By Leo Kim

August 23, 2024

We stand at a critical juncture in the crafting of legislation on Unidentified Aerial Phenomena (UAP) reporting that demands a careful balance between transparency, accountability, and national security. As the discussion around UAPs moves from speculative theories to serious governmental examination, it is imperative to strike this balance with caution. The push for legislative action is heightened by revelations from David Grusch, a former member of the Pentagon’s UAP Task Force, marking a significant shift in our collective efforts to understand these mysterious events. This essay proposes a legislative blueprint focusing on defining and classifying UAPs, establishing comprehensive oversight mechanisms, integrating whistleblower protections, and promoting international collaboration. These recommendations aim to protect national security and ensure global stability, navigating the fine line between uncovering the unknown and protecting sensitive information in the evolving UAP narrative.

Congress has the vested authority to investigate alleged wrongdoing and restrain excesses by the executive branch.¹

This authority implicitly extends to investigating claims about UAPs and any potential secret programs related to them. However, this authority must be balanced against the executive branch’s authority to classify and control access to information bearing on national security.² This includes information about UAPs, especially if such information could potentially jeopardize national security.

Regarding UAP encounters, the government can shield national security information and other sensitive materials under Exemption 1 of the Freedom of Information Act (FOIA), which restricts access to classified documents.³ Exemption 1 enables the government to keep information undisclosed in extraordinary circumstances, such as when national security is genuinely at risk.⁴ In these cases, reasonable measures should be taken to mitigate unfairness to the affected party, such as providing an unclassified summary of the classified information or allowing the affected party’s lawyer to view the documents after receiving a security clearance.⁵

In light of these considerations, any proposed legislation addressing UAP reporting and congressional oversight should aim to promote transparency and accountability while also respecting the concerns of national security. This will involve defining and classifying UAPs, establishing oversight mechanisms, setting reporting or secrecy requirements, and providing whistleblower protections. It is crucial that any legislation allow for a case-by-case approach, considering the nature and extent of the classified information, the nature and extent of the threat to national security, and the possible avenues available to allow the designated person to respond more effectively to the charges.⁶

Defining and Classifying UAPs

Legislation must address the challenge of defining and classifying UAPs, which currently lack a formal legal designation. A clear classification system is essential for effective reporting, analysis, and public understanding. It should be broad enough to cover diverse UAP sightings, yet precise enough to guide investigations. Differentiating between natural atmospheric phenomena, potential advanced technological devices (domestic or foreign), and other unexplained occurrences will facilitate a more organized, scientific investigative approach, enabling researchers to categorize and prioritize encounters effectively.

A Tiered Classification System for UAP Information

Central to the legislation should be a tiered classification system for UAP-related information, categorizing it based on sensitivity and potential national security impact. For instance, Tier 1 might include declassified information that can be publicly shared without compromising security, such as general UAP sighting statistics. Tier 2 could involve sensitive information shared with certain congressional committees under strict confidentiality. The most sensitive information, such as technological findings or information with national defense implications, would fall under Tier 3, accessible only to select members of Congress and officials with the highest security clearances.

Establishing a Multi-Tier Oversight Committee

A multi-tier oversight committee, comprising representatives from Congress, the executive branch, and independent experts, should be instituted. This body would be tasked with reviewing classified UAP reports, conducting hearings, and providing recommendations for the declassification of information where possible.

Example: Congressional-Executive UAP Oversight Panel (CEUOP)

This panel would be a joint congressional-executive body, with members including designated representatives from relevant Congressional committees (e.g., Armed Services, Intelligence, and Science, Space, and Technology Committees), representatives from the Department of Defense (DoD), the Department of Homeland Security (DHS), the National Aeronautics and Space Administration (NASA), and the Office of the Director of National Intelligence (ODNI).

The CEUOP would also include independent experts from academia, industry, and non-governmental organizations with expertise in aerospace engineering, astrophysics, atmospheric science, and other relevant fields. These experts would be selected through a nomination process involving both congressional leadership and the executive branch, ensuring a broad representation of perspectives and expertise.

Functions and Responsibilities

Review of Classified UAP Reports

The CEUOP would have secure access to classified UAP reports and data collected by the government. Its mandate would include the review of these materials to assess the validity of the security classifications and to identify information that could be declassified without jeopardizing national security.

Conducting Hearings

The panel would have the authority to conduct hearings, both public and classified, to gather additional insights from government officials, military personnel, scientists, and other stakeholders about UAP encounters and related research.

Recommendations for Declassification

Based on its review and hearings, the CEUOP would provide recommendations to relevant government agencies on the declassification of certain UAP-related information. These recommendations would aim to maximize transparency while protecting sensitive information critical to national security.

Annual Reports to Congress and the Public

The panel would produce annual reports summarizing its activities, findings, and the status of its declassification recommendations. While the full report may contain classified annexes, a declassified summary would be made available to the public to enhance transparency and public understanding.

Incorporating Whistleblower Safeguards while Considering National Security

It is important to consider the whistleblower protections provided by federal law as seen in the case of David Grusch, who alleged professional retaliation and threats to his personal safety. These protections apply to employees disclosing information revealing legal violations or substantial and specific dangers to public health or safety.⁷ The Whistleblower Protection Act offers relief for employees facing adverse actions for making protected disclosures.⁸ However, these protections do not cover disclosures specifically prohibited by law.⁹

Legislation should refine whistleblower protections by establishing a secure, anonymous reporting channel within the oversight body for disclosing UAP information. A vetting process involving a security-cleared panel within the oversight mechanism should be implemented to address national security concerns. This process ensures whistleblower protection while safeguarding sensitive information from undue exposure.

Conclusion

Developing comprehensive legislation for UAP reporting and oversight is a crucial task that balances transparency and national security. A framework that includes defining and classifying UAPs, robust oversight mechanisms, whistleblower protections, and international collaboration offers a forward-looking approach to this complex issue. This legislative blueprint aims to demystify UAPs, enhance public trust, ensure accountability, and uphold democratic oversight principles. Adopting these policy considerations allows Congress to address potential threats and harness opportunities for scientific advancement. The larger implications extend beyond UAPs, setting a precedent for addressing emerging challenges in an era of rapid technological change and global interconnectedness. These proposed measures highlight the importance of preparedness, adaptability, and a commitment to preserving national security while maintaining openness and inquiry.

Leo Kim, J.D. Class of 2026, N.Y.U. School of Law.

Suggested Citation: Leo Kim, Balancing the Unseen: Legislative Strategies for UAP Transparency and National Security, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2024).

1
Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (3d Cir. 2010).
2
Makky v. Chertoff, 489 F. Supp. 2d 421 (D.N.J. 2007).
3
Milner v. Dep’t of the Navy, 562 U.S. 562 (2016).
4
Kashem v. Barr, 941 F.3d 358 (9th Cir. 2019).
5
Id.
6
Id.; Twitter, Inc. v. Garland, 61 F.4th 686 (9th Cir. 2023).
7
Dep’t of Homeland Sec. v. MacLean, 574 U.S. 383 (2015).
8
Delgado v. U.S. Dep’t of Just., 979 F.3d 550 (7th Cir. 2020).
9
Dep’t of Homeland Sec. v. MacLean, 574 U.S. 383 (2015).