Protecting America’s Military Technology

 

America’s technological prowess has permit­ted the design and construction of weapon systems second to none in the world. But the same prowess can unwittingly assist the Soviet Union to accomplish similar goals...as we were reminded again at last year’s Paris Air Show.

Soviet-bloc efforts to beg, borrow, buy, or burgle Western technology are legendary. The most recent and amusing episode was the attempt by Soviet per­sonnel to purchase 150 Honeywell laser gyroscopes during ⁽he June 1983 Paris Air Show. They merely stepped up to the counter, stated their request, and produced a certified check for the purchase. For sheer chutzpah, their act is hard to beat.¹

This blatant approach should not blind us to the many other more subtle, successful efforts initiated by Soviet- hloc agents. Several cases have been publicly cited, including both legal and illegal purchases of numerically controlled machine tools, grinding machines to produce high-precision ball bearings for missile warhead guidance systems, and manufacturing equipment for an entire inte­grated circuit processing plant. In 1979, Soviet embassy Personnel copied information from an Environmental Impact Statement on a weapons manufacturing plant in Tennessee. The statement had been placed in a public library for review. A Defense Intelligence Agency investi­gation revealed that it contained enough technical data to reconstruct the entire manufacturing process.

This hemorrhage of technology caused Dr. John J^eutch, Dean of Science at the Massachusetts Institute of lechnology and a member of a panel of National Acad­^emy of Sciences experts investigating the transfer of tech­nology to the Soviet Union, to declare there is “compel- ^ln8 ’ evidence that the Soviets are aggressively seeking ^a°d often acquiring Western technology for military and mdustrial purposes. With so much sophisticated Western technology potentially usable for military purposes, the ^oviets and their allies and friends are operating in a target-rich” environment.²

The U. S. Navy has suffered demonstrable injury from teis problem. In June 1983, Secretary of Defense Caspar Weinberger admitted that the Soviet electronic sonobuoy ^hich washed up on the shores of Washington state was • capable of picking up a good bit of classified data about the [USS Ohio (SSBN-726)]” when the ship tran- ^s>ted into Bangor last year.³ The sonobuoy was equipped ^xv'th U. S.-designed electronic circuitry.⁴

Ensuring that the protection afforded militarily sensitive information is consistent with its value presents a difficult conundrum in an open society, because there are numer­ous influential competing interests. Many journalists and academicians view any controls on information with hos­tile suspicion; businessmen desire as free a hand as possi­ble to promote and sell their products in domestic and foreign markets; and a wide variety of activists and protes­tors neither comprehend nor agree with the need for any government secrecy. Arrayed against these potent forces are those elements of the federal government responsible for ensuring that this information is properly identified and controlled—the Departments of Defense and Energy, with some assistance, and occasional opposition, from other executive agencies.

The methods used to control militarily sensitive infor­mation depend upon its nature. Most are familiar with the concept of “classified information.” There are two types of classified information: restricted data, which are classi­fied in accordance with the Atomic Energy Act of 1954 and pertain to the use of nuclear material (e.g., uranium- 235 and plutonium-239) in weapons and government- owned military nuclear reactors; and national security information, which is classified in accordance with Presi­dential Executive Order 12356 and pertains to all other information which can reasonably be expected to damage the national security.

Executive Order 12356, dated 2 April 1982, is the latest in a series of executive orders on the classification of national security information; the previous one was E. O. 12065 signed by President Jimmy Carter. Each new administration seeks to impress its own beliefs on how information should be classified, ensuring a continuous state of flux, which often causes confusion and uncertainty in the ranks. Using these executive orders, the government has the authority to designate information as classified, and to establish requirements for its protection. Two con­ditions for access are a proper security clearance and a legitimate need to know.

Yet several categories of unclassified information may have military value, including the technology used to build, maintain, and protect commercial nuclear power plants; the sophisticated electronics and microprocessors used in a growing variety of consumer products; and the airframe and avionics technology used in advanced civil­ian aircraft. This information has not been classified because of one legal and two pragmatic impediments.

One: The information does not meet the strict test required to be designated as classified information. While the test is subjective at best, its application is scrutinized either directly or indirectly by businessmen, university officials, journalists, and other parties. If they believe the government has overstepped its bounds, they can chal­lenge the action through administrative channels to the Information Security Oversight Office of the General Services Administration, or take the matter directly to federal court.

Two: Controlling the information as classified is virtu­ally impossible because of its widespread civilian applica­tion. For example, if microprocessor technology were classified in its entirety, its use would have to be restricted to military applications, with disastrous effects on the U. S. economy.

Three: Even for military applications alone, controlling information as classified tremendously increases the cost to design, build, and maintain equipment. The reasons for this are manifold, including the time and effort required to process requests for security clearances (more than three months for the lowest level clearance and in excess of six months for higher level clearances); the prohibition against discussing classified information over non-secure telephone circuits; and the need to protect classified infor­mation continuously, whether it is in use or not. Thus, if the Navy decided to classify all aspects of nuclear subma­rine construction, the two shipyards involved, Electric Boat Division and Newport News Shipbuilding and Dry- dock, would literally have to build an opaque “dome” over their facilities to guard against Soviet intelligence­gathering operations from satellites, or, in the case of Electric Boat, from automobiles on the bridges which span the Thames River in New London, Connecticut.

We find ourselves in a never-never land between classi­fied information which requires protection and “benign” unclassified information which requires none. What legal basis is there for seeking to control unclassified yet mili­tarily sensitive information? What level of control is appropriate, and will it be effective? What effect will the controls have on civilian businesses? Will the controls affect the ability to conduct important scientific research and development work? What effect will the controls have on our relationship with foreign allies? Are we seeking to create an administrative structure which is unique within the government and U. S. society?

The final question is the easiest to answer. Society, the judicial system, and the business community have long recognized the need to protect certain categories of unclas­sified information from public disclosure, i.e., private medical records, matters between an attorney and his client, data which are proprietary to a company, and employee personnel records. Such control is not viewed as inimical to the public welfare or as inconsistent with rights guaranteed under the U. S. Constitution.

The remaining questions pose more serious problems. Over the past several decades, the federal government has concocted several mechanisms in answer to these ques­tions. Unfortunately, with more than 40 groups and orga­nizations actively involved within the government on the subject of controlling sensitive technology, the bureau­cratic structure is cumbersome and confusing.

In 1954, Congress passed the Mutual Security Act which established policy for the exchange of technical defense-related information and military hardware with foreign countries. That act was superseded by the Arms

Export Control Act of 1976, but its operative principles remain. Implementation of the act resulted in the interna­tional traffic in arms regulations (ITAR) which are admin­istered by the State Department. ITAR regulates the export of military hardware and technical data, the latter defined as including unclassified information useful in the “design, production, manufacture, repair, overhaul, proc­essing, engineering, development, operation, mainte­nance or reconstruction of . . . implements of war on the U. S. Munitions List.” The munitions list is a separate document controlled by the Departments of State, Energy, Defense, and Commerce, containing hundreds of items ranging from automatic weapons to sophisticated commu­nications devices.

Critics have plausibly argued that ITAR, if vigorously enforced, would touch almost every major U. S. industry.⁵ This uncontrolled breadth actually limits ITAR’s effectiveness. Despite criminal penalties of up to two years in prison and a $25,000 fine for violations, no prosecutions have been attempted for the open publication of information which falls within both the intent and the letter of ITAR. Rather, enforcement has concentrated on the sale and export of hardware, with mixed results.

But ITAR and the munitions list form only part of the polyglot of regulations governing export activities. Under the authority of the Export Administration Act of 1979, the Department of Commerce administers the export administration regulations (EAR), which control the export of technology for items on the commodity control list. The commodity control list, also a joint executive agency creation, is analogous to the munitions list except that it also covers items which are not military hardware. The EAR/commodity control list combination suffers from the same unlimited scope which hinders use of the ITAR/munitions list.

Scheduled to be reenacted before it expired on 30 Sep­tember 1983, the Export Administration Act of 1979 was the target of vigorous lobbying by several companies, professional organizations, and universities who wanted to eviscerate it. Testifying before a subcommittee of the House Foreign Affairs Committee in February 1983, Alexander Trowbridge, president of the National Associa­tion of Manufacturers, stated:

“The Export Administration Act cannot remain a broad undelineated source of presidential power that hangs over the export of normal U. S. industrial products by private firms.”⁶

He also suggested that Congress pass specific legislation . . in all instances when such [foreign export] controls are used in non-emergency situations.”

Because of the absence of a congressional consensus, the Export Administration Act did expire in mid-October 1983. President Reagan invoked his executive powers to prevent export controls from lapsing while Congress con­tinued to work on reenactment. Ironically, the Soviets themselves torpedoed a diluted version of the act which had been passed by the House Foreign Affairs Committee in late October and sent to the House floor for action. The destruction of Korean Air Lines 007 led Representative

Toby Roth (R-WI) to form a conservative coalition which finally passed a version on 24 October 1983 that retained the more restrictive provisions of the original act.

Although congressional sentiment on the issue of export controls is mixed, Congress has demonstrated a desire to protect certain categories of sensitive unclassified infor­mation. In 1980, over the vehement opposition of journal­ists and anti-nuclear activists, Congress passed legislation which authorized the Nuclear Regulatory Commission (NRC) to control unclassified information pertaining to the safeguarding of nuclear material used in commercial nuclear power plants. This information, termed “safe­guards information,” included the physical protective measures taken by electric utility companies to guard their nuclear plants and the nuclear fuel while in storage or in transit. While the legislation was principally aimed at thwarting acts of terrorism and sabotage, it did provide a mechanism—Section 147 to the Atomic Energy Act of '954—for controlling nuclear-related physical protection technology which has military application.

The NRC prepared regulations which recognized that safeguards information was somewhere between classified and “benign” unclassified. The regulations only required ^a need to know and not a security clearance for access to the information. The regulations also defined certain per­sonnel, such as law enforcement officials, as automati­cally having the required need to know. Finally, the ^requirements permitted storing the information in such containers as locked file cabinets, which is unacceptable for classified information.

The statute giving the NRC the authority to protect safe­guards information created an interesting anomaly: uuclear reactors owned by the federal government, includ- ^lng reactors used by the Department of Energy (DoE) to manufacture nuclear weapons material and those installed m nuclear-powered warships, are not licensed by the NRC. Thus, the same unclassified safeguards information Pertaining to government reactors could not be protected ^Under the NRC statute.

On 4 December 1981, Congress remedied that problem at the behest of the House Armed Services Committee by enacting legislation which added Section 148 to the Atomic Energy Act of 1954—giving the Department of Energy the authority to prescribe regulations for the pro­tection of unclassified safeguards information pertaining to government reactors. However, the legislation also included other unclassified information—termed “unclas­sified controlled nuclear information” (UCNI)—which covered nuclear weapons design and manufacture, and the design of government nuclear reactors. Proposed reg­ulations implementing UCNI were published in the Federal Register in April 1983, and final regulations are expected soon.

Even before the proposed regulations were published, however, critics of the legislation had enlisted several powerful friends on Capitol Hill, including Senator Gary Hart (D-CO). In an attempt to reduce the scope of UCNI, Hart added a rider to an NRC authorization bill in 1982 which restricted UCNI to only defense-related government nuclear work. This action precluded the government from protecting safeguards-related information which pertains to its many civilian nuclear activities, including the Clinch River Breeder Reactor and research reactors located at government laboratories. It is ironic that someone like Hart, who ostensibly supports nuclear non-proliferation, should originate legislation which makes it more difficult for the government to protect nuclear material used in its civilian work from theft, diversion, or sabotage by terror­ists. The Hart legislation denies government civilian nuclear programs the same protection considered neces­sary for commercial nuclear work.

Congress unwittingly undercut technology and export control efforts by enacting and then strengthening the Freedom of Information Act (FOIA) in 1974. The FOIA—pronounced “foo-ey” by many government offi­cials who must administer it—permits anyone, no matter if they are a U. S. citizen or not, to request information controlled by the federal government. The government is obliged to release the information unless it is specifically exempt from disclosure under FOIA. The exemption cate­gories include classified and business-proprietary informa­tion, but not information controlled by agency regulations unless specifically stated in the statute. Thus, information like UCNI may be withheld under FOIA since it is specifi­cally covered by statute, but information identified in the export control regulations has no blanket protection.

Some members of Congress have recognized the prob­lem and have taken steps to rectify it. Representative Charles Bennett (D-FL), a long-time ally of defense mat­ters and subcommittee chairman on the House Armed Services Committee, has proposed legislation which would provide the Department of Defense (DoD) with specific statutory authority to protect unclassified but

This Soviet sonobuoy equipped with U.S.-designed electronic circuitry that Boy Scouts found washed up on the beach in Washington state in August 1982 was capable of picking up classified data from Trident submarines en route to Bangor.

sensitive military technology from disclosure. The bill, H. R. 40, is similar to H. R. 7331, introduced in a previous session of Congress; that measure did not make it to the House floor because of the strenuous objections of the House Committee on Government Operations which reviews all legislation affecting the FOIA (and rejects vir­tually anything which may restrict FOIA’s scope). Whether HR. 40 will meet a similar fate is unclear.

The Reagan Administration appears to support the prin-

ciple embodied in H.R. 40, but lacks either the political will or the spokesman to overcome the substantial opposi­tion. With so many executive agencies involved, the usual bureaucratic maneuverings which accompany any intera­gency dealings make it difficult both to arrive at a consen­sus, and for one group to emerge as the torchbearer. More­over, having been repeatedly denounced by the media and public interest groups for its efforts to tighten control over government information, the administration may be reluc­tant to make itself an even bigger target in an election year.⁷ Finally, many major defense contractors and other firms are not enamored with the prospect of legislation giving teeth to the ITAR and EAR. These firms wield considerable power; recently, President Reagan decided to permit the sale of sophisticated computer equipment to the People’s Republic of China at the recommendation of Secretary of Commerce Malcolm Baldridge, over the strenuous objections of Secretary of Defense Weinberger.

One knowledgeable and persuasive former government official who has testified before Congress many times in support of H.R. 40’s predecessors is Admiral H. G. Rick- over. Testifying before a subcommittee of the House Armed Services Committee in March 1981, he stated:

“A principal area of concern is that, through the Free­dom of Information Act, anyone can gain access to unclassified military technology unless it can be with­held from release according to one of the limited exemptions in the act. This can result in the loss of an extremely large amount of sensitive and valuable mili­tary technology with serious consequences for our national defense posture. In the area of naval nuclear propulsion, for example, a large bulk of the technical information is not classified because to do so would result in much higher cost and loss of efficiency in building the ships. But this information is very valuable and should not be subject to disclosure under the Free­dom of Information Act.

“One way to solve this problem would be to amend the act to include an exemption of any military technology that is on the U. S. Munitions List. Such an approach was proposed in a bill introduced in the last Congress, H R. 7331 .... I strongly recommend passage of such a measure.”⁸

But Admiral Rickover and administration spokesmen have not been able to provide Congress with a blatant example of the Soviets caught red-handed trying to obtain sensitive military information through the FOIA.

There are several plausible answers as to why the Sovi­^ets have not taken the bait. Since FOIA requests need not ^sfate a motive, and since many requests come from law firms representing unnamed clients, the bait could well have been taken without our knowledge. Nonetheless, direct action by the Soviets is probably unnecessary, since ^formation released under FOIA to the news media will jnevitably find its way into open sources. Investigative Journalists make good unwitting surrogates. Also, the ^aPparent absence of Soviet-bloc action may reflect a desire ^to maintain a low profile, to avoid providing an excuse for Passage of H.R. 40 and possibly bringing in even more stringent legislation.

This brings us to the difficult question of the impact controls on militarily sensitive unclassified information ^may have on commercial business, research and develop- ^menL and U. S. society in general. The NRC’s experience ^Wlth protecting safeguards information has been encourag- ^ln2’ because NRC has imposed reasonable controls on that 'uforrnation. Electric utility and nuclear manufacturing companies which are affected have registered few pro­tests, partly because they recognize the need to protect the ^formation.

Unhappily, the same does not apply to defense contrac- ^0rs- Many contractors use the technological skills and ^research and development results acquired from defense Work in their civilian enterprises to the benefit of the econ- °rtiy. Moreover, the government funds millions of dollars military research and development work at universities, bich are even less tolerant of controls than private com­panies. This is in part because of government efforts to apply restrictions on the publication of research work using ITAR and EAR. The presidents of the leading research institutions have roundly condemned such pre­publication censorship as being both inimical to the open spirit of university life, as well as counter to the successful accomplishment of the research. They point out that while the United States used to lead the world in many areas of research, this is no longer true, making universities dependent upon the participation and cooperation of for­eign research institutions, as well as foreign engineering and science students and faculty.⁹

A second, more questionable motive which these uni­versities share is the perception that cooperation with for­eign scientists, especially those from communist-bloc countries, is inherently beneficial because it promotes societal intercourse and enhances international under­standing. Those goals cannot serve as justification for

Admiral Rickover testi­fied before Congress in support of bills that would protect unclassi­fied but sensitive mili­tary technology from disclosure through the Freedom of Information Act, but he and others have been unable to provide a blatant exam­ple of the Soviets caught red-handed trying to obtain sensitive military information through the Act.

permitting technology transfer to communist-bloc coun­tries, but they undoubtedly influence the position taken by university officials.

Critics also argue that export controls of sensitive tech­nology are futile because the Soviets can always buy or steal technology from Western Europe and Japan, which have far less stringent controls over their technology trans­fer activities than the United States. Businessmen argue that, by making U. S. exports to friendly countries contin­gent upon those countries accepting U. S. restrictions on further export of U. S.-originated goods and technology to communist-bloc countries, the federal government is undercutting their efforts to sell products overseas. But these conditions may be changing. Consider France, which is often used as an example of a country which will sell anything to anyone for a franc. Under Francois Mit- terand’s socialist government, scores of Soviet diplomats have been expelled for engaging in military and industrial espionage. Furthermore, the Reagan Administration recently has taken laudable steps toward improving the existing structure for controlling all export activities of NATO countries to the communist-bloc. These steps include strengthening the group which sets export policy (the so-called coordinating committee—CoCom) and increasing the penalties for violations.

What is the correct approach to the problem? Given the competing interests, bureaucratic structure, and technical complexities, no approach is perfect. But there may be room for a reasonable compromise which includes the following principal elements:

► Carefully defining and limiting the categories of unclas­sified information which have true military value warrant­ing protection, to avoid, when practical, that technology which suffuses the civilian sector, making control impos­sible. We should also emphasize the defense industry’s applied research and development work, rather than the universities’ more basic research and development efforts.

► Establishing requirements for control of the information which are commensurate with its value. A good model may be to use the NRC regulations governing safeguards information, or the proposed DoE regulations for UCNI. These controls will not guarantee protection in the event of a concerted effort by foreign intelligence agencies; even the stricter controls for classified information are often insufficient, as the recent case of top secret Minuteman missile data being sold to Polish agents illustrates. How­ever, those resources employed to obtain less valuable, unclassified military information will not be available for other intelligence-gathering purposes. Further, any such clandestine efforts run the risk of detection, which could possibly jeopardize other concurrent intelligence-gather­ing operations.

►  Convincing the parties who are directly involved (Con­gress and the defense contractors) that control of the infor­mation. is both necessary and achievable without signifi­cant disruption. Trying to convince some groups such as journalists may be futile because much of the evidence is classified.

► Applying the carefully crafted categories of militarily sensitive technology to contractors on a case-by-case, contractor-by-contractor basis. Much different from cur­rent practice, this is the important step. Rather than attempting to apply the ITAR and EAR in blanket fashion, each contractor’s work should be reviewed in detail, and any militarily sensitive unclassified information should be delineated. From this review, contractual requirements specifying this information and the requirements for its protection can be tailored to each contractor, while remaining consistent with the goals of ITAR and EAR. By using a contract to spell out the contractor’s obligations as well as the government’s intentions, contractor concerns about arbitrary or capricious application of the broad ITAR/EAR language can be ameliorated, which is prefera­ble to invoking ITAR or EAR as legal requirements.

Such a contract would probably contain several provi­sions, including the following:

One: A detailed guidance document defining the con­tractor’s information and hardware which require protec­tion, analogous to the classification guides which DoD provides contractors to determine what information is classified. With more than 19,000 such classification guides in existence, it is reasonable to require similar specificity for this situation.¹⁰

Two: A phase-in of the controls over time to avoid dis­ruption of current work and to provide time to train employees to meet the new requirements.

Three: A means for promptly obtaining definitive inter­pretation from the government of whether certain informa­tion is covered by the controls, for those instances where the written contractual guidance is insufficient.

Four: An administrative procedure for quickly appeal­ing decisions with which the contractor disagrees.

Five: Clearly defined guidelines for preparing profes­sional articles intended for open publication so as to avoid divulging sensitive information. The guidelines should also spell out the review and approval actions that are required by government officials prior to publication, and set time limits for that review.

This contractor-by-contractor approach does have the disadvantage of requiring a considerable amount of effort from the government employees who would be responsi­ble for administering it as it requires detailed knowledge of the technical work a contractor does and an appreciation for that information’s sensitivity. Also, careful negotiation of requirements would be necessary to avoid the appear­ance of giving one contractor deferential treatment. In short, intelligence and tact are needed, not brute force or aloof idealism.

The approach I have proposed is not inconsistent with international agreements between the United States and its allies. Foreign governments would be less likely to view U. S. efforts to control the export of sensitive military technology as unrealistic and unattainable.

If the government is serious about controlling militarily sensitive unclassified information, it should consider this approach, which minimizes the potential for strife provid­ing better protection than exists. It is certainly worth fur­ther discussion.

¹ Armed Forces Journal International, July 1983, p. 82.

²Philip Boffey, “What Exactly are Russians Getting?” The New York Times, 5 October 1982, p. Cl.

³“Soviets Spy on Subs With a U. S.-designed Device,” The Chicago Tribune, 26 June 1983, p. 13.

⁴Jessica Savitch, NBC Saturday Night News, 25 June 1983.

⁵Stephen Unger, “The Growing Threat of Government Secrecy,” Technology Review, February/March 1982, pp. 31-38.

⁶Paul Mann, Aviation Week and Space Technology, 7 March 1983, pp. 14-17. ⁷George Lardner, Jr., “Administration Accused of Policy of Secrecy,” Washing­ton Post, 22 April 1983, p, 4.

* Naval Nuclear Propulsion Program—1981, Hearing on H.R. 2969, Department of Energy Authorization Legislation (National Security Programs) for fiscal year 1982, before the Procurement and Military Nuclear Systems Subcommittee of the Committee on Armed Services, U. S. House of Representatives, Ninety-Seventh Congress, First Session, 9 March 1981, p. 42, testimony of Adm. H. G. Rickover. ⁹Paul E. Gray, “The University Case Against Secrecy,” Technology Review, July 1982, p. 10-12.

¹⁰Richard Halloran, “The Problem of Keeping So Many Secrets Secret,” The New York Times, 19 April 1983, p. B6.

Commander Guida received a bachelor of science degree in electrical engineering and a master of science degree in nuclear engineering from the Massachusetts Institute of Technology. He also received a master’s degree in business administration from the George Washington Univer­sity. He is currently employed as a senior nuclear program manager with the U. S. Department of Energy and is a drilling reservist assigned to the Theater Nuclear Warfare Project Office (PM-23).