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"Born secret" and "born classified" are both terms which refer to a policy under the system of law in the United States of information being classified from the moment of its inception, usually regardless of where it was created, and usually in reference to specific laws in the United States that are related to information that describes the operation of nuclear weapons.[1] The concept is not limited to nuclear weapons, and other ideas and technologies may be considered as born secret under law.[2] There are no other areas of United States law where it is illegal to discuss publicly-available information.[3] In 2006, the United States Department of Energy themselves noted that the born secret/classified doctrine was controversial.[4]

History

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Historically, the Born Secret concept applied to any data related to nuclear technologies, regardless of whether or not the given specific technologies were developed by the United States government or other parties.[1] Howard Morland, writing in Cardozo Law Review, equated the Born Secret doctrine to a permanent gag order on nuclear ideas and concepts.[5] It has been extensively used in reference to a clause in the Atomic Energy Act of 1946, which specified that all information about nuclear weapons and nuclear energy was to be considered "Restricted Data" (RD) until it had been officially declassified. In the 1954 revision of the Act, the United States Atomic Energy Commission was given the power to declassify entire categories of information. The "born secret" policy was created under the assumption that nuclear information could be so important to national security that it would need classification before it could be formally evaluated. The wording of the 1954 act specified as secret:

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 2162 of this title.[6]

United States government scientists who work on nuclear-related matters historically were issued Q clearance, due partly to the born secret or classified doctrine, and is required to access Top Secret Restricted Data, Formerly Restricted Data, and National Security Information, as well as Secret Restricted Data. Restricted Data (RD) is defined in the Atomic Energy Act of 1954 and covers nuclear weapons and related materials.[7][8][9] In 2006, the United States Department of Energy (DOE) themselves noted that the born secret/classified doctrine was controversial.[4] In 2006, the DOE acknowledged that the born secret/classified doctrine was very controversial.[4] Writing for the Department, Nick Prospero highlighted concerns related to constitutionality; the stifling of scientific research and advancement; and that public pressure for open access to data in the areas of "health, safety and the environment" fueled this historic controversy, back to the days of the predecessors of the DOE such as the United States Atomic Energy Commission and the Energy Research and Development Administration.[4]

Legality and challenges

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The constitutionality of declaring entire categories of information preemptively classified has not been definitively tested in the courts.[6] The legality of the "born secret" doctrine was directly challenged in a freedom of the press case in 1979 (United States v. The Progressive).[5] In that case, the magazine The Progressive attempted to publish an account of the so-called "secret of the hydrogen bomb" (the Teller–Ulam design), which was apparently created without recourse to classified information.[5] Many analysts predicted that the United States Supreme Court would, if it heard the case, reject the "born secret" clause as being an unconstitutional restraint on speech.[5] However, the government dropped the case as moot before it was resolved.[10] The concept of born secret is reported as the only area of United States law where discussion of data and information already in the public sphere is defined as illegal.[3] Writing for Cardoza Law Review, Aviam Soifer argues that the application of classification can even apply retroactively, to the original conception or germination of a related idea or concept, under the born secret doctrine.[11] In Security Classification of Information, Volume 1. Introduction, History, and Adverse Impacts, Arvin Quist, in materials prepared for Oak Ridge National Laboratory, notes that the concept is unique to nuclear restricted data, but has been attempted to be extended beyond nuclear technologies toward cryptography by the National Security Agency (NSA).[6] However, the NSA attempted this not through legislative means, but by voluntary agreements with stakeholders.[12] Quist, writing in 2002, notes that per Federal Register notices in 1967 and 1972, there exists only one known 'loophole' around nuclear technologies and born secret doctrines:

According to current DOE procedures, research and development on methods of isotope separation other than gaseous diffusion or gas centrifuge can be carried out on an unclassified basis until that research shows a “reasonable potential for the separation of practical quantities of special nuclear material.” Thus, this area of atomic-energy information is not “born classified” but is classified only when it reaches “adolescence.” [6][13][14]

In the early days of the American nuclear programs, a noted concern of scientists was fear of accidental violations of the Atomic Energy Act.[15] Given how rare declassifications of nuclear related topics were in the era, scientists and researchers had difficulty knowing what could be publicized or even discussed.[15] As a result, recommendations were issued for the Atomic Energy Commission to clearly "publish explicit and detailed catalogues of types of data not included in the restricted category," so that those working on nuclear matters were no longer subject to "...the intolerable fear that publication of every research finding is a violation of the [Atomic Energy Act of 1946]."[15][16]

Risks to media coverage of nuclear incidents

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Aryeh Neier, writing in 1980 for the Index on Censorship in his essay, USA: 'Born classified' highlighted possible dangers and risks of the secrecy doctrine, and how they may have been used to lawfully restrict media coverage of plutonium and radioactive contamination from the Rocky Flats Plant near Denver, Colorado; the 1961 Goldsboro B-52 crash where a United States Air Force Boeing B-52 Stratofortress crashed at Goldsboro, North Carolina leaving a single Mark 39 nuclear bomb "one safety" from detonating outside of a small town; and how at Palomares, Spain, the 1966 Palomares B-52 crash from a mid-air collision led to the dumping of four B28FI Mod 2 Y1 thermonuclear (hydrogen) bombs,[17][18][19] all of which fell to the surface.[20] Three were found on land near the small fishing village of Palomares in the municipality of Cuevas del Almanzora, Almería, Spain. The non-nuclear explosives in two of the weapons detonated upon impact with the ground, resulting in the contamination of a 0.77-square-mile (2 km2) area with radioactive plutonium. The fourth, which fell into the Mediterranean Sea, was recovered intact after a search lasting two and a half months.[21] Neier noted that the editors of The Progressive called out these specific examples of risks from a born secret doctrine in the United States v. Progressive, Inc. court case.[20]

John Aristotle Phillips

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In 1976, Princeton University student John Aristotle Phillips designed, on paper, a working nuclear weapon to show how easily such technologies could fall into the hands of American adversaries, and was later nicknamed the "A-Bomb Kid" by the media in response.[3][22][23] Nuclear physicist Frank Chilton evaluated Phillips design as "very likely to work".[24] Phillips stated, "Its very simple. Any undergraduate physics major could have done what I did."[24] Despite all his work having been created with information available to the general public, the entirety of what Phillips produced would be considered classified information upon creation and thus illegal to share or discuss within the United States of America.[3] Phillips later wrote, summarizing the situation:

Suppose an average—or below-average in my case—physics student at a university could design a workable atomic bomb on paper. That would prove the point dramatically and show the federal government that stronger safeguards have to be placed on the manufacturing and use of plutonium. In short, if I could design a bomb, almost any intelligent person could.[2]

See also

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References

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Public Domain This article incorporates public domain material from websites or documents of the United States Government.

  1. ^ a b Wellerstein, Alex (August 18, 2022). "Can Trump Just Declare Nuclear Secrets Unclassified?". Lawfare. Archived from the original on August 30, 2023. Retrieved August 31, 2024.
  2. ^ a b Phillips, John Aristotle; Michaelis, David (1978). Mushroom: The Story of the A-Bomb Kid. William Morrow. pp. 85–86. ISBN 0688033512.
  3. ^ a b c d Gillman, Ben (May 30, 2019). "Can Trump Just Declare Nuclear Secrets Unclassified?". Stanford University, "Introduction to Nuclear Energy", PH241 - Stanford University - Winter 2019, R. B. Laughlin. Archived from the original on September 20, 2020. Retrieved August 31, 2024.
  4. ^ a b c d Prospero, Nick (February 2006). ""Born Classified" - The Phrase That Won't Die" (PDF). United States Department of Energy. Archived (PDF) from the original on February 1, 2017. Retrieved August 31, 2024.
  5. ^ a b c d Howard Morland (March 2005). "Born Secret" (PDF). Cardozo Law Review: 1401–1408. Archived from the original (PDF) on May 12, 2006.
  6. ^ a b c d Quist, Arvin (2002). "4". Security Classification of Information: Vol. 1. Introduction, History, and Adverse Impacts, chapter 4, "Classification Under The Atomic Energy Act" (PDF). Oak Ridge National Laboratory. Archived from the original on September 22, 2021.
  7. ^ William, Burr (July 1, 2003). "1960s "Nth Country Experiment" Foreshadows Today's Concerns Over the Ease of Nuclear Proliferation". National Security Archive. Archived from the original on August 24, 2017. Retrieved August 31, 2024.
  8. ^ Los Alamos National Laboratory, Clearance Processing Archived October 11, 2006, at the Wayback Machine Retrieved December 15, 2006.
  9. ^ Alexander De Volpi; Jerry Marsh; Ted Postol & George Stanford (1981). Born secret: the H-bomb, the Progressive case and national security. New York: Pergamon Press. ISBN 0-08-025995-2.
  10. ^ Soifer, Aviam (2024). "Born Classified, Born Free: An Essay for Henry Schwarzschild". Cardozo Law Review. 19: 16. Archived from the original on September 1, 2024. Retrieved August 20, 2024. The Born Classified rationale could apply from the moment of the germination of these ideas and could even be applied retroactively. In fact, the Progressive litigation exemplified this point. The decision by Government officials to label a publication as a national security risk moved the dispute outside the usual legal rules and beyond the ken of regular judicial processes.
  11. ^ Bok, Sissela (1982). Secrets. On the Ethics of Concealment and Revelation. Pantheon Books. p. 166.
  12. ^ Atomic Energy Commission (November 28, 1967). "Restricted Data, Notice of Proposed Rule Making". Federal Register. 32 (250): 20868–20880. 32 FR 20869
  13. ^ Atomic Energy Commission (August 1, 1972). "Novel Methods of Isotope Separation, Procedures for Reports on Research". Federal Register. 32 (148): 15393. 37 FR 15393
  14. ^ a b c Quist, Arvin (2002). "3". Security Classification of Information: Vol. 1. Introduction, History, and Adverse Impacts. Oak Ridge National Laboratory, chapter 3, "Classification of Information--An Overview". Archived from the original on December 4, 2021.
  15. ^ J. R. Newman & B. S. Miller (1948). The Control of Atomic Energy. New York: McGraw-Hill Book Company, Inc. p. 220.
  16. ^ S V Asselin (August 1966). SC-DR-66-397 B-51/KC-135 Collision near Palomares, Spain (U) (Report). Sandia National Labs.
  17. ^ Maydew, Randall C. (1997). America's Lost H-Bomb: Palomares, Spain, 1966. Sunflower University Press. ISBN 978-0-89745-214-4.
  18. ^ A Summary of Accidents and Significant Incidents Involving US Nuclear Weapons and Nuclear Weapon Systems (U) (Report). Sandia National Labs. 1990.
  19. ^ a b Aryeh Neier (February 1980). "USA: 'Born classified'". Index on Censorship. 9: 51–54. doi:10.1080/03064228008533026. Archived from the original on September 2, 2024.
  20. ^ Long, Tony (January 17, 2008). "Jan. 17, 1966: H-Bombs Rain Down on a Spanish Fishing Village". WIRED. Archived from the original on December 3, 2008. Retrieved February 16, 2008.
  21. ^ Peterson, Charles (May 8, 1977). "John Aristotle Phillips: The A-Bomb Kid". Youngstown Vindicator. Retrieved July 24, 2011 – via Google News.
  22. ^ Collins, Paul (December 16, 2003). "The A-Bomb Kid". The Village Voice. Archived from the original on July 2, 2015.
  23. ^ a b Rein, Richard Keys (October 25, 1976). "A Princeton Tiger Designs An Atomic Bomb in a Physics Class". People Magazine. Archived from the original on March 26, 2017. Retrieved August 31, 2024.
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