9507055 — Page 2023

2006-0527-F FOI MARKER Document ID: 9507055 Row: 46 A A Position: 2 Section: 2 This is not a textual record. This is used as an administrative marker by the Clinton Presidential Library Staff. Stack: v Shelf: 8 Original OA/ID Number: 2318 f ■ NSC/RMO PROFILE FROM: PRESIDENT PD KEYWORDS: PERSONS: PD 95 45 CONCERNING AIR FORCE OPERATIONS AT GROOM LAKE SUBJECT: STATUS: C DUE DATE: 28 SEP 95 ACTION: PRES SGD PD 95-45 LOGREF: STAFF OFFICER: KRECZKO CODES: NSCP: FILES: PA DISTRIBUTION DOCUMENT FOR CONCURRENCE FOR ACTION COMMENTS: o W/ATTCH BY HAND DATE DISPATCHED BY DOC 3 OF3 CLOSED BY: NSJWF OPENED BY: NSASK TOP SECRET ^CLASSIFIED felines, August 28,1997 LEGAL ISSUES ENVIRONMENT TO: BROWNER, C WIDNALL, S ................ RECORD ID: 9507055 RECEIVED: 25 SEP 95 10 DOC DATE: 29 SEP 95 SOURCE REF: PD95-45 FOR INFO KRECZKO NSC CHRON 'r CHRON FILE TO: LAKE FROM: KRECZKO PD KEYWORDS: PERSONS: AIR FORCE EXEMPTION FOR OPERATING LOCATION AT GROOM LAKE SUBJECT: DUE DATE: 28 SEP 95 STATUS: C ACTION: ORIGINALS RETURNED TO NSC/RMO LOGREF: STAFF OFFICER: KRECZKO CODES: FILES: PANSCP: DISTRIBUTION DOCUMENT FOR CONCURRENCE FOR ACTION COMMENTS: W/ATTCH DATE BY HAND DISPATCHED BY DOC 1 OF3 OPENED BY: NSASK CLOSED BY: NSJWF TOP SECRE-T LEGAL ISSUES ENVIRONMENT DOC DATE: 25 SEP 95 SOURCE REF: TOP SECRET NSC/RMO PROFILE RECORD ID: 9507055 RECEIVED: 25 SEP 95 10 FOR INFO NSC CHRON DECLASSIFIED E.0.12958, As Amended, white House Guidelines, August 28,1997 By.erns.NARA, Date s/J RECORD ID: 9507055 CAO ASSIGNED ACTION REQUIRED DOC ACTION OFFICER DISPATCH DATA SUMMARY REPORT DISPATCH FOR INFO DISPATCH FOR ACTION DOC DATE BROWNER, C WIDNALL, S 002 002 003 003 Z X Z X 950927 950927 950929 950929 95092618 FWD TO PRESIDENT FOR DECISION 95100214 ORIGINALS RETURNED TO NSC/RMO 95092715 FOR SIGNATURE 95092916 PRES SGD PD 95-45 A -TOP SECRET ACTION DATA SUMMARY REPORT VICE PRESIDENT WH CHIEF OF STAFF DUSAULT, P SAUNDERS, T 001 LAKE 001 002 PRESIDENT 003 7055 * ■ LOG# PROOFED BY: INT NSC SYSTEM URGENT NOT PROOFED: A/O DOCLOG BYPASSED WW DESK: DISPOSITION INITIAL/DATE SEQUENCE TO 'Harmon Dohse Sens Location at Groom Soderberg Berger Lake Situation Room West Wing Desk Records Mgt. I R = Retain D = Dispatch I > Information A = Action cc: 7 COMMENTS: -7 rd h/ Exec Sec Office has diskette A. o2 3 Tab C Tab D National Security Council The White House dent exempt the utory disclosure ional security Determination with o have it signed (Ykei be led io| Cour rrtnctuj, oefcber zed. ror tne president Draft Presidential Determination Unclassified Declaration of Secretary Widnall to the Court Classified Declaration of Secretary Widnall Incoming Recommendation from Deputy Secretary White DECLASSED E.0.12958, As Amended, White House Guidelines, August 28.1997 ByJWU NARA., Date 5/"l<n UNCLASSIFIED with TOP SECRET/CODEW9RD- Attachment 7 17 5,.’ 2 ': j. riciuul ctllULUtl Tab A Tab B September 29, 1995 No. SUBJECT: ±JCLfkC/ iNCVaUU A. N-'Al.L f ' • provision respecting control and abatement of solid waste or I THE WHITE HOUSE WASH I NGTON Presidential Determination 95-45 Presidential Determination on Classified Information Concerning the Air Force's Operating Location Near Groom Lake, Nevada MEMORANDUM FOR THE ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY THE SECRETARY OF THE AIR FORCE I find that it is in the paramount interest of the United States to exempt the United States Air Force's operating location near Groom Lake, Nevada (the subject of litigation in Kasza v. Browner (D. Nev. CV-S-94-795-PMP) and Frost v. Perry (D. Nev. CV-S-94- 714-PMP)) from any applicable reguirement for the disclosure to unauthorized persons of classified information concerning that operating location. Therefore, pursuant to 42 U.S.C. § 6961(a), I hereby exempt the Air Force's operating location near Groom Lake, Nevada from any Federal, State, interstate or local provision respecting control and abatement of solid waste or hazardous waste disposal that would require the disclosure of classified information concerning that operating location to any unauthorized person. This exemption shall be effective for the full one-year statutory period. Nothing herein is intended to: (a) imply that in the absence of such a Presidential exemption, the Resource Conservation and Recovery Act (RCRA) or any other provision of law permits or requires disclosure of classified information to unauthorized persons; or (b) limit the applicability or enforcement of any requirement of law applicable to the Air Force's operating location near Groom Lake, Nevada, except those provisions, if any, that would require the disclosure of classified information. The Secretary of the Air Force is authorized and directed to publish this Determination in the Federal Register. * September 29, 1995 SUBJECT: The Secretary of the Air Force is authorized and directed to publish this Determination in the Federal Register. THE WHITE HOUSE WASH I NGTON Presidential Determination on Classified Information Concerning the Air Force's Operating Location Near Groom Lake, Nevada Nothing herein is intended to: (a) imply that in the absence of such a Presidential exemption, the Resource Conservation and Recovery Act (RCRA) or any other provision of law permits or requires disclosure of classified information to unauthorized persons; or (b) limit the applicability or enforcement of any requirement of law applicable to the Air Force's operating location near Groom Lake, Nevada, except those provisions, if any, that would require the disclosure of classified information. MEMORANDUM FOR THE ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY THE SECRETARY OF THE AIR FORCE I find that it is in the paramount interest of the United States to exempt the United States Air Force's operating location near Groom Lake, Nevada (the subject of litigation in Kasza v. Browner (D. Nev. CV-S-94-795-PMP) and Frost v. Perry (D. Nev. CV-S-94- 714-PMP)) from any applicable requirement for the disclosure to unauthorized persons of classified information concerning that operating location. Therefore, pursuant to 42 U.S.C. § 6961(a), I hereby exempt the Air Force's operating location near Groom Lake, Nevada from any Federal, State, interstate or local provision respecting control and abatement of solid waste or hazardous waste disposal that would require the disclosure of classified information concerning that operating location to any unauthorized person. This exemption shall be effective for the full one-year statutory period. Presidential Determination No. 95-45 t * f OP -SECItff 7055 September 27, 1995 ACTION MEMORANDUM FOR THE PRE DENT THE EXECUTIVE CLERK THROUGH: ANTHONY FROM: SUBJECT: Purpose Background RCRA Exemption for the Operating Location at Groom Lake Lawsuits have been brought against EPA, the Air Force and other government officials for failure to enforce the requirements of the Resource Conservation and Recovery Act (RCRA) at a classified AF operating location near Groom Dry Lake Bed, Nevada (the operating location). Plaintiffs allege EPA failed to (1) conduct a RCRA inspection; (2) compile an inventory of wastes and (3) publicly disclose the inspection and inventory. Subsequent to this suit, the EPA, in agreement with the Air Force, conducted a RCRA inspection and compiled a RCRA inventory. The Air Force has committed to conducting its activities at the operating location in accordance with RCRA requirements. EPA agrees that annual RCRA inspections will be conducted at the operating location. On this basis, the district court has granted summary judgment for the Government regarding plaintiffs' inspection and inventory claims. The only remaining issue is RCRA's requirement of public disclosure of the inspection and inventory. The Secretary of the Air Force presented a classified affidavit to the Court explaining that public disclosure would compromise sensitive national security information. She explained that the presence of certial chemicals or chemical compounds could reveal military operational capabilities or the nature and scope of classified operations and could provide critical information on the makeup UNCLASSIFIED with CC: Vice President TW SECRETy-CeDEWORD- J Q P SECRET Chief of Staff UNCLASSIFIED with "POP-SSgRET/CODEWORD- Attachment To exempt the Air Force from public disclosure requirements concerning the inspection and inventory of hazardous waste at the "operating location near Groom Lake, Nevada." DECLASSIFIED E.0.12958, As Amended, THE WHITE HOUSE White House Guidelines, August 28,1997 Washington By^-NARA, DateJiMZ RECOMMENDATION That you sign the exemption at Tab A. environmental standards. October 2. Tab C Tab D The proposed exemption is worded narrowly, to exempt the location only from disclosure requirements and not from applicable It needs to be filed with the court by 2 Attachments Tab A Tab B UNCLASSIFIED with Tef-SECRET/CODEWeRB- Attachment Draft Presidential Determination Unclassified Declaration of Secretary Widnall to the Court Classified Declaration of Secretary Widnall Incoming Recommendation from Deputy Secretary White The Justice Department and Air Force believe the RCRA statute should be read to include an implicit exception for classified information, and they are appealing the judge's decision on that basis. However, given the uncertainties of an appeal and the sensitivity of the information at stake, Deputy Secretary of Defense White and the Secretary of the Air Force have recommended that you provide a statutory exemption to the operating location. EPA Administrator Browner has concurred on the basis of the Air Force's determination that the information must remain classified. I concur in the recommendation, as do Ab Mikva and Katie McGinty. The classified declaration of Air Force Secretary Widnall at Tab C elaborates on the need to keep the information concerning the operating location at Groom Lake classified. and vulnerability of materials analyzed. The court agreed the information was appropriately classified but found that it could only be protected from disclosure if you invoked authority under RCRA to exempt the location from RCRA's disclosure requirements. UNCLASSIFIED with TGP SECRET/CODEWORD- Attachment ©K» WIWOLIL gD IFI^IB 1]®®S Plaintiffs, v. Defendant. and Plaintiffs, Civil: CV-S-94-714-PMP v. Defendants. UNCLASSIFIED DECLARATION AND CLAIM OF MILITARY AND STATE SECRETS PRIVILEGE OF SHEILA E, WIDNALL, SECRETARY OF THE AIR FORCE 1 Carol M. Browner, Administrator, Environmental Protection Agency, ) ) ) ) ) ) ) ) ) ) ) ) ) J UNITED STATES DISTRICT COURT DISTRICT OF NEVADA John Doe I, John Doe II, John Doe III, John Doe IV, John Doe V, and John Doe VI, William Perry, Secretary of Defense, Anthony Lake, National Security Adviser, and Sheila Widnall, Secretary of the Air Force, Helen Frost, John Doe I, John Doe II, John Doe III, ) John Doe IV, John Doe V, and John Doe VI, - v| ✓ ' k?1 ) ) ) ) ) ) Civil: CV-S- 94-795-PMP ) ) ) ) ) ) ) ) .'•I I, SHEILA E. WIDNALL, HEREBY DECLARE THE FOLLOWING TO BE TRUE AND CORRECT: 2 2. Purpose: This Declaration is made for the purpose of advising the court of the national security interests in and the security classification of information that may be relevant to the above captioned lawsuits. The statements made herein are based on (a) my personal consideration of the matter; (b) my personal knowledge; and (c) my evaluation of information made available to me in my official capacity. I have concluded that release of certain information relevant to these lawsuits would necessitate disclosure of properly classified information about the Air Force 1. Official Duties: I am the Secretary of the United States Air Force and the head of the Department of the Air Force. In that capacity, I exercise the statutory functions specified in f" section 8013 of Title 10, U.S. Code. I am responsible for the formulation of Air Force policies and programs that are fully consistent with the national security directives of the President and the Secretary of Defense, including those that protect national security information relating to the defense and foreign relations of the United States. As the Secretary of the Air Force, I exercise authority over the operating location near Groom Lake, Nevada, and the information associated with that operating location. As the head of an agency with control over the information associated with the operating location near Groom Lake, I am the proper person to assert the military and state secrets privilege with regard to that information. Under Executive Order 12356,1 exercise original TOP SECRET classification authority, which permits me to determine the proper classification of national security information on behalf of the United States. Executive Order No. 12356, Sec. 1.2, 47 Fed. Reg. 20,105 (1982), reprinted in 50 U.S. Code Section 401 (1991); Presidential Order of May 7, 1982, Officials Designated to Classify National Security Information, reprinted in 50 U.S. Code Section 401 (1991). 3 operating location near Groom Lake, Nevada. I am satisfied that the information described in the classified Declaration is properly classified. I have further determined that the information described in the classified Declaration, if released to the public, could reasonably be expected to cause exceptionally grave damage to the national security. It is not possible to discuss publicly the majority of information at issue without risking the very harm to the national security that protection of the information is intended to prevent. 3. Security Classification: Under Information Security Oversight Office guidance, “[cjertain information that would otherwise be unclassified may require classification when combined or associated with other unclassified information.” (32 CFR 2001.3(a)) Protection through classification is required if the combination of unclassified items of information provides an added factor that warrants protection of the information taken as a whole. This theory of classification is commonly known as the mosaic or compilation theory. The mosaic theory of classification applies to some of the information associated with the operating location near Groom Lake. Although the operating location near Groom Lake has no official name, it is sometimes referred to by the name or names of programs that have been conducted there. The names of some programs are classified; all program names are classified when they are associated with the specific location or with other classified programs. Consequently, the release of any such names would disclose classified information. 4. National Security Information : As the head of the agency responsible for information regarding the operating location near Groom Lake, I have determined that information that concerns this operating location and that falls into any of the following categories, is validly classified: f 4 a. Program(s) name(s) b. Mission(s); c. Capabilities; d. Military plans, weapons, or operations; e. Intelligence sources and methods; f. Scientific or technological matters; g. Certain physical characteristics; h. Budget, finance, and contracting relationships; i. Personnel matters; and, j. Security sensitive environmental data. The following are examples of why certain environmental data is sensitive to the national security. Collection of information regarding the air, water, and soil is a classic foreign intelligence practice, because analysis of these samples can result in the identification of military operations and capabilities. The presence of certain chemicals or chemical compounds, either alone or in conjunction with other chemicals and compounds, can reveal military operational capabilities or the nature and scope of classified operations. Similarly, the absence of certain chemicals or chemical compounds can be used to rule out operations and capabilities. Revealing the composition of the chemical waste stream provides the same kind of exploitable information as does publishing a list of the chemicals used and consumed. Analysis of waste material can provide critical information on the makeup as well as the vulnerabilities of the material analyzed. Disclosure of such information increases the risk to the lives of United States personnel and decreases the probability of successful mission accomplishment. representatives of Nevada’s Department of Conservation and Natural Resources have been Environmental Compliance: Although I have found it necessary to invoke the military and state secrets privilege, I believe it important to comment on the Air Force’s commitment to full 5 authorized access to the operating location near Groom Lake. The state representative’s role is and has been to monitor and enforce compliance with environmental laws and regulations and to advise on remedial efforts, if required. Appropriately cleared officers of the U.S. Environmental Protection Agency were recently granted access to the operating location near Groom Lake for inspection and enforcement of environmental laws. Federal inspectors from the Environmental Protection Agency commenced an inspection pursuant to the Solid Waste Disposal Act, commonly referred to as a “RCRA inspection,” at the operating location near Groom Lake, Nevada on December 6, 1994. The Air Force has taken these steps to ensure full compliance with all applicable environmental laws. At the same time that the operating location near Groom Lake is being inspected for environmental compliance, it is essential to the national security that steps also be taken to prevent the disclosure of classified information. 6. Invoking Military and State Secrets Privilege: It is my judgment, after personal consideration of the matter, that the national security information described in this Declaration and in the classified Declaration, concerning activities at the U.S. Air Force operating location near Groom Lake, Nevada, constitutes military and state secrets. As a result, disclosure of this information in documentary or testimonial evidence must be barred in the interests of national security of the United States. Pursuant to the authority vested in me as Secretary of the Air Force, I hereby invoke a formal claim of military and state secrets privilege with respect to the disclosure of the national security information listed in paragraph four of this Declaration and more folly discussed in the classified Declaration, whether through documentary or testimonial evidence. compliance with the environmental laws of the United States. Our goal is to be the best possible « environmental steward of the lands comprising the Nellis Range. To meet that goal we are cooperating and will continue to cooperate with both federal and state environmental agencies. 8. Under penalty of peijury, and pursuant to section 1746 of Title 28, U.S. Code, I certify and declare that the foregoing statements are true and correct. Executed thi^Z day of February 1995, at Arijjigton, Virginia. 1 6 Sheila E. Widnall Secretary of the Air Force * 4 MEMORANDUM FOR THE SECRETARY OF THE AIR FORCE AND THE ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY Nothing herein is intended to: (a) imply that, in the absence of such a Presidential exemption, RCRA or any other provision of law permits or requires disclosure of classified information to unauthorized persons; or (b) limit the applicability or enforcement of any requirement of law applicable to the Air Force’s operating location near Groom Lake, Nevada, except those provisions, if any, that would require the disclosure of classified information. SUBJECT: Classified Information Concerning the Air Force’s Operating Location Near Groom Lake, Nevada I find that it is in the paramount interest of the United States to exempt the United States Air Force’s operating location near Groom Lake, Nevada (the subject of litigation in Kasza v. Browner (D. Nev. CV-S-94-795-PMP) and Frost v. Perry (D. Nev. CV-S-94-714-PMP)) from any applicable requirement for the disclosure to unauthorized persons of classified information concerning that operating location. Therefore, pursuant to 42 U.S.C. § 6961(a), I hereby exempt the Air Force’s operating location near Groom Lake, Nevada, from any Federal, State, interstate, or local provision respecting control and abatement of solid waste or hazardous waste disposal that would require the disclosure of classified information concerning that operating location to any unauthorized person. This exemption shall be effective for the full one-year statutory period. .09/26/95 TUE 10:00 FAX 703 693 9355 121003 SAF/GC SEP 2 5 1995 MEMORANDUM FOR THE DEPUTY SECRETARY OF DEFENSE Qi?* Plaintiffs in the Kasza case sought to compel EPA to inspect the operating location and to obtain from the Air Force (or prepare itself) an inventory concerning the operating location and then to make public the report of inspection and the inventory under the Resource Conservation and Recovery Act (RCRA). In the second related suit against the Department of Defense, the Air Force, and the National Security Advisor, plaintiffs have alleged that the Air Force violated RCRA at the operating location, and they seek declaratory and injunctive relief and civil monetary penalties. Although it is not the subject of either lawsuit or related to this request for a Presidential exemption, plaintiffs’ counsel has also claimed (a) his clients have knowledge of criminal violations at the operating location and (b) his clients suffered personal injury due to environmental violations. EPA and the Justice Department are investigating the claims of criminal conduct. Earlier this year, the government moved to dismiss the Kasza case as moot because EPA had conducted the inspection and the Air Force had delivered the inventory to EPA. The report of the inspection and the inventory are classified. The government has also sought dismissal of the second suit based on the military and state secrets privilege; under a well-established line of precedent, where as here the suit cannot be prosecuted or defended without disclosing classified information that would cause serious harm to national security, it must be dismissed. I recommend and request that you seek from the President an exemption from disclosure of classified information concerning an Air Force operating location near Groom Lake in the Nellis Range Complex in Nevada. This request is necessitated by a judicial decision in a lawsuit against the Environmental Protection Agency, Kasza v. Browner. No. CV-S-94-795-PMP. Administrator Browner concurs in this request, as does the Department of Justice Environment and Natural Resources Division, which is defending EPA in the lawsuit. The Kasza case is one of two citizen environmental suits pending in federal district court in Nevada concerning the operating location near Groom Lake. The activities undertaken at the operating location are crucial to national security. The nature of the activities requires that virtually all information about the location be classified. Indeed, until recently the Air Force had never publicly acknowledged that it had an operating location there; as of today, that is virtually the only information about the location we have made public. To protect national security in the pending litigation, I have made a formal claim of the military and state secrets privilege. My unclassified declaration invoking the privilege is attached. My classified declaration, which provides detailed information about the operating location and its national security significance, can be made available to you on request and is available to the President through NSC staff. SECRETARY OF THE AIR FORCE WASHINGTON SUBJECT: Request to Seek Presidential Exemption for Classified Information Concerning the Air Force’s Operating Location Near Groom Lake, Nevada .09/26/95 TUE 10:00 FAX 703 693 9355 SAF/GC ©004 2 The decision memorandum we propose to have the President sign exempts the Air Force’s operating location near Groom Lake from any provision of hazardous waste law that might require disclosure of classified information concerning the operating location. The memorandum makes clear that other environmental obligations are not diminished. It also reserves the question whether the court was correct in ruling that an exemption is actually needed, which will be the subject of further litigation. We ask that it be returned in time for EPA to be able to report to the court that it has been granted by the October 2 deadline. If the Kasza case were standing alone, review of the court’s order through reconsideration and the appellate process would be the likely strategy. However, delay attendant to judicial review poses risks to national security because of the second suit against the Air Force. The court will not dismiss the case against the Air Force as long as there is an open question whether the inspection report and inventory will be made public. Because the pendency of the case against the Air Force and attendant leaks by plaintiffs have created significant national security risks, it is important that we pursue the most protective course. We believe that course is obtaining Presidential affirmation of the protected status of these documents while at the same time seeking legal review of the order. The Department of Justice, which is defending both cases, and EPA agree with this recommendation. I am advised that the court’s order is legally tenuous from several perspectives. First, there are grounds for believing that the court interpreted the statute incorrectly. Second, the order, which appears to require either that the Air Force declassify a document or that the President exercise his discretion to grant an exemption, raises separation of powers concerns. Third, there is a question whether the exemption provision, which on its face concerns the obligations of federal waste management facilities, may properly be invoked to relieve EPA of any of its statutory obligations. Moreover, if extended to other comparable statutory requirements and to other classified activities, the opinion is of concern. On August 30, the court decided the Kasza motion, dismissing plaintiffs’ inspection and inventory claims as moot. After reviewing the inspection report and inventory, the court concluded that EPA, with the Air Force’s full cooperation, “has conducted a thorough inspection of the operating location near Groom Lake ... in full compliance with the requirements of RCRA” and that “the Air Force is adequately providing information to EPA ... in compliance with RCRA.” The court also found that the inspection report and inventory are properly classified and fall within the scope of the military and state secrets privilege I invoked. Nevertheless, the court held that the documents are subject to public disclosure under RCRA section 3007(b), 42 U.S.C. § 6927(b). The judge recognized that disclosure would conflict with 18 U.S.C. § 793, which makes it a felony to disclose national security information to unauthorized people, and with E.O. 12356, which provides for the classification of information and restricts access to classified information. He concluded, however, that the only alternatives were (1) declassify and disclose the documents or (2) obtain a Presidential exemption from disclosure, pursuant to section 6001(a) of RCRA, 42 U.S.C. § 6961(a), which authorizes the President to exempt federal facilities from compliance with certain obligations if he determines that it is “in the paramount interest of the United States” to do so. An exemption under section 6001(a) can last for one year, subject to renewal. The court gave EPA until October 2, 1995, to report which course it would pursue. • 09/26/.95 TUE 10:01 FAX 703 693 9355®005 SAF/GC 3 1 Attachment a/s We believe that the action requested here is consistent with protecting the environment and national security. The Air Force is fully committed to complying with the environmental laws and being a good steward of the land entrusted to its care, including classified locations. The Air Force also is, and must be, committed to protecting national security and, necessarily, sensitive classified information. We do not believe these goals are mutually exclusive. We are working in cooperation with the EPA to ensure that both goals are fulfilled. .09/26/95 TUE 10:01 FAX 703 693 9355 ®006 SAF/GC Plaintiffs. Civil: CV-S- 94-795-PMP v Defendant John Plaintiffs. Civil: CV-S-94-714-PMP v. Defendants. unci assified declaration ANnci mivn rc.r of shEILaJ.. wiMIaU SECRETS Carol M. Browner. Administrator. Environmental Protection Agency. i ) ) ) ) ) ) ) 1 ) i I ) ) I aim of milftapy state SECRETARY OF THE aLR-EQKCE i i > i ) ) > ) ) > ) ) ) i John Dos 1. John Dos II. John Doe IIL John Doe IV. John Doe V. and John Doe ' I. William Pern1. Secretary of Deiensc. Anthony Lake. National Security Adviser, and Sheila Widnall. Secretary of the Air Force. UNITED ST A U.S DISTRICT COURT DISTRICT 01 M- and Helen Frosi. John Doe t. John Doe II. Doe ill. Doe IV. John Doe V. and John Doc \ i- .09/.26/95 TUE 10:01 FAI 703 693 9355 0007SAF/GC I. SHEILA E WIDNALL. HEREBY DECLARE THE FOLLOWING TO BE TRUE .AND CORRECT OfFiciai Duties: I am the Secretary o: behalf of the United States. Executive .ion made available to me m my official capacity lawsuits woi authority over the operating loCatto with that operating location ■ ion is made for the purpose of advising the ecurt of the national ■ - , security classification of information that may be relevant to the above The statements made herein are based on (a) my personal consideration of the mailer, (b) my personal knowledge, and ic) my evaluation of informal 1 have concluded that release of certain information relevant to these uld necessitate disclosure of properly classified infoimation about the Air Force 2. Purpose: This Declaration security interests in and the captioned lawsuits --------- ,f the United States Air Force and the head of the r [ exercise the statutory functions specified in the proper Order No 12356. Sec. I (1991), Presidential Order of May 7. 1982 Information, reprinted m 50 U.S. Code Se military and state secrets privilege wit! 12356. I exercise oric::-------- section 8013 of Title 10, U.S. Code and programs that are fully consistent I security information relating to the As the Secretary of the Air Force, I exercise I Department of the Air Force. In that capacity, , I am responsible for Che formulation of Air Force policies • with the national security directives of the President and the Secraary of Defense, including those that protect nattona. defense and foreign relations of the United States. tn rear Groom Lake, Nevada, and the information associated As the head of an agency with control over the information associated unth the operating Iceauon near Groom Lake, I am the proper person to assert the ith regard to that information. Under Executive Order ■ iginal TO? SECRET classification authority, which permits me to determine classification of national security information on .2, 47 Fed Reg. 20.10$ (1982), gpripted in 50 U.S. Code Section 401 I, Officials Designated to Classify National Security @008 09/.26/.95 TUE 10:02 FAX 703 693 9355 SAF/GC Nevada. {am sa‘ . i protection of the information is intended io prevem. Under 3 Security ClassifiGatipm 32 CFR 2001.3(a)) Protection through This theory of classification classified: factor that warrants pro is commonly known ■ As the head cf the agency responsible for information lined that information that of the following categories, is validly 4 National Security Information- yarding <h= op->u»5 motion near Groom Lake. I have detenmn. concerns this operating locat.cn and that falls into any L. information that wo mfotmation Security Oversight Office guidance, ••(clenain ,uld otherwise be unelassffied may require classification when combined or associated with other unclassified information’I uectiou of the information taken as a whole. as the mosaic or compilation theory. The mosaic theory of dassfficauon applies to some of the information associ Although the operating location near by the name or names of progr are classified; all program names arc or with other classified programs classified information. dated with the operating location near Groom Lake. Groom Uke has no official name, it is sometimes referred .0 ams that have been conducted there. The names of some programs classified when they are associated with the specific location . Consequently, the release of any such names would disclose opOTlra2 .ucation near Groom Lake. Nevada , am satrified that the mformation described m the . ■ - rft3erlv classified. I have further determined that tshe information Ciassifmd Declaration tsp p y o rels0Iably expected to described in the classified Declaration , cause exceptionally grave damage to .he national secunty It is not possible to discuss publicly ■ehrrinf riskimi the very harm to the national security that the majority of infonnaiion at issue without risking O' ®009 •09/26/.95 TUE 10:02 FAX 703 693 9355 SAF/GC Collection of informauon regarding the ion with other chemicals and and consumed. 5 Kolft Of State and Federal EnvironmeMtl Agencies: Sir.ee 1990. appropnately cleared representatives of Nevada S Department of Conservation and Natural Resources have been air. water, and soil is a result in the the lives accomplishment. compounds, can reveal military operation; operations. a. Program(s) name(s) 0. Mission(s); c Capabilities; d. Military plans, weapons, or operations; e. Intelligence sources and methods; f Scientific or technological matters, g. Certain physical characteristics; h. Budget, finance, and contracting relationships: i. Personnel matters; and. j. Security sensitive j. Security sensitive environmental <faUL The following are examples ofwhy certam environmental data is sensitive to the national security ■ - is a classic foreign intelligence practice, because analysis of these samples can identification of military operations and capabilities. The presence of certain chemicals or chemical compounds, either alone or in conjunction with other chemicals and .lonai capabilities or the nature and scope of classified Similarly, the absence of certain chemicals cr chemical compounds can be used to rule out operations and capabilities. Revealing the composition of the chemical waste stream provides the same kind of exploitable information as does publishing a fist of the chemicals used Analysis of waste material can provide critical information on the makeup as well as the vulnerabrlities of the material analyzed. Disclosure of such information increases the risk to of United Slates personnel and decreases the probability of successful mission .09/28/95 TUE 10:03 FAX 703 693 9355 SAF/GC ®010 7 Environmental Compliance: Although I have found it necessary to invoke the military and 6 Invoking Military and State Secrets Privilege: It is my judgment, after personal consideration of the matter, that the national security information described in this Declaration and in the classified Declaration, concerning activities at the U.S. Air Force operating location near Groom Lake, Nevada, constitutes military' and state secrets. As a result, disclosure of this information in documentary or testimonial evidence must be barred in the interests of national security of the United States. Pursuant to the authority vested in me as Secretary of the Air Force, I hereby invoke a formal claim of military and state secrets privilege with respect to the disclosure of the national security information listed in paragraph four of this Declaration and more fully discussed in the classified Declaration, whether through documentary or testimonial evidence. authorized access to the operating location near Groom Lake The state representative's role is and has been to monitor and enforce compliance with environmental laws and regulations and to advise on remedial efforts, if required Appropriately cleared officers of the U.S. Environmental Protection Agency were recently granted access to the operating location near Groom Lake for inspection and enforcement of environmental laws Federal inspectors from the Environmental Protection Agency commenced an inspection pursuant to the Solid Waste Disposal Act, commonly referred to as a “RCRA inspection," at the operating location near Groom Lake. Nevada on December 6, 1994 The Air Force has taken these steps to ensure full compliance with ail applicable environmental laws. At the same time that the operating location near Groom Lake is being inspected for environmental compliance, it is essential to the national security that steps also be taken to prevent the disclosure of classified information. compliance with the environmental laws of the United States state secrets privilege. I believe it important to comment on the Air Force’s commitment to foil Our goal is to be the best possible @011 .09/26/95 TUE 10:03 FAX 703 693 9355SAF/GC wc arc 8. Under penally of pcrjun-. and pursuant to section 1746 of Title 28, U.S. Cods, 1 certify and declare that the foregoing statements ore true and correct. Executed day of Februan 1995. at Arj^tgton, Virgnia. 6 environmental steward of the lands comprising the Nellts Range. To meet that goal cooperating and will continue to cooperate with both federal and state environmental agencies. Sheila E.Widnal! Secretary of the Air Force I, SHEILA E. WIDNALL, HEREBY DECLARE THE FOLLOWING TO BE TRUE AND CORRECT: 2 2. Purpose: This Declaration is made for the purpose of advising the court of the national security interests in and the security classification of information that may be relevant to the above captioned lawsuits. The statements made herein are based on (a) my personal consideration of the matter; (b) my personal knowledge; and (c) my evaluation of information made available to me in my official capacity. I have concluded that release of certain information relevant to these lawsuits would necessitate disclosure of properly classified information about the Air Force 1. Official Duties: I am the Secretary of the United States Air Force and the head of the Department of the Air Force. In that capacity, I exercise the statutory functions specified in section 8013 of Title 10, U.S. Code. I am responsible for the formulation of Air Force policies and programs that are fully consistent with the national security directives of the President and the Secretary of Defense, including those that protect national security information relating to the defense and foreign relations of the United States. As the Secretary of the Air Force, I exercise authority over the operating location near Groom Lake, Nevada, and the information associated with that operating location. As the head of an agency with control over the information associated with the operating location near Groom Lake, I am the proper person to assert the military and state secrets privilege with regard to that information. Under Executive Order 12356,1 exercise original TOP SECRET classification authority, which permits me to determine the proper classification of national security information on behalf of the United States. Executive Order No. 12356, Sec. 1.2, 47 Fed. Reg. 20,105 (1982), reprinted in 50 U.S. Code Section 401 (1991), Presidential Order of May 7, 1982, Officials Designated to Classify National Security Information, reprinted in 50 U.S. Code Section 401 (1991). 3 operating location near Groom Lake, Nevada. I am satisfied that the information described in the classified Declaration is properly classified. I have further determined that the information described in the classified Declaration, if released to the public, could reasonably be expected to cause exceptionally grave damage to the national security. It is not possible to discuss publicly the majority of information at issue without risking the very harm to the national security that protection of the information is intended to prevent. 4. National Security Information : As the head of the agency responsible for information regarding the operating location near Groom Lake, I have determined that information that concerns this operating location and that falls into any of the following categories, is validly classified: 3. Security Classification: Under Information Security Oversight Office guidance, “[cjertain information that would otherwise be unclassified may require classification when combined or associated with other unclassified information.” (32 CFR 2001.3(a)) Protection through classification is required if the combination of unclassified items of information provides an added factor that warrants protection of the information taken as a whole. This theory of classification is commonly known as the mosaic or compilation theory. The mosaic theory of classification applies to some of the information associated with the operating location near Groom Lake. Although the operating location near Groom Lake has no official name, it is sometimes referred to by the name or names of programs that have been conducted there. The names of some programs are classified; all program names are classified when they are associated with the specific location or with other classified programs. Consequently, the release of any such names would disclose classified information. accomplishment. taL 4 a. Program(s) name(s) b. Mission(s); c. Capabilities; d. Military plans, weapons, or operations; e. Intelligence sources and methods; f. Scientific or technological matters; g. Certain physical characteristics; h Budget, finance, and contracting relationships; i. Personnel matters; and, j. Security sensitive environmental data. The following are examples of why certain environmental data is sensitive to the national security. Collection of information regarding the air, water, and soil is a classic foreign intelligence practice, because analysis of these samples can result in the identification of military operations and capabilities. The presence of certain chemicals or chemical compounds, either alone or in conjunction with other chemicals and compounds, can reveal military operational capabilities or the nature and scope of classified operations. Similarly, the absence of certain chemicals or chemical compounds can be used to rule out operations and capabilities. Revealing the composition of the chemical waste stream provides the same kind of exploitable information as does publishing a list of the chemicals used and consumed. Analysis of waste material can provide critical information on the makeup as well as the vulnerabilities of the material analyzed. Disclosure of such information increases the risk to the lives of United States personnel and decreases the probability of successful mission 5. Role of State and Federal Environmental Agencies: Since 1990, appropriately cleared representatives of Nevada’s Department of Conservation and Natural Resources have been 5 6. Invoking Military and State Secrets Privilege: It is my judgment, after personal consideration of the matter, that the national security information described in this Declaration and in the classified Declaration, concerning activities at the U.S. Air Force operating location near Groom Nevada, constitutes military and state secrets. As a result, disclosure of this information in documentary or testimonial evidence must be barred in the interests of national security of the United States. Pursuant to the authority vested in me as Secretary of the Air Force, I hereby invoke a formal claim of military and state secrets privilege with respect to the disclosure of the national security information listed in paragraph four of this Declaration and more fully discussed in the classified Declaration, whether through documentary or testimonial evidence. 7. Environmental Compliance: Although I have found it necessary to invoke the military and state secrets privilege, I believe it important to comment on the Air Force’s commitment to full compliance with the environmental laws of the United States. Our goal is to be the best possible authorized access to the operating location near Groom Lake. The state representative’s role is and has been to monitor and enforce compliance with environmental laws and regulations and to advise on remedial efforts, if required. Appropriately cleared officers of the U.S. Environmental Protection Agency were recently granted access to the operating location near Groom Lake for inspection and enforcement of environmental laws. Federal inspectors from the Environmental Protection Agency commenced an inspection pursuant to the Solid Waste Disposal Act, commonly referred to as a “RCRA inspection,” at the operating location near Groom Lake, Nevada on December 6, 1994. The Air Force has taken these steps to ensure full compliance with all applicable environmental laws. At the same time that the operating location near Groom Lake is being inspected for environmental compliance, it is essential to the national security that steps also be taken to prevent the disclosure of classified information. environmental steward of the lands comprising the Nellis Range. To meet that goal we are cooperating and will continue to cooperate with both federal and state environmental agencies. 8. Under penalty of peijury, and pursuant to section 1746 of Title 28, U.S. Code, I certify and declare that the foregoing statements are true and correct. Executed this^y day of February 1995, at Arimgton, Virginia. 6 Sheila E. Widnall Secretary of the Air Force DEPUTY SECRETARY OF DEFENSE 2 5 SEP 1995 Attachment a/s 50* A recent Federal district court decision has raised a question whether certain documents, even though properly classified, must nonetheless be disclosed pursuant to an environmental statute, the Resource Conservation and Recovery Act (RCRA). The documents concern an Air Force operating location near Groom Lake, Nevada. Although this legal ruling will be challenged, it is important that the continued protection for this classified information be clearly and promptly affirmed. Accordingly, for reasons addressed in the attached memorandum from Secretary Widnall, I concur in her request and recommendation that you issue the proposed exemption under RCRA for the operating location near Groom Lake from any requirement to disclose classified information to unauthorized persons. I note that ERA Administrator Browner and the Justice Department’s Environment and Natural Resources Division concur in this recommendation. k MEMORANDUM FOR PRESIDENT CLINTON THROUGH MR. LAKE SUBJECT: Classified Information Concerning the Air Force’s Operating Location near Groom Lake, Nevada 1010 DEFENSE PENTAGON WASHINGTON, DC 20301-1010 rfl V) I 'Z'jl 1.1’ [?■ 1». As FAX#: 7°^>-67S- 73SS~ DATE: ^A-TT TO: y/QQ, PHONE: FROM: 2^-2-• YS&- ^rz /g PHONE: PD- ?s-^ SUBJECT: COMMENTS: NUMBER OF PAGES (INCLUDING COVER) .Vl •f ‘136 tf. BT... T S NATIONAL SECURi TY COUNCIL WASHINGTON. D C. 20506 r Aj/mcxS^- Se^Q/g^ry CooaJc/<_ C 1 cut I -E>UV3_AJtfS ^2e-X IfTTl ■>, *■ * * i Wiii» . ..- ~^_— i. ? txX'*- September 29, 1995 SUBJECT: ±JCL Ktl/ INCVaua X J_ Olli J. ^..L. f ----------------------------------------- provision respecting control and abatement of solid waste or THE WHITE HOUSE WAS HINGTON Presidential Determination on Classified Information Concerning the Air Force's Operating Location Near Groom Lake, Nevada Presidential Determination No. 95-45 MEMORANDUM FOR THE ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY THE SECRETARY OF THE AIR FORCE I find that it is in the paramount interest of the United States to exempt the United States Air Force's operating location near Groom Lake, Nevada (the subject of litigation in Kasza v. Browner (D. Nev. CV-S-94-795-PMP) and Frost v. Perry (D. Nev. CV-S-94- 714-PMP)) from any applicable requirement for the disclosure to unauthorized persons of classified information concerning that operating location. Therefore, pursuant to 42 U.S.C. § 6961(a), I hereby exempt the Air Force's operating location near Groom Lake, Nevada from any Federal, State, interstate or local hazardous waste disposal that would require the disclosure of classified information concerning that operating location to any unauthorized person. This exemption shall be effective for the full one-year statutory period. Nothing herein is intended to: (a) imply that in the absence of such a Presidential exemption, the Resource Conservation and Recovery Act (RCRA) or any other provision of law permits or requires disclosure of classified information to unauthorized persons; or (b) limit the applicability or enforcement of any requirement of law applicable to the Air Force's operating location near Groom Lake, Nevada, except those provisions, if any, that would require the disclosure of classified information. The Secretary of the Air Force is authorized and directed to publish this Determination in the Federal Register. ;arnzation) n V< A..- V Number K 169418 c FROM: (Office and Telephone) ClaaaificaUon Date of Transfer Description of Material being Transferred (Do Not Enter Classified Info) No. of Originals No. of Carbons No.ofReproCys No. of i^fEncl Custodian Copy, to be retained by Originator / Custodian SO Form 120. JUL 85 of Re pi OForm 120. JUL 85™"*”^Tustodian Copy?tobe retained by Original (Copy Info (For Copy Numbered Items, Uae Inclusive Copy Nos. With # Sign) :1a No. Cysof each Encl “' OSD RECEIPT FOR CLASSIFIED MATERIAL TO: (Title of Office or Orgi I 5ai