DISCLAIMER The following is a staff memorandum or other working document prepared for the members of the Advisory Committee on Human Radiation Experiments. It should not be construed as representing the final conclusions of fact or interpretation of the issues. All staff memoranda are subject to revision based on further information and analysis. For conclusions and recommendations of the Advisory Committee, readers are advised to consult the Final Report to be published in 1995. Tab I þþDRAFT þ FOR DISCUSSION PURPOSES ONLYþþ MEMORANDUM TO: Members of the Advisory Committee on Human Radiation Experiments FROM: Advisory Committee Staff DATE: December 6, 1994 RE: Documents Retrieved from Oak Ridge Operations: The Atomic Energy Commission's Declassification Review of Reports on Human Experiments and the Public Relations and Legal Liability Consequences In mid-November, staff members visited the Oak Ridge operations document repository to review and retrieve documents warehoused there. This memorandum describes some initial fruits of that effort. The documents confirm, as previously hypothesized, that in the immediate Post-War period information on human experimentation, including the plutonium experiments, was kept secret in anticipation of public relations and legal problems. The attached documents: (l) show that concerns about liability and public relations, and the AEC's Insurance Branch and Public Relations officials, played a routine part in the declassification review of secret medical research reports; (2) indicate that reports on human experiments, including the plutonium injections, were initially declassified but reclassified for fear of public and legal consequences of disclosure; (3) show that continued secrecy was a policy judgment by the highest AEC medical authorities (the Division of Biology and Medicine and its Advisory Committee); and (4) show that the multivolume public history of the Manhattan Project medical research program was reviewed for human experimentation. I. BACKGROUND: THE TRAIL For some time the Committee has been pursuing the trail of documents suggesting that Post-War declassification review focused on considerations of public relations and legal liability, as well as, or rather than, national security. This trail was laid out in April and October, 1947 memoranda. 1 In an April, 17, 1947 memorandum (Attachment 1 ), to Dr. Fidler at Oak Ridge, Col. O.G. Haywood wrote: It is desired that no document be released which refers to experiments with humans and might have adverse effects on public opinion or result in legal suits. Documents covering such work should be classified as secret. In an October 8, 1947 memorandum (contained in Briefing Book no. 4, at Tab F, Attachment 3), Oak Ridge manager of operations J.C. Franklin wrote to the AEC General Manager Carroll L. Wilson: Publication of experiments done by Atomic Energy Commission contractors' personnel may frequently be the source of litigation and prejudicial to the proper functioning of the Atomic Energy Commission Insurance Branch. (Id., at page 4) ******* . . . there are a large number of papers which do not violate security, but do cause considerable concern to the Atomic Energy Commission Insurance Branch and may well compromise the public prestige and best interests of the Commission. Papers referring to levels of soil and water contamination surrounding Atomic Energy Commission installations, idle speculation on the future genetic effects of radiation and papers dealing with potential process hazards to employees are definitely prejudicial to the best interests of the government. Every such release is reflected in an increase in insurance claims increased difficulty in labor relations and adverse public sentiment. Following consultation with the Atomic Energy Commission Insurance Branch, the following declassification criteria appears desirable. If specific locations or activities of the Atomic Energy Commission and/or its contractors are closely associated with statements and information which would invite or tend to encourage claims against the Atomic Energy Commission or its contractors such portions of articles to be published should be reworded or deleted. The effective establishment of this policy necessitates review by the Atomic Energy Commission Insurance Branch, as well as by the Medical Division, prior to declassification. (Id., at page 8) 2 II. THE RECLASSIFICATION OF PLUTONIUM INJECTION INFORMATION The documents show that information about the plutonium injection experiments was initially declassified, but was reclassified upon review for public relations and legal liability concerns. Attachment 2, entitled "CH-3607-The Distribution and Excretion of Plutonium in Two Human Subjects", states that this report was declassified on January 3, 1947, "but upon further review was reclassified 'Restricted' on 3/31/47." The document then provides "[excerpts from statements of [declassification] reviewers." This document indicates that, in December, 1946, Dr. Hymer Friedell, a participant in the plutonium project, approved the declassification of the document, since it "will not in my opinion result in the release of information beyond that authorized for disclosure by the current Declassification Guide." On February 28, 1947, however, C.L. Marshall (identified elsewhere as a Deputy Declassification Officer, AEC Technical Information Branch) wrote that: This document appears to be the most dangerous since it describes experiments performed on human subjects, including the actual injection of the metal, plutonium, into the body. The locations of these experiments are given and the results, even to the autopsy findings in the two cases. It is unlikely that these tests were made without the consent of the subjects, but no statement is made to that effect and the coldly scientific manner in which the results are tabulated and discussed would have a very poor effect on the general public. Unless, of course, the legal aspects were covered by the necessary documents, the experimenters and the employing agencies, including the U.S., have been laid open to a devastating lawsuit which would, through its attendant publicity, have far reaching results. Attachment 3 is a March 19, 1947 memorandum from Major B.M. Brundage, Chief, Medical Division to Declassification Section; Re: Clearance of Technical Documents. The memorandum states: 3. The Medical Division also agrees with Public Relations that it would be unwise to release the paper 'Distribution and Excretion of Plutonium' primarily because of medical legal aspects in the use of plutonium in human beings and secondly because of the objections of Dr. Warren and Colonel Cooney that plutonium is not available for extra Commission experimental work, and thus this paper's distribution is not essential to off Project experimental procedures. 3 In a December 10, 1947 letter to Dr. R. S. Stone (Attachment 4) Alberto F. Thompson of the AEC Public and Technical Information service discusses a request by Dr. Stone to include two plutonium reports, as well as other items, in a volume of the National Nuclear Energy Series (NNES), a history of Manhattan Project Research. Mr. Thompson, an AEC representative on the Project Editorial Advisory Board stated that CH-3607 ("The Dissemination and Excretion of Plutonium in Two Human Subjects") "was classified RESTRICTED purely for administrative reasons and it is actually declassified now." The statement appears, to be contradicted by a subsequent high policy declassification (Attachment 7) below that CH-3607 remain classified. He stated that the plutonium report (MUC-ERR-209;"Distribution and Excretion of Plutonium") "was held up at the request of Dr. B.M. Brundage, for medical reasons. I am informed that these reasons make the report substantially undeclassifiable." In a January 7, 1948 letter to Dr. A.H. Holland, Jr., at Oak Ridge (Attachment 5), Hoyland D. Young, Director, Information Division, asks "if the policy with regard to declassification of medical reports has now been modified so as to permit declassification" of the plutonium report and a report titled " Uranium Excretion Studies." On February 12, 1948 Dr. Harold Hodge of the University of Rochester wrote to Brewer Boardman, an AEC official also on the Board of the NNES, requesting reconsideration of the decision to classify materials that would otherwise be published in "our first Pharmacology volume." (Attachment 6). Dr. Hodge stated: I would like to advance the argument that Chapter XVI does not report experiments with humans, and should never have been classified on this basis in the first place. After a summary of the material in the Chapter, which included a review of the public literature regarding the use of uranium as a drug in the years 1874 to 1940, Dr. Hodge concluded: I wish to submit that none of this material is human experimentation unless you would class measuring a man's height or recording his weight as human experimentation . . . . Requests including those from Drs. Stone and Hodge evidently precipitated a high-level policy decision on the status of the plutonium reports, and other human data reports. 4 Attachment 7 is a March 15, 1948 letter from Albert H. Holland, Jr., M.D., Medical Advisor Oak Ridge to Dr. Hoylands D. Young, Director, Information Division, Argonne National Laboratory. Dr. Holland wrote: In accordance with your recent request, the following documents were reviewed for reconsideration of their classification: CH-3592, entitled 'Uranium Excretion Studies.' CH-3607, entitled 'Distribution and Excretion of Plutonium in Two Human Subjects 'CH-3696, entitled 'An Introduction to the Toxicology of Uranium 'MUC-ERR-209, entitled 'Distribution and Excretion of Plutonium.' Since classification of these documents has been so controversial, and in view of the recurring requests, they were forwarded to the Division of Biology and Medicine in Washington for a final policy decision. It is the feeling of the Division of Biology and Medicine, the Advisory Committee for Biology and Medicine, and the Office of Technical Information of the Atomic Energy Commission that these documents should not be declassified.1 [The minutes of the AEC Advisory Committee for the first three months of 1948 show discussion of the dissemination of information, but no evident discussion of declassification issues.] In 1950, Wright Langham of Los Alamos, a principal in the plutonium injection experiment, prepared a "Plutonium Report,", in coordination with the University of Rochester, which housed the majority of the injections. "The report that we are preparing," Langham wrote to Rochester, "is going to be the last word on the plutonium situation." "We think," Langham wrote to Dr. Stafford Warren, "the classification will be Secret', and the circulation limited, depending on Dr. Shields Warren's [the head of the AEC Division of Biology and Medicine] wishes." In August, 1950, Dr. Warren approved the report for "CONFIDENTIAL classification and limited circulation as [Dr. Langham] requested." (Attachment 8). In 1951 a report "Based on Metallurgical Laboratory Memorandum MUC-ERR-209" [Distribution and Excretion of Plutonium] appeared in the NNES volume entitled "Industrial Medicine on the Plutonium Project." It is not clear to Committee staff when CH-3607, the plutonium report had been reclassified in early 1947 (The Distribution and Excretion of Plutonium in Two Human Subjects) was ultimately declassified; the copy of CH-3607 located by staff bears a December 31, 1946 declassification date, and no indication of subsequent reclassification/declassification. 5 The Langham "Plutonium Report" evidently remained classified through the 1960's, although the reference was made to experimentation on 15 human beings in a presentation by Dr. Langham in 1956. Langham stated: "Both animal and human experimentation have been done to obtain the per cent excretion as a function of body burden, or the retention in terms of the excretion rate. Fifteen hopelessly sick individuals were given very small single injections of plutonium intravenously as the citrate, and their urine, feces, and blood were analyzed as a function of time after administration."2 [The Panel Discussion of Plutonium with W.H. Langham, J.W. Healey, H.J. Foreman, S.M. Sanders, Jr. at the "Proceedings of the Second Annual Meeting on Bio-Assay and Analytical Chemistry " October 11 and 12, 1956.] As noted in Stannard's chapter on plutonium, a further report on the California plutonium experiment was evidently declassified in 1956. (Crowley, et al,"A Comparison of the Metabolism of Plutonium (Pu 238) in Man and the Rat"; CH-3589-Ba).3 [The transcript of a November 14, 1979 interview by Dr. Stannard (on behalf of his history of internal emitter research) with David Bruner, a former Division of Biology and Medicine official, contains the following exchange, which indicates material was classified into the 1970's when the AEC undertook it's retrospective investigation (at page 7): Stannard: This concerned the records of especially called committee meetings and their possible availability. Bruner: Those were mostly classified 'Secret' because what you would talk about there would be things that involved secrecy and which were brought out specifically. I have in mind a meeting that went on at Chicago, which included a number of the very early people. . . .it had to do with the injection of plutonium into people. Now you remember about four or five years ago this subject hit the fan. And one of those papers was a report. There were about three papers, classified. I located them in the files in Washington. This was when I was working for Dr. Dixie Lee Ray [Atomic Energy] Commission Chr. She wanted to know all there was to know about it. I located these and described who was there, their voting (they didn't say who voted for what, but a vote was taken as to whether or not go on) and gave the criteria for using these people. . . . They were talking about one patient whom they thought was going to die, and that patient still continued to live after a fairly good-sized dose of plutonium. They got the excretion data that they needed and so on. Something like that may still be floating around, but I think you would have to have access to still classified data.] 6 Dr. Stannard has stated that "three whole volumes. . .of the National Nuclear Series on internal emitters. . .never got published." Statement of Dr. Stannard: Sept. 23. 1981 Interview of Gorge Voelz, and Louis Hempelman, at page 5. In a telephone interview with staff, Dr. Stannard recalled that as the Manhattan Project wound down, the authors scattered and as a result McGraw-Hill, the publisher, cancelled the volumes. Patricia Durbin told staff in an interview that an inability to get material declassified also played a role in the cancellation. III. DECLASSIFICATION REVIEW OF FURTHER REPORTS Further documentation shows that review (and reclassification, where needed) of biomedical reports for legal, labor, and public relations concerns was routine. For example, Attachment 9 shows that the report on "Uranium Excretion Studies" (CH-3607) was declassified in 1946, on the review of researchers, but reclassified following the review of "G.O. Robinson, Public Relations:" This office feels that release of 'Uranium Excretion Studies would be unwise because it reflects hospitalization of certain personnel and could possibly have an effect on certain lawsuits. Medical Division Director Brundage concurred: We are also in agreement with Public Relations that the paper 'Uranium Excretion Studies" should not be declassified because of the fact that it is pointed out that certain Commission personnel were hospitalized for excretion tests. At least on occasion, reviews required the direct attention of Division of Biology and Medicine Director Shields Warren. In an August 9, 1948 memorandum to Dr. Warren, regarding zirconium research, Albert H. Holland, Jr., Medical Advisor, Oak Ridge, wrote: (Attachment 10) In my opinion, we are unable to declassify this document for general medical publication since it specifically involves experimental human therapeutics. Further. . .it appears almost impossible to rewrite it in an acceptable manner, which would not jeopardize our public relations. Interestingly, the April 14, 1947 dictate on human experimentation secrecy (Attachment 1) provided that "[these instructions do not pertain to documents regarding clinical or therapeutic use of isotopes..." In an August 19 response, Dr. Warren wrote: I am in complete agreement with you that this document should not be declassified for general medical publication. I also agree that it would be difficult to rewrite it in an acceptable manner. As noted above, documents show a practice of carefully vetoing policy materials relating to AEC human experimentation. 7 In a March 21, 1947 letter to Rochester (Attachment 11), an AEC Declassification officer declared that further uranium research had to be reclassified: 2. This office has been notified that these documents may involve matters prejudicial to the best interests of the Atomic Energy Commission in that experiments with humans are involved. At the request of the Medical Advisors to the Commission, we are, therefore, asking that the documents be reclassified as 'Restricted'. On the other hand, reports on human experimentation or data gathering did past muster under certain circumstances. For example, October, 1947 memoranda between Oak Ridge and the Declassification Division, shows declassification was recommended, "since purportedly the human work was done in the Department of Medicine of the University of Chicago." (Attachment 12) Documents show that, after the March, 1948 high-level decision (Attachment 7) to keep the lid on documents, doctor/researchers continued to petition decisionmakers for the opportunity to include human experimentation research in their National Nuclear Energy Series volumes. In October, 1948, Dr. Stone petitioned Shields Warren regarding a report that was being kept secret because "it might result in adverse publicity and even encourage litigation." (Attachment 12). "With regard to the first statement concerning adverse publicity," Stone wrote, "I thought that this item was taken care of when we stated in the paper that the patients were incurable by any known means of therapy." "With regard to the lawsuit part of the program," he stated, "I think that this could be taken care of readily by the elimination of the initials of the patients. I must confess that the inclusion of the initials slipped past my editorial eye or they would have been taken out. With the initials removed, there will be no means by which the patients can ever connect themselves with the report. Concerns about legal liability were evident even where documents were approved for declassification. Attachment 13, June and August 1947 memoranda, approves declassification. In the first case ("Effect of Single Dose X-Ray to the Nail Fold Area of Human Subjects," the approval notes that the reviewers "see no particular claim hazard in its publication. However, since this appears to cover experiments conducted with human subjects we trust that the necessary legal safeguards were taken prior to x-ray exposure." In the second case ("Morphologic Changes in the Lymphocytes of Persons exposed to Ionizing Radiation") the Insurance Claims reviewer notes that the Insurance Claims Section is "unable to anticipate that its publication would precipitate invalid insurance claims against the Government and/or its contractors." 8 The following documents (Attachments 14-16) show that AEC reviewers also were keenly focused on labor relations, as well as public relations and plaintiff's lawyers. Attachment 14 is a February 5, 1948 memorandum regarding "Biochemical Studies Relating to the Effects of Radiation and Metals." The Insurance Branch Reviewer, counselling further review, notes: although it is conceivable that the contents thereof might arouse claim consciousness on the part of former employees, we are unable to predict that the Commission's interests would be unjustifiably prejudiced by the publication. However, in the event latent disabilities due to the exposures reported in this document should result in publicity similar to that which arose out of the 'radium dial' industry, the public relations section would be involved. Attachment 15 is an October 15, 1948 memorandum from the Insurance Branch regarding Robley Evans' "Health Physics: Instrumentation and Hazard Evaluation." While suggesting that the document might be useful to plaintiff's lawyers, the reviewer states: It has been our experience that most claims of injury due to radioactivity have come from persons who were almost wholly uninformed with regard to effects which might be reasonably anticipated. It therefore appears that enlightenment of the workers regarding the possible hazards of their work and precautions necessary to prevent injury tends to lessen rather than increase the number of insurance claims. Our thoughts could perhaps be summarized to state that we can see no objection from an insurance standpoint to making this document available to those people who might be able to use it for the protection of themselves and others in the course of their employment, but would question the advisability of giving it wide publication. Attachment 16 contains December 1948 Declassification and Insurance Branch reviews of a document entitled "The Changes in the Blood of Humans Chronically Exposed to Low Level Gamma Radiation." The Declassification Branch review stated on December 8 that "[This document has been issued as an unclassified report on Los Alamos, since it clearly falls within the open fields of research." The December 20 Insurance Branch review stated, in part: 9 The results of the studies indicate that the tolerance levels for chronic exposure to gamma radiation which have been accepted both within the A.E.C. and elsewhere may be too high. We can see the possibility of a shattering effect on the morale of employees if they become aware that there was a substantial reason to question the standards of safety under which they are working. In the hands of labor unions the results of this study would add substance to demands for extra-hazardous pay. We can also see the definite possibility that general knowledge of the results of this study might increase the number of claims of occupational injury due to radiation and place a powerful weapon in the hands of a plaintiff's attorney. . . . In view of the above considerations we think the question of making this document public should be given very careful study. IV. CONTEXT Committee staff is continuing to research the laws and policies that guided the classification of the plutonium experiments, and other medical research in the 1940's and 1950's, and the legal context of these policies. In May of 1947 David Lillienthal, the first Chairman of the AEC, empaneled a Medical Board of Review to report on the policy questions faced by the new agency in medical research. The Board, four of whose seven members would become members of the AEC Advisory Committee on Biology and Medicine, issued a report in June. (Attachment 17 ). On the topic of "secrecy in scientific work" the Board reported (page 11): Secrecy in scientific research is distasteful and in the long run is contrary to the best interests of scientific progress. The Board of Review recommends that in so far as it is compatible with national security, secrecy in the field of biological and medical research is avoided. If perforce there are some who must carry on certain of their investigations under secrecy restrictions, they should be permitted as much unrestricted work as possible. Furthermore, every effort should be made to disassociate as many workers as possible from secret research and to isolate such research from university centers. 10 Board Member Dr. Alan Gregg, who would become the first Chairman of the Advisory Committee on Biology and Medicine, added: A policy of secrecy in science is neither personally courageous nor politically wise. As Lord Action said: 'Power corrupts, and absolute power corrupts absolutely.' I would prefer to see scientists uncorrupted by the pressure for safety through extraordinary power.4 [The preface and the Board's report stated that the board was "deeply indebted" to Major Brundage and Lt. Holland, Jr. for assistance.] Today, it would appear that information cannot be "classified" for the purpose of protecting against potential liability or embarrassment. Classification information such as AEC human radiation experiments would be controlled either by Executive Order 12356 on National Security Information or by the Atomic Energy Act of 1954 (as amended). Executive Order 12356 limits classification only to information whose release would cause some level of damage to the "national security" (defined as the "national defense or foreign relations of the United States"). The order explicitly prohibits classification of information "in order to conceal violations of law, inefficiency, or administrative error [or] to prevent embarrassment to a person, organization or agency." It also prohibits classification of "[basic scientific research information not clearly related to the national security."5 [Executive Order. 12356, sec. 1.6(a)-(b).] It would appear that information about medical research involving plutonium could not be classified under this authority. The Atomic Energy Act (Act) authorizes classification of specific information related to the design and production of nuclear weapons and nuclear energy, known formally as "Restricted Data." Restricted Data is defined to mean the "(1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material [referring generally to plutonium and enriched uranium]; or (3) the use of special nuclear material in the production of energy."6 [Atomic Energy Act Sec. 11(y).] The Atomic Energy Act requires that Restricted Data be declassified if it "can be published without undue risk to the common defense and security."7 [Atomic Energy Act Sec. 142.] 11 The July, 1948 AEC "Monthly Summary of Activities" recorded that; (page 17) "Insurance: a recent analysis reveals that from 1944 to June 30, 1948 there were 69 court actions involving aggregate claims of $1,516,685. Payments of $39,445 have been made in connection with the 41 cases closed, in which claims were made for $790,422..." The monthly reports also record serious labor controversy at Oak Ridge. The staff will report further as research progresses. 12 List of Attachments Attachment 1: Memorandum from O.G. Haywood, Colonel, Corps of Engineers to Dr. Fidler, Oak Ridge, TN, subject: "Medical Experiments on Humans," dated April 17, 1947. Attachment 2: "CH-3607 - The Distribution and Excretion of Plutonium in Two Human Subjects" Attachment 3: Memorandum from Major B.M. Brundage, Chief, Medical Division to Declassification Section, subject: "Clearance of Technical Documents," dated March 19, 1947. Attachment 4: Letter from Alberto F. Thompson, AEC Public and Technical Information Service to Dr. R. S. Stone dated December 10, 1947. Attachment 5: Letter from Hoyland D. Young, Director, Information Division to Dr. A. H. Holland, Jr. dated January 7, 1948. Attachment 6: Letter from Dr. Harold Hodge, University of Rochester to Brewer Boardman, dated February 12, 1948. Attachment 7: Letter from Dr. Albert H. Holland, Jr., Medical Advisor, Oak Ridge to Dr. Hoyland D. Young, Director, Information Division, dated March 15, 1948. Attachment 8: Letter from Wright H. Langham to Joe W. Howland, M.D., Chief, Division of Medical Services, University of Rochester, dated April 15, 1950. Letter from Wright H. Langham to Dr. Stafford Warren, University of California, dated July 1, 1950 Letter from Walter Claus, Acting Chief, Biophysics Branch, Division of Biology and Medicine to Dr. Wright Langham, Los Alamos Scientific Laboratory, dated August 30, 1950. Attachment 9: "CH-3592 - Uranium Excretion Studies" 1 Attachment 10: Memorandum from Dr. Albert H. Holland, Jr., Medical Advisor, Oak Ridge to Dr. Shields Warren, Director, Division of Biology and Medicine, subject: "Review of Document," dated August 9, 1948 Memorandum from Dr. Shields Warren, Director, Division of Biology and Medicine to Dr. Albert H. Holland, Medical Advisor, Oak Ridge, subject: "Review of Document," dated August 19, 1948. Attachment 11: Memorandum from Richard T. Batson, Major, Corps of Engineers, Declassification Officer, Research Division to Dr. A.H. Dowdy, Rochester, NY, subject: "Reclassification of Documents," dated March 21, 1947. Attachment 12: Memorandum from Dr. Albert H. Holland, Acting Medical Advisor to C.L. Marshall, Deputy Declassification of Document," dated October 23, 1947. Letter from Robert S. Stone to Dr. Shields Warren, dated October 6, 1948. Attachment 13: Memorandum from L.F. Spalding, Chief, Insurance Claims Section to C.L. Marshall, Deputy Declassification Officer, Technical Information Branch, subject: "Document by Nickson," dated August 15, 1947. Memorandum from L.F. Spalding, Chief, Insurance Claims Section to C.L. Marshall, Deputy Declassification Officer, Technical Information Branch, subject: "Papers by Dickie and Hempelmann," dated June 12, 1947. Attachment 14: Memorandum from L.F. Spalding, Insurance Branch to Charles A. Keller, Declassification Officer, Declassification Branch, subject: "Review of Document," dated February 5, 1948. Attachment 15: Memorandum from Clyde E. Wilson, Insurance Branch to Charles A. Keller, Declassification Officer, Declassification Branch, subject: "Review of Document," dated October 15, 1948. 2 Attachment 16: Memorandum from Anthony C. Vallado, Deputy Declassification Officer, Declassification Branch to Clyde Wilson, Insurance Branch, subject: "Review of Document by Knowlton," dated December 8, 1948. Attachment 17: "Report of the Medical Board of Review," dated June 20, 1947. 3