ML20053A109
| ML20053A109 | |
| Person / Time | |
|---|---|
| Issue date: | 05/03/1982 |
| From: | Palladino N NRC COMMISSION (OCM) |
| To: | Glenn J SENATE, GOVERNMENTAL AFFAIRS |
| Shared Package | |
| ML20053A108 | List: |
| References | |
| NUDOCS 8205240561 | |
| Download: ML20053A109 (2) | |
Text
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o, UNITED STATES E
'n NUCLEAR REGULATORY COMMISSION
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WASHINGTON, D. C. 20b55
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May 3, 1982 CHAIRMAN The Honorable John Glenn Subcommittee on Energy, Nuclear Proliferation and Government Processes Comittee on Governmental Affairs United States Senate Washington, D.C.
20510
Dear Senator Glenn:
This is in response to your March 23 ietter requesting access to those documents which caused the NRC to issue its letter of November 27, 1981 to Congress. We have confined our response to relevant classified infor-mation since that appears to be the focus of your letter. This informa-tion falls generally into two categories.
The first category is information from sensitive intelligence sources which is controlled by the originating agency and thus is not releasable, even on a classified basis,- by the.NRC without the consent of the origi-nator.
In connection with an earlier, similar request from Congressman Ottinger, Chairman of the Subcomittee on Energy Conservation and Power, Comittee on Energy and Commerce, we were advised by the Central Intelli-gence Agency (CIA) that any list of document numbers of CIA-originated material, including intelligence reports in NRC's possession, would fall in this category.
The CIA confirmed this to the NRC in the enclosed statements, which also cite the basis for CIA's position. The Agency did note, however, that it would cooperate fully with Congress and permit any disclosures to be made that are consistent with the Director's responsibility set forth in 50 U.S. Code, Section 403(d) and that any inquiries for CIA-originated information should be referred to the CIA for direct response.
In this connection, we have identified for the CIA the documents in which we believe you are interested.
I am also enclosing a copy of a legal analysis, dated March 17, 1982, pre-pared by our Office of the General Counsel.
This analysis sets forth the legal basis for our decision to defer to the CIA on this matter.
The second category of information consists primarily of classified information obtained from other sources and agencies. Much of this information is reflected in (1) the NRC staff's analyses of the second and third attachments to our classified letter of November 13, 1981 to Congress on international safeguards matters, a copy of which was provided to you at that time; and (2) the Commission's additional classified statement regarding safeguards aspects of the Toksi Mura subsequent arrangement before the Subcommittee on International Economic Policy and Trade of the House Comittee on Foreign Affairs on October 29, 1981.
In this class of infornation, the principal 8205240561 820503 PDR COMMS NRCC CORRESPOICENCE PDR
The Honorable John Glenn Page 2 reference documents we have identified are (1) the IAEA's Safeguards Implementation Reports of 1977, 1978, 1979 and 1980, which are obtained from the Executive Branch and which the State Department is willing to make available to you; (2) the report in the first attachment to our letter of November 13, 1981; (3) an NRC staff-sponsored study
" Implications of IAEA Technical Objectives", Battelle Pacific Northwest Laboratories, May 1981; and (4) the Commission's additional classified statement before the Subcommittee on International Policy and Trade, of the House Committee on Foreign Affairs, October 29, 1981, which contains information concerning safeguards aspects of the Tokai Mura subsequent arrangement. We can provide you with copies of items (3) and (4) if they are not already available.
While a large number of other classified documents in this category related to safeguards matters are in our possession, they serve chiefly to round out the picture of international safeguards efficacy obtained from the documents mentioned above and are of limited relevance to the concerns expressed in our November 27, 1981 letter to Congress.
Please let me know if we can be of any further assistance.
Sincerely, kkhb/b s
w Nunzio J. Pa ladino
Enclosures:
1.
CIA letter dtd 3/17/82 GRLaPlante to WJDircks-2.
CIA letter dtd 4/19/82 GRLaPlante to WJDircks 3.
General Counsel memorandum dtd 3/17/82 m
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CENTRAL INTELLIGENCE AGENCY WASHINGTON, D.C. 20505 Office of General Counsel 17 March 1982 Mr. William J. Dirks Executive Director for Operations Nuclear Regulatory Commission Washington, D.C.
20555
Dear Mr. Dirks:
This Office has been informed that the House Committee on Energy anel Commerce Subcommittee on Energy Conservat, ion and Power has requested access to certain CIA originated information;which is in the NRC's possession.
All of this information is classified.
We wish to remind you that Section IV.D of Directive No. 1 of the Information Security Oversight Office implementing Executive Order 12065 (43 Fed.
Reg. 46280, October 5, 1978) provides that
... classified information originating in one agency may not be disseminated outside any.other agency to which it.has been made available without the consent of the originating agency. "
Accordingly, as this Agency has not authorized any release of the information in your possession, we request that you so advise the Committee.
You may clso assure the Committee that this Agency will, of course, cooperate fully with the Congress and permit any disclosures to be made that are consistent with the Director's responsibility as set forth in 50 U.S.C.
Section 403 (d) to protect intelligence sources and methods.
Sincerely,
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George R. LaPlante i
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CENTRAL INTELLIGENCE AGENCY WA.SHINGToN D.r. 20$05 O@ce of Gened Counud 19 April 1982 Mr. William J. Dircks Executive Director for Operations Nuclear Regulatory Commission Washington, D.C.
20555
Dear Mr. Dir cks:
This is to confirm my ear' lier response to the Nuclear Regulatory Commission's April 15, 1982 oral request.
Any list of document numbers of CIA-originated materials, including intelligence reportsi in the NRC's poss.ession would be classified, and therefore, fall within the scope of my March 17, 1982 let ter to you.
Accordingly, we ask that you refer any inquiries for CIA-originated information to this Agency for direct response.,
As noted in my March 17, 1982 letter, the CIA will, of course, cooperate fully with the Congress and permit any disclosures to be made that are consistent with the Director's responsibility as set forth in 50 U.S.C. Section 403(d) to protect intellig.ence sources and methods.
In fact, toward the end cf Ma.rch this Agency received requests froo both the House and Senate for much of the same informction that you have indica ted was reques ted by Chairman' Otti'nger, 'and 'we are preparin,g a comprehensive response to those inquiries at this i
time.
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Sincerely, 3
/< w '<
eorge R. LaPlante 4
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' UNITED STATES o
NUCLEAR REGULATORY COMMISSION g
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WASHIN GTON, D, C. 20555 2,
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s,..us j March 17, 1982 MEMORANDUM FOR:
Chairman Palladino df#h$LeonardBickwit, Jr., General Counsel FROM:
TRANSMITTAL OF CLASSIFIED INF6RMATION TO
SUBJECT:
CONGRESSIONAL OVERSIGHT COMMITTEES You have requested c-epanion whether, in light of Section 303 of the Commission may on its own authority the Atomic Energy Act, transmit classified intelligence information to one of its Congressional oversight committees over the objection of the-agency (in this case the Central Intelligence Agency) whichFor th originated the information. conclude that it may not and that a comm information must be referred to the originating agency.
The Commission's ge.neral statutory authority and obligation-to transmit information to its Congressional oversight committees is This set forth in section 303 of the Atomic Energy Act.
authority and obligation extends to information and documents relating to the Commission's functions that are within the However, I do not believe that the Commission's control.
authority or obligation extends to information or documents which are within the Commission's possession but beyond its legal power to transmit.
I understand that the information sought in this case is Executive Order 12065 classified under Executive Order 12065.that the Director of the I provides in section 5-202(d) Security Oversight Office shall dev to the approval of the National Security Council, directives for the implementation of the Order which shall be binding on a Federal agencies.
implementing Directive No. 1 on national security information, which was approved by the National Security Council for 29, 1978, provides in publication and issuance on September section IV.D,'as follows:
Dissemination /Except as otherwise provided by section 61 Stat. 495, 102 of the National Security Act of 1947, 50 U.S.C. 403 (1970 and Supp. V 1975), classified information originating in one agency may not be disseminated outside any other agency to which it has been made available without the consent of_the originat-ing agency (4-403).
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I also understand that the information sought in this case originated within the Central Intelligence Agency, and was provided by that agency to the Commission oh the understanding that the above quoted provisions of the Directive would fully apply.
Finally, it is my understanding that the Central Intelligence Agency has refused to give the Commission the requisite permission to transmit the information to the committee.
The courts have recognized that the Constitution grants authority to the President to adopt restrictions on the disclosure of information when its release would damage the national security or foreign policy interests of the United States.
See Snepp v.
United States, 444 U.S. 507, 509 note 3 and 511-512 (1980);
United States v. Nixon, 418 U.S.
683, 710-711 (1974); U.S. v.
Reynolds, 345 U.S.
1, 10 (1953); C.
& S. Air Lines v.
Waterman S.S.
Corp., 333 U.S. 103, 111 (1948).
Considerable adFAtional research would be required to determine the exact dimensions of the Constitutional 1y-based privilege against disclosure.
However, I believe that the case law provides authority for the President, and Executive Branch agencies acting under authority delegated by the President, to restrict or condition the transfer of classified information from an Executive Branch agency to the Commission so that the originating agency retains control over the. dissemination of the information.
Moreover, the authority of the originating agency in this case to impose restrictions on the Commission's further dissemination of the reports is bolstered by statute.
The National Security Act of 1947 provides an authority and mandate to the Central ~ Intelligence Agency to protect intelligence sources and methods from unauthorized disclosure and to provide for the appropriate dissemination of such information within the Government.
50 U.S.C. S 403 (d) (3).
I conclude therefore that the restrictions placed on the Commission by the' above-cited portions of Executive Order 12065 and the implementing Directive deprive the Commission of legal authority.
under Section 303 of the Atomic Energy Act to disseminate the information in question outside of the Commission unless consent to do so is obtained from the originating agency.
I understand that in this case the Central Intelligence Agency has indicated a willingness to discuss the relevant information it has with the subcommittee requesting it and suggests that the subcommittee contact the Agency in that regard.
Since it does not appear that all avenues that could lead to providing
4 s
3 information to Congress have been fully explored, my office has not conducted the additional legal research that would be necessary to determine the precise dimensions of any privilege which the Executive Branch may have to withhold information from Congress.
cc:
Commissioner Gilinsky Commissioner Bradford Commissioner Ahearne Commissioner Roberts OPE SECY OCA I
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