounds that the release might embarrass the government, or present potential legal liability. On their face, the documents indicated that secrecy was being kept for reasons other than national security and where reasons of national security would be inadequate to justify secrecy. I. PRIOR UNDERSTANDING: OPENNESS IN SCIENCE TO BE CONSTRAINED ONLY BY NATIONAL SECURITY As previously presented, it had been staff's assumption that only reasons of national security could be used to classify information and that these documents revealed a departure from the principle of national security classification. This principle was, for example, stated by the Tolman Committee, which was convened to study the declassification of Manhattan Project research, and also by the Medical Board of Review, the blue ribbon panel convened by AEC Chairman Lilienthal to make recommendations on the new agency's biomedical program. "Secrecy in scientific research," the Medical Board declared in June 1947, "is distasteful and in the long run is contrary to the best interests of scientific progress." The Board therefore recommended that " in so far as it is compatible with national security, secrecy in the field of biological and medical research be avoided." (Attachment 1: "Report of the Board of Review," Atomic Energy Commission, June 20, 1947, p. 11). Similarly, the 1946 Atomic Energy Act, as previously reported, provided for public dissemination of scientific information that need not be kept secret for national security reasons. 1 II. NEW UNDERSTANDING: THE AEC WAS HEIR TO A PARALLEL AND HIDDEN TRADITION OF SECRECY BASED ON FACTORS OTHER THAN NATIONAL SECURITY In the twentieth century, the authority to classify information has been derived from Congressional enactment and from Presidential Executive order. In 1917 Congress passed the Espionage Act to address wartime spying, and further legislation providing for the military to keep secrets was enacted in 1938.1 [ 18 USCS 793-797] In 1940 Franklin Roosevelt issued the first Executive Order on classification, which was based on the authorization of the Espionage Act.2 [Executive Order 8381] The rules laid down under the World War I law declared that secrets could be kept for reasons other than national security (as well as for national security reasons). In 1936, for example, the Army issued rules which provided for SECRET, CONFIDENTIAL, and RESTRICTED (not RD) 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. (Attachment 2: AR 320-5, p. 2 (emphasis added)). 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) The Manhattan Project's Security Manual followed the Army rules, permitting classification of information as CONFIDENTIAL, and even at the higher level of SECRET, in the absence of likely harm to national security. (Attachment 3: Security Manual) 2 III. AEC SECRECY RULES: PUBLIC DECLARATIONS OF OPENNESS BOUNDED ONLY BY NATIONAL SECURITY, BUT INTERNAL PRACTICE AND POLICY BASED ON AN ALTERNATIVE TRADITION As recounted in the December Briefing Book, in early 1947 the new AEC acted to reclassify previously declassified documents--including those related to plutonium injections--on grounds of potential public embarrassment or legal liability. This action appears to have been taken in advance of a formal declaration of policy to govern the classification of medical research data. In June 1947, the new AEC essentially approved the Tolman report as an interim policy. (See Memorandum from H.A. Fidler to Carroll L. Wilson, AEC General manager, on Declassification Policy (May 26, 1947), and response from Wilson to Fidler (June 23, 1947) Attachments 4 and 5). However, a document recently obtained from DOE indicates that at the same AEC officials were laying down rules to keep human experimentation data--and much else--secret on grounds other than national security. On August 9, 1947 the AEC's acting General Manager, John Derry, transmitted a memorandum calling for a "more nearly uniform system of proper classification of information, material and operations of Commission." (Attachment 6: John Derry to Walter Williams, Establishing Criteria for Proper Classification of Information, August 9, 1947). Derry proposed a set of guidelines that restated the proposition that secrecy could be based on reasons other than national security. The definition of "CONFIDENTIAL" went beyond the Army and Manhattan Project rules in stipulating that "administrative embarrassment" could be grounds for classifying information. CONFIDENTIAL: Documents, information or material, the unauthorized disclosure of which, while not endangering the National security, would be prejudicial to the interests or prestige of the Nation or any Governmental activity, or individual, or would cause administrative embarrassment, or be of advantage to a foreign nation shall be classified CONFIDENTIAL. (emphasis added). (Attachment 6, p. 4). In an August 27, 1947 letter published in the Bulletin of Atomic Scientists, AEC General Manager Carroll Wilson stated that information policies were under review, but that "Since the Commission took over the facilities and operations of the Manhattan District on January 1, 1947, the information program has followed the policies inaugurated by the War Department." (Attachment 7: Caroll Wilson, "Security Regulations in the Field of Nuclear Research," Bull. At. Sci, 3 3 (November 1947) p. 321). However, at the same time, Wilson's letter endorsed to Tolman report, the recommendations from which, as noted above, appear to be at odds with the extended concept of secrecy. The Derry memorandum called for review by a Classification Board assembled from the AEC's regional sites. In September, 1947 the Board assembled in Oak Ridge. Currently available documentation does not show whether Derry's proposed rules went into effect. But a document retrieved from Oak Ridge shows that the Classification Board blessed the General Manager's illustrations of matter which "should be graded" "SECRET" or "CONFIDENTIAL" (Attachment 8: Report of Meeting of Classification Board During Week of September 8, 1947). The former category included certain medical data and data related to "medico-legal" claims which refers to further secret information. It also included "[c]ertain selected human administration experiments performed under MED [Manhattan Engineer District]. The "confidential" category included certain medical data, but also a broad catch-all: "All documents and correspondence relating to matters of policy planning and procedures, the given knowledge of which might compromise or cause embarrassment to the Atomic Energy Commission and/or its contractors." (emphasis added)` (Attachment 8: "Report of Meeting of Classification Board During Week of September 8, 1947," with attached "Appendix I Examples of Classified Matter.") The Committee has not been able to determine whether the illustrations contained in the September, 1947 document were formalized as AEC policy. However, following the Classification Board's meeting, Oak Ridge officials wrote to Washington Headquarters, describing the need to provide bases for secrecy beyond what could be justified by national security. Researchers, a September 1947 memorandum explained, were anxious to have their work declassified. "However, there are a large number of papers which do not violate security, but do cause considerable concern to the Atomic Energy Commission insurance Branch and may well compromise the public prestige and best interests of the Commission." A problem arose, for example, "in the declassification of medical papers on human administration experiments done to date. Again many of these radioactive agents have been of no immediate value to the patient but rather a much needed opportunity for tracer research." (Attachment 9: Sept. 28, 1947 memorandum from J. C. Franklin, manager Oak Ridge Operations to Carroll L. Wilson, General Manager Re: Medical Policy, at pages 2-3). 4 Oak Ridge counseled a solution to the problem: Following consultation with the Atomic Energy Commission Insurance Branch, the following declassification criteria appears desirable. If specific locations or activities of the Atomic Energy Commission and/or its contractors are closely associated with statements and information which would invite or tend to encourage claims against the Atomic Energy Commission or its contractors such portions of articles to be published should be reworded or deleted. The effective establishment of this policy necessitates review by the Insurance Branch, as well as the Medical Division, prior to declassification. (Attachment 10: October 8, 1947 Memorandum to Advisory Board on Medicine and Biology Re: Medical Policy, p. 8) Oak Ridge explained that its Acting Medical Advisor, Dr. Albert Holland, Jr. (whose contribution had been praised in the June 1947 report of the Medical Board of Review) would be present in Washington on October 11th to discuss the matter further. A Draft of the secret ACBM meeting held that day records that the "important" policy questions raised by Oak Ridge regarding human experimentation and declassification and other matters would require "more study." (Attachment 11: Draft of October 11, 1947 ACBM Minutes, at page 10). ACBM minutes do not say what happened next. But documents, as provided in the December Briefing Book, show that the Oak Ridge/Holland proposal was effectuated; biomedical reports on human experimentation that might pass muster for publication on national security grounds were reviewed for liability and public relations implications. Finally, there is evidence that the practice was not limited to human experimentation conducted under the Manhattan Project, but extended to at least one human experiment conducted under the AEC. In late 1948, Division of Biology and Medicine Chief Shields Warren stated his "complete agreement" with Oak Ridge's Holland that a report on a 1948 University of California experiment with zirconium had to be kept under wraps. The report had to remain secret because "it specifically involves experimental human therapeutics" and could not be rewritten in a way which "would not jeopardize our public relations." (Attachment 12: August 9, 1948 memorandum from Albert H. Holland, Jr., M.D., Medical Advisor, Oak Ridge to Warren; Attachment 13: August 19, 1948 memorandum from Warren to Holland.) 5