The US Atomic Energy Act and the concept of “Born Secret”, Cardozzo Law Review.

download the entire pdf at www.fas.org/sgp/eprint/cardozo.pdf

The Atomic Energy Act is still in force in the USA.

Australian Federal Law includes similar provisions in respect specifically relating to uranium and nuclear energy.

CARDOZO LAW REVIEW, VOL 26, NO 4, MARCH 2005, PP. 1401-8

At the heart of the 1979 case United States v. Progressive, Inc.1 is
the “born secret” doctrine of the Atomic Energy Act of 1946, a
permanent gag order affecting all public discussion of an entire subject
matter. There is nothing like it anywhere else in American law.
Before the Manhattan Project, government secrets were temporary.
The hypothetical “sailing dates of transports or the number and location
of troops,” from Near v. Minnesota,2 was a reference to temporary
secrets, during wartime. Even radar, which had a greater impact on the
course and outcome of World War II than did atomic bombs, was never
envisioned as a permanent secret.
Then again, nobody had reason to be ashamed of radar. The
Hiroshima bombing was so destructive, so troubling, and so
unexpected—at least by the general public—that an instant consensus
emerged: such matters are better not discussed, even in a free country.
The truth is, there was never really an A-bomb secret, aside from
the scale and timing of the wartime Manhattan Project, and the precise
results of certain critical mass experiments. Uranium fission had been
announced by German scientists in 1939, and quickly confirmed around
the world.
Since neutrons cause fission and fission produces more neutrons, a
nuclear fission reaction could obviously be self-sustaining, if enough of
the proper material, sufficiently pure, could be assembled in one place.
Fortunately, the requisite fissile material, uranium-235 or plutonium-
239, turned out to be extremely expensive. Only the United States had
enough money and protected real estate to construct the necessary
industrial infrastructure during the war.
Scientists of the arms control movement, which began inside the
Chicago branch of the Manhattan Project, agreed there was no A-bomb
secret. In the (secret) June 1945 Franck Report, they stated, “Nuclear
bombs cannot possibly remain a ‘secret weapon’ at the exclusive
disposal of this country for more than a few years. The scientific facts

* Author of the Progressive article, “The H-Bomb Secret.”
1 467 F. Supp. 990 (W.D. Wis. 1979).
2 283 U.S. 697 (1931).

on which construction is based are well known to scientists of other
countries.”
The McMahon Bill, submitted to Congress on December 20, 1945
and slated to become the Atomic Energy Act of 1946, was a victory for
arms control scientists. Their intention was to wrest control of nuclear
energy away from the Pentagon and give it to a new civilian agency.
The bill, as submitted, also reflected their desire to remove the wartime
secrecy apparatus and restore nuclear science to the realm of open
scientific inquiry.
Under the heading “Purpose of Act” the first item was “(1) A
program . . . to encourage maximum scientific progress.” The second
item was “(2) A program for the free dissemination of basic scientific
information and for maximum liberality in dissemination of related
technical information.”
Section 9 of the bill was titled “Dissemination of Information.” It
tacitly acknowledged that the government had accumulated secret
information on nuclear technology during the war, and it called for
release of that information “with the utmost liberality as freely as may
be consistent with the foreign and domestic policies established by the
President.” For national security and public safety purposes, the bill
emphasized control of nuclear materials, not information. The
Espionage Act was cited as sufficient to deal with misuse of
information.
However, by August 1, 1946, when the Atomic Energy Act
reached President Truman for signature, the new second purpose was
“(2) A program for the control of scientific and technical
information . . .,”3 and Section 9 was gone, replaced by a new Section
10, “Control of Information.” This new section contained the novel
doctrine later described as “born secret.” Slightly modified in 1954, it is
still in force today.
When the Atomic Energy Act became law, it defined a new legal
term “restricted data” 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,” unless the
information has been declassified. The phrase “all data” included every
suggestion, speculation, scenario, or rumor—past, present, or future,
regardless of its source, or even of its accuracy—unless it was
declassified. All such data were born secret and belonged to the
government. If you related a dream about nuclear weapons, you were
breaking the law.

………

In fact, United States policy has always been to strike first, from
Hiroshima to the present day. In the Cold War, U.S. nuclear weapons
were deployed to deter conventional war. They would be launched
preemptively if Soviet infantry forces moved toward West Germany or
Iran. In the early days, the Soviets would have been able to retaliate
only against Europe, but by 1964, they had enough long-range, nuclear-
armed missiles to devastate the U.S. The U.S. plan then became a
snowball’s-chance-in-Hell effort to simultaneously destroy all Soviet
missiles in their silos and submarines, along with all Soviet leaders and
their means of communication. This lunatic pre-emptive mission,
which has inexplicably survived the collapse of the Soviet Union, still
determines the size and shape of the U.S. nuclear arsenal and the
accuracy requirements and quick-launch characteristics of U.S. missiles.
Informed public discussion may never change any of this, as long
as people would rather not think about it. Were interest to arise, all the
relevant information has been in the public domain for decades, even
though much of it has not yet been declassified. Journalists and
activists openly defy the born secret doctrine with apparent impunity,
but decision makers are still able to hide behind their security clearances
when setting policy. Reporting is distorted by constraints on quotable
people with official credentials and a lack of credentials on the part of
people who know the facts, unofficially, and are willing to tell the other
side of the story.
Although the Progressive magazine demonstrated its absurdity in
1979, the born secret doctrine remains a potent suppressor of free
speech on a subject of immense importance.

One Response to “The US Atomic Energy Act and the concept of “Born Secret”, Cardozzo Law Review.”

  1. CaptD Says:

    Born Secret really means that even the President of the USA does not have the need to know; so in reality a small group of insiders control vast sums of money (and Power) without any real “public” supervision!

    See this Book about Area 51 and it’s secrets for much more on this:
    http://www.amazon.com/Area-51-Uncensored-Americas-Military/dp/0316202304/ref=sr_1_1?s=books&ie=UTF8&qid=1342715047&sr=1-1&keywords=area+51

    Liked and Tweeted…

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