HHR-32 NASA Office of Defense Affairs: The First Five Years

 

XIV. NASA SECURITY CLASSIFICATION PROGRAM

 

[222] NASA Security Classification Board

Because of a dichotomy of opinion within NASA Headquarters as to the interpretation and application of laws and directives from higher authority concerning the safeguarding of certain kinds of official information through security classification or other means, my assignment as Chairman, NASA Security Classification Board, occupied a substantial portion of my time and thought during the period September 1965 through August 1967.

The policy and objectives of the NASA Security Classification Program were established by NASA Policy Directive (NPD) 1640.1 effective September 1, 1965, which also set forth the responsibilities, authorities, and functions of NASA officials in connection therewith. This directive made the Associate Administrator responsible for the overall Security Classification Program and assigned to the Chairman of the NASA Security Classification Board (provided for in NMI 1152.19) the responsibility for establishing security classification criteria and guidelines in accordance with promulgated policy and objectives and as directed by the Associate Administrator. It further provided that the Chairman, as designee of the Associate Administrator, would be the ultimate security classification authority in NASA and that his decisions would be final unless appealed by an objector to the Associate Administrator or higher authority. Thus, the designation of the Deputy Associate Administrator for Defense Affairs as the Chairman of the NASA Security Classification Board, by a memorandum from the Associate Administrator dated August 19, 1965, carried a responsibility beyond simple administrative procedural matters. The designation seemed a logical one, since it was obvious that the proper safeguarding of information having a possible bearing on national defense was a matter which necessarily had to be closely coordinated with the DOD.

The difference of opinion regarding the implementation of the NASA Security Classification Program centered around the question of the degree to which the disclosure of certain kinds of scientific, technological, and operational information generated in the NASA programs could and should be controlled and limited in the interest of national defense in its broader sense. The more specific issues which contributed or were corollary to this broad issue included: (1) the intent of the Space Act as to the practical limitations to be placed on the maintenance of an open technology in the civilian aerospace program; (2) the significance of the differentiation, if any, between the terms "national security" and "national defense" as used (possibly with some ambiguity and inconsistency) in the Space Act, Executive Directives, and public statements by high-level government officials; (3) the interpretation of the language used in Executive Order 10501 in defining the three authorized "Classification Categories" (Top Secret, Secret, and Confidential) which described the kinds of information requiring "protection in the interests of national defense"; (4) the precise meaning [223] of such terms as '"classified defense information," "classified military information," and "classified nonmilitary defense information," as used in a Presidential Directive of September 23, 1958; (5) whether, under the terms of pertinent international agreements, NASA was entitled to withhold certain restricted command and control information from foreign nationals manning NASA tracking stations located in foreign territories; and (6) the legality under the Freedom of Information Act of recognizing a category of official information below the classification of "Confidential" to be marked for limited distribution and withheld from the public domain.

NMI 1152.19 of September 1, 1965, established the NASA Security Classification Board to effectuate the policy and objectives promulgated in NPD 1640.1. This NMI provided that the Chairman would be designated by the Associate Administrator and listed the Headquarters offices to be represented on the Board. The Chief of the Classification Management and Industrial Security Branch, Security Division, Office of Administration, was designated as a member and the Secretary of the Board.

The NMI stipulated that the Board members would serve the Chairman in an advisory capacity. The original Board members and their affiliations were as follows:

 

Walter F. Boone, Defense Affairs, Chairman
Paul E. Cotton, OMSF
J. Allen Crocker, OSSA
Boyd C. Myers, OART
William F. Hausman, International Affairs
Walter A. Pennino, Public Affairs
Breene M. Kerr, Technology Utilization
Gerald M. Truszynski, OTDA
Lloyd W. Blankenbaker, Administration
Howard G. Maines, Administration (additional duty as Secretary).

 

The discussion at the first meeting of the Board, held on September 21, 1965, revealed fundamental differences of interpretation of existing statutes, directives, and policy pronouncements and diverse opinions as to the proper course for NASA to take in placing a Security Classification Program into effect. Although the Board by precept had no corporate authority and did not decide issues by majority vote, but rather acted in an advisory capacity to the Chairman, I recognized that it would be necessary to resolve these differences through discussion and persuasion or, failing in that, by reference to higher authority before it would be possible to accomplish the first priority task of the Chairman; i.e., the establishing of definitive criteria and guidelines to assist the various elements of NASA in arriving at appropriate security classification determinations in accordance with the policy and objectives of the NASA Security Classification Program, as set forth by the Administrator.

[224] The debate within the Board quickly polarized. I believe it is correct to say that the majority of the Board members concurred with the Chairman's position. The opposing view was led by the General Counsel, who was not represented on the Board, but who was, of course, the principal adviser on legal matters.

My position as Chairman was based upon my interpretation of the policy guidance furnished by the Administrator in NPD 1640.1. This guidance, while citing both authorities, appeared to draw more heavily from the statutory provisions of the more recent Space Act of 1958 than from Executive Order 10501 of 1953. It linked the term "national defense" and the broader term "national security'' as the common basis against which security classification judgments within NASA should be made. It stated the necessity for NASA officials to act in harmony with the agencies in the Executive Branch (which I took to mean primarily the DOD) in interpreting and applying the guidance contained in Executive Order 10501, pertinent portions of the Space Act, and NPD 1640.1.

Viewing it in the light of a life-time involvement in matters of national security rather than from a legalistic background, I considered this policy guidance to be valid, legal, and in accord with the intent of both the Executive Order and the Space Act.

The section headed POLICY in NPD 1640.1, which we understood reflected the personal views of Mr. Webb, is quoted in full as follows:

 

"a. It is NASA policy to assign to official information an appropriate security classification category when it is determined that its unauthorized disclosure would have an adverse effect on the national defense or on the national security.
 
"b. In establishing the administrative machinery in 1958 for a civilian space program, the Congress provided for an open technology. It required NASA to 'provide for the widest practicable and appropriate dissemination of information concerning its activities and the results thereof.' At the same time, the Congress provided for the withholding from public inspection of that information that is classified to protect the national security. The Congress thus recognized that there are practical limits to the maintenance of an open technology.
 
"c. In interpreting and applying the guidance contained in Executive Order 10501, pertinent portions of the National Aeronautics and Space Act of 1958, as amended, and this Directive, NASA officials responsible for security classification must act in harmony with the work of other agencies in the Executive Branch of the Government. [225] NASA is not privy to the many and delicate considerations which underlie the system of security classifications incident to the conduct of the Nation's national defense and foreign policies. However, from dealings with other Federal agencies, NASA has a workable knowledge of areas which agencies within the Executive Branch consider to be sensitive. Conscientious utilization of that knowledge, coupled with a significant insight into NASA plans and programs of national importance, is basic to the formulation of sound classification assignments concerning NASA information.
 
"d. A positive and continuing obligation exists to insure specifically that any uncontrolled disclosure of information generated by or on behalf of NASA is consonant with the intent of Executive Order 10501 and related portions of the National Aeronautics and Space Act of 1958. This obligation is not met by a mere determination that the information under examination has no actual or potential military application. On the other hand, no provisions of the Order, the Act, or this Directive confer authority or constitute justification for the arbitrary or capricious use of security classification for purposes not related to the national defense or the national security."

 

My position held that the terms "national defense" and "defense interests" as used in Executive Order 10501 should be interpreted in their broader sense, to encompass economic and political factors as well as purely military aspects of the national defense posture. Mr. Webb had so interpreted "national defense" in official appearances. I considered that, when so interpreted, "national defense" became very nearly synonymous with "national security"; otherwise the provisions of Executive Order 10501 and the Space Act regarding the basis for withholding certain information from public inspection would not be compatible. I felt that maintenance of a margin of technological superiority over unfriendly nations was a vital element of our national defense' both from a standpoint of military hardware and economic strength, and that the safeguarding of such an advantage would be served by limiting the dissemination of certain types of information, such as, for example, the details of a technological breakthrough or of any new advanced technology having a potential application to military systems. This was generally the position taken by the DOD.

(On one occasion later on, Dr. Foster expressed to Dr. Seamans his concern over what he believed to be a disparity in the security classifications assigned by DOD and NASA to similar technology developed in the R&D programs of the two Agencies, with the possibility that inadvertent compromise - of important security data could result. The matter was referred to the SSR&T Panel of the AACB for review of the situation. An ad hoc panel [226] convened to consider the problem submitted its findings to the AACB on February 23, 1967. The Panel concluded that, while the policies of the two Agencies were consistent, some disparities in application did exist. The Panel recommended that NASA accept DOD guidance in the security classification of technology and that a DOD-NASA coordinating mechanism ;in security classification be developed.)

Those who supported the opposing position considered that the language contained in Executive Order 10501 was governing. They placed a narrow interpretation on the terms "national defense" and "defense interests of the nation" as used in that document, in effect precluding the security classification of any information which could not be identified as having an established military application or affecting the integrity of our diplomatic relations. This view generally held that the maintenance of a margin of technological superiority over our military and economic competitors could best be served by a relatively unrestricted flow of the products of the NASA aerospace program into the public domain, believing that this would sustain a pace in technological advance in this country which would keep us ahead.

This fundamental issue was debated at great length in the meetings of the Board. Numerous drafts of a proposed issuance containing criteria and guidelines for implementation of the NASA Security Classification Program were prepared and discussed in Board sessions without reaching unanimous agreement. Generally speaking, those members representing Headquarters offices having responsibility for the public dissemination of information on the NASA program and for international relationships stood firm on a legalistic adherence to the language of Executive Order 10501 and opposed any interpretation of the term "national defense" which would encompass economic and political factors as well as strictly military considerations. Those members representing the Program offices which generated the technical information, and the two members representing the Security Division of Administration, generally supported the views of the Chairman.

When it became obvious that an impasse had been reached, I referred the issue to the Associate Administrator for resolution, submitting draft "Criteria and Guidelines" as approved by the majority of the Board, which I recommended, and a draft as recommended by the opposing group. The General Counsel supported the latter draft.

After hearing both sides of the issue, Dr. Seamans decided generally, but with some compromise, in favor of the position taken by the General Counsel and the minority group. The draft, as finally approved by Dr. Seamans, based the criteria and guidelines on the language of the Executive Order 10501, that is, the need to protect the "national defense," but included the following interpretative instruction under the section headed "DISCUSSION":

 

"1. Executive Order 10501 requires that NASA classify certain types of 'official information' in the [227] interests of national defense. Within the context of this Handbook:
 
"a. The term 'official information' is defined as information which is owned by, produced by, or is subject to the control of the United States Government;
 
"b. The term 'national defense' is interpreted in a broad sense to include not only considerations of military defense but also economic and political factors having bearing on the national defense posture."

 

The document "NASA Security Classification Criteria and Guidelines" was issued as NHB 1640.4 over the signatures of Dr. Seamans and myself, effective July 1, 1966. The document had been coordinated with the DOD. In the preface, it was stated that the criteria and guidelines would be reviewed in the light of user experience in approximately six months. This was done. After soliciting and reviewing the comments of Officials-in-charge of Headquarters program and staff offices and the Directors of field installations, a revision of the original document was issued as NHB 1640.4A, effective July 1, 1967.

The effectiveness of the Criteria and Guidelines instruction in meeting its intended purpose was attested by the fact that the recommended changes to the first issuance were few and minor. These instructions served to reduce substantially the number of requests received by me for classification rulings in individual cases.

Much credit belonged to Mr. Howard G. Maines for his efforts in behalf of this project. His familiarity with the technical aspects of NASA programs as related to considerations of security, his broad knowledge of security classification policies and practices within the Executive Branch of Government, and his strong background of experience in this field were of inestimable value to me and to the NASA Security Classification Board in discharging our assigned functions.

 

Security Classification Guide of the AEC

In August 1966, in my capacity as Chairman of the NASA Security Classification Board, I was invited, together with a technical assistant, to meet with an "AEC Committee of Senior Reviewers" which was then engaged in assisting the Commission in a program to evaluate its overall classification policy. In lieu of my personal attendance, I arranged for NASA to be represented by Mr. Maines and by Mr. William H. Woodward, Space Power and Electric Propulsion Division. Later, NASA assisted in an extensive review of the Security Classification Guide of the AEC.

 

[228] Freedom of Information Act

The Freedom of Information Act, signed by the President on July 4, 1966, to become effective on July 4, 1967, raised certain questions within NASA and other agencies of the Executive Branch as to its interpretation and implementation. By way of preparing to operate under the new law, the Deputy General Counsel of NASA discussed the areas of possible difficulty in a memorandum dated July 11, 1966. He expressed the desirability of a uniform approach to implementation by the Executive Branch agencies and stated that his office was preparing to discuss the matter with the Department of Justice, "who may well end up issuing regulations or interpretations."

The potential difficulties appeared to center around the categories of information exempted from the application by the new law. The exemption of greatest interest to me, as related to my classification responsibilities, was the first; i.e., matters "specifically required by Executive Order to be kept secret in the interest of the national defense or foreign policy."

I felt that there was a category of information generated in the NASA program - such as, for example, a document titled "NASA Space Vehicle Design Criteria" - which could not qualify for security classification under a narrow interpretation of Executive Order 10501, but which should not be made freely available to foreign nationals on an uncontrolled basis. I conferred with Maines and Mr. E. M. Shafer, Office of the General Counsel, as to how material in this "grey area" could administratively be placed in a limited distribution category below that of security classification, to be made readily available to other U.S. Government agencies and to our own aerospace industry and yet withheld from the public domain. In the DOD, material of a similar nature was being given a restricting marking and its distribution controlled.

As planning for NASA's implementation and compliance with the Freedom of Information Act progressed, I became concerned over the indiscriminate use of a variety of unauthorized restrictive markings in NASA Headquarters. Various offices were stamping documents with such markings as LIMITED DISTRIBUTION, RESTRICTED, FOR INTERNAL USE ONLY, FOR NASA USE ONLY, FOR OFFICIAL USE ONLY, and EYES ONLY. Some of these markings were and continued to be in common use in other agencies of the Executive Branch (White House, BuBud, DOD). My feeling was that a uniform marking should be adopted throughout the Executive Branch and its use regularized in order that administrative penalties could be imposed in cases of unauthorized release of information in the exempted categories under the Freedom of Information Act. However, the NASA General Counsel and the Assistant Administrator for Public Affairs, who was to be given responsibility for administering the Act within NASA, objected to any formalization of restrictions on unclassified documents.

[229] On April 4, 1967, I met with Mr. Harry Finger, Associate Administrator for Organization and Management, to discuss this matter. As a result of this meeting, Finger sent a note to Mr. William E. Lilly, Assistant Administrator for Administration, requesting that a draft NMI be prepared dealing with the handling of material to be treated as "Internal NASA Use Only, " "Official Use only," etc., but unfortunately this effort was abandoned by Administration when it was learned that Dr. Seamans had assigned to me the task of looking into the question of NASA's achieving parallelism with the DOD in the handling of unclassified but "exempt" records.

Just before the new law went into effect on July 1, 1967, pressures increased in several Executive agencies for the issuance of clarifying instructions and the adoption of a uniform marking for unclassified material in the exempted categories.

Apparently in about June 1967, the Departments of State, Treasury, and Defense prepared and submitted to the Bureau of the Budget draft Executive Orders, each relating to the implementation of various aspects of the "national defense or foreign policy" exemption in the Freedom of Information Act. These drafts were referred to the Office of the Attorney General. The Justice Department prepared a proposed Executive Order combining the three drafts mentioned above and submitted the proposed order to BuBud and the other three agencies involved for comment. Each of the three agencies recommended issuance of the order.

DOD Directive No. 5400.7, subject : Availability to the Public of Department of Defense Information, was issued on June 23, 1967. It authorized the use of the marking "FOR OFFICIAL USE ONLY," when considered necessary, to identify a record which was unclassified but authorized to be withheld from general public disclosure.

On July 19, 1967, Congressman Moss, Chairman of the Subcommittee of the Committee on Government Operations and principal architect of the Freedom of Information Act, gave a talk before the Third National Seminar of the National Classification Management Society, which I attended. He said, in part:

 

"This proliferation of security stamps is not only confusing but is nonessential. Non-security records should either be open to the public or they should be restricted to use within the Government. And there should be one common term to identify those administrative documents which must be restricted.
 
"Under the new Freedom of Information law, such uniformity is possible. In fact, it is anticipated that it may even be necessary. Government records will either be publicly available or they will be exempt from disclosure under one of the nine clear categories; and a single term 'EXEMPT' or some similar label should be used to designate such documents."

 

[230] In August 1967, we understood that the White House had under active consideration a draft Executive Order titled: "Disclosure of Records Involving the National Defense or Foreign Policy of the United States," the issuance of which was expected in the near future.

Mr. Julian Scheer, head of Public Affairs, and responsible for administering the new law in NASA, called a meeting on August 24, 1967, which he chaired, of cognizant Headquarters officials to consider the matter of how to handle the kinds of scientific and technical material which I considered to be in the "grey" area between classified material and material appropriate for release to the general public, the problem to which the proposed Executive Order was expected to address itself, and a matter about which I had continued to express my concern. At the meeting, I pressed for the preparation of a draft issuance for consideration by top management, containing further instructions for implementation of the Act within NASA. Scheer, however, felt that no further instructions were necessary, and apparently Dembling (General Counsel), Frutkin (International Affairs), and Lesher (Technology Utilization) concurred. The meeting ended with a disagreement as to the general thrust of the meeting and a misunderstanding as to the further action agreed upon.

From this point onward, action within NASA regarding these matters was suspended pending issuance of the expected Executive Order, but so far as I know' the order was never issued.


previousindexnext