What is the National Disclosure Policy in Foreign Military Sales?

The NDP was established as a framework for the approval or denial of the transfer of classified military information (CMI) to foreign governments and international organizations. Basic authority and policy for transferring CMI are contained in NSDM 119, which is implemented by the classified publication, National Policy and Procedures for Disclosure of Classified Military Information to Foreign Governments and International Organizations, short title NDP-1.

The NDP-1 is the interagency document that implements the core U.S. policy for the disclosure of CMI. It promulgates U.S. policy in the form of specific disclosure criteria and limitations, procedures for handling exceptions to policy, and other guidance governing disclosure decisions of CMI.

DOD Directive 5230.11 Disclosure of Classified Military Information to Foreign Governments and International Organizations implements the National Disclosure Policy within the Department of War.

Disclosure decisions are made by officials holding delegated authority: a Principal Disclosure Authority at component headquarters and Designated Disclosure Authorities below it.

The NDP-1 Annex (classified) identifies the maximum classification level of information that can be released by country and by category of classified military information. NDP-1, by itself, does not authorize any disclosures. Under DoDD 5230.11, the Secretary of War has delegated disclosure authority to the Secretaries of the MILDEPs and other DoW officials, whose decisions must comply with NDP-1. The policy and guidance for implementing NDP-1 is contained in the DODD 5230.11. This directive states that the MILDEPs will release CMI in accordance with the NDP-1 Annex only if all of the following five conditions or criteria, originally outlined in NSDM 119, are met:

1. Disclosure is consistent with U.S. foreign policy and national security objectives.

2. Disclosures, if compromised, will not constitute an unreasonable risk to the U.S. position in military technology or operational capabilities.

3. The foreign recipient of the information will afford it substantially the same degree of security protection given to it by the U.S. The intent of a foreign government to protect U.S. CMI is established, in part, by the negotiation of general security agreements.

4. Disclosure will result in benefits to the U.S. at least equivalent to the value of the information disclosed.

5. The disclosure is limited to information necessary to accomplish the purpose for which disclosure was authorized.

If the classification of the information proposed for disclosure exceeds the country’s eligibility in the NDP-1 Annex, or if the policy criteria cannot be met, then the proposed disclosure must be denied or an ENDP must be approved by the NDPC. Moreover, even if the U.S. disclosure official has determined that eligibility in the NDP-1 Annex exists and that all policy criteria have been met, disclosures of CMI may not be made until the affected originator’s approval has been obtained or appropriate authority to disclose has been received.

When an exception to NDP (ENDP) is required, because disclosure criteria cannot be met within the existing authorized classification level, such exceptions may be granted only by the NDPC, the Secretary of War, or the Deputy Secretary of War. A request for an ENDP must be sponsored by an NDPC member, normally the cognizant MILDEP for the classified information proposed for transfer. For military weapon systems, this is normally the MILDEP that has developed and produced the system.

It is the policy of the U.S. to avoid creating false impressions of its intention to provide classified military material, technology, or information. Lack of strict adherence to this policy may create problems. Much military hardware is unclassified; however, this same unclassified hardware, if sold, may require the release of classified information for its operation or maintenance, or for the foreign recipient training. Therefore, any disclosure decision must be made based on the classification level of all information, which may be required for release if the system were to be transferred. If the proposed foreign recipient is not authorized to receive the highest level of classified information required, no information, not even CUI, may be released or discussed until the required authority is obtained. This means that there can be no weapon-specific information, and no release of FMS price and availability (P&A) data until authority is obtained to release the highest level of classified information ultimately required for disclosure.