10 U.S.C. § 128

Control and physical protection of special nuclear material: limitation on dissemination of unclassified information

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(a)(1) In addition to any other authority or requirement regarding protection from dissemination of information, and subject to section 552(b)(3) of title 5, the Secretary of Defense, with respect to special nuclear materials, shall prescribe such regulations, after notice and opportunity for public comment thereon, or issue such orders as may be necessary to prohibit the unauthorized dissemination of unclassified information pertaining to security measures, including security plans, procedures, and equipment for the physical protection of special nuclear material.(2) The Secretary may prescribe regulations or issue orders under paragraph (1) to prohibit the dissemination of any information described in such paragraph only if and to the extent that the Secretary determines that the unauthorized dissemination of such information could reasonably be expected to have a significant adverse effect on the health and safety of the public or the common defense and security by significantly increasing the likelihood of—(A) illegal production of nuclear weapons, or(B) theft, diversion, or sabotage of special nuclear materials, equipment, or facilities.(3) In making a determination under paragraph (2), the Secretary may consider what the likelihood of an illegal production, theft, diversion, or sabotage referred to in such paragraph would be if the information proposed to be prohibited from dissemination under this section were at no time available for dissemination.(4) The Secretary shall exercise his authority under this subsection to prohibit the dissemination of any information described in paragraph (1)—(A) so as to apply the minimum restrictions needed to protect the health and safety of the public or the common defense and security; and(B) upon a determination that the unauthorized dissemination of such information could reasonably be expected to result in a significant adverse effect on the health and safety of the public or the common defense and security by significantly increasing the likelihood of—(i) illegal production of nuclear weapons, or(ii) theft, diversion, or sabotage of nuclear materials, equipment, or facilities.(b) Nothing in this section shall be construed to authorize the Secretary to withhold, or to authorize the withholding of, information from the appropriate committees of the Congress.(c) Any determination by the Secretary concerning the applicability of this section shall be subject to judicial review pursuant to section 552(a)(4)(B) of title 5.(d) Information that the Secretary prohibits to be disseminated pursuant to subsection (a) that is provided to a State or local government shall remain under the control of the Department of Defense, and a State or local law authorizing or requiring a State or local government to disclose such information shall not apply to such information.(Added Pub. L. 100–180, div. A, title XI, § 1123(a), Dec. 4, 1987, 101 Stat. 1149; amended Pub. L. 101–510, div. A, title XIII, § 1311(1), Nov. 5, 1990, 104 Stat. 1669; Pub. L. 108–136, div. A, title X, § 1031(a)(4), Nov. 24, 2003, 117 Stat. 1596; Pub. L. 114–328, div. A, title XVI, § 1662(a)(1), (2), Dec. 23, 2016, 130 Stat. 2614.)Editorial NotesPrior Provisions

A prior section 128 was renumbered section 421 of this title.

Amendments

2016—Pub. L. 114–328, § 1662(a)(2), substituted “Control and physical protection” for “Physical protection” in section catchline.

Subsec. (d). Pub. L. 114–328, § 1662(a)(1), added subsec. (d).

2003—Subsec. (d). Pub. L. 108–136 struck out subsec. (d) which required the Secretary to prepare an annual report detailing the Secretary’s application during the year of each regulation or order prescribed or issued under this section.

1990—Subsec. (d). Pub. L. 101–510 substituted “on an annual basis” for “on a quarterly basis”.

Notes of Decisions

Cited in 9 cases (1 in the last 5 years), 1997–2021 · leading case: Ground Zero Ctr. for Non-Violent Action v. United States Dep't of the Navy, 860 F.3d 1244 (9th Cir. 2017).

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Ground Zero Ctr. for Non-Violent Action v. United States Dep't of the Navy, 860 F.3d 1244 (9th Cir. 2017). · cites it 3× “197 , however, and some sensitive nuclear information, as noted, is protected from FOIA’s disclosure requirements, see 10 U.S.C. § 128 ; 32 C.F.R. § 223.6 . Specifically, UCNI is protected from FOIA’s disclosure requirements when “dissemination of such information could…”

United States v. Johnson, 61 M.J. 195 (C.A.A.F. 2005). · cites it 2× “t was convicted by a general court-martial of officer and enlisted members of two specifications of assault consummated by battery, one specification of assault on a security forces member in the execution of her duties, and two specifications of assault with intent to commit…”

United States v. Davis, 45 M.J. 681 (N.M.C.C.A. 1997). · cites it 3× “An allegation to that effect was deleted from the specification prior to trial. Thus we are presented squarely with the issue of whether the unloaded pistol can be a dangerous weapon for aggravated assault purposes under Article 128(b)(1), UCMJ, 10 U.”

Ground Zero Ctr. for Nonviolent Action v. United States Dep't of the Navy, 918 F. Supp. 2d 1132 (W.D. Wash. 2013). · cites it 2× “” 10 U.S.C. § 128 (a)(1). Further, the Navy may withhold information that “could reasonably be expected to have a significant adverse affect on .”

United States v. Hardee (A.F.C.C.A. 2017). “The source reported observation of Appellant’s text mes- 1 This action by Appellant was the basis for a single charge and specification of as- sault and battery in violation of Article 128, UCMJ, 10 U.S.C. § 128 . This charge and its specification were dismissed pursuant to…”

United States v. Sergeant First Class CHRISTOPHER G. PACHECO (A.C.C.A. 2019). “SALUSSOLIA, Judge: A general court-martial composed of officers and enlisted members convicted appellant, contrary to his pleas, of three specifications of assault consummated by battery and one specification of child endangerment, in violation of Articles 128 and 134, Uniform…”

United States v. McPherson (C.A.A.F. 2021). “II 2008); and one specification of assault consummated by a bat- tery, in violation of Article 128, UCMJ, 10 U.S.C. § 128 (2012). The military judge sentenced Appellee to confinement for twenty-eight years, forfeiture of all pay and allowances, re- duction to the grade of E-1,…”

United States v. Cummings (N.M.C.C.A. 2014). “PER CURIAM: A military judge sitting as a special court-martial convicted the appellant, pursuant to his pleas, of assault consummated by a battery in violation of Article 128, Uniform Code of Military Justice, 10 U.S.C. § 128 . The military judge sentenced the appellant to…”

United States v. Specialist BENJAMIN S. PONSE (A.C.C.A. 2010). “----------------------- SUMMARY DISPOSITION ---------------------------------- Per Curiam: A military judge sitting as a general court-martial convicted appellant, contrary to his pleas, of assault consummated by a battery (three specifications) and indecent assault (two…”

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