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The Law of Secrecy: UFOs and the “Need to Know”

Some democratic policies require secrecy, if they were made public, they could not be carried out as effectively or at all.”

Thompson, Dennis, “Democratic Secrecy: The Dilemma of Accountability,” Political Science Quarterly 114, no. 2 (1999): 182

As a nation of laws, the United States government, and those acting on its behalf, must lawfully conduct themselves. Agents of the government must obey the statutes, rules, and regulations governing their myriad activities. Apart from common law torts that have survived the centuries, all laws in the United States, including the constitutions and laws of the various states, derive their original authority from that granted to them by the United States Constitution. These laws include the statutes of the United States and the rules and regulations promulgated by federal agencies. Like the executive branch of the Federal Government, the executive branch of each state, through their respective governors, oversees regulatory agencies and their operations.

The United States Code is the official compilation of the general and permanent federal statutes of the United States. There are 54 titles, covering a range of subjects including business, taxation, education, health, and most importantly for our discussion, the military. Every six years, the United States House of Representatives’ Office of the Law Revision Counsel updates the code. The public can access the code both online and in print at different government offices and libraries.

Somewhat mirroring the titles of the United States Code are the 50 titles contained within the Code of Federal Regulations (CFR). The CFR is the official compilation of rules and regulations issued by federal agencies and departments of the United States. The titles that make up the CFR encompass a variety of federal activities, including energy, commerce, education, transportation, health, and agriculture. The code delineates specific regulations in chapters, parts, sections, and subsections under each title. The Office of the Federal Register, which updates the CFR every year, publishes The Federal Register, the daily official journal of the federal government that includes notices, proposed and final rules from the various federal agencies, and other documents published by the government. Rules promulgated by these federal agencies have the force and effect of law.

Theoretically speaking, no government employee or agency can act outside the scope of authority specifically granted by law. This axiom applies to virtually all activities of government, whether state, federal, or local, including agencies of the federal government charged with keeping the nation’s highest and most closely guarded secrets.

The legal framework for secrecy derives from several statutory provisions passed by Congress specifically to discourage the unauthorized sharing of sensitive information. The first of these statutory provisions is The Espionage Act of 1917. Congress passed The Espionage Act, which amended the Espionage Act of 1911, soon after the United States entered World War I. It strictly forbids acquiring or disclosing national defense-related information with the intention of harming the United States or a foreign country. The act also forbids interfering with military recruitment or operations during times of war. The statute is still in force today despite having undergone multiple amendments. Violations of the Espionage Act carry harsh consequences, which include fines, jail time, and even death.

Some of the more famous defendants prosecuted under the Espionage Act include labor leader and socialist presidential candidate Eugene V. Debs, who was found guilty in 1918 of promoting draft resistance in an anti-war speech; Daniel Ellsberg, a former military analyst who in 1971 disclosed to the media the Pentagon Papers, a confidential analysis of the Vietnam War; Chelsea Manning, a former intelligence analyst for the Army who leaked to WikiLeaks in 2010 hundreds of thousands of diplomatic cables and military reports; Edward Snowden, a former contractor for the NSA who revealed in 2013 the extensive monitoring schemes of the US government and its allies; and, Julius and Ethel Rosenberg, who were put to death in 1953 for giving the Soviet Union access to nuclear secrets.

Following WWII, Congress passed new legislation to synchronize and coordinate the country’s security policies, strategies, and activities. The goal of the National Security Act, passed in 1947, was to guarantee unified leadership and integration of the armed forces under civilian supervision, as well as to offer a thorough plan for the country’s future security.

There were numerous significant provisions of the act. It established the Department of Defense (DoD), which put under a single civilian secretary the former Department of War and the Navy Department (which included the Marine Corps), the recently formed Department of the Air Force, and the Joint Chiefs of Staff (JCS).

It created the National Security Council (NSC), an advisory body to the president that oversaw the nation’s security resources and strategies. The president, vice president, secretary of state, secretary of defense, and other presidentially appointed individuals made up the NSC. Additionally, the act established the post of national security advisor, who functioned as the president’s principal aide when it came to national security issues.

It established the Central Intelligence Agency (CIA), which took the position of the 1946-founded Central Intelligence Group. The CIA oversaw gathering, examining, and distributing intelligence data in addition to carrying out clandestine operations overseas. The act also established the office of the director of central intelligence, who oversaw the entire intelligence community and led the CIA.

Finally, and perhaps more importantly, the National Security Act fulfilled two additional purposes. It authorized the government to keep certain information related to national security secret and gave statutory authority to the military to enter contracts with private industry for the development and procurement of weapons and weapon systems. This provided the foundation for what we now know as the military-industrial complex.

Over time, the act has undergone multiple amendments to accommodate evolving requirements and circumstances. Among the noteworthy changes have been: (1) the National Security Act Amendments of 1949, which reduced the role of the service secretaries and established the post of secretary of defense as the department’s head, further consolidating the DoD; (2) The Intelligence Reform and Terrorism Prevention Act of 2004, which established the post of director of national intelligence, a position that directly reports to the president and succeeded the director of central intelligence as the head of the intelligence community; and, (3) the National Security Intelligence Act, which replaced the National Security Act as the National Defense Authorization Act for Fiscal Year 2010.

Amendments to the National Security Act in 1994 authorized and directed the President of the United States to issue an executive order, or promulgate a regulation, to establish procedures governing access to classified information which shall be binding upon all departments, agencies, and offices of the executive branch of Government. The order is to “provide that, except as may be permitted by the President, no employee in the executive branch of Government may be given access to classified information by any department, agency, or office of the executive branch of Government unless, based upon an appropriate background investigation, such access is determined to be clearly consistent with the national security interests of the United States…” 50 U.S.C. § 435.

The current order resulting from this authority is Executive Order (EO) 13526. Executed by Barack Obama on December 29, 2009, it amends EO 12958, executed by William Clinton on April 17, 1995: and “…prescribes a uniform system for classifying, safeguarding, and declassifying national security information…” ‘‘Classified national security information’’ or ‘‘classified information’’ means information that has been determined…to require protection against unauthorized disclosure and is marked to indicate its classified status when in documentary form.[1]

A person may be granted access to classified national security information if: (1) a favorable determination of eligibility for access has been made by an agency head or the agency head’s designee; (2) the person has signed an approved nondisclosure agreement (SF 312); and (3) the person has a need-to-know the information. ‘‘Need-to-know’’ means a determination made by an authorized holder of classified information that a prospective recipient requires access to specific classified information to perform or assist in a lawful and authorized governmental function.[2]

The Freedom of Information Act (FOIA) provides an avenue for the American public to access some information gathered by agencies of the federal government. However, information that could be related national security is, “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and…are in fact properly classified pursuant to such Executive order.”[3]

UFOs present a unique challenge to the intelligence community because they relate to national security in numerous ways and numerous levels: (1) the UFO phenomenon, whether real or imagined, is an excellent cover for legitimate, covert, research and development efforts; (2) the phenomenon represents technology capable of circumventing and even overwhelming America’s (Earth’s) most sophisticated air defenses, thus exposing potential national security vulnerabilities; (3) knowledge that the phenomenon may be related to extraterrestrials has the potential for causing social anarchy and cultural breakdown on a global scale; (4) misidentification of UFO’s could be taken as a hostile act by a foreign nation and trigger a world-ending war; (5) assimilated alien technology gives rise to the potential for absolute military power; (6) the untimely introduction of assimilated (reverse engineered) alien technology may have far-reaching economic, political, ecological, and other unpredictable effects; and (7) if there truly are alien visitors, without knowing their motivations, they undoubtedly pose a potential threat to national as well as global security. For all these reasons, and many more that have likely not been listed, information related to UFOs and alien visitors necessarily relates to national security and must be kept secret as a matter of law.

The “government” relies on several tried-and-true methods to maintain secrecy around the subject of UFOs, all made possible by the authority granted to them in their various activities. For example, under the Central Intelligence Agency Act, the agency is authorized to use funds made available to it for any purposes necessary to carry out its ‘functions,’ including things like “personal services…rent…health-services…cryptographic, duplication, and printing machines, equipment, and devices, radio-receiving and radio-sending equipment and devices, including telegraph and teletype equipment…motor vehicles, and aircraft, and vessels of all kinds…firearms, including purchase, storage, and maintenance of ammunition…acquisition of necessary land and the clearing of such land; construction of buildings and facilities, repair, rental, operation, and maintenance of buildings, utilities, facilities, and appurtenances…supplies, equipment, and personnel and contractual services otherwise authorized by law and regulations,” etc. Incredibly, “…sums made available to the Agency may be expended without regard to the provisions of law and regulations relating to the expenditure of Government funds; and for objects of a confidential, extraordinary, or emergency nature, such expenditures to be accounted for solely on the certificate of the Director and every such certificate shall be deemed a sufficient voucher for the amount therein certified.”[4]

Bringing to bear the tremendous authority granted them, government agencies dealing in classified national security generally utilize the following methods to keep classified information, and therefore information about UFOs: (1) Compartmentalization. Agencies create special access programs as authorized by Executive Order 13526 which are limited to a limited number of individuals, sometimes to as few as two or three; (2) Privatization. Agencies transfer military and potentially exotic technology to private industry for study. Private companies may be created and engaged by intelligence agencies to deal with highly sensitive material as authorized by The Central Intelligence Agency Act of 1949 and the National Security Agency Act of 1959. Private companies, as we know, lie beyond the reach of FOIA. (3) Disinformation. Intelligence agencies routinely utilize false and misleading information to blunt the dissemination of information that could have an adverse effect on national security interests or that jeopardizes exposing agency sources and methods.[5]

Those who desire full disclosure may not, and likely do not, truly appreciate what they are asking. Though clearly frustrating, an appropriate and thorough assessment of the full breadth and scope of the so-called UFO phenomenon and its potential impacts on culture and society is absolutely necessary before full disclosure.

On one hand, those in the so-called UFO community believe, and have for some time, that proof of aliens exists somewhere in the dark bowels of government, and that this information must be made public. The knowledge that we are not alone in the universe belongs to all of us, not just a chosen few. It is a part of, and perhaps even the essence, of who we are as a species. Conversely, members of the intelligence community charged with keeping UFO secrets to protect national security may possess certain knowledge, the dissemination of which could either cause great harm, or usher in the end of civilization. There may be things that the public simply cannot and should not know. Until these divergent interests resolve, full disclosure will continue to elude us.

[1] Executive Order 13292 § 6.1 (h).

[2] Executive Order 13526, § 6.1 (dd)

[3] 5 U.S.C. § 552 (b)

[4] 50 U.S.C. §3510 (b)

[5] CIA Memorandum on Media Openness

Published inCulture and SocietyDisclosureLaw and JusticePolitical Science

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