A year later, DOE still struggles with security

It's deja vu in the desert. A year after suspected Chinese spying at the Energy Department's nuclear weapons laboratory in Los Alamos, N.M., prompted partisan howls and grand plans for reform, still more secret files disappeared from the lab-this time a couple of computer hard drives with sensitive information. Even the recovery of the drives-in suspect circumstances-did not allay congressional criticism about security lapses.

Behind these headlines that seem recycled from last year, Energy's response to the latest Los Alamos incident shows that some real changes have been implemented by the department-and some others have been badly stalled. At a hastily called House Armed Services Committee hearing on June 14, most members delved into the details of how two hard drives could vanish from locked vaults, but the chairman of a special House panel on Energy reform, Mac Thornberry, R-Texas, made a far more fundamental point: "A year ago, Congress passed a law to restructure the Department of Energy," he fumed. "A year later, we still have the same problems.... Nothing has changed."

The problem is an ongoing tug of war between legislators, including Thornberry, and Energy Secretary (and would-be Vice President) Bill Richardson over the future of the notoriously disorganized department. The struggle was supposedly settled by legislation enacted last year. The measure established a National Nuclear Security Administration that would separately oversee the weapons labs and insulate them from the rest of Energy-and from Secretary Richardson, who objected so strongly to the loss of authority that he called for a presidential veto.

But the congressional fixes were ultimately signed into law by President Clinton, and since then, the fight has shifted into a kind of guerrilla war over implementing them. Energy officials and their legislative allies argue that the department has obeyed as best it can an unclearly written and poorly thought out statute. But authors of the National Nuclear Security Administration act say Energy stands, in the words of Sen. Jon Kyl, R-Ariz., "in direct contravention of the law."

Take the troubles at Los Alamos as a case study. Last time around, when the government concluded that China may have obtained American nuclear secrets, Congress and the Department of Justice criticized the ensuing criminal investigation as ill-coordinated among Los Alamos, Energy's headquarters staff, and the FBI. Although authorities quickly singled out a suspect (Taiwan-born physicist Wen Ho Lee, against whom espionage charges were never filed for lack of evidence), investigators were lackadaisical about examining his computer files and did not revoke his high-level security clearances for 17 months.

This time, however, when an Energy anti-terrorist team's spare hard drives, which included information about defusing nuclear bombs, were reported missing, staff alerted Los Alamos Director John Browne in 24 days-practically overnight by lab standards. Notified the following day by Browne, Energy's headquarters in Washington quickly dispatched its security director, retired Air Force Gen. Eugene Habiger, and alerted its counterintelligence chief, FBI spy catcher Edward Curran. These two experts were recruited last year from outside Energy's troubled bureaucracy to fill two new, powerful positions that Richardson created specifically to address security concerns.

But by now, congressional critics say, the National Nuclear Security Administration should have had in place its own intelligence and security apparatus, one staffed by specialists in the arcana of nuclear secrets and operating independently of Secretary Richardson. But Richardson simply "dual-hatted" Curran and Habiger to take on the NNSA jobs as well. And another key official was absent altogether from the investigation: Clinton's nominee to head the NNSA-Air Force Gen. John Gordon, a former deputy CIA director. After receiving an enthusiastic endorsement from the Senate Armed Services Committee, Gordon's confirmation was put on "hold" for weeks by a member of the President's own party, Sen. Richard H. Bryan of Nevada.

"[The senator] doesn't have any reservations or concerns about General Gordon; he thinks he's a good pick," said Bryan spokesman David Lemmon. "It's unfortunate we had to resort to this tactic, [but] new language in the [defense authorization] bill goes back on some agreements that were reached last year" between the administration and Congress on Energy Department reforms.

Specifically, Lemmon said, Bryan objects to a new attempt by lawmakers to increase Gordon's autonomy as NNSA chief at the expense of Richardson's authority. Many Hill staffers speculate that Richardson himself was behind the hold on his own administration's nominee-an interesting notion, but one Bryan denies. But when asked what pressure the Administration was exerting on Gordon's behalf, Deputy Energy Secretary T.J. Glauthier said blandly: "It's in the hands of the Senate.... We hope they will work out the issues soon."

Shortly after Glauthier spoke to National Journal on June 12, news of the Los Alamos incident broke, and Bryan removed his hold on Gordon in exchange for a chance to offer amendments to the disputed provisions in the defense authorization bill. The Senate then quickly confirmed Gordon 97-0.

What legislative language was so offensive that Bryan felt compelled to hold up his own President's "good pick"? The first clause attacks dual-hatting, the procedure by which Richardson has appointed Curran, Habiger, and more than a dozen other officials from Energy headquarters to serve also at the NNSA-which, under the terms of last year's law, is supposed to be independent of Energy's bureaucracy.

Deputy Secretary Glauthier argued that having Energy and the NNSA share the same general counsel and other top administrators makes for more-rational operations and more-consistent policy-making. Consistency is particularly important in the area of safety, where the weapons labs have a history of expensive and sometimes deadly lapses. Only a shared policy implemented by doubly titled officials, argued Glauthier, can ensure consistency on these and other issues: "The biggest concern," he said, "is that we not end up with the NNSA creating a barrier" between itself and the rest of the department.

But creating a barrier was the whole idea, said Rep. Ellen Tauscher, D-Calif., the top Democrat on Thornberry's oversight panel. "NNSA was created," she told National Journal, "to wall off the labs and production facilities from [the rest of Energy], where there is a checkered reputation."

In particular, rival officials at headquarters have a history of issuing contradictory orders to the labs, creating bureaucratic gridlock. The NNSA's independence was meant to clarify the chain of command, which assigning one person to two jobs only undermines. And, added Tauscher: "By the way, it's illegal."

But Energy officials point out that there is no explicit prohibition on dual-hatting. So this year, the Senate Armed Services Committee banned not only dual-hatting, but also any reorganization of the NNSA without congressional approval. "It's the tightest straitjacket I've ever heard of," said the committee's ranking Democrat, Sen. Carl Levin of Michigan, who fought the new restrictions. "This language denies [Secretary Richardson] the power to run his agency."

But Richardson's critics say he left Congress no choice. "We've had to bring him to each step kicking and screaming," said Kyl. "From the beginning, he's engaged in guerrilla warfare to prevent us implementing the law." And many in the House say that even the Senate's new restrictions won't be enough. Sighed Thornberry, "You can never plug all of the holes that these people can poke in the law."

The response from Energy goes something like this: Don't blame us if the statute is full of holes. "We think we're doing things that are all very consistent with the intent of the legislation," said Glauthier. "[But] it's very difficult to track back and see what the intent of the Congress was.... There were no hearings."

That might be news to the law's authors, who point to at least six Senate and seven House hearings on Energy reforms last year. But Glauthier argues that all those hearings predated the more restrictive language that was eventually written into the law. Thornberry counters that senior Energy figures "knew what was happening all the time, because we had a number of meetings with Secretary Richardson and his representatives." Yes, allowed Glauthier, but "it was pretty much a one-way conversation."

Here is the heart of Energy's objections: Congress ignored the department's own plans and overrode them with the NNSA Act before Energy had a chance to make its own new approaches work. And the two schemes take directly contradictory approaches to Energy's disarray. While Congress sought to insulate the weapons labs from Energy headquarters, Richardson sought to increase his control.

Critics in Congress, said Glauthier, "were talking about the problems of the past that we've been trying to solve through the reorganization [Richardson ordered] in April of 1999." And when Congress adopted the NNSA approach instead-on the recommendation, it should be noted, of Clinton's Presidential Foreign Intelligence Advisory Board-Richardson responded by implementing a plan that, in the words of a Congressional Research Service analysis, simply "superimposes the Secretary's April 21, 1999, restructuring plan on the statutory structure."

Regardless of whose fixes are better, have any of them changed the department? As implemented so far, "there's really been very little effect from the NNSA at this time," acknowledged Joan Woodard, deputy director of New Mexico's Sandia National Laboratories, a sister organization to Los Alamos. And asked whether there was any difference between the way Energy's bureaucracy works today as opposed to two or even five years ago-well before Richardson's reforms-Woodard said simply: "There's virtually no changes."

Still, one player in this unfolding drama does not yet despair. Former Sen. Warren Rudman, R-N.H., who chairs the Foreign Intelligence Advisory Board and came up with the idea of a separate National Nuclear Security Administration, said: "I thought it would probably take part of last year and a good part of this year to get it done." Rudman noted that his board's report was "the 34th of 34 reports" over the past two decades on the mess at Energy, all of them ignored. In light of that, Rudman said he was "pleased" that anything has changed at all.