HEARING BEFORE THE SUBCOMMITTEE ON HUMAN RESOURCES OF THE COMMITTEE IN POST OFFICE AND CIVIL SERVICE HOUSE OF REPRESENTATIVES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP91B00390R000200150028-2
• Release Decision: RIPPUB
• Original Classification: S
• Document Page Count: 168
• Document Creation Date: December 23, 2016
• Document Release Date: November 6, 2013
• Sequence Number: 28
• Publication Date: October 15, 1987
• Content Type: MISC

,
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2 SLIP r
}Oa LW
10 June 1988
TO: (Name, office symbol, MOM number,
building, Agency/Post) .
L C/Policy Plans Staff
Initials
Date
/9
j116
3. g 0 i y (,lyy)
a._5 /6---
?
5.
Action
File
Note and Return
Approval
For Clearance.
Per Conversation
iAs
Requested
For Correction
Prepare Reply
Circulate
For Your Information
See Me
Comment
Investigate
Signature
Coordination
Justify
REMARKS
e;0 Alet?it
1
D-c77
l????
DO NOT use this form as a RECORD of approvals, concurrences, disposals,
clearances, and similar actions
FROM: (Name, org. symbol, Agency/Post)
Room No.?Bldg.
Phone No.
5041-102 V 2PTI9ML._FS.tRaM 41 (Rev. 7-76)
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
CLASSIFIED 'INFORMATION NONDISCLOSURE
AGREEMENTS
\
STAT
HEARING
BEFORE THE
IOS REGISTRY I
SUBCOMMITTEE ON HUMAN RESOURCES
OF THE
COMMITTEE ON
POST OFFICE AND CIVIL SERVICE
HOUSE OF REPRESENTATIVES
ONE HUNDREDTH CONGRESS
0
FIRST SESSION?
OCTOBER 15, 1987
Serial No. 100-37
Printed for the use of the
Committee on Post Office and Civil Service
OIR/PPB/DCU
GE47 HQ
a0/0 s
3627 PEEL OFF LABEL AND RE6SE ENVELOPE
U.S. GOVERNMENT PRINTING OFFICE
83-304 WASHINGTON : 1988
STAT
For sale by the Superintendent of Documents, Congressional Sales Office
U.S. Government Printing Office, Washington, DC 20402
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
COMMITTEE ON POST OFFICE AND CIVIL SERVICE
WILLIAM D. FORD,
WILLIAM (BILL) CLAY, Missouri
PATRICIA SCHROEDER, Colorado
STEPHEN J. SOLARZ, New York
ROBERT GARCIA, New York
MICKEY LELAND, Texas
GUS YATRON, Pennsylvania
MARY ROSE OAKAR, Ohio
GERRY SIKORSKI, Minnesota
FRANK McCLOSKEY, Indiana
GARY L. ACKERMAN, New York
MERVYN M. DYMALLY, California
MORRIS K. UDALL, Arizona
RON DE LUGO, Virgin Islands
Michigan, Chairman
GENE TAYLOR, Missouri
BENJAMIN A. GILMAN, New York
CHARLES PASHAYAN, JR., California
FRANK HORTON, New York
JOHN T. MYERS, Indiana
DON YOUNG, Alaska
DAN BURTON, Indiana
CONSTANCE A. MORELLA, Maryland
Tom DEYmaa, Staff Director
ROBERT E. LOCKHART, General Counsel
PATRICIA F. RISSLER, Deputy Staff Director and Chief Clerk
JOSEPH A. FISHER, Minority Staff Director
SUBCOMMITTEE ON HUMAN RESOURCES
GERRY SIKORSKI, Minnesota, Chairman
GUS YATRON, Pennsylvania DAN BURTON, Indiana
FRANK McCLOSKEY, Indiana BENJAMIN A. GILMAN, New York
DENNIS MCGRANN, Subcommittee Staff Director
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
IA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
CONTENTS
Statement of: Page
Hon. Charles Grassley, a U.S. Senator from the State of Iowa 8
Hon. Barbara Boxer, a Representative in Congress from the State of
California 12
Ernest Fitzgerald, Deputy, Management Systems, Office of Financial
Management, U.S. Air Force 17
Louis Brase, Cryptological Maintenance Training Manager, U.S. Air
Force 33
Hon. Jack Brooks, a Representative in Congress from the State of Texas 20
Steven Garfinkel, Director, Information Security Oversight Office 62
Kathleen Buck, General Counsel, U.S. Air Force 87
James Peirce, president, National Federation of Federal Employees 103
Charles Hobbie, deputy general counsel, American Federation of Govern-
ment Employees 111
Tom Devine, Director, Government Accountability Project 118
Communication from:
American Civil Liberties Union, dated December 7, 1987, by Allan Adler,
legislative counsel, with attachments 143
Memorandum from:
Congressional Research Service, Library of Congress, American Law Divi-
sion: "Effect of Secrecy Agreements on Whistleblowing Protections" 157
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
CLASSIFIED INFORMATION NONDISCLOSURE
AGREEMENTS
THURSDAY, OCTOBER 15, 1987
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON HUMAN RESOURCES,
COMMITTEE ON POST OFFICE AND CIVIL SERVICE,
Washington, DC.
The subcommittee met, pursuant to call, at 9:30 a.m. in room
311, Cannon House Office Building, Hon. Gerry Sikorski (chair-
man) presiding.
Mr. SIKORSKI. Good morning. The subcommittee will come to
order.
Today the subcommittee will examine the development and con-
tent, implementation and purpose of Standard Form 189, the classi-
fied information nondisclosure agreement. Further questions will
be raised about Form 4193, the nondisclosure form for the so-called
SCI.
Concerns about the broad and ambiguous language of SF 189, the
coercive and authoritarian tone of implementing regulations, and
the heavy-handed tactics used by the Air Force to get employees to
sign the form particularly interest the subcommittee.
Our investigation was requested by Congressman John Dingell,
Chairman of the House Committee on Energy and Commerce, and
Congressman William Ford, Chairman of the Committee on Post
Office and Civil Service, and it follows the good work of other mem-
bers of Congress, including Senator Grassley, Congresswoman
Boxer, the Chairman of the House Government Operations Com-
mittee, Congressman Brooks, and the Chairman of the House
Armed Services Committee, Congressman Aspin.
In response to the congressional outcry led by these members,
many who will be testifying today, and to growing employee con-
cern, in August the Information Security Oversight Office, the
ISOO, of the General Services Administration issued regulations
formally defining and purportedly clarifying some of the terms con-
tained in SF 189. As we will show here today, little clarity actually
was achieved.
On the issue of classifiability, for example, over two million fed-
eral employees must sign a statement saying that they will not dis-
close any, and I quote, 'information that is either classified or clas-
sifiable.' Despite the recent regulations issued by the ISOO and
the various sometimes inconsistent versions or definitions that, Mr.
Garfinkel of the ISOO has propounded in letters to this committee
(1)
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
IA-RDP91B00390R000200150028-2
2
and to others in Congress, the definition of "classifiable" is still
threateningly vague and all-encompassing.
Employees must speculate about what information may or may
not be classified. Classifiable still can be, as Mr. Garfinkel once
honestly declared, just about anything.
Therefore, federal employees place their jobs on the line when-
ever they release any information, whether or not it was actually
marked classified at the time of the release. They risk civil or
criminal actions against them.
And the chilling effect is as obvious as a Minnesota January
night. What waste, what fraud, what incompetence, what malfea-
sance and Misfeasance, what high crimes or misdemeanors would
never have seen the healing light of legislative and public scrutiny
if federal employees of years past had been forced to contend with
such an all-encompassing restriction.
It is also very curious and unacceptable that the term "classifi-
able" does not appear in SF 189-A, the nondisclosure agreement
for private government contract employees doing the same kind of
sensitive work as federal employees, many times on the same
project, in the same building, using the same documents, with the
same goal or purpose.
The administration's explanation for the missing term in the
document to be signed by private contract employees working for
the Federal Government is that "contractors do not classify origi-
nally." Well, a huge majority of the federal employees affected by
the 189 form do not classify originally either.
In fact, contractors create thousands and thousands of classified
documents which they are responsible for marking and protecting.
Mr. Garfinkel may have come close to the real explanation when
he said he was told that "classifiable" could not be included in the
industry form because industry would come back screaming.
We will hear today that Air Force employees who were prudent
enough to question signing the form were bullied, threatened and
harassed. In fact, original Air Force regulations on SF 189 made
the "McCarthyesque" statement that the mere "reluctance to sign
a nondisclosure agreement will be considered lack of personal com-
mitment to protect classified information." We look forward to
hearing an explanation by the Air Force.
This record of inception, adoption, and implementation leads one
to the inescapable conclusion that SF 189 is intended to control the
vocal cords of federal employees by using sweeping terms whose
definitions are as changeable as the weather and by threatening
federal employees with the loss of their clearances and jobs. Public
scrutiny of politically sensitive, perhaps embarrassing information
can be squelched.
This is a disturbing reappearance of that old phenomenon, the
misuse of the term "national security interest," which has always
been the last refuge of administrations, Democrat or Republican,
more concerned with protecting their backsides than with protect-
ing the public interest.
In fact, this administration cannot point to a list of disclosures of
classified information by federal employees warranting this action.
In fact, the most renowned case I am aware of is that involving the
late Director of the CIA, who evidently met over four dozen times
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06 :
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
3
with "Washington Post" reporter Bob Woodward. Mr. Casey appar-
ently disclosed classified material on an ad hoc, unrestricted, and
unmonitored basis at the same time he was pushing for tougher
controls on this same thing on low-level public servants.
Again we see, as John Kennedy pointed out, that the ship of
state leaks from the top, and again, we do not hear a clamor from
the administration to change this sorry state of affairs. There is no
question of the need to protect classified information detailing our
national defense or security interests or our vital secrets. Carefully
worded nondisclosure forms can be a useful tool with which to ac-
complish this goal by reminding employees about their responsibil-
ities.
However, these forms must apply to all- who are custodians of the
information, without any artificial and repugnant distinctions
between public and private employer or between CIA Director and
Department of Transportation clerk or between Presidential friend
and a GS-5.
National security needs to be balanced with the public's right to
know about the workings of their government, the need for a free
press, and individual free speech rights. SF 189 clearly tips the
scale in favor of secrecy at the expense of press, employee rights,
and the public interest.
Our first witness today will be Senator Charles Grassley from
Minnesota's neighboring State of Iowa. Senator Grassley has been
an outspoken and courageous critic of SF 189. As a member of the
Senate Armed Services Committee, Senator Grassley has been a
leader in Congress in an attempt to clarify the definition of "classi-
fiable" material and the need for SF 189.
[Mr. Sikorski's statement follows:]
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
IA-RDP91B00390R000200150028-2
4
STAILMUNI U iht tkL11--(AdLt
GERRY SIKRSKI
UBCOMMI TTEE ON HUMAN RESOURCES
October 15, 1987
I. INTRODUCTION
A. Subcommittee Jurisdiction
This is an oversight hearing before the Subcommittee on
Human Resources of the Committee on Post Office and Civil
Service. Under Rule X of the U.S. House of Representatives, the
Subcommittee is charged with reviewing and studying, on a
continuing basis, the application, administration, execution, and
effectivenesss of laws related to Federal civilian personnel
requirements
B. Purpose of Hearing
Today the Subcommittee will examine provisions of National
Security Decision Directive 84 (NSDD 84), which directed all
executive agencies to establish regulations requiring Federal
employees with access to classified information or Sensitive
Compartmented Information (SC!) to sign two types of
nondisclosure agreements. Specifically, we will examine the
development, content, implementation and purpose of Standard Form
189 (SF 189), the Classified Information Nondisclosure
Agreement. Further, questions will be raised about Form 4193,
the nondisclosure form for SC1.
C. Subcommittee's Involvement
Last spring, as the Administration expanded its efforts to
get employees to sign SF 189, several Air Force employees very
properly raised questions and concerns about the broad and
ambiguous language of SF 189. Concerns about the coercive and
authoritarian tone of the implementing regulations and the heavy
handed tactics being used by the Air Force to get employees to
sign the form were expressed.
At the request of Congressman John Dingell, Chairman of the
House Committee on Energy and Commerce, and Congressman William
Ford, Chairman of the Committee on Post Office. and Civil Service,
this Subcommittee initiated its examination of SF 189. At the
same time, several other Members of Congress, including Senator
Grassley, Congresswoman Boxer, the Chairman of the House
Government Operations Committee, Congressman Brooks, and the
Chairman of the House Armed Services Committee, Congressman Aspin
questioned the content, propriety and legality of SF 189.
In response to the Congressional outcry and growing employee
concern, in August the Information Security Oversiaht Office
itcriro c- eAuninistration issued regulations
formally defining and purportedly clarifying some of the terms
contained in SF 189. As we shall hear today, little clarity
actually was achieved. Likewise, serious problems, questions,
and concerns were not assuaged.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
5
II. DISCLOSURE FORMS - PROBLEMS AND QUESTIONS
A. Content
Although there are a number of problems with SF I89's
content, the use of the term "classifiable" is the most
glaring. According to SF 189 every employee with access to
classified material must sign a statement saying that they will
not disclose any "information that is either classified or
classifiable."
Despite the recent regulations issued by !SOD, the
definition is still threateningly vague and all encompassing.
The definition still requires employees 4o speculate about who
information may or may not be classified, even though the
employees don't have the expertise or the authority to make
original classification determinations. Given the broad
categories of information that can be classified, "classifiable"
still can be, as Mr. Garfinkel once declared, "just about
anything."
Therefore, Federal employees place their jobs on the line
whenever they release any information -- whether or not it was
actually marked classified at the time of the release. They risk
civil and criminal actions against them. The chilling effect is
obvious as a Minnesota January.
SF 189 flies in the face of the statutory right and
obligation of Federal employees to communicate with Congress so
we can properly oversee Executive actions. What waste, fraud,
incompetence; what malfeasance and misfeasance; what high crimes
or misdemeanors would never have seen the healing light of
legislative and public scrutiny if Federal employees of years
past had been forced to contend with such an all-encompassing
restriction?
It is also very curious that the term "classifiable" does
not appear in SF 189-A, the nondisclosure agreement for private
government contractor employees doing the some kind of sensitive
work as Federal employees. The Administration's explanation for
the missing term is that "contractors do not classify
originally." In fact, contractors create thousands and thousands
of classified documents which they are responsible for marking
and protecting. And contract employees are indistinguishably
involved in some of the most sensitive areas of federal activity.
Mr. Garfinkel may have come closer to the real explanation
for this outright discrimination when he said he was told that
"classifiable" could not be included in the industry form because
"Industry (would) come back screaming." This double standard is
inexcusable and unacceptable.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
IA-RDP91B00390R000200150028-2
6
B. SF 189 Implementation
At some agencies, SF 189 has been shoved upon Federal
employees without consideration or respect for procedural due
process. As we will hear today, Air Force employees who were
prudent enough to question signing the form were bullied,
threatened and harrassed.
Original Air Force, regulations on SF 189 made the
"McCarthyesque" statement that mere "reluctance to sign a
nondisclosure agreement will be considered lack of personal
commitment to protect classified information." The Subcommittee
looks forward to hearing an explanation by the Air Force.
In addition, in the frenzy to get employees to sign a
nondisclosure form, the Air Force even made employees without
security clearances sign. The reason? "Administrative '
convenience," according to the Air Force.
Even after Mr. Garfinkel's agency -- in response to legal
action by two public employee unions -- issued a directive
stating that agencies should not withdraw employee security
clearances solely on the basis of refusal tc ,;gn an SF 189, the
use of this intimidation tactic continued. One month after this
ISOO directive, the Navy issued instructions to withdraw employee
clearances if SF 189 wasn't signed.
III. CONCLUSION-
This record of inception, adoption, and implementation leads
one to an inescapable conclusion: SF 189, is intended to control
the vocal chords of Federal employees. Apparently the hope is
that by using sweeping terms whose definitions are as able to
change as the weather, and by threatening Federal employees with
the loss of their clearances and jobs, public scrutiny of
politically sensitive and embarrassing information can be
squelched.
This is a disturbing reappearance of on old phenomenon, for
the misuse of the term "national security interests" has always
been the last refuge of administrations more concerned with
hiding their problems than with protecting the public interest.
The concern about these nondisclosure forms is not new and
not a partisan matter. Members of both houses and both parties
have criticized the forms and fought to modify them.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06 :
IA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
7
There are tough criminal and civil laws, regulations and
standards of conduct on the books aimed at protecting properly
classified information. If the Administration is sincere about
preventing just the release of properly classified information
and they feel the current laws are inadequate, they have and
should work with the Congress to came up with fair and effective
laws that, recognize the competing needs of security and liberty,
oversight and overreach.
In fact, the Administration cannot point to a list of
disclosures of classified information warranting this action. In
fact, the most renowned case I'm aware of is that involving the
late Director of the C.I.A., who evidently met over 4 dozen times
with Washington Post reporter Bob Woodward. Mr. Casey apparently
disclosed disclosing apporently classified material on an ad hoc,
unrestricted and unmonitored basis -- at the some time he was
pushing for tougher controls on low level civil servants. Again
we see, as John F. Kennedy pointed out, that the ship of state
leaks from the top. And again, we do not hear a clamor from the
Administration to change this.
There is no question of the need to protect classified
information detailing our national defense, security interests,
and vital secrets. Carefully Worded nondisclosure forms can be a
useful tool with which to accomplish this goal by reminding
employees about their responsibilities. However, these forms
must apply to all who are custodians of the information -- and
without an artificial and repugnant distinction between public or
private employer, or between CIA Director and DOT clerk, or
between presidential friend and a GS-5.
National security needs must be balanced with the public's
right to know about the workings of their government, the need
for a free press, and individual free speech rights. SF 189
clearly tips the scale in favor of secrecy at the expense of the
press, Federal employee rights and the public interest.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
1A-RDP91B00390R000200150028-2
8
STATEMENT OF HON. CHARLES GRASSLEY, A U.S. SENATOR
FROM THE STATE OF IOWA
Senator GRASSLEY. Thank you very much, Mr. Chairman, and I
want to extend my thanks to you and to the members of your hard
working subcommittee for inviting my testimony, and of course, I
see you have many other interested parties, but we are all being
invited on what I consider to be a matter of profound importance.
It is, as we all know, a natural propensity of the Executive
Branch, and this could be under any Republican or Democratic
President, to protect information generated by the government and
its agents. If done legitimately, our nation's secrets, the disclosure
of which would endanger our security, remain protected.
However, if done zealously, it can be threatening, if not violate
the rights of free speech for individual employees. It can inhibit the
flow of information to Congress, and it can hinder our ability to
perform our constitutional responsibility.
So it is the business, Mr. Chairman, of the Congress to protect
the individual's rights to free speech, to encourage the free flow of
information, and to insure that nonclassified information remains
in the public domain.
These are the grounds, as far as I am concerned, for judging the
administration's implementation of Standard Form 189. We, in the
Congress, must ask ourselves this very basic question: Is 189 a le-
gitimate attempt to prevent disclosure of classified information or
is the administration overreaching its authority, seeking to gag
public servants in order to prevent embarrassing disclosures of
waste and abuse?
This is the question that I would like to address to you, Mr.
Chairman, and your subcommittee. On the surface, you might con-
clude that the intent of the administration is a legitimate attempt
to safeguard our nation's secrets.
I think the evidence indicates otherwise. My personal involve-
ment and dealings with the Executive Branch officials on this
matter indicate to me an attempt on their part to go way beyond
the legitimate protection of classified information.
Their intent, in my view, is to place a blanket of silence over all
information generated by the government. It is a broad, I might
say very broad, grab for power by any standard and it begs to be
addressed immediately by the Congress.
I would like to briefly discuss how I have come to this conclusion.
To begin with, we have to review some fundamental facts, and
these are very basic: that the Code of Government Ethics requires
the legitimate disclosure of waste, abuse and mismanagement.
Second, current law actually encourages and protects such disclo-
sures.
And, third, there are already statutes prohibiting the disclosure
of classified information.
In the face of these facts, it is up to the administration to provide
a justification for why this broad-reaching measure is necessary.
Furthermore, any action taken should in no way conflict with
the current law or rights provided under the Constitution.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
9
The administration so far has provided no justification for why
189 is necessary. Moreover, it conflicts with current law, the code
of ethics and the First Amendment.
The administration, then, is pursuing a back-door approach by
creating its own rules, its own obligations and its own remedies.
The American Law Division of the Library of Congress agrees that
189 violates current law and has provided us with an opinion to
that effect. I want to quote from it, in part, and then I would ask
that the entire document be placed in the record.
I would quote one short paragraph.
To the extent that the secrecy agreement because of its apparent breadth and
vagueness of terms chills or discourages the disclosure of any information which evi-
dences waste, fraud, corruption or illegality in government, that effect or result
would be in contrast to and in derogation of the intended results of the whistle-
blowing statute.
While the administration has not demonstrated a need for cor-
rective action, there is a rationale for suggesting why 189 is desired
by the administration. It is a fact of life that administrations, Re-
publican or Democrat, view whistleblowers as a germ within gov-
ernment.
Given that, the question is whether this administration views 189
as a tool for getting rid of those germs. The means for doing so are
obvious.
First, violation of 189 is much easier to enforce. Rather than
having to prove the criminal intent required by current law, a
simple breach of contract governed by a lower standard would
serve the same purpose. Therefore, it would be easier to go after
whistleblowers.
Second, 189 is peppered with language that is vague, ambiguous
and, in places, very unintelligible. The classic example of this prob-
lem is the term "classifiable.
The Director of the Information Security Oversight Office, who
will testify before you today, I understand, has taken up several
columns in the Federal Register attempting to define that word.
Mr. Chairman, I am afraid that language in the Federal Register
has been written in vain because reading that definition merely
compounds the confusion.
How does one then know when information is classified? The
answer is that it is marked "classified."
How does one know when something is classifiable? The answer
is that one cannot know. The term is so broad and undefinable that
it could supplant the term "lawyer" as a textbook example of
vagueness for first year law school classes. In other words, it is im-
possible for any reasonable person to understand what "classifi-
able" means such that he or she knows beyond a shadow of a doubt
what is prohibited from disclosure.
Mr. Chairman, the term "classifiable" is void for vagueness.
Given the combination of the two points made thus far, first,
that 189 creates an easier mechanism for enforcement, and second,
that the definition of "classifiable" is void for vagueness, any dis-
closure of any kind might then constitute a breach of contract and
thereby bring about the dismissal of the employee.
It is that wide-ranging grab for power which Congress, I feel, Mr.
Chairman, must address very swiftly and decisively.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
IA-RDP91B00390R000200150028-2
10
Now, I have dealt with the administration on this matter direct-
ly for several months, including meetings up here on the Hill and
meetings with the highest levels of officials at the White House.
My intention was to work out a reasonable implementation of this
secrecy agreement, and particularly a reasonable definition of the
term "classifiable."
These officials assured me that "classifiable" was not intended to
be broad. I took these officials at their word and sought to narrow
the definition of just what information is classifiable.
I offered to replace the Federal Register language with narrower
language taken directly, from a fact sheet issued by ISOO. It was
the most reasonable definition of the term "classifiable" that I had
seen, and it went quite far in eliminating the problem of vagueness
which was present in all previous attempts to define "classifiable."
As far as I was concerned, if they would accept this more narrow
definition of the term, which was consistent with their rhetoric,
then we would have had a basis for a reasonable agreement. But
the administration reneged on its initial acceptance of this narrow-
er definition, leaving me to wonder once again, Mr. Chairman,
whether the administration actually intends to implement an
agreement consistent with what it says or whether it is simply
trying to patronize those who disagree until somehow all of us in
opposition go back to sleep and forget about it.
Its insistence on a broad definition and its rejection of a reasona-
ble agreement are the best indications of the administration's true
intent. In my mind, Mr. Chairman, there is no opportunity for
transforming 189 from a gag order to a legitimate secrecy agree-
ment, given the stubbornness and the unreasonableness of adminis-
tration officials.
SF 189 remains a back-door way of going beyond the laws passed
by Congress. It is an attempt by the executive to implement con-
tractual laws of its own.
I would urge all federal employees to refrain from signing SF
189.
And so now, Mr. Chairman, you have invited me here to hear
what I had to say. So I urge you, as well, to do whatever possible,
legislatively or otherwise, to slam the back door shut and to re-
quire the administration to start at ground zero and to demon-
strate convincingly why SF 189 is necessary.
I would welcome and appreciate the opportunity to work with
you and your subcommittee to achieve that objective.
Once again, Mr. Chairman, I extend my thanks to you for invit-
ing my testimony and for inquiring in this very basic and impor-
tant matter not only as it deals with our national security, but as
it deals with Congress's right to get information and as it deals
with the constitutional right of free speech.
Mr. Chairman, if you have any questions, I would be happy to
respond. I do want to leave this document that I ask be put in the
record from the CRS.
Mr. SIKORSKI. Without objection, the American Law Division arti-
cle on this matter will be placed in the record at an appropriate
point.
I want to thank you on behalf of the subcommittee and the com-
mittee and the others who are working on this matter for your per-
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
11
severance and continued interest in this topic. I know it affects a
lot of people personally, over 2.4 million federal employees directly
and intimately.
You probably are the expert on "classifiable," what it is and
what it may be. Just in my looking at the testimony of Mr. Garfin-
kel, whose baby it is, there are at least four definitions that I have
seen in explanation of what "classifiable" is. The one that is in the
form, and then there is the one that came out in the regulations
defining it as material which as a result of negligence, time con-
straints, error, lack of opportunity, or oversight has not been
marked as classified information. That is repeated in a slightly dif-
ferent fashion in the testimony today of Mr. Garfinkel, who say it
is classified information that for some reason, whether by accident
or design, does not contain the classification markings that are as-
sociated with its identification.
Then there is a fourth definition that "classifiable" material is
not already classified information but that which is currently un-
dergoing a classification determination and requires interim protec-
tion.
It is kind of a moving target here. If I cannot appreciate it and
you cannot appreciate it, and you analyzed word for word, comma
for comma, how can the federal employee out there appreciate
what they are signing their name to?
Senator GRASSLEY. That may be just exactly the environment the
administration seeks because whether it is something that is very
difficult to understand, like a word like "classifiable," or whether it
is just several different approaches, it all has a chilling effect and
generally accomplishes through the back door what we know the
Executive Branch has been trying to 'do over long periods of time,
and you and I have both said under both parties.
Mr. SIKORSKI. I have the impression that you came to an agree-
ment reaching some definition, some parameters for just the single
word "classifiable," but that agreement was not honored. We are
using this as an example. There are other problems with SF 189,
but in this example, what is the definition that you came to that
would narrow it?
Senator GRASSLEY. The document that I refer to, both here as
well as in discussions I have had in my office, are from pages 10
and 11 of the accompaniment of the letter to Congresswoman
Boxer. The language that is so difficult to understand and that we
objected most to is "classifiable information," which, I quote,
"refers to information that meets all of the requirements for classi-
fication under Executive Order 12356 or under any other Executive
Order or statute that prohibits the unauthorized disclosure of infor-
mation in the interest of national security, but which, as a result of
negligence, time constraints, error, lack of opportunity or over-
sight, has not been marked as classified information."
Now, that includes everything except the words "et cetera, et
cetera," and what we wanted and thought we had agreed to was
the substitution at the bottom of the page. We feel that this expla-
nation would comport with their rhetoric, if they would go along
with it, and we felt that they did. But now we find out that they
are not. The language defines "classifiable" as "refers to unmarked
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
IA-RDP91B00390R000200150028-2
12
information that already is classified or meets the standards for
classification and is in the process of being classified."
It does not refer to unclassified information that might per-
chance be classified at some time in the future, and on and on. So
that is what we thought we agreed to.
Mr. SIKORSKI. Mr. Garfinkel in his testimony seems to give the
impression that it is just a question of being marked or unmarked.
It is all classified information. It just happens to be unmarked for
whatever reason.
That is embraced by the language you just read.
Senator GRASSLEY. Yes.
Mr. SIKORSKI. But they have backed up subsequent to your agree-
ment.
Senator GRASSLEY. Yes, that is right. The language at the bottom
of the page should be substituted for the beginning of the page, and
that is what we thought we had an agreement on.
Mr. SIKORSKI. How do we slam the door shut, as you suggested,
on this? There is a rider in the Senate.
Senator GRASSLEY. Well, in the short term, Congress has to
outlaw 189. In the long term, of course, committees with jurisdic-
tion, and that is not just your committee, but several committees in
the Congress, all interested parties have to work to bar back-door
legislating by the Executive Branch, particularly when its conse-
quences are like they are in 189.
It is also important, in my view, to examine why it is that non-
disclosure forms keep reappearing every three years, I guess, like
weeds growing out of a garden. Congress has to take a discerning
look at the proliferation of National Security Decision Directives,
such as those cited as authority for SF 189. Without stricter scruti-
ny and control of National Security Decision Directives, the Legis-
lative Branch is going to have to legislate quite sweepingly.
What I am saying is we have got to take some short-term action
that immediately stops 189. Beyond that, we are going to have to
go quite in depth in this. Otherwise, I think we will have a repeat
of this same problem year after year, administration after adminis-
tration, regardless of whether it's Republican or Democrat.
Mr. SIKORSKI. Senator, thank you very much.
Senator GRASSLEY. Thank you, and good luck. Let's continue to
communicate and work together on this.
Mr. SIKORSKI. We will be doing that. Thank you.
Our next witness is Congresswoman Barbara Boxer, member of
the House Armed Services Committee. Congresswoman Boxer has
been a leading critic of this Standard Form 189 and a strong pro-
tector of whistleblowers and others who are attempting to save the
taxpayers money.
Good morning.
STATEMENT OF HON. BARBARA BOXER, A REPRESENTATIVE
FROM THE STATE OF CALIFORNIA
Mrs. BOXER. Good morning, Mr. Chairman, and thank you once
again for taking leadership in these very important issues.
Mr. SIKORSKI. I am sorry we will not be betting on a dinner
between the Twins and the Giants.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
13
Mrs. BOXER. It was a tough game for us, and I was all set to bet
you a bottle of California wine, a sourdough loaf and a rivet from
the Golden Gate Bridge.
Mr. Sucoitsm. I was set to bet you a bottle of Minnesota wine.
Mrs. BOXER. Minnesota wine? Isn't that a contradiction in terms,
Mr. Chairman?
Mr. SIKORSKI. We have a wonderful wine industry. The growing
season is a little short.
Mrs. BOXER. I will tell you what I will do, showing how magnani-
mous I am. If you win the World Series, I will give you the bottle
of wine at least.
Mr. &iconic" Very good. Thank you, and if we win the World
Series, I will give you a bottle of Minnesota wine as well.
Mrs. BOXER. That is okay. We will wait until next year for that.
Mr. Chairman, I do want to thank you for holding these impor-
tant hearings on one of the most controversial policies that flows
from National Security Decision Directive 84, the requirement that
government employees sign a seriously flawed nondisclosure Stand-
ard Form 189.
It was my hope, as it was yours, Senator Grassley's and Les
Aspin's, that the administration would suspend its policy until our
concerns and questions could be thoroughly and publicly aired.
However, our requests were denied, and a growing number of mili-
tary and civilian employees of the Department of Defense who
refuse to sign Form 189 are threatened with the loss of their secu-
rity clearances.
It disturbs me greatly that our pleas went unheeded. Had it not
been for the lawsuits filed by two unions representing federal em-
ployees, those individuals, including Ernest Fitzgerald, would have
already lost their clearances and possibly their jobs. Mr. Chairman,
I might add that Ernie Fitzgerald has contributed so much to this
government by pointing out waste, fraud and abuse that to lose
someone like Ernie Fitzgerald would be a terrible loss for all of the
taxpayers and the citizens of this country.
The administration has said it will not revoke the clearances of
those who refuse to sign the form pending the outcome of the
court's decision and have tried to better define terms, such as
"classifiable."
However, while some progress has been made, I do not believe
that all of our concerns have been adequately addressed, and there-
fore, I object to the fact that federal employees are still being asked
to sign the form. I understand in my own office I was asked to sign
the form by the DOE, and we are hoping I did not sign it. The fine
print was such that it is very possible that it was signed. We are
checking now. My husband, who is a lawyer, always says you read
every single line in a form that is put before you, but the fact is we
in Congress are being asked to sign this form, and it is incumbent
upon us to make sure that that stops.
I certainly was unhappy to learn that Senator Grassley does not
have the agreement with the administration he thought he had.
Mr. Carlucci had sent me a letter in which he had suggested some
new language, and Senator Grassley, as I am sure he testified,
thought he did have an agreement. As a matter of fact, he told me
that when I saw him about a week or two ago on another matter,
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
ICIA-RDP91B00390R000200150028-2
14
and it turned out that, in fact, the changes published in the Feder-
al Register do not go far enough. They leave too many loopholes
allowing for retroactive classification after information has been
disclosed.
So after months of negotiation, we still have not come to a satis-
factory solution.
I firmly believe the whole process should be deferred pending
congressional review of the entire policy. My main concern, which I
share with my colleagues in Congress who have weighed in on this
issue, is that Form 189 will impede the flow of information to Con-
gress.
And, Mr. Chairman, you know as well as I do that is how we
make our decisions. We need to have information, and while I have
no quarrel with the need to protect classified material, the word
"classifiable" is so broad and so vague that it could include any-
thing.
To use Mr. Garfinkel's words when he was asked about the term
several months ago, he said, "It could include anything." In other
words, the form holds whistleblowers responsible for disclosing un-
classified information to Congress, the Inspector General or to any
legitimate recipient, information which might, after being dis-
closed, be retroactively designated as classified.
That whistleblower would then be liable for unauthorized disclo-
sure of classified information. This would, indeed, have a serious,
chilling effect on conscientious public servants considering whether
to report evidence of waste, fraud and abuse to Congress, the In-
spector General or any authorized recipient.
Mr. Chairman, you and I know too well that many government
employees are already afraid to stick their necks out, to risk their
careers to do what they know is right. They certainly do not need
another deterrent.
We do need the information these people provide us. Without it,
Congress and the American people are at a terrible disadvantage.
For instance, the House Armed Services Committee depended on
candid, up-front assessments by military and civilian field person-
nel in its investigations of problems of the B-1B and the MX mis-
sile. Likewise, information about faulty and overpriced weapons
and spare parts has come from both civilian and military employ-
ees of the Department of Defense.
It would be a tragedy if individuals such as these, on the front
lines, with intimate knowledge of our defense procurement system,
were further discouraged from reporting problems.
Mr. Chairman, the Post Office and Civil Service Committee has
worked long and hard to improve whistleblower protection for fed-
eral employees. I introduced legislation to improve the remedies
available for military personnel who disclose waste, fraud and
abuse to the Inspector General or to the Congress.
These efforts are necessary because it is very difficult to protect
whistleblowers. The current protections simply are not working,
and, Mr. Chairman, I urge you to join me in ,that fight because we
have yet to get that bill through the Armed Services Committee,
and we are hoping for hearings this month.
I recognize that the administration has given us assurances that
SF 189 will not supersede the existing statutes for protection of
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
15
whistleblowers. However, anyone contemplating blowing the whis-
tle still has to fear potential prosecution and the personal and fi-
nancial sacrifice it will entail to clear his or her name.
The administration has not yet made a convincing argument for
the need to protect "classifiable" information. That does not seem
to have been a problem before. Until this committee, Mr. Chair-
man, and other committees with jurisdiction over such matters can
be convinced that there is a serious problem with the leaking of
"classifiable" information, and until the nature and purpose of the
nondisclosure form is agreed upon, I prefer that Form 189 be aban-
doned.
And I want to make one more point to you, Mr. Chairman, that I
think is very important. Yesterday I was at a hearing over at the
Armed Services Investigation Subcommittee, and we discussed a
shocking report by the Defense Investigation Service about the lax
security that exists at contractor sites involving work on highly
classified or what we call "special access" or "black" programs.
Very briefly, this report concludes that these "black" programs
are not receiving adequate oversight and that there are so many of
them no one in the Defense Department even knows how many of
these programs exist and what they are. There is no central reposi-
tory for all of these "black" programs, and as a matter of fact, tes-
timony yesterday indicated that only approximately 25 percent of
these programs have the proper clearance.
Mr. SIKORSKI. We do not know how many there are. We do not
know who is in charge of them. We do not know how much they
cost the taxpayers, and we do know that security on some of these
is incredibly bad.
MS. BOXER. Exactly.
Mr. SIKORSKI. And these are the most sensitive programs. That is
why they are not known to many people.
Ms. BOXER. That is exactly right, and as a matter of fact, this
report, I believe, emanated from legislation authored by your col-
league on your other committee, Energy and Commerce, Ron
Wyden. This report was made available to us, and it is really
shocking to see that here we have programs that are clearly super-
secret programs, and they are treated with great laxity and lack of
security.
So here we are worrying about "classifiable" information, sup-
posedly, while we are in a mess over on the special access or the
"black" program side. It says to me something else, Mr. Chairman.
What it says to me is that this whole issue over this form, this
entire issue is really a red herring; that we are really just trying to
stop people from blowing the whistle on fraud, waste and abuse.
I would suggest that if the administration is really concerned
about tightening up on the leaking of classified information, it
should focus on implementing reforms to correct the deficiencies
documented in that DIS report. That would seem to me a far more
productive and fruitful effort than trying to scare government em-
ployees with that Form 189, a form that is a serious setback to con-
gressional efforts to better protect whistleblowers.
Mr. Chairman, again, I want to thank you for your leadership on
this issue. We have worked long and hard on many of these issues,
and I look forward to working with you on this one.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
16
Mr. SIKORSKI. Thank you.
I think we have hit classifiable. The other issue that you have
raised is an important one, as we have seen in the Iran-Contra
hearings, of congressional oversight without the capacity of federal
employees to unfetteredly petition members of Congress to blow
the whistle on fraud and waste, incompetence or misfeasance or
malfeasance. We are not going to be able to do the oversight that
we need to do, and there is going to be in the long term -a break-
down in Executive Branch functioning as well.
Many would prefer not to have to come up and testify because it
is not fun to take time out, prepare yourself, prepare the testimo-
ny, answer questions, attend long hearings a few times a week,
sometimes many times a week. And yet that is an important part
of the process if the Executive Branch is to do the job they are re-
quired to do under the law.
And the only way we can determine Executive Branch effective-
ness is if we have information, and we are not going to get it if
employees are any more intimidated than they already are.
Ms. BOXER. Exactly.
Mr. SIKORSKI. All right. We will put in the record without objec-
tion another article by the experts at the CRS, Library of Congress,
on the history of use of Executive Orders and other statements
that are not found in statute or in the Constitution to secure ever
so tightly government information and the broadening of the terms?
that have now encompassed virtually any government document
into this category of "classified" or "classifiable" information.
Thank you.
Ms. BOXER. Thank you very much, Mr. Chairman.
I think programs are classified or they are not, and any other
word is just being used to stop people from telling the truth to Con-
gress, and we have got to put an end to it. Simple.
Mr. SIKORSKI. Thank you.
Congressman Brooks is on his way. We will begin the next panel,
and if he comes in, we will then take him.
Our next panel consists of two witnesses, Mr. Ernest Fitzgerald
and Mr. Louis Brase. Mr. Fitzgerald is a Management Systems
Deputy with the Air Force and a courageous, well-known whistle-
blower who helped bring this particular issue to light. He drew
congressional and media attention when he refused to sign SF 189
because of the ambiguities in its text and their affect on employee
rights. The subcommittee is honored to have Mr. Fitzgerald here to
share his thoughts, experience, and expertise on employee nondis-
closure agreements.
Why don't you come on up, Ernie.
And Mr. Louis Brase is the Cryptological Maintenance Training
Manager with the Air Force and has had the frustrating, embar-
rassing experience of facing the consequences of refusing to sign
the SF 189 disclosure form. From the loss of his security clearance
to his job transfer and recently to his reinstatement to his position
as training manager, Mr. Brase will share with the subcommittee
his nightmarish experience and thoughts on failing to sign SF 189.
Come on up, Mr. Brase, and he is being accompanied by his at-
torney, Mr. Joe Kennedy.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
.7,1A-RDP91B00390R000200150028-2
17
As I understand it, Mr. Fitzgerald, you do not have a statement;
is that correct?
Mr. FITZGERALD. Not a prepared statement, Mr. Chairman.
Mr. SIKORSKI. Do you want to make any comments at this point?
Mr. FITZGERALD. Yes, I would like to explain briefly how I got
into this mess and give you my observations of how we might get
out of it.
STATEMENTS OF A PANEL CONSISTING OF ERNEST FITZGERALD,
DEPUTY, MANAGEMENT SYSTEMS, OFFICE OF FINANCIAL MAN-
AGEMENT, U.S. AIR FORCE; AND LOUIS BRASE, CRYPTOLOGI-
CAL MAINTENANCE TRAINING MANAGER, U.S. AIR FORCE
Mr. FITZGERALD I was minding my own business doing regular
bureaucrat stuff in my office in the Pentagon when I was visited on
the 13th of July by a military officer who threatened me: either
sign this job or lose your security clearance.
That riled my competitive spirit, and I was compelled to start
studying Standard Form 189 and its related procedures.
Then on the 2nd of July of 1987, I received a letter from another
military officer, my new military boss, General Watts, in which he
threatened to take away my security clearance and deny my access
to classified information if I did not sign the paper. He gave me 30
days.
So that really galvanized me in my purpose, and I began to study
this process in earnest.
I am not a lawyer, but I have read lots of contracts, and this is
perhaps the worst contract I have ever seen in my life. I have seen
some really bad ones, Mr. Chairman, in the Pentagon with giant
corporations, but nothing as bad or one-sided as this.
The lawyers have told me it is called an adhesion contract, a one-
way deal, and indeed, it is clear from the changes that have al-
ready been made since we began to make a fuss about it, that the
employee's signature is intended to bind him forever, and that is a
long time.
Now, even the Third Reich was only expected to last 1,000 years,
but the government employee is bound forever. But the govern-
ment claims for itself the right to change the terms of that con-
tract at will. You know, the government can put out a new inter-
pretation in the Federal Register every Monday morning, and the
employee is bound by whatever the government comes up with.
I should add right here, I think, that there is a lot wrong with
this so-called contract beyond "classifiable." In this instance, the
term "classifiable" was turned on its head. In the past it has been
used as a limiting term, as in "properly classifiable and, in fact,
classified."
Mr. SIKORSKI. In fact, the courts in more recent cases have em-
braced the term "classifiable" as meaning a limit on "classified."
That is, Grandma's recipe that ended up with a classified marking
is not classified because it is not classifiable; is that correct?
Mr. FITZGERALD. That is my understanding in the past, but in
this instance they have turned a limiting term into an expansion-
ary term, which Mr. Garfinkel said in my presence could mean
anything, and I think we owe Mr. Garfinkel a real debt for his
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
18
candor. I do not see how anybody can be comforted by what he
says, but nevertheless, he has been candid about it.
So to summarize, I have submitted for you and your staff and for
the record, if you wish, a long list of unanswered questions, ques-
tions, responses and my comments on those, and as a consequence
of this long list of unanswered questions and the truly frightening
answers to those that I did get, I began to look at why the adminis-
tration was really doing this. It obviously was not for the stated
purposes of alerting us to our duties and getting our commitment
to protect classified information, which is exactly what General
Watts wrote to me, and which I wrote back recommitting on those
same points. If that were the case, it would have been solved on the
14th of July when I wrote back to General Watts.
In asking about the legal basis, I was told that it was the Nation-
al Security Decision Directive 84. Ms. Buck, in her testimony, talks
about the obligation to carry out the statutes and Executive
Orders. This is neither.
We have somewhere between two and 300 NSDDs. Some are
secret; some are part secret. It is truly Kafkaesque. You do not
even know what you are being held accountable for in some cases,
and I would endorse Senator Grassley's plea that this be looked at.
This is truly scary, the fact that these things are viewed as having
the force of law, particularly within the military.
The distribution within the Services at, least in the Air Force is
through military channels. If I want to see an NSDD that is classi-
fied, I have to go hat in hand to the military, sign a register, and
then they may let me read it.
You know, you do not know what we are being held accountable
for, and we do not either. So I would emphasize that very strongly.
The basis for arguing that the NSDDs have force of law was said
to be the Willard Commission report. Senate investigators fur-
nished me a copy of one, and I wanted to read you something that
confirms my conclusion, Mr. Chairman, that the Standard Form
189 and related procedures have nothing to do with true security
protection.
In the Willard Commission report itself it says, "Present civil
statutes and regulations permitting disciplinary action for unau-
thorized disclosures by government employees are generally ade-
quate." This was issued March 31, 1982. They obviously do not
need this to protect classified information. They go on to say in the
same sentence, "Except that they apply only to persons who dis-
close classified information, not to those who receive it."
Mr. Chairman, this whole document, the Willard Commission
report, is aimed at the press and the Congress and recipients of in-
formation from the government. They admit that there is no prob-
lem in disciplining employees who reveal classified information,
but it is necessary, since they are, as they complain, limited in
their interrogation techniques. It would appear that they would
welcome authority to use torture.
They sought apparently to intimidate the sources for Congress
and the press. In my correspondence which you asked that I
submit, I had attached originally--
Mr. SIKORSKI. Responses to the Air Force and their response back
will be put into the record at the appropriate place.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
.01A-RDP91B00390R000200150028-2
19
Mr. FITZGERALD. Thank you, Mr. Chairman.
I had submitted originally as attachments to two pieces of corre-
spondence classified documents which I viewed as improperly clas-
sified, which I requested be declassified. I have never heard from
either of those requests substantively.
However, in response to a request from the House Armed Serv-
ices Committee, the National Security Council has already declassi-
fied one of these papers, which was a March 12, 1986 memorandum
from Admiral Poindexter to Secretary of Defense Weinberger, and
I believe your staff has gotten copies of that for you.
I think in examining that memorandum you can see why the ad-
ministration, and probably as Senator Grassley has said, other ad-
ministrations, would like to have the power to cover up this kind of
stuff.
The document itself is classified "secret," and it is nothing more
than a plan to bamboozle Congress. There is not one iota of true
national security information in that document.
Mr. SIKORSKI. Mr. Fitzgerald, we are talking of a letter on White
House stationery dated March 12, 1986, classified "secret," and
stamped over that is a larger "unclassified" stamp at this point; is
that correct?
Mr. FITZGERALD. Yes, sir, that is correct, and down at the bottom
it has the notation--
Mr. SIKORSKI. "Declassified"?
Mr. FITZGERALD. Yes, sir, on the 8th of September 1987.
Mr. SIKORSIU. And this memo is from John Poindexter for the
President to the Honorable Casper Weinberger, Secretary of De-
fense, and the subject is implementation of the recommendations of
the President's Commission on Defense Management.
The second paragraph is interesting. "The NSDD"?that is the
National Security Decision Directive--
Mr. FITZGERALD. It eventually became 219.
Mr. Sixoitsxi [continuing]. On the Packard Commission reforms,
"is intended to strengthen your hand"?this is Poindexter writing
Weinberger?"vis-a-vis the legislation now in both Houses and
maintain your control of the implementation process. We have
tried to be sensitive to the President's desire to implement the
Commission's recommendations without infringing on your," Wein-
berger's, "authority or prerogatives. The events of the past week
have demonstrated the Hill has been most favorable towards the
Commission's report. The report thus gives the President consider-
able leverage in dealing with the more radical proposals for reform
than now abound in both Houses. Because of our need to sustain
momentum on this and your pending trip to Europe, I hope we can
have your comments this week before you leave."
The only thing I have not read is the first paragraph that just
cites the memo and the tabs that are in draft letters to Houses of
Congress.
It does not seem to be top secret to me.
Mr. FITZGERALD. Not properly so, Mr. Chairman, in my opinion,
but from the standpoint of wanting to use what in your other com-
mittee has come to be known as the "Poindexter-Packard scam" to
head off procurement reform, it was absolutely necessary that they
keep their intentions secret, and that was done.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
IA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
20
This letter is dated March 12, 1986, and it was not declassified
until the damage was done, and as you well know, you and Mr.
Dingell have written extensively about this, and Chairman Dingell
wrote to the President about this matter exactly a year ago today,
on October 15, 1986. He wrote a real blast to the 'President, re-
questing that administrative and criminal sanctions be invoked as
appropriate for misuse of security classification.
Nothing has been heard of that except to intensify the pressure
on government employees to keep their mouths shut.
I have another example. I notice that Chairman Brooks came in,
but I have another example.
Mr. SIKORSKI. Let's finish on this one. This one has no basis for
national security interest classification. There is nothing about de-
fense or eryptology or any projects whose technology or anything
else relates to our national security interest. This is pure legisla-
tive strategy that could be embarrassing if it became public in one
sense because it is very honest, and it shows frame of mind with
regard to how the White House was treating the concern for real
reform in procurement of defense materiel and weaponry, but also
in the sense that it shows that this whole push against waste, fraud
and abuse was more a scam than it was sincere.
Mr. FITZGERALD. Yes, sir,. and the more you dig into the sub-
stance that was back of this, the more convinced you become of just
those points.
Now, with respect to the government employees seeing this,
before the big, new drive on the gag order, there would have been
no reason why any employee should not have brought this to you
or any other member of Congress. All of you have clearances.
" Mr. SIKORSKI. In fact, under whistleblower protections, an em-
ployee would have been required to disclose this.
Mr. FITZGERALD. Certainly under the Code of Ethics, in my view,
and to turn it around, an employee seeing this absent the "secret"
stamp would have no notion that it could be "classifiable." Yet it
was classified by the highest authorities in the land for the Presi-
dent. You cannot get much higher than that.
Mr. SIKORSKI. Thank you.
We are going to return to this panel. At this point, however, we
want to introduce Chairman of the House Government Operations
Committee, distinguished Congressman Jack Brooks.
His committee has vigorously examined National Security Direc-
tive 84 and other troubling aspects of the administration's security
policies. The subcommittee is honored to have you testify before us
today.
STATEMENT OF HON. JACK BROOKS, A REPRESENTATIVE FROM
THE STATE OF TEXAS
Mr. BROOKS. Thank you, Mr. Sikorski. I am delighted to be with
you, and I want to commend you for holding these hearings on this
very, very critical issue.
As you know, the policy of imposing nondisclosure contracts or
secrecy Pledges on hundreds of thousands of federal employees was
adopted by President Reagan when he issued his infamous Nation-
al Security Decision Directive 84 back in March of 1983.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
21
NSDD 84 was severely criticized at that time both in Congress
and in the national media. The media understood it. As you recall,
I introduced legislation to block the most controversial portions of
that directive, those dealing with massive polygraph testing and
censorship contracts.
In the face of growing support for that legislation, the President
announced his intention to abandon those portions of the directive,
but despite the President's announcement, those controversial poli-
cies authorized under NSDD have continued to be implemented
throughout the administration and are in effect today.
Although some people believe the President when he says he is
not going to do something, and the perception does persist that
these alarming policies were curtailed, the truth is, the fact is that
the bureaucracy has just kept right on going with polygraph test-
ing and secrecy pledges. I hope today's hearings will dispel that
false impression and illuminate the truth that the NSDD monster,
for all practical purposes, is alive and well today.
Specifically with regard to nondisclosure agreements, NSDD 84
had two separate provisions. One (a) required all persons with au-
thorized access to classified information to sign a nondisclosure
agreement, and 1(b) required "all persons with authorized access to
sensitive, compartmented information," to sign a nondisclosure
agreement, which includes a provision for pre-publication review.
It was this latter requirement, the SCI contract with a pre-publi-
cation review requirement, that raised the most concern back in
1983. The Government Operations Committee, which I chair, held
hearings on this requirement, and on the polygraph provisions.
Professor Thomas Emerson of the Yale Law School, considered
by many to be the leading expert on the First Amendment, testi-
fied that:
The essence of Directive 84 is to impose a sweeping prior restraint. It sets up a
classic and virulent scheme of censorship. As Chief Justice Berger has said, "prior
restraints are the most serious and least tolerable infringements on First Amend-
ment rights."
Professor Bollinger of the Michigan Law School concurred, stat-
ing:
For more than six decades now the courts of this country have struggled with
the task of defining a workable set of concepts and principles for the First Amend-
ment. Throughout this time, however, a virtual consensus has formed around one
basic idea, and that is that prior restraints are the least favored the most distrusted
method of proceeding against harmful speech activity. Licensing or prior restraint,
as it has been repeatedly noted in the literature had in cases, is the one matter,
perhaps the only matter, we can be confident that the framers intended to prohibit
by the free speech clause.
In November of 1983, the Government Operations Committee
issued a report entitled "The Administration's Initiatives to
Expand Polygraph Use and Impose Life-long Censorship on Thou-
sands of Government Employees." In our report, 98-578, the com-
mittee concluded that the pre-publication review agreements re-
quired by the President's Directive constituted an unwarranted
prior restraint in violation of the First Amendment.
I introduced legislation the following year to prohibit them.
Within a month or so Robert McFarland, the then National Securi-
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
22
ty Advisor, informed Congress that the President had decided to
suspend NSDD 84 1(b), which required pre-publication review.
Nevertheless, the facts are and the truth is that today hundreds
of thousands of federal employees have signed and are being re-
quired to sign life-long pre-publication review contracts, and that
contract is labeled Form 4193.
And, in addition, millions of government and government con-
tractor employees have been required to sign Form 189, another
life-long nondisclosure agreement developed to implement NSDD
84 1(a).
I would like without objection to submit the Standard Form 189
if I may, sir. Thank you very much.
Although this contract does not contain an explicit pre-publica-
tion review requirement, it contains numerous other provisions-
which impinge deeply upon First Amendment rights. The contract
prohibits the disclosure of classified or classifiable information.
Now, that is kind of a neat, little word they put in there, "classi-
fiable." Think about it. Almost everything in the world could be
construed as "classifiable": the temperature, the date.
Mr. SIKORSKI. Your golf score.
Mr. BROOKS. I do not have one.
But can you imagine how much of a chill that word alone can
put on free speech, "classifiable"? Almost anything.
And who would determine what is "classifiable"? Anything that
somebody said they do not like would be "classifiable."
Now, further, in Form 189 it specifies that government informa-
tion is government property. As Professor Emerson pointed out,
the government is laying the basis for an official secrets act. Will
the government use the federal theft statutes to criminally pros-
ecute-leaks, as they would somebody who steals a typewriter?
In addition, Form 189 indicates that employees who sign are in
positions of special confidence and trust. Does this implicitly re-
quire pre-publication review of their writings?
The list of problems with Form 189 goes on and on. The time has
come for Congress to fully examine the entire policy of using these
life-long contracts with employees to implement the government's
rules regarding protection of classified information.
There is no doubt that our national security requires protection
of truly sensitive military and diplomatic secrets. The administra-
tion, however, is using contracts to lay down and enforce rules that
must be made directly by statute .through the democratic process.
By using contracts, the administration is attempting to unilater-
ally legislative sweeping, new -constraints that run directly counter
to the American approach to free speech and open debate. Perhaps
it would be appropriate to require employees to, sign a simple state-
ment acknowledging 'that they are aware of their responsibilities in
handling classified information; that they will be subject to statuto-
ry and regulatory sanctions for the unauthorized disclosure of such
information. But pre-publication censorship, prohibitions against
the release of "classifiable information," the use of property stat-
utes to police disclosure and back-hand attempts to chill permissi-
ble speech are unwarranted and dangerous in a democracy.
In short, this administration is overreaching. If you want to
know just how far they are reaching, you might be interested, Mr.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
DIA-RDP91B00390R000200150028-2
23
Chairman, knowing that the Department of Energy has recently
sent me?and I was probably the wrong one to send it to?a Form
189, nondisclosure contract, to sign so that I can have access to a
report done by the GAO for the United States Congress. I could
hardly wait to get it. [Laughter.]
Now, I believe that is overreaching.
I have provided the Department of Energy with an appropriate
response.
Mr. SIKORSKI. Without objection, it will be included in the record.
[The above-referenced material follows:]
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
'wow., WIMP
JACK SHOOK. MOW. OVHWAN
JOHN SHOINS. M. WYMAN
GROWS COLONS. UMW
GUNN MUSK OKLAHOMA
WWI so. WARAYJS CALOORNSH
1SD WOW. NEW YORK
WOE SWIM. OKUHOMA
L Nom GOWNS
IOW POMO% JR. SEORSLA
LWOW FRO. MASSACHIISSITS
TOY WSW.. CALHOWILS
HOBERT E. WISH J.L. WEST VINGOOR
MAJOR R. OWENS. HEW YORK
SOWN. TOWNS. NEW YORK
JOHN M. SPRATIVJR.. SOOTS CANOLSW
JOE KOSTER OVOSSYLVANIA
ERWHICH. HUM.
OSISHO O. WISCONSIN
NSW G. eustunun. e. TOMS
ISJOSIOW O. YAM. GYFORNIN
SHOWS C. SAWYER MO
LOU= SS smarm% NEW VORIC
WU GAMY WOW.
MN. POOR CALSWOR?
24
ONE HUNDREDTH CONGRESS
el3117039 of the United g5tates
time of Ittintoentatinto
COMMITTEE ON GOVERNMENT OPERATIONS
2167 RAYBURN HOUSE OFFICE BUILDING
WASHINGTON, DC 20616
The Honorable John Herrington
Secretary of Energy
Washington, D.C. 20585
Dear Mr.
October 14, 1987
WWWWWWWM
RAMMWMftaWYOM
WMff...1.1.MMTIWMM
WILIMMVOMMXXLMUSTWAPM
UMAYLOWQMV.
KKMAMMOMMO,VM
JOSEMID.WAXPIEW.M
ANWWWW.MM
nommummow
ElomwEwarwummilo
NWWW,WWWXLMWMM
4MMUWM.MWWM
JON L KYLARRONA
MPOESTLICONW.00MMIA
OMMWMMMINMUO.
w.mw?nsani
WWWV-21.0.4
I am 1ff receipt of a letter from Troy Wade, II, indicating that the Depart-
ment of Energy has granted me a "Q" Access Authorization. According to Mr. Wade,
the Department of Energy's Office of Congressional Affairs requested that I be
processed for such an access "in connection with [my] responsibilities as a
Representative of the Ninth Congressional District of Texas and specifically in
connection with [my] interest in the General Accounting Office's report on home
porting."
Please be advised that I have not requested a "Q" clearance and, as a Member
of Congress, do not need Executive Branch clearances to carry out my legislative
responsibilities.' The concept of an Executive Branch bureaucrat determining
whether elected members of the Legislative Branch of our government should be
granted clearance to receive access to government-held information deeply offends
the basic constitutional framework of separation of powers. It would be
impossible for me, as Chairman of the Government Operations Committee, to carry
out my oversight responsibilities over the Executive Branch agencies if those
very agencies could determine what I can and cannot have access to.
To compound the problem further, Mr. Wade's letter asks me to sign a
Classified Information Nondisclosure Agreement (Standard Form 189). DOE wants me
to agree, in a contract, to get approval from the Department of Energy before I
can discuss matters which are classified or "classifiable" in the eyes of the
agency I am obligated to oversee. For obvious reasons, I believe it is
inappropriate to suggest that Members of Congress "contract" with the Department
of Energy. Furthermore, in my opinion, such a contract is incompatible with the
First Amendment to the Constitution regardless of who is asked to sign it.
While I can appreciate the Department's desire to protect sensitive
information. I believe you would agree that respect for our country's basic
Constitutional institutions is preeminent in this instance. I, therefore,
respectfully decline to sign the nondisclosure agreement and I do not acknowledge
the granting of a "Q" clearance as a precondition of my access to Department of
Energy information.
With best wishes. I am
Sincerely,
.020,11
K BROOKS
Chairman
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
.01A-RDP91B00390R000200150028-2
Honorable Jack Brooks
House of Representatives
Washington, DC 20515-4309
Dear Mr. Brooks:
25
Department of Energy
Washington, DC 20585
September 8, 1987
In connection with your responsibilities as the Representative of the Ninth
District of Texas and specifically in connection with your interest in the
General Accounting Office's report on home porting, the Department of
Energy's (DOE) Office of Congressional Affairs requested that you be
processed for a "Q" access authorization.
Since my office is responsible for processing access authorizations, I have
been asked to advise you that pursuant to Section 145.b of the Atomic Energy
Act of 1954, as amended, a DOE "Q" access authorization was approved. Your
DOE file number is WA-70751. Enclosed for your information and retention is
a copy of DOE's "SECURITY EDUCATION HANDBOOK."
To assist in meeting our mutual responsibilities of ensuring the protection
of classified information, you are urged to request a DOE security briefing,
which can be accomplished in your office in approximately 15-20 minutes.
Arrangements for this briefing can be made by contacting Gordon Vander Till,
Office of Congressional Affairs, 586-4771. I also ask that you complete the
enclosed Classified Information Nondisclosure Agreement (Standard Form 189)
and return it to DOE in the enclosed preaddressed envelope.
When you no longer require access to Restricted Data, please complete the
enclosed Security Termination Statement (DOE Form 5631.29) and forward it to
this office.
In the meantime, if I can be of any assistance, please do not hesitate to
contact me.
Sincerely,
Troy E Wade II
Acting Assistant Secretary
for Defense Programs
Enclosures
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
IA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
26
Mr. Chairman, in its zeal to prevent leaks, the administration
has not weighed the value of free speech. There is no balance. The
administration is accepting the practices of our adversaries in
adopting censorship as a tool of the national government.
I hope today's hearing will fully expose the continuing and grow-
ing vitality of NSDD 84 and the serious danger it poses to our re-
public.
I thank you for being here. If there are any questions I can
answer, I will try.
Mr. &imam. Thank you.
In this administration this is not new. The reaching to silence
federal employees has gone beyond anything attempted before, but
in this administration apparently this process began when the
President announced he was up to his keister in leaks. Some have
suggested that the leaks were not the problem. It was concern for
protecting the keister that this all evolved from.
Mr. BROOKS. That is one of the basic rules, to protect your own
keister.
Mr. SIKORSKI. That is right.
If you listen to the arguments in favor of this nondisclosure form
and the pre-publication paragraph in it and the rest and the other
polygraph activity that is continuing on, one would believe that we
are awash in leaks of classified information by public employees,
warranting a nondisclosure agreement form that goes beyond clas-
sified to classifiable information and deals with indirect, unauthor-
ized leaks.
Are you aware if we awash of leaks here? You are Chairman of
the Government Operations Committee. Are you aware of a huge
list of leaks of classified information?
Mr. BROOKS. I am not. Most of the classification, in my judgment,
is not to keep our enemies from finding out information. It is to
keep the American people and the Congress from finding out what
in God's world various agencies are doing and how they are throw-
ing away money, wasting it.
They preach economy, and they throw away money like dirt, and
lie and cheat and hide and dissemble to keep Congress from finding
out, and for. God's sake, they do not want the American people to
find out.
Now, that is what their real complaint is, that the people and
Congress might find out what they are doing. Reprogramming
money, wasting money foolishly, not enforcing the law, not enforc-
ing safety provisions, all sorts of things, and they just do not want
anybody in a position to know to say publicly that, yes, this did
happen. They want those people to shut up and to go away.
Mr. &imam. Selling arms to Iran was one thing.
Mr. BROOKS. Oh, they loved that. They did not want the Ameri-
can people to find out that. It was terrible for them to find out.
They never believed in trading with the enemy. They would never
trade with terrorists. No, sir, they would not, until you caught
them.
Mr. SIKORSKI. Mr. North signed a nondisclosure agreement.
Mr. BROOKS. As you recall, the President signed off on the find-
ing himself, which authorized the selling of arms to the Iranian
terrorists. And then they had their people down there proud of
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
.7,1A-RDP91B00390R000200150028-2
27
doing it. North and Poindexter said, yes, they should have done it
and wanted to do it and that they were proud to have lied to Con-
gress, lied to the American people, and lied to individual members
of the administration.
They cut out of the loop the Secretary of State, the Secretary of
Defense Weinberger, and whoever fought the program. I do not
want Mr. Fitzgerald to get upset, but Weinberger even had enough
sense and judgment to know that you should not be selling arms to
the terrorists in Iran and was not for it. So they just went right
around him.
Mr. SumRm. Now, Mr. North had signed a nondisclosure agree-
ment. Mr. North disclosed to the Iranians, as I understand the
public testimony, classified information.
Mr. BROOKS. Well, that was part of the deal. He was giving them
classified information about Iraq, probably picked up off of the sat-
ellite, and he was feeding them the data. That was wonderful,
wasn't it?
But they love him. They love him. He is one of Reagan's heroes,
but he is not one of mine.
Mr. SIKORSKI. It will be interesting how the administration is
treating that disclosure of classified information, contrary to the
laws, the statutes, and any nondisclosure agreement.
Mr. BROOKS. They will probably have that great defender of the
faith, Mr. Meese, prosecute him. [Laughter.]
Mr. SIKORSKI. Thank you, Mr. Chairman.
Mr. BROOKS. It is a pleasure to be here with you and I am proud
of you.
Mr. SIKORSKI. It is a pleasure to have you here. Thank you.
We will return to our panel of Mr. Fitzgerald and Mr. Brase, ac-
companied by his attorney, Mr. Kennedy.
Mr. Fitzgerald, did we have anything more to talk about in this
Poindexter letter?
Mr. FITZGERALD. I think, Mr. Chairman, I had made my major
point on the matter.
There was another document that I referred to. In my September
10, 1987 memorandum to General Watts, another classified docu-
ment that I asked be declassified, and not having heard from that,
I resubmitted it yesterday to the Secretary's office and asked that
it be forwarded to you.
Now, my impression is that since you are a member of Congress
and have a security clearance, that could be forwarded to you with
or without clearance. I do not know whether that has been done or
not. I was hoping, first, that it would be declassified so that we
could discuss it publicly; if not, that they would simply send it to
you so that we could discuss it perhaps privately.
But that document was another case of something that in my
opinion is improperly classified. It essentially was a chart that de-
picted what amounts to two sets of books for the Pentagon, for the
Air Force part, and the whole Pentagon has the same problem.
In the so-called out-years, the last three years of the five-year de-
fense plan, the sum of the detailed budget estimates greatly ex-
ceeds the President's fiscal guidance by tens of billions of dollars.
Now, this is a particular problem related again to the Poindexter-
Packard matter because under Poindexter-Packard and the laws
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
28
that they got Congress to pass, we will not do a five-year defense
plan next January.
We failed to do a proper one this past January, which is reflected
in the document I wanted - to have declassified, and so the conse-
quence of that, Mr. Chairman, is that the first person who will see
a properly reconciled five-year defense plan will be the new Presi-
dent, whoever he or she may be. In January 1989, he will have
dumped on his desk a requirement for perhaps hundreds of billions
of dollars of extra money.
Again, I 'can understand why bureaucrats and politicians who
have been negligent in doing their duty would want to cover this
up, but I cannot see why it would be a legitimate national security
matter, especially to conceal it from members of Congress.
Mr. SIKORSKI. The memorandum to General Watts from you,
dated September 10, 1987, is not classified; is that correct?
Mr. FITZGERALD. The cover memorandum is not, Mr. Chairman;
only the attachment.
Mr. SIKORSKI. We are going to place that in the record at the ap-
propriate point and expect that we will place the chart in with it,
since we fully expect General Watts will be responsive to the sub-
committee. We fully expect that the appropriate non-secret classifi-
cation will be attached to it because once again, the classification
of this material points to classification of political strategy, cooking
books and double accounting for purposes of defeating Congress'
constitutional responsibility and prerogative dealing with oversight
of taxpayer expenditures.
[The above-referenced material follows:]
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
29
MEMORANDUM FOR
SUBJECT:
LAJ 9 0 1 8 9
T MITE MOUSE
MASPOIMOTON
March 12, 1986
THE HONORABLE W. WEINBERGER
The Secretary of Defense
Implementation of the kecommendations of the
President's Commission on Defense Management (U)
The implementation memo you sent to the President on March 3
has been revised to follow more closely the format and detail
of the Commission report and has been put into NSDD format
(Tab A). Attached at Tab B is a proposed public announcement
which we plan to release after your review. Appropriate draft
letters to both Houses of Congress are at Tab C. (S)
The MEDD is intended to strengthen your hand vis-a-vis the
legislation now in both Houses and maintain your control of the
implementation process. We have tried to. be sensitive to the
President's desire to implement the Commission's recommendations
without infringing on your authority or prerogatives. (C)
The events of the past week have demonstrated that the Hill has
been most favorable toward the Commission's report. The report
thus gives the President considerable leverage in dealing with
the.more radical proposals for reform that now abound in both
Houses. Because of our need to sustain momentum on this and
your pending trip to Europe, I hope we can have your comments
this week before you leave. (C)
FOR THE PRESIDENT:
AlLicellmeltts
?.),
-07:1
i
.SE RED ?ADR
John . Poindexter
Declassified/Released on 42- cr
under provisions of E.O. 12356 Cfe7-
bv N. Mem; National Security Council
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06 :
IA-RDP91B00390R000200150028-2
*MICE Or ME SLCRITANV
210
DEPARTMENT OF THE AIR FORCE
WASHINGTON. D.C. 20310-1000
10 September 1987
MEMORANDUM FOR GENERAL WATTS, SAF/AC
SUBJECT: Weapons Systems Costs and Projections
As you will recall from earlier correspondence on the subject,
Dr. Amlie and I have continuing concerns about the integrity of our
reports to Congress on weapons systems costs and projections. The
current confusion over the so-called "outyears" of the Five Year
Defense Program (FYDP) has heightened our concerns.
On several occasions in the past couple of months, I have raised
the issue of the failure to reconcile the supporting detail of the
FYDP "outyears" - FY 90, 91, and 92 - to the President's "top line"
figures for those same years. As I understand it, the purpose of
the PPBS is to produce a FYDP that reconciles the detailed projec-
tions and the 'unconstrained" requirements with the "constrained"
budget toplines of the President's program. Some people estimate
that DOD expends over a million manhours per year to produce a FYDP.
I have been told that the essential reconciliation was not done when
the FYDP was prepared for this year. I would like to pursue this
question, especially as it may affect our reports to Congress.
This brings me to the accompanying SECRET chart. We want to find
out whether the figures we are using li5r"Tioutyear" reporting are
reconciled to the "88 PB plus 3% GROWTH" line ("the President's"
figures) or the higher 68 PB projection. I presume that the highest
projection depicted on the chart reflects the sum of the detailed
projections contained in the Comptroller FYDP computer tape. I also
presume that the "86 PB plus 3% GROWTH' is the "constrained" projec-
tion.
As noted above, the chart in question is "SECRET which greatly
inhibits our discussion of this important matti57--r would greatly
appreciate your declassifying this chart so we can discuss it
freely and over the telephone, both with our colleagues in the
Pentagon and with interested parties in Congress. Senator Weicker
and the DOD Inspector General, have already declassified the mis-
match figures for all of the Department of Defense. Therefore, I
don't see why ours can't be declassified as well. In case you have
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
31
not seen the correspondence, Senator Weicker's figures indicated
that the excess of the unconstrained projections over "the Presi-
dent's budget" for the three "outyears" was $82.98. The IG adjusted
this figure downward to $77.28 to reflect off-setting receipts. Our
mismatch for the three years is roughly proportional to the DOD
excess and represents an increase of 7.3% of our total budget for
the three years in question. More significantly, perhaps, it repre-
sents an excess of 20.5% above the lowest of the three projections
on the attached chart. the "87 PB plus 01 GROWTH" line. As noted on
the chart, this lowest projection is itself substantially above the
House Budget Cotmittee mark for 1988.
Because of the significance of this issue, I would greatly
appreciate your personal attention to this matter and your support
for getting the accompanying chart and its updates declassified so
we can deal with the questions more easily. In this connection, I
noted especially President Reagan's call for openness on the part of
the Soviet Union in revealing their budget figures. In a speech on
August 29, 1987, the President 15am
"The Soviets can also open their defense establishment to world
scrutiny. They can publish a valid and comprehensive defense
budget and reveal the size and composition of their armed
forces. They can let their parliament, The Supreme Soviet,
debate major new military programs."
We can set a good example, as well as doing ourselves a favor,
by taking our heads out of the sand and dealing forthrightly with
the very troubling projections depicted in the attachment. If we
don't do it now, I'm afraid the matter might not be dealt with
until the new Administration takes office in 1989. As I understand
the new procedures, we are not scheduled to do an FYDP next year
which will result in the Congress and the taxpayers being kept in
the dark. Given this situation, it is all the more important that
our current projections hang together at least as well as they have
in the past. As the Chief of Staff and the Secretary wrote in
their July 29, 1987 memorandum, "Keeping Congress Informed", many in
the Congress believe that "the Air Force just isn't being honest in
explaining the performance of their programs." They went on to
write:
"Our policy will continue to be to provide candid, timely
assessments of problem areas or potential problem areas that
could reasonably be of interest to the Congress. We'll just
have to do it better."
Declassifying the attached document will be a good start in this
direction. If you cannot do this right away, then I must raise the
same questions that I raised about the March 12, 1986 memorandum
2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
32
from John M. Poindexter to the Secretary of Defense which I
requested be declassified in my 20 August 1987 memorandum to you,
Subject: Questions on SF 189. In this connection, I have not yet
received an answer to this declassification request. I would
appreciate a follow-up inquiry and an early answer.
Attachment
3
A. E. FITZG LD
Management Systems Deputy
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
33
Mr. &imam. At this point I would like to turn to Mr. Louis
Brase and ask you to make your statement, and then we will get to
questions for both of you.
STATEMENT OF LOUIS BRASE, PRINTING MANAGER
Mr. BRASE. Mr. Chairman, my name is Louis C. Brase. I am a
GS-12 printing manager at Goodfellow Air Force Base.
Mr. SIKORSKI. Mr. Brase, can you pull that microphone in?
Thank you.
Mr. BRASE. I am a GS-12 printing manager at Goodfellow Air
Force Base, San Angelo, Texas. I have been a civilian employee of
the Department of Air Force for 33 years.
I very much appreciate the invitation to appear here today to
provide the Congress with the information on my experiences with
the Standard Form SF 189 and 4193.
As you may know, I am one of the plaintiffs in the case brought
by the American Federation of Government Employees that chal-
lenges the legality and constitutionality of these secrecy agree-
ments. I am accompanied by my counsel in that matter, Mr. Joseph
B. Kennedy, General Counsel for the Government Accountability
Project.
At this time I would like to introduce a statement by Mr. Kenne-
dy into the record.
Mr. &Imam. It will be inserted in the ,record without objection.
[The prepared statements of Joseph B. Kennedy and Louis C.
Brase follow:]
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
IA-RDP91B00390R000200150028-2
34
COMMENT
I believe the SF 189 and 4193 raise not only important First
Amendment issues but equally fundamental issues that stem from
the separation of, powers doctrine. Thus, as I see it, the core
issue in the pending litigation will evolve into a dispute over
which branch of government, the legislative or executive, shall
make the policy choices on the conduct of employees charged with
safeguarding classified information.
The First Amendment says Congress shall make no law
abridging the freedom of speech or the press or the right of
citizens, including federal employees, to petition Congress or
the Executive Branch for a redress of grievances. Indeed, as
long ago as 1912, Congress codified these rights when it declared
that "The right of employees, individually or collectively, to
petition Congress or a Member of Congress, or ,to furnish informa-
tion to either House of Congress, or to a Committee or Member
thereof, may not be interfered with or denied." 5 U.S.C. S7211.
In faithful adherence to the letter and spirit of the First
Amendment and the open access law, Congress has never declared
that the disclosure of even properly classified information to a
to a Member of Congress or the press is a crime or subject to a
civil sanction.
Nor despite repeated efforts, has any administration
succeeded in persuading Congress to pass an Official Secrets Act.
Until this administration devised the SF 189 and 4193 one thing
seemed clear. If this country was to have arl_Official Secrets
Act, it should be the result of a deliberate decision by Congress
- 1 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
35
and not the result of a decision by an unelected bureaucracy.
To circumvent this reality, this administration determined.
to seize upon a discredited notion of loyalty and security oaths
toofashion an end run around the First Amendment and Article I of
the Constitution. No amount of pious prating about national
security,can disguise the fact that these illusory contracts are
intended to gag and intimidate employees who feel obligated to-
report waste, fraud, abuse and mismanagement, to create a de
facto Official Secrets Act, and to strip Congress of the power
and authority to control its own access and that of the press to
information vital to the survival of the republic.
As Chief Judge Wald warned in her Separate Statement in the
McGehee case, a system of sanctions for unauthorized disclosures
that fails to balance the public's right to know with possible
risks to security can result in the permanent loss of information
critical to public debate. Allowing the executive to create a
system of administrative crimes with draconian sanctions
summarily executed denies employees due process and equal
protection and the public the right to know critical albeit
classified facts relevant to the accountability of the executive
branch and. its intelligence agencies.
(104a01)
Joseph B. Kennedy
General Counsel
Government Accountability Project
25 E Street N.W. Suite 700
Washington-, D.C. 20001
- 2 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
.01A-RDP91B00390R000200150028-2
36
STATEMENT OF LOUIS C. BRASE
Mr. Chairman, Members of the Committee, my name is Louis C.
Brase. I am a GS-12, Training Manager at Goodfellow Air Force
Base, San Angelo, Texas. I have been a civilian employee of the
Department of the Air Force for 35 years. I very much appreciate
the invitation to appear here today to provide the Congress with
information on my experiences with the SF 189 and 4193. As you
may know, I am one of the plaintiffs in the case brought by the
American Federation of Government Employees that challanges the
legality and constitutionality of these secrecy agreements'. I am
accompanied by my counsel in that matter, Mr. Joseph B. Kennedy,
General Counsel for the Government Accountability Project".
A chronology of 'my experiences 'is as follows:
Early June 1987: A copy of SF 189 was dropped on my desk by
an Air Force Sergeant with the request to sign. I asked why. His
reply was, "If you don't they will pull your ticket (security
clearance]." After reading the form I decided 63 obtain more
information about it before signinq.-I contacted the Civilian
Personnel Officer on Goodfellow Air Force Base, Texas (where I
work); he promised to gei me a package of Air Force
correspondance on the subject. t received this package
approximately two weeks later. Copies of this correspondance will
be provided for the record. I contacted the National Federation
of Federal Employees office in Washington, D.C., and talked to
staff lawyers who had negotiated on the application of this form
- 1 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
IA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
37
to federal civil service employees. I also obtained a copy of
Department of Defense Phamplet DOD 5200. 1-PH-1 which contained
an explanation of the form, including a definition of the term
classifiable.
July 23, 1987: I sent a letter to my Congressman, Rep.
Lamar Smith, 21st District, Texas, explaining my objections to
the form and requesting his assistance. A copy of the-reply to
Congressman Smith's inquiry on my behalf will be provided for the
record.
July 25, 1987: I sent copies of all Air Force
correspondence which I had received from the Civilian Personnel
Office to the American Civil Liberties Union requesting their
assistance in legal difficulties I anticipated over the
requirement for me to sign SF 189. I also contacted Mr. Ernest
Fitzgerald who in turn put me in contact with the Government
Accountability Project.
August 3; 1987: I "hand carried" a list of questions about
SF 189 through the "chain of command" on Goodfellow AFB. The
following is an account of my experiences during this process
taken from a Memo For Record which I prepared during that same
day:
MEMO FOR RECORD: August 3, 1987
I met with Colonel Pat Clifton, Commander of the
3480 Technical Training Wing, Goodfellow AFB TX on this
date to ask for his coordination on a letter which I
had written to the Goodfellow AFB Technical Training
Center Commander. This letter requested additional
- 2 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
.7,1A-RDP91B00390R000200150028-2
38
information on SF 189, Classified Information Non-
disclosure Agreement.
After reading my letter Col. Clifton became
noticeably upset and told me, among other things, that
I was a hard head, that I was not committed to
protecting classified information, and that I had to
obtain a pre-publication review for any article that I
published whether or not I signed SF 189. I told ftim
that I had written letters to the editor of newspapers
on many occasions without a prepublication review. Col.
Clifton then said that since I was in the habit of
writing letters and articles, my clearance should
probably be withdrawn - that this was "pretty scary."
Col. Clifton then made an appointment for me with the
Base Legal Office, Maj. Heckert to get an ansWer to the
questions in my letter and wrote on my letter the
following: "... should he (Mr. Erase) still not want to
sign SF 189, recommend his clearanace be denied."
I then proceeded to Maj. Beckert's office. Maj.
Beckert appeared to be extremely nervous. Maj. Heckert
stated that he had very limited knowledge of SF 189 or
the regulations governing its administration. However,
he reviewed the questions in my letter and attempted to
answer each of them. He stated that SF 189 did not
provide for anything different from what was already
required in various Federal laws and Air Force
regulations except for the provisions of para. 5 of the
- 3 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
39
SF 189.
I then proceeded to the office of the Center
Commander, Col. William E. Collins. I met with Col.
Collins for approximately one and three quarters hours.
At the beginning of the conversation Col. Collins was
obviously extremely angry. His first statement to me
indicated that he was outraged by my letter and that he
was going to "pull" my clearance immediately. and
separate me from my Air Force employment. He stated
that I had no right to question the provisions of SF
189 and that I had only a very limited right to free
speech. He also indicated that he had no intention of
answering my letter. Throughout the interview Col.
Collins continuously accused me of a variety of
underhanded motives for refusing to sign the SF 189
until my questions had been answered. These included
not wanting to work and intending to reveal classified
information. He also accused me of asking frivolous
questions in my letter, being uninformed/ignorant of
the law and my duty to the Air Force, making an
unreasonable request in the last para. of my letter in
which I asked for a written response to my questions
from an office at the agency level, and using poor
judgement in not trusting the AF to administer SF 189
properly.
I answered each of Col. Collins' accusations to
the best of my ability. I pointed out that para. 10 of
- 4 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
.01A-RDP91B00390R000200150028-2
40
SF 189 included a statement that my questions on SF 189
had been answered satisfactorily. Therefore for me to
sign the form without obtaining answers to my questions
would be improper. I also pointed out the provisions of
several regulations which provided for a 30 day waiting
period before withdrawing the clearance of an employee
who refused to sign the form. Col. Collins did not
accept any of my statements until I had supported them
with facts from the SF 189, from DOD 5200. 1-PH-1
Phamplet (which was issued to explain SF 189), and from
various AF regulations.
In the end he conceded that I had a right to a
written reply to my questions, asked me to research the
best office in the AF to supply that reply, and stated
that he would not withdraw my clearance until the 30
day notice period had expired. He did however state
that he was going to withdraw my access to classified
information immediately. He stated that his reason for
doing this was his concern that my preoccupation with
the SF 189 issue might cause me to commit a security
violation.
That evening I was called at home by my immediate
supervisor, Mr. Jack Goudy and told not to report to-
work the next day and that someone would come by my
house to pick up my security access badge.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
IA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
41
That same evening a SMSgt. Beach came to my home, picked up
security access badge, and told me not to report to work the next
day until I was called in.
Aug. 4, 1987: I was called into work, handed a letter which
answered the questions in the letter I had submitted the previous
day, given an opportunity to discuss those answers with the
individual who had prepared them (Maj. Heckert), and was asked to
sign SF 189. I replied that I _wanted a chance to check the
answer with my lawyer and already had several modifications to
the form in mind. On this response I was handed a letter which
stated (in part): "You have 30 calendar days in which to provide
any written statement or other information you may desire to have
considered in conjunction with the adjudication of your security
clearance eligibility." I was then reassigned to another job,
under the supervision of a lower ranking employee and assigned
typing duties. Subsequently, after numerous calls from my
attorney, Mr. Joseph Kennedy, Government Accountability Project,
and a number of stories on my case in the press, I was reassigned
to the Base Education Office as an Educational Counselor.
Aug. 10, 1987: I was given a copy of a message from_SSO
USAF/INS which stated (in part): "Louis C. Brase must be barred
from Sensitive Compartmented Information (SCI) access pending his
decesion to sign the SF 189... .Refusal to sign the SF 189 brings
into ques.tion an individual's intent to protect classified
information and reflects adversely on his trustworthiness."
Aug. 14 1987: I delivered the following letter to Maj.
Beckert announcing .my decision not to sign SF 189:
- 6 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
.01A-RDP91B00390R000200150028-2
42
William E. Commander
Goodfellow Technical Traning Center
San Angelo TX 76908
Sir:
August 14,1987
This letter is to inform you of my decision on
whether to sign Standard Form 189 (SF 189), Classified
Information Nondisclosure Agreement. In order to
explain my decision I feel that a brief history of the
events leading up to this decision is in order. In
June of this year everyone in my office was given a
copy of SF 189 and told to sign it or "they will pull.
your ticket" (security Clearance). This form provides
for a wide range of civil and criminal penalties for
divulging "classifiable" information. I was also given
copies of numerous letters, messages, and regulations
which state that the clearances of employees who refuse
to sign SF 189 shall be revoked (with subsequent
prospective loss of employment) and a copy of DOD
5200.1-R/AFR 205-1 which states: "reluctance to sign an
NdA (SF 189) will be considered a lack of personal
commitment to protect classified information."
(parenthesis and underline added). On August 3, 1987 I
provided you with a letter requesting specific
information on SF 189 as provided in paragraph 10 of
the form. I "walked" this letter up through the chain
of command. The same day I brought this letter to your
office and for no other reason, my access to classified
information was withdrawn by your direction and my
- 7 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
IA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
43
access badge to the building in which I work was picked
up at my home. Subsequently I was reassigned to work
in a typing job under the supervision of a lower-
ranking employee.
I feel that there are a number of reason to
question the use of SF 189. Among these are:
1. The term "classifiable" as used. in the form is
defined as "information which meets the criteria for
classification under Executive order. 12356, but which
has not yet been properly classified because of time
limitations, oversight or error." The SF 189, by
making the employees responsible for not releasing
classifiable information, requires the employees to
determine if information - information which is in the
public domain - is classified even though no official
of the government has classifed it. In other words,
employees are expected to classify the information
themselves. The employees are expected to make
classification decisions for which they, inmost cases-,
have neither
are hundreds
training, expertise or authority:. There
of classification standards in existence,
most of these standards are full of broad, generalized
statements, and, in many cases no one can prove,
definitively, whether or not a particular piece of
information should be classified. The area of doubt
for determination whether information which the
- 8 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
-2,1A-RDP91B00390R000200150028-2
44
employee wishes to communicate should be classified is
almost global and in effect - restrains any prudent
employee from the legitimate exercise of the right to
free speech.
2. The potential for abuse of the form as a means
of retaliation for criticism of the government or for
"whistle blowing" activities is apparent. This
potential must necessarily inhibit my free
communication of unclassified information to Congress
and the public.
3. Since government officials define what is
classified through their interpretation of
classification standards, they can arbitrarily deny me
the right to speak on almost any subject by denoting
the essential information about that subject as
classified and enforcing a "gag" on me through the
medium of SF 189.
4. SF 189 is not required by either law or
executive order.
5. he use of coercion to induce me to sign SF
189 (as exemplified by my experience related above) is
demeaning, unreasonable, and far removed from the
spirit of the Constitution whose anniversary we are
honoring this year.
6. I wish to exphasize that I heartily endorse
the protection of-classified information. However SF
189 will not inhibit traitors from betraying secrets.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
.01A-RDP91B00390R000200150028-2
45
John Walker, the U.S. Navy Petty Officer who sold
crypto codes to the Russians for 20 years would have
signed SF 189 without hesitation. The current laws
provide a much more effective deterrent than SF 189 can
provide.
7. There is no overiding national interest which
requires the use of SF 189. On the contrary the
national interest will most certainly be damaged by the
restrictions contained in this form. One reason why
011ie North and his cohorts got by with a wide range of
illegal activities for almost a year was the fact that
many of the persons in government who were aware of his
activities were afraid to reveal his activities by the
"security" blanket put over their actions. We can be
sure that 011ie will not be the last government
official who for whatever reason - will attempt to '
subvert the Constitution. Someday we may even have an
attempt at a military takeover of the government. If
that day ever comes we are going to need "insiders" who
are not intimidated from "blowing the whistle" on such
8. I, along with other government employees,
military and civilian, have taken an oath to protect
and defend to the Constitution. SF 189 is destructive
of that right. Therefore the signing of SF 189 would
be a violation of my oath.
I have been informed that if I refuse to sign this
- 10 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
46
form my clearance will be withdrawn and my employment
terminated. However, and for all of the reasons listed
above, I hereby refuse to sign SF 189.
Louis C. Brase
Sept. 4, 1987:. I was notified that my-access to SCI'
classified information had been restored and vas-directed to.
report back to my regular job. I was given a briefing on the '
protection of classified information and was told that my access
was temporarily restored pending the:outcome of a suit which NFFE
had filed challenging the constitutionality oE SF 189.'
Sept. 7, 1987: I received an annual performance, rating from
my Supervisor-of "Fully Successful." In the inflated performance
rating system currently used- in the Air Force. this rating is the
"kiss of death" as far as any hope of promotion is concerned.
Sept. 9, 1987: I sent. the following letter to my second
line supervisor, Col- Holliday through my .first line supervisor,
Mr. Goudy:
FROM:
SUBJECT:
Rating of
TO:
3480 TCHTW/TTGXX
July 1986 - June
Mr. erase
3480 TCHTW/TTGXX
3480 TCHTW/TTGX
IN TURN
(Mr: Goudy).
I987 Annual Performance
(Goudy)
(Lt. Col Holliday)
1. I hereby request-that subject performance rating be
reconsidered. . The reasons for this, request are listed
below:
a. My rating for the period July 1985 - June 1987
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
47
was at the "Excellent" level. I also received a Letter
of Commendation from the 3380 Technical Tranining Wing
Commander for my work during this period. During this
period I had been reassigned to Goodfellow AFB into a
new job. It seems unreasonable when I had gained
additional experience and acquired additional
responsibilities.
b. On July 13, 1987 my office received an
"Excellent" overall rating as a result of the July 6 -
10 Unit Effictiveness Inspection (UEI). The report of
this inspection cited the management of Type 1 Training
as "notable." I manage nearly all the Type 1 training
in my office and was interviewed by two inspectors
during the inspection for a total of three and one-half
hours.
c. The present rating is the lowest-' have ever
received under the current rating system (approximately
10 years). A ?connection between this rating and my
refusal to sign SF 189 will seem obvious to a great
many people. Retaliation for activities which are
lawful but repugnant to management brings discredit on
the agency in which it occurs. For this reason my
performance rating should receive scrupulous attention
and care.
- 12 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
48
Sept. 14, 1987: I was informed by my first line supervisor,
Mr. Goudy, that my rating had been reconsidered and had been
determined to be correct. Mr. Goudy refused-to put this answer
in writing.
Sept. 25, 1987: Throughout the time period described in
this statement I had been writing letters to congressmen/women
and newspapers to publicize my opposition of SF 189.- Several of
my letters were published in my local hometown (San Angelo Texas)
newspaper. On this date I was counseled on the possible
consequences of this exercise_of the right of free speech. A
part of the Memo For Record of this meeting appears below:
MEMO FOR RECORD: 25 Sept 1987,
2:35 p.m.
On this date I met with Mr. Jack L. Goudy and Lt.
Col. R. C. Holliday from 2:00 to 2:30 p.m. During this
meeting Lt. Col. Holliday stated that he was concerned
that he was concerned that my letters to newspapers and
other actions relating to my refusal to sign SF 189
might cause interference with the efficient performance
of my duties. Col. Holliday stated that this might
occur if my fellow workers became reluctant to deal
with me for fear of what I might put in print or
include in a charge against the fellow worker as an
outcome of our working relationship. Mr. Goudy stated
that he too was concerned on this issuse and that he
- 13 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
.01A-RDP91B00390R000200150028-2
49
now had to "think twice" in all of his dealings with
me.
Louis C. Hrase
I will furnish for the record all of the letters and
articles I have written on the subject of SF 189. They express
more fully the reasons for my opposition to the concept of SF 189
as a "contract" extorted from employees by threat and
intimidation binding them to .a lifetime of apprehension for the
expression of any sentiment the government may find repugnant.
Since I have already signed the companion to SF 189 (DD Form
1847-1, Sensitive Compartmented Information Nondisclosure
Agreement), I too share that apprehension. In an attempt to
minimize the dangers associated with that agreement I have
forwarded every one of my letters and articles to my attorney,
Mr. Kennedy, for approval prior to publication. In spite of this
precaution I have little hope of avoiding prosecution over the
long run.
There are at least 3,700 classification guides in existence.
Having had daily contact with some of these guides, I can testify
that many (and I suspect most) of them are written in vague,
general terms. Anyone who has signed one of these forms and has
written letters or articles or has made public statements which
are critical of the government will be vulnerable to a charge of
violating the provisions of SF 189. The administration of the
enforcement of the form is not clear to me but I suspect that
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
50
there will be no independednt grand jury to determine whether the
evidence justifies a charge. I believe that I will be hauled
into court, forced to hire a lawyer that I can't afford, and
tried under all the disadvantages inherent in that kind of
situation if I continue to speak out against government policies.
Freedom of speech is a precious right to me and one I hope
to pass on to my children. I earnestly solicit your support in
the introduction and passage of legislation forbidding the
enforcement of Executive Order 12356 which authorizes the
requirement for 'employees to sign SF 189.
Louis C. Brase
P.O. Box 5622
San Angelo TX 76902
Home: [phone]
Office: [phone]
- 15 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
51
Mr. BRASE. Mr. Chairman, I am going to try to be as informal as
possible in describing my experiences.
When I first came to Goodfellow Air Force Base in January of
1986, I was asked to sign an SCI form, special compartmented in-
formation form, DD-1847-1. It is the equivalent of the 4193 form
that has been referenced previously.
I was handed the form without any explanation. I read it over
rather hurriedly because I was in the process of in-processing for
employment, and I was signing many different forms during that
two or three-day time period. I did read the agreement, but the
word "classifiable" did not leap out of the page at me. I did not
realize the implications of that form when I signed it.
In early June of this year, I was working at my desk one day,
and a Master Sergeant in my office came by and dropped a form on
my desk, SF 189. I said, "What's this?"
And he said, "It's a secrecy agreement."
I said, "What is it for?"
He said, "Well, what it's for is if you don't sign it, they're going
to pull your ticket," meaning pull my clearance.
That aroused my curiosity, and I read the form very carefully,
but, frankly, did not understand it. After several days that same
Master Sergeant came by again and asked me if I had signed the
form. I said, no, I was still studying it. So he handed me a DOD
pamphlet, 5200.1-PH-1, which contained in the back a series of
questions and answers about the form, including a definition of the
term "classifiable," and when I read this definition, I first realized
that my suspicions were well founded and that I had a problem
with this form.
In order to get further information about the form, I questioned
the Master Sergeant, who had very little additional information
himself. I went to my civilian personnel officer on Goodfellow, a
Mr. Burkette, asked him what he knew about the form. He knew
very little. However, he did obtain for me after some period of time
a package of documentation that the Air Force had sent to Goodfel-
low relating to the Standard Form 189. This includes letters, mes-
sages and copies of regulations, and the tenor of all of these com-
munications is that every employee with a clearance must sign. If
they do not sign, their clearance will be withdrawn.
The factor that concerned me in addition to losing my clearance
is the possibility of losing my job because once my clearance is
withdrawn, I can no longer work in my authorized position, and if
there is no other authorized position for me available on Goodfel-
low, I would then be terminated.
I did ask my civilian personnel officer if there was alternative
employment for me at Goodfellow in case my clearance was with-
drawn, and after some investigation, he determined that there was
not.
In an attempt to get information about the form, I called a
lawyer at the National Federation of Federal Employees's office
here in Washington who had actually negotiated on that form and
was not able to obtain answers to all my questions.
I was being pressured by my supervisor at work to sign the form.
Finally, more or less in desperation and in accordance with Para-
graph 10 of the form, which included a statement that my ques-
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
52
tions on SF 189 had been answered satisfactorily, I prepared a writ-
ten list of questions about the form and hand carried it through
the chain of command at Goodfellow. I started with my immediate
supervisor and his supervisor and.the third line supervisor, who is
a Colonel Pat Clifton.
Colonel Clifton, when he read my list of questions, became very
angry. He told me I was a hard head. He told me I was a security
risk. He told me I did not have any right to freedom of speech, that
I had to clear any letter or article that I might write with the Air
Force before I could publish it, and he finally wrote on my letter a
statement to the fact, "I recommend Mr. Brase talk to the base
Judge Advocate General's Office, and if he does not sign the form
after the discussion, that his clearance be withdrawn."
I left Colonel Clifton's office, went to the Judge Advocate Gener-
al's Office, talked to a Major there, who was a lawyer and who
stated that he was not familiar with the form, but he did attempt
to answer the questions I had written out.
I then carried the letter to the center Commander, a Colonel Wil-
liam E. Collins, and Colonel Collins, when I came to his office, had
apparently just been talking to Colonel Clifton. He asked me to
come into his office, and his first comment to me was, "Mr. Brase, I
read this rag," referring to my letter of questions. He said, "I am
not going to answer it." He said, "I am going to pull your clearance
today." He said, "I am going to have you off this base."
Then we sat down to discuss. After an hour and 45 minutes I
convinced Colonel Collins that he could not, indeed, pull my clear-
ance. There was an Air Force regulatory requirement for a 30-day
notice period, and also that I had a right to an answer to my ques-
tions.
At the conclusion of our discussion, Colonel Collins said, "Well,
Mr. Brase, I recognize that you do have a right to a written reply
to your written questions." He said, "I am going to provide that."
He said, "I also recognize that F cannot pull your clearance. Howev-
er, I am concerned that your concern with this Standard Form 189
is such that you might become a security risk, that you might acci-
dentally disclose classified information because of your getting
upset."
Seeing that he had spent the last hour and 45 minutes accusing
me of everything under the sun, I could quite understand why he
thought I might be upset.
At any rate, he said, "Because of my concern, I am withdrawing
your access to classified information." Without access, of course, I
did not have access to the building in which I worked, and I could
not do my normal job.
That evening I was contacted by my immediate supervisor at
home. He said, `Lou, don't come in to work tomorrow until we call
you," and he said, "Somebody is going to be out to your house to-
night to pick up your access badge," and later on that evening a
Senior Master Sergeant Beach from my office did, indeed, show up
at my house. He collected my access badge and, again, told me not
to come in to work until I was called.
The next day I was 'called. I came to work. Without my access
badge, I was now given something we call a red badge, which
means you have to be accompanied within the SCI facility where I
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
53
work, and I was escorted into an office. I met with a Major from
the Judge Advocate General's Office whom I had originally talked
to. He provided me written answers to my questions. We discussed
them at some length.
Then he asked me if I wanted to sign the form, and I said I
wanted to check these answers with my lawyer, and I may or will
have some modifications to submit to the form.
At that point I was handed a letter indicating that I had a 30-day
time period to consider and submit any information I might want
to that would be used to determined my eligibility for future access
to classified information.
On August 14 of this year, I submitted a letter to Colonel Collins
that said after due consideration and after listing my reasons, I de-
cline to sign Standard Form 189.
On September 4 of this year, my access to classified information
was restored. I was returned to my work, and on that same day I
was handed an annual performance rating which is the lowest
rating that I have received in the approximately ten-year period
when this current rating system has been in operation.
I do want to comment one more thing about the form, sir, and
that is the method of application. I checked with many other em-
ployees on Goodfellow and also on Kiesler Air Force Base where I
had worked previously for 28 years about whether or not they had
signed the form and under what circumstances. Many of them
could not recall for sure whether or not they had signed the form.
After some investigation, they determined they had signed the
form.
The? reason they could not remember is because the form was
handed them in the same way it was handed to me. There was no
explanation. There was no caution as to the provisions of the form.
It was simply handed to you and say, "Here. Sign this." And many
employees will sign without hesitation if they have no reason to
suspect anything wrong.
This pamphlet that accompanies this form, on page 2, has a
sample briefing that is entitled "Sample Indoctrination Briefing
Required by the Classification Information Nondisclosure Agree-
ment, SF 189." No employee that I talked to had ever received this
briefing.
On Goodfellow Air Force Base there is a film that describes the
Standard Form 189 and the implications of "classifiable" informa-
tion. I was shown that film after I was returned to work from my
original suspension of access. As far as I know, I am the only
person on Goodfellow who has ever seen that film.
I checked with employees both at Goodfellow and at Kiesler. I
was trying to find somebody who had signed this form who did not
have clearance, a security clearance, and who would join my suit
on behalf of having that form returned to him, and of all the
people I talked to had ever received this briefing or any briefing
whatsoever or had been shown the film.
The experience I had was once I hesitated, I began to be coerced,
coerced by being handed regulations that said, for instance, reluc-
tance to sign classified information form SF 189 would be consid-
ered a lack of commitment to protect classified information, and re-
peated assurances that I was in big trouble if I did not sign the
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
54
form, and finally my interviews with Colonel Clifton and Colonel
Collins, which constituted in my opinion extreme verbal abuse.
I did also ask the individuals on Goodfellow what their inten-
tions were in terms of returning SF 189s to employees who did not
have clearances, but who had signed the. form, and they told me
that they had received no direction on that.
The original Air Force instructions about what to do about em-
ployees who did not have clearances and who refused to sign the
form say, and I quote, and this is from a Department of the Air
Force letter dated 4 December 1986 from the SPI, the Security
Police Investigation organization, and it says,
Personnel not currently requiring access to classified information.
These are procedures, how to deal with them.
Number 1. Commander's supervisors inform their personnel that refusal to sign
SF 189 will make them ineligible for future access to classified information.
Number 2. Commander's supervisors forward a list of personnel refusing to sign
SF 189 through the Servicing Security Police to the SCO.
That is the Security Office.
This list must include each individual's full name, grade and Social Security
number.
Number 3. SCO places the clearance eligibility in a restricted status. This is an
administrative action to identify individuals ineligible for access to classified informa-
tion.
Mr. SIKORSKI. Mr. Brase.
Mr. BRASE. Yes.
Mr. SIKORSKI. .Let me just interrupt. We are going to put that
into the record here, and we are going to have a vote. I want to
complete your panel, and get Ms. Buck, who is General Counsel for
the Air Force, and Mr. Garfinkel and get down to the nitty-gritty
to get some answers to these things. I have some real questions
after reading the testimony of those two witnesses.
Before I do that, I think we can clean up some questions and any
concluding statements you want to make. Let me ask a few ques-
tions and then give you a chance to clean up what you want.
You have had security clearance for how long?
Mr. BRASE. At Kiesler Air Force Base for approximately 20
years, and at Goodfellow now for approximately a year and a half.
Mr. SIKORSKI. So over 20 years.
Mr. BRASE. Yes, sir.
Mr. SIRORSKI. And you have dealt with this classification system
as it has evolved over those years?
Mr. BRASE. Yes, sir.
Mr. SIRORSKI. Has it gotten harder or easier to determine what is
to be classified?
Mr. BRASE. Sir, the answer to that question is that it has. become
more difficult, but it is also true that it has always been very, very
difficult.
I have here in my hands an index of security classification guides
issued by the Deputy Under Secretary for Defense policy. It con-
tains 361 pages. On each page there are? approximately nine classi-
fication guides listed, which makes a total of approximately 3,249
classification guides.
Mr. SIRORSRI. Oh, but, Mr. Brase, Mr. Garfinkel tells us that
"classifiable" embraces a set of requirements. So any information
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
55
that meets the requirements of "classifiable" under the Executive
Order and the regulations that have been printed in support of
that order now becomes at issue, and you are liable for any disclo-
sure if you sign this nondisclosure form. Doesn't that make your
life easier?
Mr. BRASE. No, sir. The real problem is this. As I say, there are
over--
Mr. SIKORSKI. Well, if it is in the book, then it is classifiable,
right?
Mr. BRASE. That is true.
Mr. SIKORSKI. Now, the question is: how do you understand the
book?
Mr. BRASE. I happen to be, sir, a cryptologist. One of my duties at
Goodfellow is also that I am point of contact for one of these 3,000-
plus classification guides.
I would like to offer this for your inspection, sir, if that is possi-
ble. The classification guide that I am responsible for is called the
"Senior Year Classification Guide."
Mr. SIKORSKI. So you are the original authority for classification?
Mr. BRASE. No, sir. I am the person at Goodfellow who maintains
that classification guide, who updates it when changes occur, and
who uses that classification guide to brief employees on their re-
sponsibilities for access to the Senior Year material, if you will
notice about halfway down the page there.
Mr. SIKORSKI. "Senior Year Classification Guide." So it is getting
more and more difficult to determine the classification status of
material, and it has always been a subjective determination, has it
not?
Mr. BRASE. Yes, sir, that is true.
Mr. SIKORSKI. SO it is almost impossible for a federal employee
who does not have original authority to classify?and a vast, vast
volume of 2.4 million federal employees required to sign SF 189 do
not have original authority to classify--
Mr. BRASE. Exactly, yes, sir.
Mr. SIKORSKI [continuing]. Would be starting from a point of not
knowing much at all about what is classifiable because even the ex-
perts have difficulty.
Mr. BRASE. Exactly, yes, sir.
The classification guide that I am responsible for is about 60
pages. It is full of vague, general statements. It is written by a
Master Sergeant.
Mr. SIKORSKI. And yours is easier because you are in the area of
cryptology, and it is specifically stated in the Executive Order that
that stuff is generally classified. So you are in one of the easiest
areas.
Mr. BRASE. I suppose so, but even so, it is very, very difficult for
me to classify information using that classification guide. The
statements are so general and so vague.
As an example at Goodfellow we have recently a document that
we had concern about as to whether or not it should be classified.
We sent it off to the originating office for determination. It took a
year and a half to get back.
Mr. SIKORSKI. It did?
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
56
Mr. BRASE. One and a half years, yes, sir, 18 months for the orig-
inating office to make a determination as to whether or not that
information should be classified.
Mr. Smoitsm. So when someone is concerned about being liable
for classifiable information, and the process in this case took a year
and a half for those who deal with it and are responsible for it,
their concern about something being classified after they have al-
ready released it when it is not classified is a legitimate concern.
Mr. BRASE. Exactly, yes, sir.
Mr. SIKORSKI. In your background, you have gotten all of these
excellent reviews and awards for outstanding service and the rest;
is that correct?
Mr. BRASE. Yes, sir.
Mr. SIKORSKI. You have not been a trouble-maker?
Mr. BRASE. I have never had a disciplinary action of any kind in
my 33-year period.
Mr. SIKORSKI. But you recently wrote a couple of op. ed. pieces or
opinion pieces for newspapers and letters to the editor that were
not applagded at the base?
Mr. BRASE. Exactly, sir. I was called into an office and met with
my immediate supervisor and his supervisor, who informed me
that my practice of writing such letters could be considered a dis-
ruptive influence, and there was a danger that my fellow employ-
ees would be reluctant to talk to me for fear that I might put some-
thing about them in a letter to the editor, and I was cautioned on
that practice.
Mr. Six?Rm. In your testimony, you said your latest rating was
"successful."
Mr. BRASE. Yes, sir.
Mr. SIKORSKI. But that is pretty low in the inflated rating struc-
ture, and it is the lowest you have ever received?
Mr. BRASE. That is correct, yes, sir.
Mr. SIKORSKI. At the same time, you were doing more, with
greater authority, than you ever were in the past?
Mr. BRASE. And, in fact, we had an inspection of our office by Air
Training Command in July, just prior to the incidence of my refus-
ing to sign SF 189. They rated the office excellent overall. They
rated management of Type 1 training as being "notable." I do all of
the Type 1 training in my office.
Everybody in my office were congratulating me on that excellent
rating, and on September 4th, then, I received the lowest rating I
have received.
Mr. SucoRsiu. So would it be fair to say that you are paying the
price for objecting to signing SF 189?
Mr. BRASE. That is my belief.
Mr. SucoRsiu. Mr. Fitzgerald, I am going to ask that you stay
around and listen to the testimony that will be given by the next
panel so that if you have the capacity to engage in that discussion,
I would like for you to be around.
Mr. Kennedy, you were motioning earlier. Did you want some-
thing to be in the record?
Mr. KENNEDY. No, just the statement that I had prepared.
Mr. Smoitsiu. That will be in the record.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
5'7
Mr. FrrzGERALD. Mr. Chairman, I have received a statement from
one of my colleagues in the Air Force Secretariat that I would like
to submit for the record, as well as a paper on the contractual as-
pects of Standard Form 189. I would like to submit that also, with
your permission.
Mr. SIKORSIII. Absolutely, without objection.
[The above-referenced material follows:]
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
58
AQXR 6 October 87
Nondisclosure Agreement, Standard Form 189
Det 1, 1100th Security Police Squadron (AFDW)/SP
1. I am greatly 'concerned by the harm to employees, and the Government stemming from
Air Force implementation of the nondisclosure agreement. Its presentation is arrogant.
Its lack of concern for employee rights or human dignity is evident. The language of .
the agreement is insulting to the employee and demeaning to the Government. It has no.
benefit commeasurate with its cost. It has caused a great deal of apprehension, as the
perception of the program is one of threat, of the might of the entire United States
Government aligned against the individual. While most employees have signed it, they
have done so out of fear - justifiable fear - for their jobs.
2. Federal employment, military or civilian, establishes a special relationship between
the person and his government. Over the years since World War II, when all citizens
were united in their support for America, the value of this special relationship has
been steadily eroded. Far too much of this erosion has been the result of self-inflicted
wounds. It has been convenient for the government to divert responsibility for poor
decisions by passing the blame to federal workers. The popular term "feather merchant"
reflects the distain with which we are regarded. The term "military/industrial complex"
is a perfectly legitimate denotation of the defense mission for this country, but its
connotation is totally derogatory.
3. Apart from the generally overlooked fact that it is not just for the government to
permit such a misconception, it carries within itself the seeds of self-destruction.
Any organization has some proportion of people who do not serve its best interest. No
organization can effectively accomplish its purpose if the proportion of such people
passes a critical point. What must it take for the government to realize that (1) the
point exists, and (2) how close we are to it?
4. The growing public contempt for both the military and civilian work force is making
it much more difficult to attract quality people. We are losing experienced people
through retirement and industrial recruiting. The damage to the United States happens
gradually. The long time it takes for the ill effects of this trend to become evident
makes it easy to ignore it. The government has further exacerbated this problem with
the damage done by the nondisclosure agreement. Taking back the profits from a book is
a poor trade for one more step in the direction of an ineffectual work force.
5. This agreement, and the push to implement such an unfortunate concept seems a
knee-jerk reaction to the crimes of a few. It has been imposed without planning, and
there are many legitimate concerns with how it will be used. The attached points are
concerns I have; none of which I have seen even marginally addressed. I need than
answered. They should have been long before this program was inflicted.
1 Atch
Nondisclosure Questions
Barbara Rizzuto
SAF/AQXR
Pentagon
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part- Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
59
ATTACHMENT
PROBLEMS WITH THE NONDISCLOSURE AGREEMENT
1. In accordance with paragraph 3, your letter, above subject, 27 June 86, I
request that you address my concerns with the nondisclosure agreement program.
I find (a) internal inconsistencies, (b) an implied and expressed threat, (c) a
lack of preparation for administering the program, and (d) thus a considerable
potential for its abuse.
2. My interest in pursuing these concerns is to establish a consistent framework
to accomplish the goal all federal employees, military and civilian, indeed all
citizens desire --the safeguarding of information whose release to a hostile
government could cause damage to the United States. I do not believe that the
program, as it is presently understood, will accomplish that goal.
3. My basic reaction to the program, one shared by many, is anger. No federal
employee can take exception to a required statement of loyalty to the United
States. Each has taken an oath upon entering into his position. Workers with
security clearances have also signed a statement pledging to protect all classified
information to which they may have access. The nondisclosure agreement is not
a reaffirmation of that oath or that pledge. It is an agreement based on a
presumption of incipient disloyalty for the most venal of purposes - money. It
is insulting to the employee and demeaning to the Government.
4. I seriously question the value of the form on a practical basis. It is
difficult to assume that it will deter the one employee in a million who,
through stupidity or greed, would provide classified information to a hostile
government. It is counterproductive because it fosters an atmosphere of
distrust between the parties to the agreement.
5. Paragraph 1 of the agreement states that "special confidence and trust
shall be placed in" the individual who is granted access to classified information.
Paragraphs 4,6,7,8 and 9 of the agreement by implication show how fragile that
"confidence and trust" actually are. Paragraph 5, without equivocation, requires
the assignment to the US Government of all enrichments that have, will or may
result from dislosure of information. The use of the phrase "I hereby assign"
in paragraph 5 requires that the signer of the agreement accept the special
confidence and trust that has been placed in him/her and at precisely the same
time agree to turn over to the Government the rewards he or she could only gain
by violating that trust. This dichotomy is morally and ethically unacceptable.
6. A strong inference could be made from the use of the terms "classified" and
"classifiable" that the target of this agreement is less the potentially disloyal
employee and more the loyal employee who might try to correct waste or fraud by
"whistle blowing." The atmosphere of mutual trust which which previously
existed between the federal employee and his government and which would have
previously permitted dismissal of this inference is no longer possible. The
threat in the agreement and the implications raised by the term "and class-
ifiable" make any questioning of authority a most risky act.
-1-
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
60
7. The agreement says that any employee may be summarily fired for a security
violation, or even on suspicion. of one.
"Intending to be legally bound. I hereby accept [that] negligent
handling of classified information could cause irreparable harm and am
aware that any breach of this agreement may result in termination of my
employment."
There is no indication or discussion of employee rights or protection from
overzealous or hostile personnel. A refusal to sign the form is construed by
top level management as de-facto evidence of disloyalty. Non-ligner's clearances
are to be revoked and the employee is to be fired.
8. Therefore, more information is required.
a. How does the Government intends to change the use of powers they have
always have had, but are now using as a direct-threat; that is how will the
ordinary conduct of business change as a result of the new emphasis?
b. What steps are being taken to ensure a fair application of the dictates
which are set out in the agreement, and elaborated by the Question & Answer
section of the DOD Pamphlet? How will the administration of this Agreement will
be uniform for everyone?
c. Where is conflict between, or modification of, the language of the
agreement by the Q&A section, which will legally rule?
d. What system is or will be set-up to adjudicate actions under the terms
of this agreement?
e. How will people making use of the DOD Hotline to report fraud, waste and
abuse be protected?
f. How will those persons who are frustrated by the system and go public to
gain a hearing be protected?
9. As noted in Question 1 of the Q&A attachment to DoD 5200.1-PH-1, the SF 189
does not clearly state its purpose. The answer to that question does nothing
to clarify that purpose. The fact that a clearance does not specifically
establish an expressed obligation on the part of the employee or the government
is a complete non-sequitur.
a. The fact that a request for a clearance is made carries in it the
implication that one will use it in a manner consistent with the best interests
of the United States. This position is roughly analogous to the implied warranty
that a product is capable of being used for the purpose for which is is being
sold. Does the answer to Question 1 say that the United States Government has
now waived that implied responsibility?
b. Second, upon receiving our clearances, employees signed a paper to the
effect that they would not improperly handle classified material. A contractual
agreement has been established in form as well as in fact. Is that abreement
likewise now null and void?
-2-
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
,CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
til
C. Third, (1) Section 641 of Title 18, USC, already "provides the Government
with a clear basis to prevent or punish unauthorized disclosures." (2) Section
798, Section 952, and Section 783 of Title 50 reassert this authority. (3)
Section 794 of Title 18 adds the death penalty during wartime to the administrative
and prison penalties. (4) Title VI specifically extends protection to covert
agents, and raises the administrative penalties substantially. (5) The answer
to Question 8 states that the Supreme Court has already ruled on the matter of
fiduciary obligation. (6) The answer to Question 9 cites seven penalties,
including the ones spelled out in SF 189, which can be invoked. (7) It is a
basic tenet of common law that a criminal may not profit from his crime.
Therefore, why does the government need an additional basis for punishing
unauthorized disclosure of classified material?
10. The answer to Question 15 states that the fact that an employee signed the
SF 189 at a particular time may be classifiable in situations which might
involve a particular classified project. On the basis that paragraph 1 states
"or classifiable" our directorate security officer has stated that no one may
retain a copy of the signed form.
a. Inasmuch as the Air Force is demanding that all employees, whether or
not they have access to classified material, sign the form how can the above
argument be valid?
b. Are there in fact any circumstances in which the fact that people known
to be working for Air Force, and therefore known to have been required to sign
the Form, could be considered "classifiable?"
c. Is the answer to Question 4, (which establishes that the employee only
has liability when he "reasonably should have known that the information met
the tests for classification") when most employees have no authority or
responsibility for assigning a classification, legally binding upon the United
States government? For that matter are any of the answers attached to DoD
5200.1-PH-1 legally binding on the government?
11. Question 6 is concerned with First Amendment rights. The answer to it,
and to Question 7, avoids strict legal conflict with the First Amendment by
creating the legal fiction that the Form does not require prepublication review.
However, taken in context, the inference is clear that anyone would be very
foolish not to have such a review if there were the slightest possibility that
classified or classifiable material might be involved.
a. Why does the Government feel it is necessary to indulge in such legal
convolutions to avoid the possibility of Supreme Court review of constitutional
rights?
b. Given (1) the loose definition of classified and classifiable information,
(2) the fact that the answer to Question 5 specifically states that these defini-
tions may change in the future, and (3) the answers to Questions 18, 19, 20, 22,
24 and 25, is there any way in which these answers can be regarded as other than
legalese specifically intended to provide escape clauses from constitutional
challenge?
C. Given all of the above, is there any way to judge with certainty that a
given item of information is not classified and will not become classifiable?
d. Does the possession of a prepublication review clearance from a current
or last employing agency (Question 7) guarantee that a person might not be held
liable if it is subsequently determined that the information cleared contained
classified or classifiable material?
e. If not, what does?
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06 :
IA-RDP91B00390R000200150028-2
62
Mr. SIKORSKI. We are going to go vote. So we will be in recess for
about ten to 12 minutes.
[Whereupon, a short recess was taken.]
Mr. SIKORSKI. The hearing will reconvene.
Mr. Garfinkel and Ms. Buck, have you worked out who is going
first?
Mr. GARFINKEL. No, sir. Your pleasure.
Mr. SIKORSKI. Then I will introduce you, Mr. Garfinkel, as the
Director of the Information Security Oversight Office, ISO?, the
administrative component responsible for overseeing the informa-
tion security system throughout the Executive Branch. Mr. Garfin-
kel has been the Director of the office since 1981, and the subcom-
mittee looks forward to his help in examining the development and
content, the implementation and purpose of these nondisclosure
forms.
STATEMENT OF STEVEN GARFINKEL, DIRECTOR, INFORMATION
SECURITY OVERSIGHT OFFICE
Mr. GARFINKEL. Thank you, Mr. Chairman.
Ordinarily I would waive reading my testimony, but I think
under the circumstances of the number of witnesses testifying in
favor of the SF 189, it is not a bad idea that I do read the testimo-
ny.
Mr. SIKORSKI. I agree.
Mr. GARFINKEL. Mr. Chairman, I welcome the opportunity to
appear before you today to discuss the standard nondisclosure
agreement that the Executive Branch developed and issued in 1983
as a means of helping to curb the unauthorized disclosure of classi-
fied information.
This is the Standard Form 189, Classified Information Nondisclo-
sure Agreement, which we often refer to as the "SF 189." This non-
disclosure agreement plays a critical role in the protection of our
nation's vital secrets. It alerts cleared employees of the trust that
is placed in them by providing them access to classified informa-
tion and of their responsibilities to protect that information from
unauthorized disclosure.
It also states the nature of that trust and those responsibilities.
So if that trust is violated, the United States will be in a better
position to enforce the agreement.
This marks the second occasion that a subcommittee of the
House Post Office and Civil Service Committee has scrutinized the
SF 189. In 1983-84, when the nondisclosure agreement was new,
the Subcommittee on Civil Service studied the SF 189 in conjunc-
tion with its review of actions taken as a result of National Securi-
ty Decision Directive 84, entitled "Safeguarding National Security
Information."
Since that time, more than 1.75 million civilian and military per-
sonnel, including our top officials, have signed the SF 189, and
thousands more are signing it each week. Until recently, the imple-
mentation of the nondisclosure agreement took place in an atmos-
phere of minimal controversy and confusion.
Instead of describing at length the background and history of the
SF 189, I am submitting as an attachment to my testimony the fact
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
63
sheet that the Information Security Oversight Office, or ISOO, has
prepared concerning it. The fact sheet covers everything from,
"What is IS00?" to a discussion of the particular Issues of the cur-
rent controversy and the steps that we have taken in an effort to
resolve them.
However, I would like to take a few minutes to discuss the term
"classifiable information," which has been the source of a great
deal of confusion and misunderstanding, and which remains the
most troublesome aspect of the SF 189 to most of its critics.
Paragraph 1 of the SF 189 as it currently reads includes the fol-
lowing definition, and I quote: "Classified information is informa-
tion that is either classified or classifiable under the standards of
Executive Order 12356 or under any other Executive Order or stat-
ute that prohibits the unauthorized disclosure of information in the
interest of national security."
Recently it has been widely and erroneously reported that "clas-
sifiable" as used in the SF 189 refers to information that is not
classified at the present time, but which may be classified in the
future. Following up on this erroneous interpretation, it has also
been alleged that an agency could use the SF 189 to "get" an un-
wanted employee, for example, a whistle-blower, by classifying the
information after that employee had disclosed it.
Mr. Chairman, please be assured that the term "classifiable in-
formation," as ISO() has defined it for the Executive Branch, does
not refer to information that an agency may or may not classify
some time in the future. Nor may an agency punish a whistle-
blower by classifying a document after the fact of disclosure in
order to create a violation of the nondisclosure agreement.
Rather, classifiable information refers to a very narrow and lim-
ited species of information. Basically it is classified information
that for some reason, whether by accident or by design, does not
contain the classification markings that are associated with its
identification.
In other words, classifiable information, as used in the SF 189, is
not a species of information separate and distinct from classified
information, but almost in its entirety a very small subspecies con-
sisting of unmarked classified information. As we define it, the
only classifiable information that is not already classified is infor-
mation that is currently undergoing a classification determination
and requires interim protection as required by Executive Order
12356, the framework of our information security system.
Unfortunately, unmarked classified information is not something
that we can afford to ignore. Very often it involves some of our na-
tion's most sensitive information. For example, raw intelligence is
often gathered under circumstances that do not permit the contem-
poraneous placement of markings upon it. Nevertheless, until those
markings are applied, it is just as critical to our national security
that this information not be subjected to unauthorized disclosUre.
To be sure, the major function of classification markings is the
identification of information that is classified. Therefore, critical to
the concept of liability for disclosing classifiable information is the
knowledge requirement on the part of the offending party. To be
liable, either that party knows that the unmarked information is
classified or in the process of a classification determination, in
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
.01A-RDP91B00390R000200150028-2
64
which case an unauthorized disclosure would ordinarily be wilful,
or the party reasonably should know that the information is classi-
fied or in the process of a classification determination, in which
case the unauthorized disclosure is negligent.
This is fully consistent with the requirement of Executive Order
12356, which states,
Officers and employees of the United States government and its contractors, li-
censees and grantees shall be subject to appropriate sanctions if they knowingly,
wilfully or negligently disclose to unauthorized persons information properly classi-
fied under this Order.
As in any situation that formally assesses liability, the existence
or nonexistence of wilful or negligent conduct would be determined
by the particular facts of the case. However, in no instance could
an employee be found liable for violating the nondisclosure provi-
sions of the SF 189 by disclosing unmarked information where
there was no basis to suggest, other than pure speculation, that the
information was classified.
? Mr. Chairman, this definition of "classifiable information" is not
new, neatly designed to defend against the criticisms that have re-
cently emerged. It has been the standard since the term was in-
cluded in the newly developed form in the summer of 1983.
To our current regret, the lack of controversy over the term at
that time and the smooth road on which the SF 189 traveled for
almost four years led us to rely on nonregulatory means to cope
with the minimal concerns expressed. Over this time only a rela-
tively few persons questioned ISO() about the meaning of "classifi-
able' or other aspects of the nondisclosure agreement. When they
did, almost always a telephone discussion was enough to assuage
their concerns.
When someone asked for something in writing, 'SOO was happy
to comply through correspondence that addressed their specific
questions. In turn, agencies relied upon ISOO's explanations to
brief their employees about the SF 189.
For example, the Department of Defense published a booklet on
the nondisclosure agreement that includes a short, but accurate,
explanation of "classifiable information." Only when the current
controversy erupted, unexpectedly and belatedly, did we resort to
regulatory means to address the concerns expressed. These regula-
tions are also attached to my testimony.
Further, we have commenced the reprinting of the SF 189 so it
will include on its face some of the new regulatory language. In the
interim, we have advised agencies to permit persons who have
signed or are being asked to sign the current edition of the SF 189
to modify it through the attachment of these regulations.
Persons who have already signed the current edition will also be
given the opportunity to substitute the revised version upon its
publication and distribution.
Also, in the context of litigation that commenced recently, 'SOO
has placed a temporary moratorium on the withdrawal of clear-
ances based exclusively on a cleared employee's refusal to sign the
SF 189.
Mr. Chairman, we are convinced that these actions constructive-
ly address the issues that have arisen about the SF 189. As I noted
previously, we believe that nondisclosure agreements, such as the
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
65
SF 189, are an important and lawful means to help curb the seri-
ous problem of unauthorized disclosure of information vital to our
nation's security. It is a problem that deserves the closest coopera-
tion between the Executive Branch and Congress.
That concludes my formal statement.
[The fact sheet follows:]
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06 :
CIA-RDP91B00390R000200150028-2
66
Information Security Oversight Office
Washington, DC 20405
FACT SHEET ON STANDARD FORM 189
CLASSIFIED INFORMATION NONDISCLOSURE AGREEMENT
STATUS AS OF OCTOBER 15, 1987
I. WHAT IS 'SOO'
The Information Security Oversight Office (IS00) was
established by Executive Order 12065 and continued under
Executive Order 12356, issued by President Reagan on
April 2, 1982. 'SOO is responsible for monitoring the
information security programs of all of the approximately
68 departments, independent agencies and offices within the
executive branch that generate or handle national security
information.
ISO() is an administrative component of the General
Services Administration but receives its policy direction from
the National Security Council. The ISO? Director is appointed
by the Administrator of General Services with the approval of
the President. The 'SOO Director has the authority to appoint
its staff, which currently numbers 13 persons.
Among its oversight responsibilities ISOO develops and
issues implementing directives; conducts onsite inspections;
gathers, analyzes and reports statistical data; develops and
disseminates security education materials; receives and takes
action on suggestions and complaints on the administration of
the Order; conducts special program studies; considers
declassification appeals on presidential materials; and
reports annually to the President on the status of the
Government's information security program. In National
Security Decision Directive 84, the President directed ISO? to
develop and issue a standardized classified information
nondisclosure agreement.
II. WHAT WAS THE BACKGROUND OF NSDD-84?
On March 11, 1983, the President issued National Security
Decision Directive 84 (NSDD-84), entitled "Safeguarding
National Security Information." NSDD-84 deals with
unauthorized disclosures of classified information. It is
based on a draft prepared by an interdepartmental group
convened by Attorney General William French Smith at the
request of William P. Clark, then Assistant to the President
for National Security Affairs. It was convened following
White House concerns about the continuing problem of
unauthorized disclosures of classified information. Richard
Willard, now the Assistant Attorney General, Civil Division,
served as chairman of this group, which also included
representatives of the Departments of State, Treasury, Defense
and Energy, and the Central Intelligence Agency. The group
met throughout February and March 1982, and issued its Report
on March 31, 1982. The President acted upon the group's
recommendations when the problem of unauthorized disclosures
persisted over the ensuing months.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2 67
III. HCW WAS THE SF 189 DEVELOPED?
National Security Decision Directive 84 (NSDD-84)
requires that all persons having access to classified
information sign a nondisclosure agreement as a condition of
receiving access. It directed ISOO to develop a legally
enforceable standardized nondisclosure agreement. To fulfill
this responsibility, the Director of ISOO chaired an
interagency working group that assisted him in developing the
draft form. The group included representatives designated by
the Secretaries of State, Treasury, Defense and Energy, the
Director of Central Intelligence, and the Attorney General.
The interagency group met throughout March, April, May, and
June 1983. The draft agreement was based on existing forms,
approved by the Department of Justice, that performed ,a
similar function for particular agencies. The group also
drafted a standardized nondisclosure agreement for Sensitive
Compartmented Information that included a mandatory
prepublication review provision.
On July 1, 1983, the Director of ISOO transmitted the
draft nondisclosure agreement, which reflected the consensus
of the interagency group, to the Department of Justice for its
determination on enforceability. Upon receiving the
concurrence of the Justice Department, ISOO proceeded with the
printing and distribution of the SF 189, "Classified
Information Nondisclosure Agreement." The SF 189 was printed
in August 1983, and its implementation began with the
publication in the Federal Register on September 9, 1983, of
its implementing regulation.
IV. WHAT IS THE CURRENT STATUS
OF IMPLEMENTATION OF THE SF 189?
In September of 1983, ISOO issued SF 189, "Classified
Information Nondisclosure Agreement," and directed agencies to
proceed with implementation expeditiously.
There are approximately 3.5 million Government. and
private industry, personnel who are cleared for access to
classified information. About 1.2 million are contractor
personnel, most of whom are expected to sign SF 189-A, the
alternate nondisclosure agreement for industry issued in
November 1986. As of August 29, 1987, 1,738,319. civilian and
military personnel in the federal workforce have signed the SF
189. Only 663,401 personnel have yet to sign the Agreement. -
These numbers are somewhat inflated by the inclusion of some
persons who have signed the form or were being asked to sign
the form although they are not cleared for access to
classified information. This practice has been halted. /S00
has requested that it be provided as soon as possible with
data that do not include uncleared personnel.
As it concerns the SF 189-A, approximately 80,613
industry-personnel have signed it, while slightly more than 1
million personnel have not. All contractor personnel covered.
under the Defense Industrial Security Program are expected to
have executed either- the SF 189 or 189-A by the. end of 1988.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
-2,IA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06
CIA-RDP91B00390R000200150028-2 68
Attached are five graphic displays depicting various
aspects of the status of implementation of the SF 189. Again,
some of these numbers are slightly inflated by the inclusion
of uncleared persons. The graphs include:
Number of Persons Required to Sign the SF 189
Comparison of Signed Agreements vs. Agreements to be
Signed
Signatories vs. Signature Refusals
Number of Signed Agreements
Number of Agreements to be Signed
V. WHY HAS THERE BEEN SO MUCH DELAY IN THE EXECUTION OF THE
SF 189 WITHIN THE DEPARTMENT OF STATE AND ELEMENTS OF THE
DEPARTMENT OF THE DEFENSE?
The drafters of NSDD-84 believed that most DoD and State
Department personnel with access to classified information had
already signed nondisclosure agreements; therefore, it was
initially thought that the burden of implementation, given the
numbers and geographical dispersion of their personnel,
should only extend to new employees. These agencies delayed
immediate implementation based on this assumption. However
during implementation it became clear that most Defense and
State employees had never signed a nondisclosure agreement at
all comparable to the SF 189. As.a result, it was agreed that
the implementation of the SF 189 must involve current
employees also. However, agency programs were not
sufficiently developed to obtain full compliance rapidly.
To ease the burden of implementation on the DOD and
State, an agreement was reached to allow these agencies three
years from the end of 1984 to fully implement the SF 189.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06
CIA-RDP91B00390R000200150028-2
Declassified in Part- Sanitized Copy Approved for Release 2013/11/06: CIA-RDP91B00390R000200150028-2
NUMBER OF PERSONS REQUIRED TO SIGN THE SF 189
(TOTAL REQUIRED TO SIGN = 2,399,720 PERSONS)
ARMY: 650,000 (27%
AIR FORCE: 917,612 (38.2%)
ALL 07HER
DOD: 57,081 (2.4%)
ALL OTHER
AGENCIES: 181,727(6.7%)
NAVY: 613,300(26%)
Declassified in Part- Sanitized Copy Approved for Release 2013/11/06: CIA-RDP91B00390R000200150028-2
Declassified in Part- Sanitized Copy Approved for Release 2013/11/06: CIA-RDP91B00390R000200150028-2
COMPARISON
SIGNED AGREEMENTS VS. AGREEMENTS TO BE SIGNED
SIGNED
AGREEMENTS: 1,738.319 (72.4%)
AGREEMENTS
TO BE SIGNED: 661.401 (27.6%)
Declassified in Part- Sanitized Copy Approved for Release 2013/11/06: CIA-RDP91B00390R000200150028-2
Declassified in Part- Sanitized Copy Approved for Release 2013/11/06: CIA-RDP91B00390R000200150028-2
STATUS OF IMPLEMENTATION
SF 189
SIGNATORIES VS. SIGNATURE REFUSALS
SIGNED
AGREEMENTS: 1.738.319
(99.999%)
SIGNATURE
RE:FUSAIS: 24
(.001%)
Declassified in Part- Sanitized Copy Approved for Release 2013/11/06: CIA-RDP91B00390R000200150028-2
Declassified in Part- Sanitized Copy Approved for Release 2013/11/06: CIA-RDP91B00390R000200150028-2
NUMBER OF SIGNED AGREEMENTS
AIR FORCE: 769,327
ARMY: 650,000
LL OTHER DOD: 52.093
ALL OTHER
AGENCIES: 132.659
NAW: 134,240
Declassified in Part- Sanitized Copy Approved for Release 2013/11/06: CIA-RDP91B00390R000200150028-2
Declassified in Part- Sanitized Copy Approved for Release 2013/11/06: CIA-RDP91B00390R000200150028-2
NUMBER OF AGREEMENTS TO BE SIGNED
NAW: 479,06y
ALL OTHER DOD: 4,988
ALL OTHER
AGENCIES: 29,068
AIR FORCE: 148,285
Declassified in Part- Sanitized Copy Approved for Release 2013/11/06: CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
1A-RDP91B00390R000200150028-2
74
VI. WHAT IS THE STATUS OF NSDD -84'
OTHER MAJOR PROVISIONS?
NSDD-84 directed that other major steps be taken by all
executive branch agencies to curb unauthorized disclosures of
classified information. These included the issuance of an
alternative Sensitive Compartmented Information (SCI)
nondisclosure agreement, developing policies and procedures
for the use of the polygraph, and reviewing the Executive
order on personnel security. The current status of each of
these items is as follows:
o Alternative SCI Nondisclosure Agreement
The Department of State Authorization Bill of
October 20, 1983, banned the implementation of the
alternative SCI nondisclosure agreement for six
months. On February 15, 1984, the President announced
his intention to suspend indefinitely provisions of
the directive pertaining to polygraph and prepubli-
cation review (the SCI agreement).
O Polygraph Policy and Procedures
The polygraph provisions of NSDD-84 remain in
abeyance. Other polygraph use provisions have been
negotiated between executive branch agencies and
Congress. The effectiveness and use of polygraph
testing is the subject of a current executive branch
study based on a subsequent NSDD.
o Federal Personnel Security Program
An interdepartmental group chaired by the Department
of Justice, in consultation with the Director, Office
of Personnel Management, developed a proposed draft
Executive order revising the federal personnel
security program. The draft is currently pending in
the Office of the Attorney General.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2 75
VII. WHAT IS THE SF 189-A? HOW AND WHY WAS IT DEVELOPED?
The SF 189-A, "Classified Information Nondisclosure
Agreement (Industrial/Commercial/Non-Government)"-is a
nondisclosure agreement between the United States Government
and Government contractor, licensee, and grantee employees, or
other non-Government personnel requiring access to classified-
information in the performance of their duties. These
employees must sign either the SF 189-A or the SF 189 before
being authorized access to classified information.
The .DoD recommended development of the SF 189-A ,as,an
adaptation of the SF 189, to facilitate industry
implementation. The form was developed jointly by the ISOO,
and representatives of the DoD. Almost all. the SF 189-A is '
identical to the SF 189. The major differences are:
A. The term "classifiable" in the SF 189-A was deleted.
Contractors do not classify originally. By contract,
it's the Government's responsibility to identify
what information-is classified.
B. The second sentence in paragraph 3 of. the SF 189-A
was changed from. "last granting me a security
clearance," to "responsible for the classification
of the information." The revised language takes into
account: (1) the absence- of an employer/employee
relationship between the Government and the
contractor employee; (2) the lack of contractor
employee classification authority; and (3) the fact
that some contractor employees are cleared for access
by more than one Government agency.
C. References to statutory provisions applicableonly to
Government employees were deleted from the SF 189-A.
D. The debriefing acknowledgment portion of the SF 189-A
was added to facilitate maintenance and retrieval.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
.7,1A-RDP91B00390R000200150028-2 76
VIII. WHAT CONTROVERSY SURROUNDED THE SF 189 UNTIL THE
SPRING OF 1987?
Until this recent controversy, the SF 189 has engendered
very little controversy, especially considering its scope and
the fact that it deals with leaks of classified information.
SF 189 received little attention during the congressional
hearings on NSDD-84 and none of the resulting legislative
action pertained to the nondisclosure agreement.
The SF 189 was the subject of extensive discussion
between the 'SOO and the American Civil Liberties Union
(ACLU). The ACLU indicated repeatedly that it had no plans to
challenge the facial validity of the SF 189.
Over the course of four years ISO? had approximately
two or three dozen people question particular provisions of
SF 189. 'SOO provided both oral and written responses to
their questions. Until the current situation, all persons
provided these explanations signed the agreement.
Until the National Federation of Federal Employees
brought suit in the United States District Court for the
District of Columbia on August 17, 1987, there had been no
litigation. No one had been subject to a criminal or civil
action for violating the provisions of the SF 189. Further,
ISO() is not aware of any person who has lost employment for
failure to sign the SF 189; although a small number of persons
have lost their clearances after failing to sign the
agreement.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2 77
IX. HOW DID THE CURRENT CONTROVERSY ARISE?
The current controversy over the Standard Form 189 began
when Air Force employee A. Ernest Fitzgerald was first asked to
execute the nondisclosure agreement in January 1987. Mr. Fitz-
gerald refused to sign the form at that time, stating that he
needed more information about it. Over the next months he sought
this information through successive inquiries to the Air Force,
the Department of Defense and the ISOO.
Mr. Fitzgerald was on part-time detail to the staff of the
Subcommittee on Oversight and Investigations of the House
Committee on Energy and Commerce, both chaired by Representative
John D. Dingell. Starting in May 1987, following a meeting
between Mr. Fitzgerald and other members of the Subcommittee
staff and ISOO Director Steven Garfinkel, several members of the
House and Senate directed letters to the White House, the Office
of Personnel Management and MOO questioning the legality of a
number of aspects of the SF 189, which are addressed in the
following section. These letters were also released to the news
media, which commenced a series of news articles, stories, op-ed
pieces and editorials on the nondisclosure agreement, almost all
of which contained serious errors of fact. This media attention,
in turn, led to constituent correspondence to other members of
Congress, more congressional inquiries, more media attention,
etc. Within a couple of months, the situation had snowballed
into a major controversy. Fueling the controversy have been a
number of misrepresentations and misunderstandings about the
SF 189 that have appeared repeatedly in both the media accounts
and congressional pronouncements.
On August 17, 1987, the National Federation of Federal
Employees (NFFE), a Federal employee labor union, filed suit in
the Federal District Court for the District of Columbia
challenging the constitutionality and legality of the SF 189.
The lawsuit seeks a declaratory judgment that the form violates
the First (free speech) and Fifth (due process) Amendments to the
Constitution and an injunction which bars the executive branch
from using the SF 189 and any other form that prohibits the
disclosure of "classifiable" information. On October 7, 1987,
NFFE filed an amended complaint seeking the same remedies. The
Department of Justice is proceeding as quickly as possible to
defend the Government's position and the Administration is
confident that it will ultimately prevail on the merits.
Additionally, on September 1, 1987, the American Federation
of Government Employees, another Federal employee labor union,
filed suit in the Federal District Court for the District of
Columbia challenging the constitutionality and legality of the
SF 189 and 'Form 4193. Form 4193 is a nondisclosure agreement for
sensitive compartmented information issued by the Director of
Central Intelligence.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2 78
X. WHAT ARE THE MAJOR POINTS OF CONTENTION?
A. HEAT IS "CLASSIFIABLE INFORMATION?"
As used in paragraph 1 of SF 189, the term "classifiable
information" refers to information that meets all the
requirements for classification under Executive Order 12356, or
under any other Executive order or statute that prohibits the
unauthorized disclosure of information in the interest of
national security, but which, as a result of negligence, time
constraints, error, lack of opportunity or oversight, has not
been marked as classified information. A party to SF 189 would
violate its nondisclosure provisions only if he or she disclosed
without authorization classified information or information that
he or she knew, or reasonably should have known, was classified,
although it did not yet include required classification markings.
The term "classifiable" does not include any information that is
not otherwise required by statute or Executive order to be
protected from unauthorized disclosure in the interest of
national security.
For example, a person attending a classified meeting should
reasonably know that his or her unmarked notes of that meeting
may not be disclosed to a person who doesnYt have a clearance and
a "need-to-know" that information. In testimony before a Senate
subcommittee studying NSDD-84, former CIA Director William Colby
alluded to the fact that raw intelligence data are often unmarked
as classified when they are first received, yet may very well
involve some .of the most sensitive information within the
Government, such as the names of intelligence sources.
Also, with respect to the-term "classifiable," critics have
repeatedly leveled the charge that it would subject employees to
sanction for disclosing information that was clearly unclassified
at the time of disclosure, but was subsequently classified. This
argument suggests that it would require employees to speculate
about the future classification of information although they
themselves may not be original classifiers. This contention
completely overlooks the definition of "classifiable" as used in
the SF 189. As noted above, "classifiable" refers to unmarked
information that-already is classified, or meets the standards
for classification and is in the process of being classified. It
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
79
does not refer to unclassified information that might, perchance,
be classified sometime in the future. The only fact patterns in
which an employee might be held liable for disclosing
unclassified information could occur when the employee knows, or
reasonably should know, that the information is in the process of
a classification determination and requires interim protection as
provided in Section 1.1(c) of Executive Order 12356. For
example, if an employee is aware that particular unclassified
information has been formally referred to an original classifier
for classification action, he or she would very likely violate
the SF 189 if he or she were to disclose the information without
authorization in the interim.
Critical to the concept of liability for disclosing
"classifiable" information is the knowledge requirement on the
part of the offending party. To be liable, either that party
knows that the unmarked information is classified or in the
process of a classification determination, in which case the
unauthorized disclosure is either willful or negligent; or the
party reasonably should know that the unmarked information is
classified or in the process of a classification determination,
in which case the unauthorized disclosure is negligent. This is
fully consistent with the requirements of Executive Order 12356,
which provides at Section 5.4(b)(1): "Officers and employees of
the United States Government, and its contractors, licensees, and
grantees shall be subject to appropriate sanction if they . . .
knowingly, willfully, or negligently disclose to unauthorized
persons information properly classified under this Order or
predecessor orders . . . ." The existence or non-existence of
negligence, as is true in any negligence situation, would be
determined by the particular facts of the case. However, in no
instance could an employee be found liable for violating the
nondisclosure provisions of the SF 189 by disclosing unmarked
information when there was no basis to suggest, other than pure
speculation, that the information was classified or in the
process of being classified.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
ICIA-RDP91B00390R000200150028-2
80
B. WHAT IS AN "INDIRECT" UNAUTHORIZED DISCLOSURE?
As used in paragraph 3 of SF 189 and SF 189-A, the word
"indirect" refers to any situation in which the knowing, willful
or negligent action of a party to the agreement results in the
unauthorized disclosure of classified information even though the
party to the agreement does not directly communicate, deliver or
transmit classified information to a person who is not_authorized
to receive it. A party to SF 189 would violate its nondisclosure
provisions only if he or she knew, or reasonably should have
.known, that his or her action would result, or reasonably could
result in the unauthorized disclosure of classified information.
ISOO has made regulatory changes defining the meaning of the term
"indirect unauthorized disclosure." (See Federal Register,
Vol. 52, p. 28802, dated August 3, 1987.)
There are any number of hypotheticals that might constitute
an indirect unauthorized disclosure. Here are several examples:
An employee works in an area that is not secured and which
is accessible to uncleared personnel. He goes home for the
evening, leaving clearly marked classified documents on top
of his desk. A reporter walking through the area spots the
classified documents, reads them, and files a story on the
classified information that is published. The negligent
employee has very likely committed an indirect unauthorized
disclosure.
An employee reads a news article that speculates about a
classified subject. The employee, as a result of his
authorized access to classified information, is aware of the
accuracy of the information. The employee then advises a
party who does not have a clearance and a "need-to-know"
that accurate information about a classified subject is
revealed in a news article, which the employee cites. The
employee-has very likely committed an indirect unauthorized
disclosure.
An employee tells a co-worker on a classified project that
he believes their work is contrary to the goal of world
peace. The co-worker agrees, and states that he has a
journalist friend who would gladly expose it. The employee
provides his co-worker with classified information to leak
to the journalist, who then has it published. The co-worker
has committed a direct unauthorized disclosure, while the
employee, although providing classified information directly
only to his cleared co-worker, has committed an indirect
unauthorized disclosure.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
81
C. .DOES THE SF 189 CONFLICT WITH "WHISTLEBLMER" STATUTES?
The SF 189 does not conflict with the so-called
"whistleblower" statutes (5 U.S.C. S 2302). These statutes
specifically do not protect persons who disclose classified
information without authorization. The reference in these
statutes to information "specifically required by Executive order
to be kept secret in the interest of national defense or the
conduct of foreign affairs" is without question a reference to
the contemporary Executive order on national security
information, which is now E.O. 12356. In turn, SF 189 defines
classified information as "information that is either classified
or classifiable under the standards of Executive Order 12356, or
under any other Executive order or statute that prohibits the
unauthorized disclosure of information in the interest of
national security." Future reprints of the SF 189 will
explicitly state that the Agreement does not supersede the
provisions of the "whistleblower" statutes.
In addition, E.O. 12356, Sec. 1.6(a) specifically prohibits
classification "in order to conceal violations of law,
inefficiency, or administrative error; to prevent embarrassment
to a person, organization, or agency; to restrain competition; or
to prevent or delay the release of information that does not
require protection in the interest of national security." This
provision was included in the Executive order to help prevent the
classification of information that would most likely be the
concern of whistleblowers.
Finally, there are remedies available to whistleblowers that
don't require the unauthorized disclosure of classified
information. There are officials within the government who are
both authorized access to classified information and who are
responsible for investigating instances of reported waste, fraud
and abuse. Further, each agency has designated officials to whom
challenges to classification may be addressed or to whom a
disclosure of classified information is authorized. For example,
within the Department of Defense employees are now required to
challenge the classification of information that they believe is
not properly classified. Special procedures have been
established to expedite decisions on these challenges.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
.7,1A-RDP91B00390R000200150028-2
82
D. IS THE SF 189 CONSTITUTIONAL?
Although the constitutionality of SF 189 has yet to be
resolved in court, nondisclosure agreements even more stringent
In their restrictions have consistently been upheld by the
Federal courts, including the Supreme Court, as legally binding
and constitutional. At every stage of the development and
implementation of the SF 189, experts in the Department of
Justice have reviewed its constitutionality and enforceability
under existing law.
E. DOES THE SF 189 REQUIRE PREPUBLICATION REVIEW?
The SF 189 contains no requirement for prepublication
review. This omission resulted from the specific design of its
drafters, since NSDD-84 was silent on the inclusion or non-
inclusion of a prepublication review provision for this
nondisclosure agreement.
The ability of the Government to seek injunctive relief to
prevent the publication of classified information is not, as a
few people have suggested, an implied imposition of a blanket
prepublication requirement. It is untenable to suggest that the
Government, if it is aware that an employee or former employee is
about to disclose classified information, should not consider
every lawful means to protect the nation's security. However,
the possibility of infrequently seeking injunctive relief in no
practical or even theoretical sense equates to mandatory
prepublication review for every publication of every signer of
the SF 189.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06 :
CIA-RDP91B00390R000200150028-2
83
F. WHAT OTHER LANGUAGE IN SF 189 IS UNCLEAR?
The first line of paragraph 7 of the SF 189 reads: "I
understand that all information to which I may obtain access by
signing this form is now and will forever remain the property of
the United States Government." The SF 189-A, composed over three
years later, includes the word "classified" before the word
"information." It has been suggested by a few persons that the
SF 189, therefore, imposes a much broader standard.
To the contrary, the first sentences of both agreements mean
precisely the same thing. Information to which someone "may
obtain access by signing [the SF 1891" is, by definition,
"classified information." As further stated in the first
sentence of the agreement, ". . . I hereby accept the obligations
contained in this Agreement in consideration of my being granted
access to classified information." [Emphasis added.] The
drafters of the SF 189 did not include the word "classified" in
the first sentence of paragraph 7 because they believed it to be
redundant. At the urging of the Department of Defense, it was
later included in the SF 189-A, notwithstanding its redundancy,
in order to preclude any possibility whatsoever of
misunderstanding.
The third sentence of paragraph 7 reads in part: "I agree
that / shall return all materials which have, or may have, come
into my possession or for which I am responsible because of such
access . . .." For the same reasons addressed above, it is clear
that "all materials," by definition, refers only to "classified"
materials. It is far less clear what is meant by the phrase, "or
may have." The current language of this phrase was suggested by
the Department of Justice after the interagency drafting group
had completed its work on what was to become the SF 189. A
detailed review of the records also reveals that the Department
suggested slightly different, but far clearer language for the
comparable provision of the Sensitive Compartmented Information
Nondisclosure Agreement: "I agree that I shall return all
materials which have or may come into my possession or for which
I am responsible because of such access . . .." It now appears
that Justice intended that the phrase 'may have come" should
actually have read "may come' in what was to become the SF 189 as
well. 'SOO has modified the rule that implements the use of SF
189 and SF 189-A to clarify these ambiguities. (See Federea
Reaister, Vol. 52, p. 28802, dated August 3, 1987.)
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06 :
CIA-RDP91B00390R000200150028-2 84
XI. WHAT ACTIONS HAS ISOO TAKEN TO RESOLVE THE CURRENT
CONTROVERSY?
To resolve the current controversy surrounding
misunderstanding and ambiguities in the language of the SF 189,
ISOO has taken a series of actions. Below is a brief summary of
the nature of these actions and what they are expected to
accomplish.
1. Meaning of "classifiable information"
Prior to the current controversy, ISOO had defined
"classifiable information" through correspondence in
response to individual inquiries. Now, to regulate formally
the meaning of "classifiable information," on August 3,
1987, ISOO has defined the term in the Federal Register as
"information that meets all the requirements for
classification under Executive Order 12356, or under any
other Executive order or statute that prohibits the
unauthorized disclosure of information in the interest of
national security, but which, as a result of negligence,
time constraints, error, lack of opportunity or oversight,
has not been marked as classified information. A party to
SF 189 would violate its nondisclosure provisions only if he
or she disclosed without authorization classified
information or information that he or she knew, or
reasonably should have known, was classified, although it
did not yet include required classification markings."
On August 11, ISO() issued a further regulatory
clarification, noting that "the term 'classifiable' does not
include any information that is not otherwise required by
statute or Executive order to be protected from unauthorized
disclosure in the interest of national security." In
written notices dated August 4 and 21, ISOO informed
executive branch agencies of these regulatory changes. This
definition of "classifiable information" is being added to
the second sentence of paragraph 1 in the SF 189. Future
reprints of the SF 189 will include this addition. Agencies
have been advised that employees may add this language to
current editions of SF 189.
2. Meaning of "indirect" unauthorized disclosure
To regulate formally the meaning of an "indirect"
unauthorized disclosure, ISOO defined the term in the
Federal Register on August 3, 1987, as "any situation in
which the knowing, willful or negligent action of a party to
the agreement results in the unauthorized disclosure of
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2 35
classified information even though the party to the
agreement does not directly communicate, deliver or transmit
classified information to a person who is not authorized to
receive it. A party to SF 189 would violate its
nondisclosure provisions only if he or she knew, or
reasonably should have known, that his or her action would
result, or reasonably could result in the unauthorized
disclosure of classified information."
ISO() informed executive branch agencies of this
clarification in a letter to agency senior officials dated
August 4, 1987. The definition is being added to the first
sentence of paragraph 3 of SF 189 and SF 189-A. Future
reprints of the SF 189 and the SF 189-A will include this
addition. Agencies have been advised that employees may add
this language to current editions of SF 189.
3. Conflict'of SF 189 with "Whistleblower" statutes
The SF 189 does not conflict with the so-called
"whistleblower" statutes (5 U.S.C. S2302). To end any
confusion on this issue, the following statement is being
added to the end of paragraph 4 of SF 189: "I understand
that this Agreement does not supersede the provisions of
Section 2302, Title 5, United States Code, which pertain to
the protected disclosure of information by Government
employees." Future reprints of SF 189 will include this
statement. 'SOO notified agencies of this addition on
August 4, 1987. Agencies have been advised that employees
may add this language to current editions of SF 189.
4. Conflict of SF 189 with constitutional provisions
The Administration is confident that the SF 189 fully
complies with all constitutional and legal standards. On
August 17, 1987, the National Federation of Federal
Employees brought suit in the United States District Court
for the District of Columbia challenging the
constitutionality and legality of the Agreement. Pending
some resolution of the issues in this litigation, on August
21, 1987, ISO? provided agencies with instructions
concerning the execution and implementation of SF 189. The
instructions require agencies to place a moratorium on
withdrawal of clearances or denial of access solely on basis
of refusing to sign SF 189 and to provide individualized
briefings for those who refuse to sign the SF 189 but retain
clearances. The letter also instructs agencies that these
instructions are temporary and that they should continue
with .implementation of the SF 189.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06
CIA-RDP91B00390R000200150028-2 86
Also, on September 1, 1987, the American Federation of
? Government Employees filed suit against the Government
challenging the constitutionality of the SF 189 and of Form
. 4193. Form 4193 is a nondisclosure agreement for sensitive
compartmented information issued by the Central Intelligence
Agency.
5. Prepublication review
The SF 189 contains no requirement for prepublication
review. Therefore, no action wasnecessary.
6. Other unclear language
The first line of paragraph 7 of SF 189 reads: "I understand
that all information to which I may obtain access by signing
this form is now and will forever remain the property of the
United States Government." The SF 189-A, Composed over
three years later, includes the word "classified" before the
word "information." To correct the,inconsistency in the
language of the two forms, 'SOO has added .the word
"classified" before the word "information" in the first
sentence of paragraph 7 of SF 189. ISO? published this
change in the Federal Register on August 3, 1987, and
notified executive branch agencies of the change in a
written notice dated August 4, 1987. Future reprints of
SF 189 will reflect this change. Agencies.have been advised
that current editions of. the SF 189 may be amended to
reflect this change.
The third sentence of paragraph 7 of.SF 189 and SF 189-A
reads in- part: "I agree that I shall return all materials
which have, or may have, come into my possession or for
which I am responsible because of such access . . .." By
definition "all materials" refers only to "classified"
materials. As it concerns the meaning of the phrase "or
may have," it appears that -the phrase should have read. "may
come." To clarify the meaning .and intent of this language
ISO? published these changes in the Federal Register on
August 3, 1987, and notified executive, branch agencies of,
these_changes in a written notice dated August 4, 1987.
Additionally,-the word 'classified" has been added before
the word "materials" -in the third sentence of paragraph 7 of
SF 189 and SF 189-A. In the same sentence and paragraph, of
both forms, the second "have" from the phrase "which have,
or may have come into my possession" has been deleted.
Future reprints of SF 189 'and SF 189-A will reflect these
changes. Agencies have been advised that current editions
of the SF 189 may be amended to reflect this change.
7. Other changes
Future reprints of SF 189 will include the Witness and
Acceptance block and Security Debriefing Acknowledgement
block which currently appear.in SF 189-A.-. The addition-of
the Witness and Acceptance block .is intended to clarify the
role of the-witness and the role of the acceptor for the.
Government. By-addlng-the optional Security Debriefing
Acknowledgement block, SF 189 will provide for the
acknowledgement of both a security debriefing and a security
briefing.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
87
Mr. SIKORSKI. Thank you, Mr. Garfinkel.
Ms. Kathleen Buck is General Counsel for the Air Force. The
subcommittee thanks you for your time and testimony, especially
in light of the fact that your confirmation as Department of De-
fense General Counsel is fast approaching.
We look forward to discussion on the use of nondisclosure agree-
ments at the Department of the Air Force and working with you to
resolve the problems that have arisen.
STATEMENT OF KATHLEEN BUCK, GENERAL COUNSEL, U.S. AIR
FORCE
Ms. BUCK. Thank you, Mr. Chairman.
My testimony is actually very short.
Mr. SIKORSKI. Yes, why don't you go ahead?
Ms. BUCK. So with your permission, I would like to go ahead and
read that testimony.
Thank you for inviting me to appear today to discuss the classi-
fied information nondisclosure agreement and its implementation
in the United States Air Force.
I am sure that we can all agree that in order to effectively pro-
vide for the nation's security, we must maintain the secrecy of ap-
propriate defense information and protect against intentional and
negligent disclosures of that information to unauthorized recipi-
ents.
The Air Force does not formulate the nation's policies regarding
the protection of classified information. The legal and policy frame-
work for the protection of classified information is established by
statute and Executive Order.
In March 1983, the President issued National Security Decision
Directive 84 and made the execution of a nondisclosure agreement
a condition of access to classified information. The President as-
signed GSA's Director of the Information Security Oversight Office
the responsibility to develop a standardized form for use by the
agencies.
In February 1985, the Department of Defense issued instructions
that all military and DOD civilian personnel with current access to
classified information would be required to sign Standard Form 189
as soon as practicable. Those instructions also ? required that we
maintain a file system from which executed agreements could be
expeditiously retrieved.
In July 1985, the Department of Defense issued a 37-page pam-
phlet, and that is DOD 5200.1-PH-1, entitled "Classified Informa-
tion Nondisclosure Agreement SF 189." It included a sample brief-
ing regarding the agreement, copies of the legislative and executive
authorities cited in Paragraph 10 in SF 189, and informational
questions and answers regarding implementation of the agreement.
In September 1985, the principal Director of Counterintelligence
and Security Policy for the Department of Defense directed the
military services to accomplish the execution of the SF 189 by all
personnel as soon as possible. That letter emphasized the goal of
100 percent coverage of all cleared personnel and noted that ISO()
would ask for an agency-by-agency status report for its annual
report to the President.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
88
It was in response to these directions that the Air Force first im-
plemented procedures for the use of Standard Form 189.
In June 1986, the Department of Defense promulgated its infor-
mation security program regulation, which is DOD 5200.1-R. Para-
graph 10.102 of that regulation confirmed that DOD personnel
could not be given access to classified information until they had
received an initial security briefing and signed Standard Form 189.
It also confirmed that personnel who already possessed a security
clearance when the regulation became effective were required to
sign the agreement as soon as practicable.
The obvious intent of those directives was that no one .have
access to classified information without first signing the agree-
ment. At the time the Air Force developed its procedures, a very
high percentage of Air Force members and employees possessed se-
curity clearances and were, thus, eligible for immediate access to
classified information.
Those procedures reflected our desire to efficiently and reliably
implement the government-wide policy that no one gain access to
classified information without first signing a nondisclosure agree-
ment.
In August 1987, the Information Security Oversight Office in-
structed that until further notice, no one should be denied access to
classified information or have their clearance revoked solely be-
cause he or she has refused to sign the agreement, and the Air
Force is, of course, complying with those instructions.
Only those Air Force members and civilians who require access
to classified information are-being asked to sign the nondisclosure
agreement. Moreover, we are undertaking a thorough review of our
procedures regarding the classified information nondisclosure
agreement at the request of Senator Grassley.
I appreciate the opportunity to appear here today, Mr. Chair-
man, to review the program, and I would be happy to entertain
any questions that you might have.
Mr. Sucoltsm. Thank you, Ms. Buck.
Let's see if we can get to the nitty-gritty here.
Mr. Garfinkel, you talk about the failure of prior and existing ef-
forts to protect classified information. Can you describe to us the
parade of horribles that has created this Standard Form 189 and
that the form is addressing?
Mr. GARFINKEL. Mr. Chairman, there have been and continue to
be unauthorized disclosures of classified information in every year
of this administration and in every year of preceding administra-
tions.
Mr. SIKORSKI. Okay. How many?
Mr. GARFINKEL. 'SOO has had reported to it over the course of or
since SF 189 was issued approximately 100 to 110 serious unauthor-
ized disclosures per year.
Mr. SmoRsxf. One hundred ten since 1983?
Mr. GARFINKEL. Per year. So we are talking about a total of over
400 since that time.
Mr. Succutsio. Since 1983, and these are disclosures of classified
information by federal employees?
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
89
Mr. GARFINKEL. These are disclosures of classified information,
presumably by federal employees, either of the Executive Branch
or perhaps in the Legislative Branch.
Mr. SIKORSKI. Okay. Okay. These are disclosures. They might
come from the Executive Branch, the people who are required to
sign SF 189.
Mr. GARFINKEL. That is correct.
Mr. &comm. They might come from contract employees who
sign SF 189-A, but do not have to sign on "classifiable" material; is
that correct?
Mr. GARFINKEL. Most of the disclosures to which we are privy
deal with disclosures of intelligence information, and I would sus-
pect that most of that information would not be made available to
contractors.
I am not suggesting that?
Mr. SIKORSKI. Wait a minute. Wait a minute. We know the num-
bers, and these are serious, and I have a question as to what trig-
gers the label "serious."
Mr. GARFINKEL. Serious enough that the agencies concerned be-
lieved an investigation was necessary to see if they could determine
the source of the unauthorized disclosure.
Mr. SIKORSKI. In how many of these was the source determined?
Mr. GARFINKEL. Very, very few. I do not have the figures in front
of me.
Mr. &comm. How many out of the 110 last year, approximately?
Mr. GARFINKEL. I don't have the figure. ISOO's concerns over un-
authorized disclosures in terms of its jurisdiction goes to where the
system, where the classification system may have been responsible
for the disclosure.
Mr. SumRsiu. I understand, but you are proposing if not a dras-
tic, certainly a controversial nondisclosure agreement.
Mr. GARFINKEL. No, sir, I have not--
Mr. Sucortsm. You are administering it, and the administration
has proposed and is making employees sign this. We are talking
about a total of almost four million people signing these agree-
ments to respond to a failure in the security of the classified infor-
mation system.
I asked you the dimension of the failure that would cause all of
this bureaucratic paper-pushing. You said you hear about approxi-
mately 110 per year. I said are the sources the same people who
are signing the SF 189 and 189-A, these four million people, and
you say you do not know.
My next question is: aren't there statutes?not a little contract,
not a piece of paper?aren't there criminal and civil statutes on
the book today to get these people or entities that are releasing
this classified information?
Mr. GARFINKEL. Mr. Chairman, it is my opinion that there is no
statute that in and of itself satisfactorily provides criminal sanc-
tions for unauthorized disclosures of classified information.
Mr. SIKORSKI. Let me remind you of your testimony this morn-
ing. You are in a difficult situation. I have read this stuff, and you
look like you are dancing as fast as anyone has ever danced. So I
do not want to make your difficulties greater.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
90
But you said in your testimony today and in prior correspond-
ence with this subcommittee and other members of Congress that
this all came out of the Willard Commission. At least a good part
of the genesis is there.
As you have heard, the Willard Commission said the present
civil statutes and regulations permitting disciplinary action for un-
authorized disclosures by government employees are generally ade-
quate.
Mr. GARFINKEL. Mr. Chairman, I do not know that the Willard
Commission report speaks for the policy of this administration on
that question. I believe personally, as someone very much involved
with classified information, and I know any number of other indi-
viduals who are so involved, that the current criminal statutes are
not satisfactory, and I suspect that if you asked Richard Willard
that question, who was the chairman of that group, I think he
would answer the same way.
Mr. SIKORSKI. Good. What suggestions do you have to change the
criminal statutes?
Mr. GARFINKEL. I do not have anything with me today, Mr.
Chairman, but we would be happy to cooperate with the Congress.
Mr. SIKORSKI. Well, if there is a deficiency, let's get it off our
chest.
Mr. GARFINKEL. We have expressed that deficiency to committees
of Congress repeatedly, and no legislation has been introduced or
seriously undertaken.
Mr. SIKORSKI. Mr. Garfinkel, I have seen this administration, the
national security people, say that the statutes are fine. Now, can
you provide the subcommittee with your proposed changes to the
criminal statutes, the legislation that you have asked be introduced
and when you asked it to be introduced, so that the subcommittee
can try to assist you?
But I do not think it is quite that way, is it?
Mr. GARFINKEL. It is exactly the way I have been saying, Mr.
Chairman. I would be happy--
Mr. SIKORSKI. Wait a minute. Let me ask you the question. The
administration has proposed legislation to adjust the criminal stat-
utes?
Mr. GARFINKEL. The administration has discussed prospective
legislation on the issue of unauthorized disclosures of information
with a number of committees of Congress, most specifically the in-
telligence committees of Congress, who have, in turn, reported that
such legislation would be appropriate.
Mr. SIKORSKI. This is so important as to engender four million
signatures and all of the time entailed in that, of which you are
better aware than I, but it does not trigger criminal sanctions at
all.
Mr. GARFINKEL. That is correct, and I would suggest, Mr. Chair-
man, that there are occasions when criminal sanctions are un-
reachable, where civil sanctions are not.
Mr. SIKORSKI. Well, we are not quite there yet. But this thing
does not get to it. We have criminal statutes to punish people who
release this. It is not considered important enough to protect, and
for people after seven years to propose legislation, not have chats
about maybe, maybe doing some legislation, but all of a sudden it
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
91
is important enough to engender this huge paper flow. Someone, a
cynic, might suggest that the reason is not really protecting the re-
lease of information which needs to be kept secret. The releases
appear to be very nominal. If you talk about classified pieces of in-
formation, how many billions or trillions of pieces of information
are classified?
Mr. GARFINKEL. We estimate approximately ten million classifi-
cations, new classification decisions, both original and derivative
decisions, were made last year, and I think that is probably a fair
ball park figure of an annual total.
Mr. SIKORSKI. Would it be wrong to assume that each one of
those was at least one page?
Mr. GARFINKEL. It would be impossible to--
Mr. SIKORSKI. Well, they are not smaller than one page?
Mr. GARFINKEL. No, some of them could be one sentence or even
one word, and some of them are large reports.
Mr. SIKORSKI. Encyclopedias and huge tomes, but it is not unrea-
sonable to expect that at least it is on one page of paper. What I
am trying to figure out is if ten million classification decisions are
made a year, then we are probably talking trillions of pieces of
paper that have been classified in the main classifications.
Mr. GARFINKEL. I do not know whether I can say trillions. I can
say that it is a phenomenally large body of information.
Mr. SIKORSKI. Mega-billions?
Mr. GARFINKEL. Mr. Chairman, I could not suggest that. I have
never undertaken a count.
Mr. SIKORSKI. Well, maybe you should, since you are in charge of
securing this. That is your job, right?
Mr. GARFINKEL. It is my job to be in charge of the information
security system; that is correct.
Mr. SIKORSKI. Okay. I am trying to get a handle on how much
information is sitting there.
Mr. GARFINKEL. And we provide that information each year in
terms of our annual report.
Mr. SIKORSKI. No, in terms of classifications. I am trying to talk
in terms of volume, gross volume.
Mr. GARFINKEL. Mr. Chairman, we have never had anywhere
near the resources to be able to begin a page-by-page count of every
document that is classified. That question has arisen before, and it
has been our considered judgment that the expenditure of funds
that would be necessary to determine whether it was trillions or
mega-billions or hundreds of millions is not worth that dollar
figure.
Mr. SIKORSKI. Good. We know it is huge.
Mr. GARFINKEL. We know that it is very large, but we also know
that--
Mr. SIKORSKI. But we also know that 110, approximately, releases
of classified information surfaced, and we do not know the sources
of those leaks.
Mr. GARFINKEL. I suggested approximately 110.
Mr. SIKORSKI. Per year, for the last six or seven years.
Mr. GARFINKEL. Mr. Chairman, it may be 110, but I do not want
to discount that number as having a minimal effect on the national
security of the United States.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
92
Mr. SIKORSKI. Nor would I. Nor would I. I was just trying to put
it into perspective because you are proposing that we complete at
least four million sheets of paper, and actually more than that, in
response to it. It seems the money associated with engendering
that paper work is not well spent.
Ms. Bum. Mr. Chairman, may I also comment?
Mr. SIKORSKI. Surely.
Ms. Bum. I think it is important here not to just merely focus on
numbers or numbers of pages, but you can have one case that has
a very substantial impact on the government.
Mr. SIKORSKI. Ms. Buck, I know that, and everyone knows it. I
am trying to put this thing into perspective. You are making
people sign these agreements, you are telling people that they
cannot release any classified information, and I would like for
people to understand the dimensions of their liability: I am only
asking for the underlying support for the statements made that
there has been a failure that this form responds to. Beyond that,
you have made a distinction between those who work for the feder-
al government as federal employees and those who work for the
federal government as employees of entities that contract with the
federal government. Now, it has been my experience on the Energy
and Commerce Committee, which has been involved for the last
five years in a longer investigation of the Department of Energy's
security at our nuclear weapons production facilities, which are
under the administration and operation of the Department of
Energy and are extensively operated by contract employees, that in
the most sensitive areas that include one sentence or just a little
paragraph or one paper or a little manual of classified information,
that we have got contract employees working side by side with fed-
eral employees, and the same thing at the Air Force experimenta-
tion research stations and the rest of it. We have got contract em-
ployees working side by side with federal employees on the same
projects, doing similar or the same things, maybe with higher sala-
ries, but they are there, and they are dealing with the same type of
classified or top secret documents.
And yet they are distinguished in which form they must sign.
Okay so far?
Mr. GARFINKEL. Could I make one additional comment about the
question of the scope of the problem?
Mr. SiKoRsiu. I will let you summarize at the end, and you will
have the last word. You can clean up that and anything else.
Are we okay so far with regard to contract employees or do you
dispute the fact that they are in some of the most sensitive areas of
this government's national security?
Mr. GARFINKEL. I don't dispute that.
Mr. &Imam. And we are talking numbers, right? We are talk-
ing according to you, about 1.2 million people. We are talking
about 2.4 million, according to your testimony, federal employees,
another 1.2 million in contract employees. Right so far?
Mr. GARFINKEL. That is correct.
Mr. SIKORSKI. You have given the subcommittee some nice charts
describing how many people have signed these forms and how
many have not signed these forms, percentages and the rest of it,
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
93
and I understand from Ms. Buck's testimony that there has been a
big push to get these forms signed.
You have not provided the same kind of charts and graphs with
regards to these 1.2 million contract employees, have you?
Mr. GARFINKEL. We have provided you with the numbers of
people.
Mr. SIKORSKI. Would you like to refresh my memory on the num-
bers with these 1.2 million contract employees?
Mr. GARFINKEL. It is our understanding that somewhere between
80,000 and 100,000 contractor employees have signed either the SF
189 or the SF 189(a).
Mr. SIKORSKI. So approximately eight to ten percent of the con-
tract employees have signed these forms?
Mr. GARFINKEL. One or the other of the forms.
Mr. SIKORSKI. What are the numbers for the other areas, the
non-contract employees, the public employees? The federal employ-
ees who have to sign this 189, who do not have the option of 189-A
without the "classifiable" definition in it.
Mr. GARFINKEL. Well, the number that we have is as was in my
testimony, approximately one and three-quarter million govern-
ment employees have signed the form. The total number of govern-
ment employees who will ultimately have to sign the form will be
somewhere around 2.1 to 2.4 million.
Mr. SIKORSKI. So approximately 80 percent of the federal employ-
ees have been signed up.
Mr. GARFINKEL. That is correct.
Mr. SIKORSKI. But only approximately eight percent of the con-
tract employees have been signed up.
Mr. GARFINKEL. I can explain the reason if you are interested in
the discrepancy.
Mr. SIKORSKI. Well, if we have a failure in protecting this classifi-
cation system and these people are in there, I do not see the differ-
ence between the apples here.
Mr. GARFINKEL. Well, it is not a difference in the sensitivity situ-
ation. It is merely a distinction in the logistics of getting started in
getting these forms implemented. Most contractor employees are
subject to something called the Defense Industrial Security Pro-
gram. The Defense Investigative Service, which undertakes that
program, is implementing these forms in the context of the re-issu-
ance of its industrial security manual. That has been delayed until
this time, not because we wanted it to be so delayed, but because it
has been, and they are beginning to undertake this project at full
steam right now.
Mr. SIKORSKI. Yes. Focusing more on the distinction that has
arisen between how contract employees and federal employees, all
involved in security incidents, projects, and dealing with classified
information are treated, the contract employees, this 1.2 million, do
not have to sign a form promising to protect "classifiable" informa-
tion.
You said at one point that was because industry would come
back screaming. Is that sufficient reason?
Mr. GARFINKEL. That is not the reason the change was made.
The change was made--
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
.01A-RDP91B00390R000200150028-2
94
Mr. SIKORSKI. Wait a minute. Do you dispute having said indus-
try would come back screaming?
Mr. GARFINKEL. I do not recall whether I said those exact words.
I would certainly love to see the context in which I said those
words and any other words that Mr. Fitzgerald wants to quote for
me. I always prefer to be quoted by speaking for myself rather
than having members of the media or even members of the Con-
gress have Mr. Fitzgerald quote for me.
Mr. Sixoasici. Don't we all? We all want that.
Your statement tells us today that it is important to use "classifi-
able" because, for example, there is raw intelligence being gath-
ered, and before it is marked classified, it is treated as classified,
and that is what you are attempting to protect, correct?
Mr. GARFINKEL. That is correct.
Mr. SIKORSKI. As one example.
Mr. GARFINKEL. That is correct.
Mr. SIKORSKI. Now, contract employees can be put into the same
situation.
Mr. GARFINKEL. Contract employees would almost never be sub-
ject to receiving raw intelligence.
Mr. SIKORSKI. Are you telling us that there are no contract em-
ployees at the Central Intelligence Agency?
Mr. GARFINKEL. Yes, but those contract employees would have
signed a nondisclosure agreement other than the SF 189, for exam-
ple, the Form 4193, that would make specific reference to classifi-
able information. So those same employees would have signed a
form that includes that term.
Mr. SIKORSKI. So we have contract employees signing 189, "un-
classifiable"?
Mr. GARFINKEL. We have contract employees who are signing
nondisclosure agreements that include reference to "classifiable"
information. We have some who have signed the SF 189.
Mr. SIKORSKI. I think I know what the answer is. We have every-
one who is dealing with this raw intelligence signing "unclassifia-
ble"?
Mr. GARFINKEL. I think that is fair to say.
Mr. SIKORSKI. Then we have a whole bunch of people, millions,
who do not deal with raw intelligence who are signing 'unclassifia-
ble" because they are a federal employee, and probably a million
contract employees who are not signing "unclassifiable" and not
dealing with raw intelligence.
So your example does not help support the distinction between
public and contract employee. You suggest elsewhere that the con-
tractor or contract employee does not have original authority for
classification. Therefore, they cannot be reasonably assigned the re-
sponsibility or liability for "classifiable" information.
Mr. GARFINKEL. There is a very real difference between the
United States government, the Executive Branch, and its contrac-
tors with respect to classified information.
Mr. SIKORSKI. Well, let me talk about not the difference between
the government and the contractors, but between the contract em-
ployees and the government employees with regard to classified in-
formation, just so we are talking apples and apples.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
95
Mr. GARFINKEL. I do not think that you can distinguish those
points of difference here because it is with respect to the fact that
contractor employees may not generate new classified information
that the term "classifiable"--
Mr. SIKORSKI. Wait. I do not want to interrupt you, but contract
employees do not generate classified information?
Mr. GARFINKEL. I said they do not generate new classified infor-
mation. In other words, original classified information.
Mr. SIKOFtSKI. Only technically, because they are not the original
classifier, but you are surely not going to tell me that General Dy-
namics does not produce new diagrams of the most sophisticated
Stealth submarine that become classified in the highest form, do
you? Are you telling me they do not produce them?
Mr. GARFINKEL. Yes, they do produce them. They produce them
under instructions that they receive from the agency that is con-
tracted with them.
Mr. SIKORSKI. But they produce those new classified pieces of in-
formation.
Mr. GARFINKEL. Pursuant to instructions that they have received
concerning the classification.
Mr. SIKORSKI. What difference does that make in terms of pro-
tecting that information?
Mr. GARFINKEL. It does not make any difference in terms of pro-
tecting that information, but it--
Mr. SIKORSKI. What difference does it mean in terms of signing
SF 189?
Mr. GARFINKEL. The difference is that in the SF 189 we were in-
tending to impart the concept that there is a great deal of informa-
tion that is classified, but is unmarked, and that information, espe-
cially within the context of intelligence data and related data, is
extraordinarily sensitive information and needs to be protected just
like marked classified information.
Mr. SIKORSKI. What is the difference between General Dyna-
mics's diagrams of their new super secret submarine and that raw
intelligence data coming in from--
Mr. GARFINKEL. Because those diagrams are marked, Mr. Chair-
man. Those diagrams are marked pursuant to the instruction they
received concerning the--
Mr. SIKORSKI. Who is marking them?
Mr. GARFINKEL. The contractor is marking them.
Mr. SIKORSKI. So the contractor is classifying data and producing
new classified data.
Mr. GARFINKEL. The contractor is producing classified data, as in-
structed by the user agency.
Mr. SmoRsKi. And for some reason, because there is an instruc-
tion up here, the people below that are touching this stuff and are
responsible for securing it and protecting it do not have to be wor-
ried about--
Mr. GARFINKEL. They have to be just as worried.
Mr. SIKORSKI. But they do not have to sign off on SF 189. You
took "classifiable" away from them.
Mr. GARFINKEL. We have not taken away the concept of un-
marked classified information.
Mr. SIKORSKI. You just have not stuck them with it.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
96
Mr. GARFINKEL. They would still be liable, Mr. Chairman, if they
were to disclose--
Mr. SIKORSKI. How would they be liable?
Mr. GARFINKEL. If they knew that information they possessed
was classified information.
Mr. SIKORSKI. Classifiable.
Mr. GARFINKEL. Mr. Chairman, the definition that we have given
"classifiable" is, as I have said in my testimony, a subset of classi-
fied information.
Mr. SIKORSKI. Wait a minute. Assuming that we accept that defi-
nition for the time being, they know it. They are liable. How are
they liable?
Mr. GARFINKEL. For an unauthorized disclosure of classified in-
formatioh.
Mr. SIKORSKI. And how are they going to get "gotten"?
Mr. GARFINKEL. Presumably they would lose their security clear-
ance.
Mr. SIKORSKI. And there may be criminal penalties?
Mr. GARFINKEL. There may be.
Mr. SIKORSKI. The system that you just told me was faulty a few
minutes ago is now the system that is going to protect some of our
most sensitive diagrams.
Mr. GARFINKEL. Mr. Chairman, a few minutes ago I said I believe
that the criminal sanctions are faulty in that there is a no criminal
sanction that specifically addresses the unauthorized disclosure of
all classified information as a criminal violation.
Mr. SIKORSKI. Okay. But they are going to take away the crimi-
nal sanctions; civil and disciplinary sanctions are going to entail
here. The same thing against the federal employee.
Now, tell me, please, the distinction between that employee for
General Dynamics on a contract to the U.S. Navy and the federal
employee who is working with them on the same diagrams. Tell me
the distinction from a security, classified information position that
requires the federal employee to sign off on classifiable, but not the
contract employee.
Mr. GARFINKEL. There is no difference as far as potential liability
is concerned.
Mr. SIKORSKI. Oh, yes, there is. They sign off on "classifiable,"
the federal employee.
Mr. GARFINKEL. "Classifiable" does not mean something that is
outside the realm of "classified."
Mr. SIKORSKI. Then why is it in there and not in the contract em-
ployee form?
Mr. GARFINKEL. Because, Mr. Chairman--
Mr. SIKORSKI. Because industry would scream, and they would
not accept it.
Mr. GARFINKEL. Because, Mr. Chairman, when we drafted the SF
189, there was a very strong belief that the concept of protecting
unmarked classified information needed to be expressed.
That term was derived from a pre-existing form used within the
intelligence community that also used the term "classifiable infor-
mation" to express the requirements that unmarked classified in-
formation be protected.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
97
Mr. SIKORSKI. Mr. Garfinkel, I am not going to make this state-
ment as applied to you personally because I do not know if it is the
case, and I would suspect it is not the case, but we have seen in
this subcommittee different treatment for contract employees all
the way down the line. They do not take drug tests to the extent
that federal employees are now expected to take drug tests. They
are treated dissimilarly now here under this classification system.
Even the form gathering shows the difference between the two
groups even though the contract employee must sign a less objec-
tionable form than the federal employee, a much higher percentage
of federal employees have signed.
So let me just suggest that there is a pattern here that is not
very seemly. I have spent a lot of time on this issue. Your logic
behind making this distinction does not hold up, and I think you
had better make changes, and if you do not the Congress is going
to step in and make the changes for you, because federal and con-
tract employees are doing the same thing. What is good for one set
of people is good for another. What is good for the goose is good for
the gander. If you are responsible for protecting this information,
you have got to be responsible all the way down the line.
If this form is so important, then it had better be the same for
both hands that are on that piece of paper. We can't have some ar-
tificial distinction made because private industry might not go
along with SF 189, and if they do not go along, maybe they have a
reason that you should consider.
Let me focus because of your response to the last question on the
distinctions between different definitions. In the Federal Register,
after the brouhaha, you defined classifiable material as informa-
tion which meets the requirements for classification "but which as
a result of negligence, time constraints, error, lack of opportunity,
or oversight has not been marked as classified information."
In the fact sheet you included with a copy of your testimony, you
claim that classifiable material is "unmarked information that al-
ready is classified or meets the standards for classification and is in
the process of being classified."
Today you told us that classifiable information is classified infor-
mation "that for some reason, whether by accident or design, does
not contain the classification markings that are associated with its
identification," and you go on, "and information that is not already
classified, but is currently undergoing a classification determina-
tion," and there are, I think, two definitions in there.
And then you point in your testimony, as well, to the Depart-
ment of Defense's handy little pamphlet, which is not so handy a
pamphlet as it turns out. You said that is an easy reader guide to
what is classifiable, but that definition is again dissimilar in part
from the definitions you have already given us.
Now, I am a federal employee. I am asked to sign this form.
What is the definition of "classifiable" that I sign to?
Mr. GARFINKEL. Mr. Chairman, I think all of those definitions
are the same.
Mr. SIKORSKI. Oh, no.
Mr. GARFINKEL. One may be a little more elaborate than the
other. The definition as it currently appears in the Federal Regis-
ter, as published in the Federal Register, is the formal definition of
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
98
"classifiable information," but I would suggest that my statements
elaborating on that definition are just as conclusive about what
that information entails.
Mr. SIKORSKI. Let me just suggest that there are major conflicts.
Now, I do not purport to be the best lawyer around. I do have some
credentials in law. They are available to anyone who would like to
look at them, but one of the first things I learned the first month
in law school was in cannons of construction. The first cannon is
that you take the meaning that is on the paper.
Let me just suggest that you have several different meanings on
paper. The definition in the Federal Register does not suggest that
material in the process of being classified is classifiable. That sug-
gestion was first made in ISOO's fact sheet attached to a Septem-
ber 21 letter to Congresswoman Boxer.
That fact sheet states that material which fulfills all of the re-
quirements for classification, but which is in the process of being so
stamped, is covered by SF 189.
In today's testimony you now suggest that even material which
has not yet been determined to fulfill the requirements for classifi-
cation, but which is "undergoing a classification determination," is
classifiable.
Mr. GARFINKEL. Mr. Chairman, there is no difference. If you look
at the definition, it says that the term--
Mr. SIKORSKI. Which definition? -
Mr. GARFINKEL. The definition that appears in the August 11 edi-
tion of the Federal Register.
It refers to information that meets all of the requirements for
classification under Executive Order 12356. Executive Order 12356
is the current framework for our security classification system, and
under that Executive Order there is a reference to the fact that
when information is being considered for classification, when it is
in the midst of a classification determination, it should be protect-
ed as if it were classified.
Mr. SIKORSKI. Thank you.
Mr. Garfinkel, Executive Order 12356 states, and you quoted in
your testimony,
officers and employees of the United States government and its contractors, li-
censees and grantees shall be subject to appropriate sanction if they knowingly,
willfully or negligently disclose to unauthorized persons information properly classi-
fied under this order.
Mr. GARFINKEL. Mr. Chairman, the Executive Order also says,
If there is reasonable doubt about the need to classify information it shall be
safeguarded as if it were classified pending a determination by an original classifica-
tion authority who shall make that determination within 30 days.
Mr. SIKORSKI. Okay. You have cited negligence, oversight, delay
et cetera that have not hindered the determination process. Now,
how does that fit in to your definition and this Executive Order?
Mr. GARFINKEL. Remember there are---
Mr. SIKORSKI. Wait a minute. Please answer the question.
Mr. GARFINKEL. Yes, I am trying to answer the question.
I have elaborated on the definition by suggesting that you have
two categories of information that may fall within it. The smaller
category is that which is undergoing a classification determination.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
99
Mr. SIKORSKI. Wait a minute. I don't want to interrupt, but I
want to keep track of you.
That is the part that is engaged by the second provision that you
went on to quote, that you did not put in your testimony, from Ex-
ecutive Order 12356.
Mr. GARFINKEL. That is correct.
Mr. SIKORSKI. Okay. Now, the other?
Mr. GARFINKEL. Now, the other part is information that is classi-
fied information. For example, Mr. Chairman, if I were to reveal to
you the source of some intelligence information, my oral presenta-
tion to you could hardly be marked. My words cannot be marked.
Mr. SIKORSKI. Now, wait. That was not my example, and that is
specifically covered in the Executive Order, sources of intelligence
information. My example is your example: negligence. Someone
just did not mark it. Where is that in this Executive Order under
properly classified or in the determination process?
Mr. GARFINKEL. The recitation--
Mr. SIKORSKI. You cannot answer it because it is not there, but
the point of all of this is if it is not there, how am I to know what
my liability is when I sign this form rather than lose my job?
Mr. GARFINKEL. Mr. Chairman, unmarked classified information
could be unmarked for a variety of reasons. For example, it may be
impossible to mark it.
Mr. SIKORSKI. I understand that.
Mr. GARFINKEL. It may be unmarked because I--
Mr. SIKORSKI. How about the negligence point?
Mr. GARFINKEL. Yes, I may take classified information and negli-
gently fail to mark that information. I may keep it around my desk
and not safeguard it properly and act negligently both with respect
to its storage and with respect to its markings, and if I disclose
that information, and I know that it is classified information, then
I have acted improperly. I have disclosed without authority classi-
fied information, and I am subject to sanction under this agree-
ment.
Mr. SIKORSKI. And are you telling me that the employee who has
not been negligent is also liable?
Mr. GARFINKEL. We have said repeatedly in the definition and in
my explanation that there is a knowledge requirement that must
exist with respect to the unauthorized disclosure of classified infor-
mation for this form to take effect toward liability.
Mr. SIKORSKI. You have also said that the reason that contract
employees do not have to sign off on classifiable is that they do not
know how to classify information.
Mr. GARFINKEL. I have not said that.
Mr. SIKORSKI. They do not have the authority to classify. They
have not read this handy-dandy guide to just the index of security
classifications.
Mr. GARFINKEL. Mr. Chairman, it is absurd to suggest that any
one employee is subjected to one-one millionth of the information
that is covered in the guides that are listed in that index. We all
must have a "need-to-know" classified information before we can
have access to it.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
100
Just because I am a cleared employee does not mean that I can
have access to all of the information covered by all of those classifi-
cation guides.
Mr. SIKORSKI. You have too many definitions of one word. You
know the Dewey problem solving process says you identify a prob-
lem and its nature, and then you list the alternatives to solve it,
and you do a cost-benefit analysis and the rest of it.
You have identified some kind of failure here. It has not been
pinned on federal employees. But they have been told to sign a
form saying they will not disclose classifiable information, and yet
we are not going to define that term.
Mr. GARFINKEL. Mr. Chairman, we have consistently defined the
term "classifiable."
Mr. SIKORSKI. You have consistently defined the term differently
each time you defined it.
Mr. GARFINKEL. We have not, sir.
Mr. SIKORSKI. You have, too. It is right here in the record, right
here in the record.
Mr. GARFINKEL. We have consistently defined the term to refer
to unmarked material that meets the criteria for classification, un-
marked classified information.
Mr. SIKORSKI. Oh, wait a minute. Wait a minute.
Mr. GARFINKEL. And upon request--
Mr. SIKORSKI. Wait a minute. I think I feel a new definition
coming on. Now we are just talking about unmarked classified in-
formation?
Mr. GARFINKEL. Mr. Chairman, for purposes of this I want to ex-
plain that major category of the information. There is a very
minor, and we have discussed this information that is in the proc-
ess of being classified, and I hope that we can agree that that infor-
mation needs to be protected. I would hope that we can agree to
that.
Mr. SIKORSKI. We can agree that national security, defense, intel-
ligence sources and all of the information that I have seen, cryptol-
ogy and other things, listed in the Executive Order need to be pro-
tected. But getting from that point to Point B ain't easy, and it is
filled with all kinds of different definitions, which are appropriate,
and I am not ridiculing those, but my point is you are asking me as
a GS-blank to sign on the dotted line for liability for classifiable
information, and you have not been able to come up with a defini-
tion of that that is finite and absolute and says these are the pa-
rameters of my liability.
I think that is wrong, and I think it is unfair, and I think it is
even more unfair then to pull that requirement for contract em-
ployees doing the same thing.
On these definitions, you have danced very well, the best polka-
ing I have seen since Minnesota, but there are some problems here
because they affect people's security clearances, their jobs, their
livelihood, their capacity to do the things we dream about doing as
Americans: buying a house, sending kids to college, going on a va-
cation, very personal things.
And I am suggesting to you, as others have, and as Senator
Grassley has in much more forceful language, that you have got to
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
101
tell people what they are liable for, and if you do not it is wrong,
and it is not going to be enforceable.
I promised you a chance to clean up.
Mr. GARFINKEL. There is only one thread that I did want to
touch up, and that is when you were talking about the scope of the
problem, the number of unauthorized disclosures. I would suggest
that another subcommittee of this committee, Ms. Schroeder's sub-
committee, was provided four years ago with an elaborate classified
briefing about the scope of that problem and follow-up. Although
her committee initially expressed the same concerns you did, that
the problem was perhaps overblown; following that classified brief-
ing, I did not see that committee come out with any language criti-
cal of the need to protect against unauthorized disclosures of classi-
fied information.
Mr. SIKORSKI. No one is disagreeing with that, Mr. Garfinkel,
and I think that is quite a fine tactic, to retreat behind the nation-
al security. It has worked often, and I know it is sincere.
Mr. GARFINKEL. And it is not just a tactic, sir. It is something
more than just a tactic if it is sincere.
Mr. SIKORSKI. But it is a tactic not to respond to the real issues
that are here before us. To get from Point A to Point B requires
more than waving the flag and saying, "We have got to protect
things."
Mr. GARFINKEL. Mr. Chairman, we are currently having this very
form that you feel is so defective litigated.
Mr. SIKORSKI. Let me ask you a question. Why didn't you em-
brace Senator Grassley's definition which you apparently agreed to
with him before it was blown out of the water back up on Pennsyl-
vania Avenue?
Mr. GARFINKEL. I would suggest that we are very close with Sen-
ator Grassley to agreeing on a definition. There was a misunder-
standing.
Mr. SIKORSKI. He is hot as Hades on that.
Mr. GARFINKEL. Well, I would suggest that those of us in the Ex-
ecutive Branch feel very similarly to the way he feels, and appar-
ently there has been a misunderstanding over our negotiations
over this form, and I suspect that we are not that far apart from
coming into some kind of an agreement with him.
Mr. SIKORSKI. Ms. Buck, you have been patient, and I appreciate
your willingness to come here. I have not understood why the Air
Force uses the McCarthyesque statement that any reluctance to
sign this form will be considered a reluctance to protect classified
information, something to that effect.
Ms. BUCK Yes, sir. I do not agree with that phrase either, and
we deleted that from the regulations.
Mr. SIKORSKI. Good, and what happens to people that have
signed or people are not signing these forms now in the Air Force?
Ms. Bum. People may sign them. If they do not sign them, then
no action is taken with respect to their security clearance, in ac-
cordance with the instructions that we received from ISOO.
Mr. SIKORSKI. How about the people who signed, and this is a
Navy problem, too, who are not required to sign? What happens to
those disclosure agreements?
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
102
I understand that everyone in some areas was asked to sign in-
cluding people who do not have security clearances and were not
dealing with classified information.
Ms. BUCK If they ask for the forms back, they can have them
back.
Mr. SIKORSKI. I am going to have to go vote. Mr. Garfinkel, I am
bothered by a statement you have made repeatedly that SF 189
does not conflict with the whistle-blower protection laws and the
code of ethics. Is that a fair description of your view?
Mr. GARFINKEL. That is a fair summary.
Mr. Smoitsm. Yet you are quoted in a newspaper article as
saying that I will quote: "Garfinkel himself said recently the use of
a contract involves 'no conflict in law, no statute. You just show
the form to a judge and say the agreement has been violated. You
don't have to argue principles.'"
Mr. GARFINKEL. That is not my quote. That may be Mr. Fitzger-
ald's quote of Mr. Garfinkel.
Mr. Sucoitsm. No, no. It is a quote by Mr. Ross Gilbspan of you in
a September 13, 1987, Boston Sunday Globe.
Mr. GARFINKEL. Well, I have never spoken to that gentleman
that I recall.
Mr. SitioRsKi. The reason I raise it is that in your testimony you
seem to want to make us feel good by suggesting that there is going
to be some clear understanding of what classifiability and classified
and negligence mean and that only disclosure of information a
person knew or should have known was classified would trigger
any kind of action pursuant to this form. This kind of statement,
which you say is not yours, indicates--
Mr. GARFINKEL. Could you read that statement?
Mr. SIKORSKI. It is just the contract business, that the reason we
have got this form is we want to eliminate the necessity to prove
all the statutory elements. It states: "Mr. Garfinkel himself said re-
cently the use of a contract involves 'no common law, no statute.
You just show the form to a judge and say the agreement has been
violated. You do not have to argue principles.'"
Mr. GARFINKEL. Well, I never said that. I know I never said that.
I think it is fair to suggest that the reason there is a standard
form is in order that we are in a better position to understand the
context of it with respect to potential action taken in a civil or ad-
ministrative context.
Mr. SumRm. Let me give you an opportunity. I have about five
pages of excellent questions that I never got to, for good reason, but
I would like to give them to you and ask you to respond for the
record with an appropriate amount of time so that you can do it.
These are good questions that I think will help you see the light. I
do not mean that in a derogatory sense. I think that you have a
tough job, and I want to help you work on it so that we can all go
on to other issues. I thank both of you for assisting the subcommit-
tee and look forward to working with you on it.
Thank you.
Mr. GARFINKEL. Thank you.
Ms. BUCK. Thank you.
[Whereupon, a short recess was taken.]
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
103
Mr. SIKORSKI. I apologize for the disruption. I am sorry also that
Mr. Garfinkel and Ms. Buck did not get the impression that I
wanted them to stay around and answer questions. But I wanted to
finish with them so that they could leave, and I guess that was
taken care of.
The next panel consists of the President of the National Federa-
tion of Federal Employees and the Deputy General Counsel of the
American Federation of Government Employees.
Mr. James Peirce is President of the National Federation of Fed-
eral Employees. He has been a forceful and highly effective leader
and advocate of the more than 150,000 employees that NFFE repre-
sents. This was the first union to file suit against the use of this
form, and the subcommittee thanks you for being here this morn-
ing to discuss this important issue.
Mr. PEIRCE. Thank you.
Mr. SIKORSKI. Your whole statement, including attachments, will
be placed in the record, and you can do what you want with your
time.
STATEMENTS OF A PANEL CONSISTING OF JAMES PEIRCE,
PRESIDENT, NATIONAL FEDERATION OF FEDERAL EMPLOY-
EES; AND CHARLES HOBBIE, DEPUTY GENERAL COUNSEL,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
Mr. PEIRCE. Thank you, Mr. Chairman. I was going to request
that, and I will just give you a very brief summary.
I want to thank you for the opportunity to appear before the
committee and discuss our concerns relative to the Federal Govern-
ment's continued enforcement of SF 189.
NFFE has actively pursued relief from what we view as the ex-
tremely punitive nature of the form and its effect on federal work-
ers. NFFE represents approximately 75,000 civilian employees
throughout DOD. Many of our bargaining unit members hold secu-
rity clearances and have been required to sign the SF 189.
While executive agencies were first informed of the necessity of
seeking signatures on SF 189 as early as 1983, many have not com-
plied with this requirement until six months ago. Since the in-
creased enforcement of SF 189, we have received numerous letters
and telephone calls from employees expressing grave doubts about
the validity and effects of the form.
By far, the most critical issue is the requirement that employees
agree not to disclose classifiable information. As you know, there is
nothing contained in SF 189 to define "classifiable."
NFFE members' questions regarding the scope and meaning of
the agreement have not been satisfactorily answered by their em-
ploying agencies. However, many have signed the agreement be-
cause of explicit threats of having their security clearances re-
voked, thus leading to a possible job loss.
In response to the widespread concerns of our membership,
NFFE filed a lawsuit August 17, 1987 in the U.S. District Court for
the District of Columbia regarding the validity of SF 189. We are,
seeking a declaratory judgment on the merits of the case and a per-
manent injunction to stop the use of SF 189.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
104
We have not yet received a response from the defendants to the
complaint.
Our lawsuit contains two main contentions. First, we have al-
leged that SF 189, as currently written, is arbitrary, capricious and
contrary to law. For example, NFFE believes that the prohibition
against disclosure of classifiable information runs counter to pro-
tections afforded to federal employees in the areas of whistle-blow-
ing and freedom of communication with members of Congress.
Secondly, we believe that the restrictions on disclosure of infor-
mation violates certain constitutional protections.
The imprecise nature of the term 'classifiable" effectively pre-
sents an individual from disclosing any information, thus having a
chilling effect on the exercise of an individual's First Amendment
right of free speech.
The Internal Security Oversight Office has issued instructions to
executive agencies directing that pending the outcome of NFFE's
litigation, security clearances should not be revoked as a result of
an employee's failure to sign the form. However, SF 189 is still in
use, and the issue remains far from settled.
Some have proposed defining "classifiable" in SF 189 in order to
eliminate some uncertainty, but we believe that the term "classifi-
able" can never be defined with enough precision or specificity to
cure its constitutional failings.
Mr. Chairman, here I am going to depart from what I was going
to say after listening to some of what I heard this morning.
Mr. SIKORSKI. Before you do, the specifics of Dr. Muench's case
are detailed in your prepared statement, and we will put this in
the record right now as part of your statement. It is enlightening
and a good example of what can happen under this process, but I
do not think we need to recite the facts.
Mr. PEIRCE. I was not going to.
Mr. SIKORSKI. Good.
Mr. PEIRCE. Thank you.
Let me preface what I am going to say with the fact that my civil
service, federal service was with the Department of Defense, specif-
ically Air Force, and during that service, I carried a top secret
clearance. I worked with weapons systems which in effect were
classified.
In my experience, there was never really a question as to what
was classified. It even went to the extent, and I performed a lot of
evaluations which were not on classified materials but when the
General told me, "This is classified until I clear it," it is still classi-
fied, and quite frankly, most of the time I found out it was classi-
fied because he wanted to change what I had in there. But in any
sense of the word, when he said it was classified, I understood it
was classified.
Now, to go a little bit further, I have found in the years that
there is a general trend in government to include a term or terms
more or less because they do not seem to be able to define every-
thing specifically they want to include, and there is always a
Catch-22 attached to it. Later on if I decide, well, that should have
been there, now I can slide it in there. It is a catch-all, so to speak,
and I think this term "classifiable" is just, in fact, that.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
105
It is a catch-all. It is something they do not know really, and
they cannot define it. I suspect that the term "classifiable" was in-
tentionally put in so that they could have those varying interpreta-
tions applied, and if the specificity had prevailed and the definition
was put in there, then I figure probably the term "classifiable"
would not need to be there because I think it could have been in-
cluded under what is already there.
I just look at this thing, number one, and what I have heard so
far and what we have seen, as another catch-all term that they can
interpret time and time again, and I think any attempt, in fact, to
define "classifiable" is not really going to get to the core of the
problem.
I would like to end merely by saying that Dr. Muench's state-
ment is in here. I think it is very revealing, and I will conclude my
statement there and will be happy to answer any questions.
[The prepared statement of James Peirce follows:]
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
.7,1A-RDP91B00390R000200150028-2
106
STATEMENT BY
THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES
Mr. Chairman and Subcommittee Members,
On behalf of the National Federation of Federal Employees, I
appreciate the opportunity to appear before the Subcommittee
to discuss our concerns about the Federal Government's
continued enforcement of the Standard Form 189, the
Classified Information Nondisclosure Agreement. NFFE has
actively pursued relief from what we view as the extremely
vanitive nature of the form and its effect on Federal
workers.
NFFE represents approximately 75,000 civilian employees
throughout the Department of Defense. Many of our
bargaining unit members hold security clearances and have
been required to sign the SF-189. While executive agencies
wre first informed of the necessity of seeking signatures
on SF-189 in 1983 and 1984, many had not complied with this
Lec:uirement until six months ago. This delay was due to an
administrative decision by the Information Security
Oversight Office (IS00) to allow them until the end of 1987
to obtain signatures.
As more and more of our bargaining unit members were
required to sign SF-189, NFFE received numerous letters and
telephone calls from employees expressing grave doubts about
the validity and effects of the form. By far, the most
critical issue was the requirement that employees agree not
to disclose "classifiable" information. As you know, there
is nothing contained in SF-189 to define "classifiable."
Members informed us that their questions regarding the scope
,o1,1 meaning of the agreement were not satisfactorily
answered by their employing agencies. However, many signed
1:11e agreement because of the explicit threat of having their
security clearances revoked, thus leading to job loss.
In response to the widespread concerns of our membership,
NFFE filed a lawsuit August 17, 1987 in the US District
Court for the District of Columbia regarding the validity of
SF-189. In our initial pleading, we named the ISO() and the
General Services Administration as defendants, because of
their delegated responsibility for the development and use
of SF-189. We later amended the complaint to name
specifically the Departments of Defense, Army, Navy, and Air
Force. This change was found to be necessary as a result of
information we received indicating that these departments
had unique methods of implementation which needed to be
addressed.
We are seeking a declaratory judgment on the merits of the
case and a permanent injunction to stop the use of SF-189.
We have not yet received a response from the defendants to
-),e complaint.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
.7,1A-RDP91B00390R000200150028-2
107
Our lawsuit contains two main contentions. First, we have
alleged that the SF-189 as currently written is arbitrary,
capricious, and contrary to law. For example, NFFE believes
that the prohibition against disclosure of classifiable
information runs counter to protections afforded to Federal
employees in the areas of whistleblowing (5 U.S.C. sec. 2302
(b) (8)) and freedom to communicate with Members of Congress
(5 U.S.C. sec. 7211).
Secondly, we believe that the restrictions on disclosure of
information violate certain constitutional protections. The
imprecise nature of the term "classifiable" effectively
prevents an individual from disclosing any information, thus
having a chilling effect on the exercise of an individual's
First Amendment right to free speech. In addition, the form
is so vague and overbroad that employees are not given
notice of what information they must safeguard as if it were
classified. Thus, Fifth Amendment rights to due process
have also been violated.
NFFE was pleased to find that ISO? issued instructions to
executive agencies to direct that security clearances should
not be revoked as a result of an employee's failure to sign
the SF-189, pending the outcome of our litigation. However,
SF-189 is still in use and the issue remains far from
settled. While it has been proposed by some that defining
-classifiable" in the SF-189 might eliminate some
uncertainty, it is NFFE's position that the term
"classifiable" can never be defined with enough precision to
cure its constitutional frailties.
Executive Order 12356 requires that classified information
be marked as such. By using the term "classifiable," an
individual would be unfairly burdened with determining what
information should be safeguarded, without protecting him or
her from the serious consequences arising from a change in a
particular document's status at a later date. Defining
"classifiable" as unmarked information that is already
classified does not comply with the terms of the Executive
Order, nor resolve the practical difficulties for the
employee.
For example, Stuart Muench, an employee represented by NFFE
1384 at Hanscom Air Force Base, outside Boston,
Massachusetts, has undergone a significant amount of
difficulty recently because of the Administration's
enforcement of SF-189.
Dr. Muench is a GS-14 atmospheric scientist with over 30
years of experience. A conscientious worker, Dr. Muench has
received numerous performance awards. In addition, his work
usually does not involve using classified materials.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
.01A-RDP91B00390R000200150028-2
108
Dr. Muench first received the SF-189 September 8, 1986, and
was given four days in which to sign the form. The
accompanying letter from management indicated that employees
did have the right to refuse to sign the form, but that they
could suffer the loss of their security clearances if they
did so, in turn jeopardizing their careers.
No other materials nor instructions were made available to
,oployees when the form was distributed. Employees with
questions about related documents were forced to search
files in other buildings at Hanscom Air Force Base and even
local public libraries. No assistance was offered by any
iupervisor or Air Force official.
Upon receiving the SF-189, Dr. Muench researched Executive
Order 12356 in order to find a definition of the term
"classifiable," which was the chief obstacle to signing the
form. When he found no definition, he decided that SF-189
too broad a commitment to make - as he put it, "It was
akin to signing a blank check for people I did not know."
Having no instructions to the contrary, Dr. Muench scratched
out the term "classifiable" from his copy of the form
SF-189, then signed the agreement and turned it in with a
letter attached explaining his reasons for doing so.
Two weeks later, the form was returned with a verbal
explanation that it was unacceptable. (Since then, Dr.
Muench has learned that the SF-189 version for contractors
does not contain "classifiable" and is similar to that form
he modified and signed. The irony is that Dr. Muench could
have resigned from Hanscom Air Force Base, joined a local
research group with a government contract, signed the
contractor's SF-189, and performed the same work he has
since been doing.)
On October 3, 1986, Dr. Muench was advised that his failure
to sign the SF-189 would result in the revocation of his -
security clearance. Two months later, on December 8, 1986,
Dr. Muench's supervisor presented him with a letter stating
that action had indeed been taken to revoke his security
clearance, and that from that time on, he was not cleared to
receive classified information. Dr. Muench later learned,
however, that this letter was only a scare tactic intended
to force him to sign the form. No action was ever taken,
even temporarily, to deny his access to classified
information.
Dr. Muench spent the next several months attempting to
obtain answers to the many questions he had regarding the
form and the ultimate effect on his career, including work
he might perform following his retirement from government
service. On April 3, 1987, Dr. Muench met with his
supervisor, as well as several Hanscom AFB officials. At
this meeting, he was apprised of the procedure for revoking
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
109
his security clearance, which included that neither he nor
counsel could be present, that no appeals would be
permitted, nor could he receive any such status again for at
least three years.
In addition, Dr. Muench and the Air Force officials
discussed that a decision would have to be made whether
employees without clearances could work in some buildings
and groups as those with clearances. Dr. Muench understood
that he could possibly be forced to retire. At the end of
the meeting, the Air Force officials agreed that no
recommendation for action to revoke Dr. Muench's security
clearance would be taken while he sought answers both inside
and outside the Air Force. The officials did not believe
that they could obtain answers through the normal chain of
command. It is important to note that no official
memorandum was made of this meeting. The only notes taken
were those by Dr. Muench.
Dr. Muench then continued his inquiry of various offices,
including the Air Force Judge Advocate General's office, the
Information Security Oversight Office, as well as offices of
his United States Senators. On June 4, 1987, Dr. Muench
received a letter from the Commander at Air Force Geophysics
Laboratory that he would take action after thirty days to
rquest that Dr. Muench's security clearance be revoked.
The thirty days was ostensibly provided as an opportunity
for Dr. Muench to provide materials for the deciding
official to review. Dr. Muench decided he could not sign
the form without contradicting its terms: item 10 of the
form specifically states that the individual's questions
have been satisfactorily answered. At this time, Dr. Muench
had not yet received answers from any of the offices to
which he had written.
On June 5, 1987, Dr. Muench began receiving some responses
from his inquiries, none of which answered his questions.
The Air Force Judge Advocate General's office explained that
he had the option of obtaining legal counsel, at his own
expense, of course, and could certainly elect not to sign
the form. However, he would still face the loss of his
security clearance, and removal or reassignment, if
warranted.
As a final resort, Dr. Muench employed private legal
counsel, who advised him to sign the form with an
explanation of his concerns. His attorney's interpretation
was that by explaining his inability to obtain answers, he
would not be subject to prosecution for perjury. In
addition, he was advised that the terms of the agreement not
specifically referenced in the United States Code would be
difficult to enforce since Dr. Muench had signed the form
under duress.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
110
Dr. Muench signed SF-189 on June 26, 1987, and attached an
explanation of his concerns. When he arrived home that
evening, he received a letter from ISO() answering his
questions. The response was mixed: some of their
interpretations were reassuring, some were not. ISO?
informed Dr. Muench that the form only pertained to
information learned in the course of his employment or other
contractual relationship with an agency granting him a
clearance. However, in ISOO's opinion, the attempted
definition of "classifiable" as set forth in DOD document
5200.1-PH-1 would not be legally binding. It was clear to
Dr. Muench that an individual could be subjected to
arbitrary definitions of the term at any time in the
individual's future.
Dr. Muench's relationship with his supervisors deteriorated
when he was interviewed by the Boston Globe. One of Dr.
Muench's comments to the newspaper was his concern that he
would be removed if his security clearance were revoked for
failure to sign the form. The branch chief felt that the
installation would always be able to employ Dr. Muench even
if his clearance were revoked, despite the documents he
received from management that without a security clearance,
no guarantees of employment could exist.
It was for Dr. Muench and the thousands of Federal workers
like him that NFFE initiated its lawsuit to limit the use of
SF-189, as it is now written. While NFFE has every
expectation that we will be successful in our litigation, we
would welcome the assistance of Congress in protecting the
rights of Federal workers. I thank the subcommittee for its
prompt attention to this critical issue, and I look forward
to working with you as progress on the issue continues.
That concludes my statement. I will be happy to answer any
questions.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
[Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
111
Mr. SIKORSKI. Thank you.
We will hear Mr. Hobbie, and then we will deal with questions.
Charles Hobbie is Deputy General Counsel at the American Fed-
eration of Government Employees, and is also an advocate for fed-
eral employees. Like NFFE, AFGE has filed suit against the use of
SF 189.
The subcommittee thanks you for being here this morning to dis-
cuss this important issue. I have the statement of Ken Blaylock,
the President of AFGE. You can summarize however you want.
STATEMENT OF CHARLES BOBBIE, DEPUTY GENERAL COUNSEL,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
Mr. HOBBIE. Thank you, Mr. Chairman.
Ken Blaylock has asked me initially to express his regrets that
he could not be here today. He has asked me to stand in his place
as Deputy General Counsel of AFGE.
AFGE is the exclusive representative of approximately 700,000
federal and District of Columbia government employees. Approxi-
mately half of these are employed in the Department of Defense or
its component activities.
I appreciate the opportunity to appear before this subcommittee
this morning to express our opposition to the administration's non-
disclosure agreements.
While there may be other nondisclosure agreements, our greatest
concern and the focus of this statement is on Forms 189 and 4193.
The genesis of these forms is National Security Decision Directive
84, issued by the Director of ISO() and signed by the President. It
requires all persons with authorized access to classified information
to sign a nondisclosure agreement, Standard Form 189, as a condi-
tion of access to such information.
It also requires all person with access to sensitive compartment-
ed information, SCI, to sign a nondisclosure agreement providing
for mandatory, life-long, pre-publication review as a condition of
access to such information and other classified information. That
form, again, is Standard Form 4193.
Our country clearly needs to protect and safeguard vital and
properly classified national security information, but at the same
time, these national security needs must be balanced against the
need for information in a properly functioning democracy.
All too often, as we know, in the past protecting national securi-
ty has been used to cover up governmental actions which were not
related to national security, but were, instead, embarrassing or po-
litically harmful. We have already touched on a number of those
situations in testimony today.
Congress, in recognition of this history, has specifically enacted
legislation, such as the Freedom of Information Act, and included
whistle- blower protections in the Civil Service Reform Act of 1978.
The clear intent of such legislation is to insure that the public has
full knowledge of governmental actions within the legitimate con-
straints of national security, with emphasis on "legitimate con-
straints of national security."
The nondisclosure forms go beyond national security interests to
chill and suppress federal employee disclosure of mismanagement,
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
112
waste, fraud, abuse of authority, and danger to public health and
safety. Indeed, the nondisclosure agreements are unnecessary since
the existing legal framework already prohibits improper disclosure.
The debate today and before this time over these forms has fo-
cused on the term "classifiable." The requirement to sign a form
pledging not to release classifiable information is vague, overly
broad, and wholly ambiguous and, therefore, violates constitutional
protections of free speech, due process, and the right to petition
Congress.
The prohibition against disclosure of information not presently
classified by authorized officials, but which may subsequently be
construed as classified, unreasonably inhibits legitimate public
debate.
The standard form makes an employee liable for releasing infor-
mation from public sources which later becomes classified. This is a
totally unreasonable standard for employees to meet.
Moreover, compelling the signing of these forms with their vague
terms, such as "classifiable" and "indirect disclosure," which is
used in the Standard Form 4193, violates the employee's Fifth
Amendment protections against deprivation of liberty and property
interests without due process.
The "indirect disclosure" language, for example, subjects an em-
ployee to civil or criminal liability for a proper disclosure, for ex-
ample to a Congress person, which long afterwards and through no
action by the employee is made public.
Subjecting employees to the loss of their security clearance and
termination without prior notice or a hearing also violates the due
process clause. I might interject here we had testimony this morn-
ing from Mr. Brase where he, in fact, signed one of these forms. I
have seen in various papers in the course of preparing for our
court case that even the fact that an employee has been required to
sign the form may be classified information. So Mr. Brase by testi-
fying this morning that he has signed that form could be found to
be guilty of an unauthorized disclosure.
Since the initiation of lawsuits challenging these forms, there
has been considerable effort by the administration to acceptably re-
define the term "classifiable, as we have heard. However, this
new definition is still lacking.
Employees who disclose information are liable if they know or
should have known such information was already classified, meets
the standards for classification or is in the process of being classi-
fied. This slight amendment of the regulations, as characterized by
the Director of ISO() in an August 21, 1987 letter, still demands
judgment and speculation by the employee on the standards for
classification, which, of course, is a matter generally entrusted to
an expert classifier.
Moreover, in that same letter, the Director of ISO? begrudgingly
offers that any modification to the form and to the 189 program is
just a "temporary accommodation" to recent lawsuits challenging
this entire scheme.
Both standard forms also suffer from other serious constitutional
and statutory flaws. The imposition of Standard Form 189 and
Standard Form 4193 inhibits the lawful disclosure of violations of
law, waste of funds, and abuse of authority by contradicting the
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
113
whistle-blower protections provided for in the Civil Service Reform
Act.
The prohibited personnel practices component of that Act ex-
pressly protects the right of employees to make such disclosures to
the public if such disclosures are not specifically prohibited by law,
and if such information is not specifically required by Executive
Order to be kept secret in the interest of national security or the
conduct of foreign affairs.
Standard Forms 189 and 4193 are not laws or Executive Orders
which may constrain the availability of these whistle-blower pro-
tections with respect to general disclosures to the public, nor is Na-
tional Security Decision Directive 84, the so-called authority for
these nondisclosure agreements, a law or Executive Order.
As that directive clearly provides, its terms are in addition to Ex-
ecutive Order 12356. Nothing in Executive Order 12356 requires
nondisclosure agreements of this nature.
Ironically, as you know, Mr. Chairman, the Special Counsel has
refused to take any initiative whatsoever in seeking stays against
these forms, nor has the Special Counsel of the Merit Systems Pro-
tection Board taken any actions to stop the threatened or actual
revocation of clearances and consequential job displacements when
an employee refuses to sign the forms. The coercively obtained re-
nunciation of lawful rights to disclose gross abuses in government,
coupled with the Special Counsel's continued reluctance to support
these rights, makes re-evaluation of these forms particularly com-
pelling.
Similarly, title 5, section 7211 of the U.S. Code, provides that the
right of federal employees to petition or furnish information to
Congress may not be interfered with or denied. The blanket prohi-
bition in Standard Form 189 and Standard Form 4193 against dis-
closing classified or classifiable information will inevitably have
the effect of restricting information to Congress.
Yet Public Law 96-303, codified at 5 USC 301, the Code of Ethics
for Government Service to which all federal employees are bound,
requires any federal employee to "expose corruption whenever dis-
covered." Without further qualification, this could potentially con-
flict, obviously, with the requirements of the nondisclosure forms.
Moreover, the Freedom of Information Act permits the withhold-
ing of national security information only if it is required by Execu-
tive Order to be kept secret and if it is, in fact, properly classified
pursuant to such an order. The prohibition in the standard forms
of disclosure of classifiable information is not consistent with the
Act, which requires an actual classification prior to any withhold-
ing of information. The standard forms do not take into account
the propriety or accuracy of the classification and thus compel
withholding of information even if such information has not been
properly classified pursuant to Executive Order.
The forms also do not acknowledge the proper authority for de-
termining the property rights of the writings and works of federal
employees. The copyright clause of the Constitution, Article I, Sec-
tion 8, Clause 8 confers upon Congress alone the authority to
secure exclusive rights to particular writings and discoveries. The
compelled relinquishment of this right by the two forms we have
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
114
mentioned is an unlawful assumption of the duties of Congress by
the Executive.
I would also like to comment very briefly on the life-time, pre-
publication review requirement for employees with special com-
partmented information access as contained in Form 4193. While
this pre-publication review provision does not appear on the face of
the Standard Form 189, the Department of Defense has indicated
in its Pamphlet 5200.1-PH that some agency regulations in effect
as of 1983 required employees with any clearance to submit any
and all materials for pre-publication review.
Indeed, the required authorization in the Standard Form 189
that the government may seek injunctive relief against any possi-
ble or perceived disclosure of classified or classifiable information
is, in essence, an imposition of a blanket pre-publication require-
ment.
The requirement of pre-publication review constitutes an unlaw-
ful prior restraint on the exercise of First Amendment rights. The
administration had exceeded its authority by continuing to use
Standard Form 4193.
In the latter part of 1984, the President specifically withdrew a
paragraph from the National Security Decision Directive that for-
mulated the authority for pre-publication review agreements.
Moreover, the President declared his intent not to reinstate that
paragraph and to place a moratorium on nondisclosure agreements
with pre-publication review. However, the administration in an ap-
parent end run has now resurrected a 1981 version of the form
with the same pre-publication provision. The continued use of this
form is without statutory or executive authority and contrary to
the President's declaration to Congress.
Finally, there is ample authority in the government's current ar-
senal of legal remedies to adequately redress breaches of national
security. There are specific laws and regulations that prohibit the
unauthorized disclosure of classified information, including the In-
telligence Identities Protection Act of 1982 and Titles 18 and 50 of
the U.S. Code.
Section 7532 of Title 5 permits the head of an agency to immedi-
ately suspend without pay and remove an employee of his agency
when he considers that action necessary in the interest of national
security.
Criminal statutes cover a wide array of such activities. If the ad-
ministration seeks changes in the law, the proper vehicle is
through Congress, not through a unilateral usurping of congres-
sional law-making powers.
AFGE believes that the use of the nondisclosure agreements is a
veiled effort to undue the whistle-blowing protections of the
Reform Act and will chill the exercise of free speech. If a disclosure
is truly illegal and not simply embarrassing to political interests,
there already exists an adequate administrative and criminal
framework to redress the problem.
I thank you, Mr. Chairman, for holding this hearing and bring-
ing this matter to the attention of Congress and the public. We
look forward to working with you and your committee on future
actions to safeguard the rights of current and future federal em-
ployees.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
115
And I would be glad also to respond to any questions that you
may have.
Mr. SIKORSKI. Thank you.
You raised a curious point at the end that should not go unno-
ticed about the actual legal authority to implement these forms. I
have mentioned I have five pages, actually ten pages of single-
spaced questions dealing with conflicts of laws, property issues,
contract issues, employee rights, effect on employees, indirect dis-
closure, the use of 'classifiable," flow of information to Congress,
the whistle-blower issue, implementation of SF 189 and the need
for the 189 form in the first place.
It is interesting. I saved you all from that discussion about the
real lack of statutory authority to proceed with SF 189 and how, if
it is currently employed or if it is permanently employed at all, it
raises major logical and legal problems concerning its interplay
with other laws and regulations, such as the Code of Ethics.
What is the current status of your lawsuit?
Ms. BODLEY. The National Federation of Federal Employees is ex-
pecting a response from the government any day now. They had
until the end of this week or early next week to reply to our com-
plaint.
Mr. SIKORSKI. They have not complied at all?
Ms. BODLEY. No, not yet.
Mr. SIKORSKI. When does the time toll?
Ms. BODLEY. It would be 60 days from August 17th.
Mr. SIKORSKI. And that is here?
Ms. BODLEY. It is in the United States District Court for the Dis-
trict of Columbia, before Judge Gasch.
Mr. SIKORSKI. When can you begin discovery?
Ms. BODLEY. NFFE has already filed requests for discovery. So
those are outstanding at this point, though they are just recently
outstanding.
Mr. SIKORSKI. See if you get answers sooner than I do.
What is Dr. Muench 's current situation?
Ms. BODLEY. Dr. Muench, as I understand, has not suffered from
any adverse action due his refusal to sign the form. He was in-
formed that his security clearance would be revoked, but, as far as
I know, it has not, in fact, been revoked, and so he is in a holding
pattern right now.
Mr. SIKORSKI. The policy, as I understand it, is that any attempts
to revoke clearances for refusal to sign SF 189 have been suspend-
ed so that federal employees who question the form will not have
their clearances revoked. But as with Mr. Brase, more subtle penal-
ties that can apply.
Are you aware of any of the members of your two unions who
have faced this for failure to sign SF 189?
Mr. PEIRCE. No further than what we have already indicated.
Let me add one thing, though, to Dr. Muench. We have been ap-
prised by him that there has been a serious impact on his relation-
ship with his supervisor, and this is something that normally hap-
pens when somebody is exercising their rights. Of course, we feel it
should not.
Mr. SIKORSKI. But it is a natural reaction of supervisory person-
nel to take it personally.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
116
Mr. PEIRCE. It seems to be, and it seems it is something they
never forget then.
Mr. SIKORSKI. I asked the Air Force about what happens to some-
one who signed one of these forms who did not have a clearance
and should not have been signing in the first place, and was told
that they can receive the forms back.
I am also told, although this was not part of the testimony, that
whether they signed or refused to sign, it is still marked on their
record even though they should not have been asked to sign it in
the first place.
Mr. HOBBIE. I could address your question also, Mr. Chairman.
Mr. SIKORSKI. Yes.
Mr. HOBBIE. Judging by the number of inquiries we have had
from our local representatives in the field, I would say that al-
though I am aware of no direct personnel actions that have been
taken, certainly the potential is there, and our indications are that
everybody in the field is expecting to have these kinds of adverse
effects on their careers if they, in fact, refuse to sign these forms.
So we have advised people as we normally do to comply with the
existing requirement and then grieve afterwards.
Mr. SIKORSKI. Let me just point out that we focused in this hear-
ing on the numbers and the supposed need for doing this in the
first place. I was surprised that the numbers are pretty small, and
the data pretty unimpressive. It is not that classified materials' dis-
closure is a minor problem because the numbers are small, but
that there is no linkage of the huge amount of classified informa-
tion to a very large amount of leakage, and that leakage to the
people who are being faced with this form. There is no linkage at
all proven between federal employees that have to sign this form
and the disclosures that have occurred.
We also focused on the discrimination between contract employ-
ees and direct federal employees, and we saw that what they do is
similar work and just as classified and just as capable of classifying
or not. Most employees of both categories do not have anything to
do with classifying and consequently cannot be burdened with
knowing what should or should not be classified other than what is
marked or what they are told should be classified.
But even the difference in numbers who have signed is a sorry
example of the discrimination affecting who is going to bear the
burden of this new-found concern for security.
We looked at the floating definition of what is classifiable, and
we saw several, at least four, and I think five, different, conflicting
definitions.
We did not focus as much on the pre-publication review issue you
discussed in your testimony. SF 4193 explicitly requires life-long,
pre-publication review of writings for employees with access to sen-
sitive, compartmented information, so-called SCI.
SF 189 requires such review if the definition of "classifiable" is
so broad that no employee will feel comfortable revealing any in-
formation at all without previous clearance. That is mentioned in
your lawsuits and needs to be re-explained because back a few
years ago, the editorialists around the country went absolutely
crazy on the pre-publication review requirements contained in
NSDD- 84.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2 _17
As Chairman Brooks pointed out, both polygraphing and pre-pub-
lication review forms are now a much greater problem than before,
but the perception, as opposed to the reality, is that the adminis-
tration has changed its position. It is important that commentators
understand that pre-publication review still exists and may be even
a greater problem under SF 189.
The other issue that was focused on and needs to be raised again
is whistle-blowing, one that I think we might have to take a look at
just specifically as it relates to these forms. Your lawsuits discuss
the conflicts between whistle-blower's statutes and these standard
forms. Your people are caught in a bind.
The code of ethics and federal law protecting whistle-blowers
mandate that disclosure occur. There is a legal obligation and li-
ability. Then some form comes about that is not based in statute,
that is not based in anything but a vague linkage to some Execu-
tive Order, and it seems to conflict with the language of that Exec-
utive Order, and then there is some definition later on in the Fed-
eral Register. The basis for the definition is not in the statute. The
basis for the form is not in the statute or the Executive Order.
SF 189 requires employees to get authorization to reveal classi-
fied or classifiable information to anyone, presumably including
Congress. Clearly, if an employee has to receive clearance from a
supervisor before blowing the whistle, disclosures are much less
likely to occur. In fact, the few that we get now, I would guess,
would permanently cease.
I wanted to thank you for pointing out those two particular
issues that need to be addressed. There is one more that will be ad-
dressed at the end, and that is this issue of indirect, unauthorized
disclosure. You can disclose from A to B, but if B discloses to C, D,
E or F, somehow under this form A is responsible. We will get to
that at the end of the hearing.
Thank you.
Mr. PEIRCE. Mr. Chairman, one comment going back to some-
thing that you said previously relative to contractor employees. To
me I have more of a fear in that direction than I do with federal
employees because especially in the defense industrial establish-
ment, they not only, I think, ofttimes breach it. I think they buy
intelligence, buy secrets, what have you, by merely hiring certain
employees and paying them more money.
I am not sure at least in my experience in the past that this is
always with a company that necessarily has the clearance itself or
has signed anything to effect on the thing. I see no difference
between the two.
Mr. SIKORSKI. Maybe we are going to have to pursue this distinc-
tion between the contract and the direct federal employee. We are
going to have to bring in some of these employees in sensitive
areas and see if the public buys into this distinction.
I share your concern, and I have been looking at the confidential
investigation of the Department of Energy, and there is nothing to
make me feel good about any contractor security in very sensitive
areas.
Thank you.
Our last witness is Tom Devine, who is the Director of the Gov-
ernment Accountability Project, GAP. Mr. Devine and GAP have
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
C IA-R D P91B00390 R000200150028-2 118
been helping hands to whistle-blowers and countless others who
have stood up for their rights, even in the face of adverse action, as
well as helpful assistants to congressional watchdog committees.
For that the subcommittee thanks you, and we thank you for your
testimony, for the hard work you have performed on the issue, and
for your assistance to the subcommittee as we prepared for this
hearing and carry forward on the issue.
STATEMENT OF TOM DEVINE, DIRECTOR, GOVERNMENT
ACCOUNTABILITY PROJECT
Mr. DEVINE. Thank you, Congressman.
My name is Thomas Devine, and I am the Legal Director of the
Government Accountability Project.
I will submit my prepared statement for the record and will limit
my oral testimony to a few rebuttal points that were not covered in
your outstanding cross examination earlier.
Mr. SIKORSKI. Well, thank you for the comment, but more impor-
tantly for your summarizing your testimony.
Mr. DEVINE. Yes. I am hungry, too.
Mr. SIKORSKI. I know I am no person to talk about brevity.
Mr. DEVINE. The first point we should address is whether there
is a need for SF 189. Of course, when you intrude on the Constitu-
tion, there must be a compelling need, and it cannot be based on
adjectives.
Mr. Garfinkel attempted to give us a few figures this morning of
100 to 110 leaks per year, but even then he did not pinpoint it to
leaks of unmarked, classifiable information, and that is the only
new area that is covered by SF 189. We still have a vacuum of ob-
jective data on this issue.
Mr. SIKORSKI. In fact, they do not know. They do not know who
leaked it in most of the instances and whether they were federal
employees, and they do not know whether it was unmarked. I sus-
pect that in most if not all instances it was classified information,
not this "classifiable" information.
Mr. DEVINE. You are right. The administration has not come up
with a single example of unmarked, sensitive information whose
release requires this gag order.
Mr. SIKORSKI. The only releases that we are aware of, that are in
the public domain, are those that come from people who have
signed all of the orders and who have willingly signed the orders,
people who for corrupt reasons that have sold secrets and are com-
mercially engaged in the trading of secrets. Those people are not
stopped by a piece of paper, a signature, or criminal or civil stat-
utes already in existence.
Mr. DEVINE. If I were an individual who wanted to compromise
national security, I would much prefer to defend myself under SF
189 than more reasonable statutes and laws in this area.
Second, if SF 189 only covers classified information, as Mr. Gar-
finkel asserted, we already have a pledge by all employees who
have security clearances to respect the restrictions on disclosure of
classified information. This new form is duplicative, if it is not omi-
nous.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
119
And, third, if there is a problem with unmarked information, the
status quo has solved that one as well. The only context where SF
189 makes any sense is when an originator does not have the au-
thority to mark information as classified. As Mr. Garfinkel told us,
that is the context that always occurs with military contractors.
We solved that problem. On page 49 the industrial security
manual for contractors gives instructions for that situation. The
contractor should simply mark "classification determination pend-
ing. Protect as though classified." It is simple. We do not need to
throw out the Constitution to deal with this problem, if it exists.
Turning to the spark for this dispute, Mr. Garfinkel stated that
we have not had any controversy until recently. Well, that is be-
cause back in 1983, General Stillwell pledged that nondisclosure
agreements would be limited to those with SCI clearance and then
only new- hires.
Until Mr. Fitzgerald said, "No," we made the mistake of think-
ing the administration was telling the truth. I do not think that we
should be criticized for that, except perhaps by those who are criti-
cizing SF 189. - -
Mr. SIKORSKI. You are correct. The impression given by that tes-
timony is that there is not a problem, that the Civil Service Sub-
committee and others have looked at the situation and said that
everything was great.
The fact is that that subcommittee did consider this situation
and appropriate provisions of their report will be made part of the
record. It found a lot wrong with NSDD-84 initially, but it was not
made an issue earlier not because it was not a problem but because
the pressure was not on. It was a decision to go full speed ahead for
an annual report to the President that created the paper flurry
that came to the attention of members of Congress.
Mr. DEVINE. The lack of pressure was based on a false premise
from the administration, in my opinion.
The third area that I think we need to discuss is to come in from
the twilight zone on this term "classifiable." Mr. Garfinkel defines
it as unmarked, classified information. There is no such animal, in
terms of liability. There is no basis in law for Mr. Garfinkel's defi-
nition.
In fact, he quoted from Executive Order 12356 on liability, and
the key phrase there was that the information was properly classi-
fied. Well, the Executive Order tell us what it has to be to be prop-
erly classified. Section 1.5 requires identification and marking.
The definition section, 6.1(g), states, "Original classification
means an initial determination that information requires protec-
tion against unauthorized disclosure, together with a classification
designation signifying the level of protection required."
The White House is making up words here.
Mr. &witsKi. Well, he made the argument, and I would like to
hear your response, that a verbal statement from an operative to
one of our government people is classified, even though the verbal
statement cannot be marked. What response would you make?
Mr. DEVINE. I would say that the Executive Order does not cover
every situation. But, its principles certainly can be applied, and a
verbal statement should have a P.S.: "This is classified, by the
way," or "I'm not sure, but this might be classified. So why don't
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
120
you protect it that way until we find out?" There are not any real
loopholes here.
In fact, the industrial security manual for contractors who
always face this situation defines classified information in three
elements. The third element is "so designated." We do not make
these categories up.
The fourth area that I would like to discuss is the one that is the
dearest to our hearts at the Government Accountability Project.
That is whistle-blower protection.
Mr. Garfinkel reassured us that there will not be any conflict
with the whistle-blower statutes. Unfortunately, under the whistle-
blower statutes, that is just flat wrong legally. The Executive
Orders are the boundary for permissible restrictions on whistle-
blowing.
As we have just seen, there is nothing in the Executive Orders
that allow reprisal for disclosure of unmarked information. To
comply with the Civil Service Reform Act, the administration has
to start over and shrink its definition of "classifiable" to conform
to the boundaries of E.O. 12356.
And to check the acid test for this rhetoric, it is empty if the gov-
ernment can begin the process of marking information as classified
after the whistle-blower exposes misconduct. If that is permissible
under this system, we have created ex post facto ?criminal liability
for the whistle-blower, because he or she did not correct the gov-
ernment's mistakes. That is simply not fair.
And finally on the issue of whistle-blower protection, as the
AFGE has testified--
Mr. SIKORSKI. Before you leave that issue, let me mention that
there have been examples I recall of things as goofy as Grandma's
recipe for corn muffins, golf scores, and weather reports being clas-
sified, and that what is being classified today has over the last fifty
years grown immediately.
There was one attempt in the early 1950s to reign it in but that
did not succeed for very long. Now information classified for na-
tional security interest purposes can, if you look at what has been
classified, embrace virtually anything, and "classifiable" certainly
can embrace even more.
So someone sitting down to make a decision on whether to re-
lease information must consider what could be classified later on,
and would have to guess that virtually everything is classifiable be-
cause virtually everything or every topic has been classified in the
past, even some things that obviously should not have been, but for
one reason or other were, classified.
Mr. DEVINE. Without markings or warnings or some sort of tan-
gible notice, any whistle-blower with a healthy sense of self-preser-
vation, professional self-preservation, will keep quiet rather than
take a chance.
What is particular Orwellian about this whole debate is that Mr.
Garfinkel's office was established to help solve that problem and
declassify information, and what it has turned into is the office to
implement a linguistic octopus that can strangle freedom of speech.
Life is strange in Washington, D.C.
The final point on whistle-blower protection is to second the
AFGE's testimony. There has been an empty chair in these final
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06
CIA-RDP91B00390R000200150028-2_21
panels that should have been filled by the Office of Special Coun-
sel.
Mr. SIKORSKI. Yes.
Mr. DEVINE. They receive $4 million a year to protect the merit
system in general and freedom of speech in particular, and Ms.
Wieseman, the Special Counsel, has consistently responded to con-
gressional requests with a "Pontius Pilate" letter. It is inexcusable
for the Special Counsel to wash its, hands of this issue.
The fifth area that I would like to mention briefly is the tempo-
rary moratorium. Our organization receives a number of com-
plaints and intakes from folks who are having problems with SF
189. There are counter examples to a temporary reprieve.
One gentleman had to fight off a proposed termination after the
reprieve was announced. When he fought that off, his security
clearance was proposed for revocation on alternate grounds to SF
189.
As Mr. Brase pointed out, you can get low performance apprais-
als and just not bring up the concept of SF 189, and even by its
terms, the reprieve permits continued passive reprisals.
Employees can be placed on an ineligible list for promotions and
doomed to career paralysis if they do not sign this form. The re-
prieve is very incomplete, even if it were permanent.
Finally, Mr. Garfinkel told us that this will not decrease the flow
of information to Congress. That is balderdash. Under this author-
ized recipient requirement, Mr. Garfinkel has explained that a
member of Congress has to have a need to know even if he is
cleared for receipt of classified information.
This institutes a routine system of prior restraint by agency
screening and clearing offices. You could call them censorship of-
fices, to determine if Congress has a need to know. Since when is
that the Executive Branch's shot to call?
In our view, Mr. Garfinkel's reassurances today, even if they
were really reassuring, would not be relevant. As he has pointed
out numerous times, SF 189 is enforceable on its own terms, not on
his congressional testimony and not on his letters, to various mem-
bers of Congress.
In conclusion, Mr. Chairman, Mr. Lou Brase's Kafkaesque ordeal
was not atypical. It was typical of the calls we have received at
GAP, and although the administration has boasted that only 24
have refused to sign this form, that is no reason to boast.
Those 24 people are the real freedom fighters in the civil service
system, but without your continued support, there will be 24 new
chapters of "Profiles in Courage." We hope you keep up the good
work, sir.
[The prepared statement of Tom Devine follows:]
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
.01A-RDP91B00390R000200150028-2
122
TESTIMONY OF THOMAS DEVINE,
GOVERNMENT ACCOUNTABILITY PROJECT
. Mr. Chairman:
Thank you for inviting my testimony today. My name is
Thomas Devine. I'm the Legal Director of the Government
Accountability Project, a nonpartisan, nonprofit, legal support
organization for government and corporate whistleblowers. The
hearings on Standard Form (SF) 189 are as timely as President
Reagan's wrap-up speech on the Iran-contragate scandal. The
President spoke of "the lessons we have learned" and reassured,
"I've tried to take steps so that what we've been through can't
happen again, either in this administration or future ones." But
actions speak louder than words. The administration's deeds tell
a different story than the President's rhetoric: The lesson
learned at the White House is to slash the free speech rights of
government employees, and increase the odds that next time, the
public will stay ignorant.
This spring the administration has issued regulations making
it mandatory for federal employees to sign away their
constitutional and statutory due process and free speech rights,
or lose their security clearances -- along with their jobs in
many cases. Three million employees have been ordered to sign a
nondisclosure agreement entitled Standard Form 189. Any employee
who signs agrees, among other provisions, not to disclose
"classifiable" information directly or indirectly to any
"unauthorized" individual. Alleged violations could cause loss
of security clearance, FBI investigation, and criminal
prosecution.
Perhaps the primary lesson to be learned from Iran-
- 1 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2 123
contragate is the danger of secret government. As testimony by
Colonel North, Admiral Poindexter, and Secretary Schultz
revealed, our, nation faces a serious threat from secret
government -- an elite group of bureaucrats whodecide when
Congress and the public are entitled to know the truth, and who
don't always. share with the President the difference between fact
and fiction. There are even proposals for a "secret" CIA that
could be government without any. underlying accountability.
A little-noticed but highly significant tactor in the
Irangate-crisis is that it took a disgruntled Middle. Eastern arms.
trader and a Lebanese journalist to expose this sordid. affair.
Why didn't any of the federal employees who had to know about
this illegal,foreign policy blow the whistle? The answer is
they've been gagged. The administration has engaged in an
assault on freedom of speech in the Executive branch,'
unprecedented in its intensity since the Malek-May Manual of the
Nixon administration. Most disappointing, the administration
largely has succeeded in. silencing the civil service system.
Iran-contragate reveals that --
I. the administration has dried up the flow of information
to Congress about even grossly illegal activities and brazenly
dishonest disinformation campaigns; and
2. under secret government, the interests of ordinary
Americans are sacrificed for lawless- goals that our elected
leaders dare not share' withthe voters.
Ironically, the leaks of this gag order are from the
National Security Council, and a Presidential directive that grew
- 2 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
.01A-RDP91B00390R000200150028-2 124
out of work by the staff of Messrs. McFarlane and Thompson two
cogs in the secret government that disclosed sensitive
information to our enemies but refused it to Congress. To
illustrate how far the repression has advanced, the Information,
Security Oversight Office (IS00), which monitors implementation
of SF 189, estimates that 1-.7 million out of the three million-
eligible federal employees had signed this form'. Only 24
employees have refused. Although SF 189 first-appeared in 1983;
signing it has only been mandatory throughout the Executive
branch recently, such as since April 28, 1987 at the Air Force.
More specifically, SF 189 can teach us four lessons. The
form represents an-illegal -- (1) seizure of power by the
Executive from Congress; (2)- assault on constitutional righter .
(3) weapon with the definitional power to cancel out the
whistleblower protection statutes; and (4) illustration of the
breakdown in Executive branch agencies responsible to protect
freedom of speech. Let's review each of these lessons-in turn.
I. SEIZURE OF POWER BY THE EXECUTIVE BRANCH FROM CONGRESS
At.the conclusion of the Iran-contragate hearings, several
Senators offered their conclusion that a bureaucratic junta had
usurped the legal authority of our elected officials. If those
assessments were correct, SF 189 is the junta's weapon for an
informational coup that will strip Congress of its right to know.
SF 189 helps achieve this goal through two techniques. First,
there is no definition for which individuals are "unauthorized"
to receive information. In news interviews, the administration
- 3 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2 _25
has stated that no one is authorized, even a Member of Congress
with a security clearance, unless the relevant agency first
decides that the legislator has a "need to know." Since when is
it up to the executive branch to decide if the legislature needs
to be informed? This system inherently introduces a system of
prior restraint by agency Screening and censorship offices.
Second, SF'189 creates liability for "indirect" disclosures.
This means that the first employee is liable for the behavior of
even an authorized-recipient, such as a Member of Congress,
depending on the outcome of a criminal trial to decide if a civil
servant should have known that the authorized legislator would
make a disclosure to an unauthorized person, such as a member of
the press. This section of the law on indirect disclosures also
applies to authorized individuals within the bureaucracy.
In effect, this provision means that anyone who signs SF 189
is his or her brother's legal keeper, to the point of assuming
criminal liability. It could support tactics to further isolate
whistleblowers. The end result.is a Catch-33 dilemma, meaning
that we either will have (a) criminal prosecution of good faith
whistleblowers; (b) the cut-off of the flow of significant
information to Congress; or (c) a out-off of the flow of
significant information from Congress. The flow of truth is the
life blood of government accountability.
This result also would cancel out 5 U.S.C. 7211 and 18
U.S.C. 1505, which establish the right to communicate freely with
Congress. These laws should not be discarded lightly. For
example, 5 U.S.C. 7211 was passed in 1912 to reverse President
- 4 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2 126
Taft's "gag rule" forbidding civil servants from communicating
information. to Congress without the consent of department chiefs.
The law was passed to codify first amendment rights and to
reestablish the.free flow of information to Congress. As one
supporter declared:
How can a,conscientious.Member of. Congress vote
intelligently and for the best interests of the
American people if the most reliable sources of
information are closed to-him? I am glad that this.
rule is to be abrogated, not only because of.my-
sympathy for these men, who have been unreasonably .
restrained in their rights as citizens, but I am glad
because hereafter I shall be-free to seek and secure
information that will enable me the better to discharge
my duties as.a Representative.
Appendix to 48 CONG. REC. 140 (1912) (remarks of Representative-
Stone).
The bill's sponsor characterized the "gag rule" as "un-
American, unjust. It may fit into the scheme of things in a
country like Russia, but it is entirely antagonistic to the
spirit of our institutions: It is.a slap at the Constitution and
an affront to our citizens." 48 CONG. REC. 10671 (1912) (remarks
of Representative Lloyd).
As Representative Lloyd further. explained:
If no Government employee is permitted to speak,
excepting through his department chiefs, and the
department chief through the Cabinet officer, then this
is an aristocratic Government, dominated completely by
the official family of the President. If the principle
enunciated in these Executive orders is to be carried
to the extreme, then there is no possible way of-
obtaining information excepting through the-Cabinet
officers, and if these officials desire to withhold
information and suppress the truth or to conceal their
official acts it is-within their power to do so. This
government will be more popular when its official
proceedings are an open book and- the. conduct Of' its
officials continuously subject to scrutiny and
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part- Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
127
investigation by the people at any time and in any
*manner the people elect.
48 CONG. REC. 10671 (1912).
Some thirty-five years ago, even then-Senator Nixon
declared,
Mr. President, I have introduced in the Senate today a
bill to make it a violation of law for any officer of
the Federal Government to dismiss or otherwise
discipline a Government employee for testifying before
a committee of Congress.
. . . It is essential to the security of the Nation and
the very lives of the people, as we look into these
vitally important issues, that every witness have
complete freedom from reprisal when he is given an
opportunity to tell what he knows.
There is too much at stake to permit foreign
policy and military strategy to be established on the
basis of half truths and the suppression of testimony.
Unless protection is given to witnesses who are
members of the armed services or employees of the
Government, the scheduled hearings will amount to no
more than a parade of yes men for administration
policies as they exist.
97 CONG. REC. (1951).
II. ATTACK ON THE CONSTITUTION
As seen above, SF 189 violates the First Amendment by
creating a system of routine prior restraint on communications
within and from the Executive Branch. This is One of only
numerous constitutional rights which this gag order threatens:
In addition, the nondisclosure agreement would -- (1) create
criminal liability in the absence of a congressional statute; (2)
establish ex post facto criminal liability; (3) create liability
in an unacceptably vague, ambiguous and overbroad manner by
- 6 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2 ,
128
failing to define the key terms; (4) take away liberty and
property rights without due process; and (5) violate equal
protection by creating total liability for those who negligently
or willfully disclose unmarked information that qualifies for
classified status, while totally absolving those who negligently
or willfully failed to apply required markings. Ironically, it
was the latter's responsibility in the first place.
The administration is attacking all of these constitutional
rights without first establishing a compelling need beyond the
level of adjectives. For example, the administration has
provided no information on the number of leaks of classifiable
as opposed to classified -- information by civil servants with
security clearance, and the impact of these leaks, in the
abstract or by comparison to other federal employees who don't
have security clearances; or with contractors who aren't bound by
the classifiable standard. Similarly, the administration has
failed to identify relevant weaknesses in current statutes to
protect sensitive information, or to propose necessary
legislative amendments. The administration has failed to
identify what is wrong with the current pledge by all employees
who have security clearances to protect classified information.
Instead, the White House took the easy way out, with an end run
around the Constitution through a coerced nondisclosure contract.
The White House has only attempted analytically to
demonstrate a need for this nondisclosure agreement from time
lags when a federal employee generates classified data, but does
not have the authority to mark it with that status. Even then,
- 7 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
129
there is no need to throw out the Constitution. Common sense is
still available. As the Pentagon instructs military contractors
in its Industrial Security Manual for Safeguarding Classified
Information (DoD 5220.22 M (Nov. 1, 1986) at 49).
In any such case, the following protective marking, or
a similar marking which clearly conveys the same
meaning, will be used: Classification determination
pending. Protect as though classified (CONFIDENTIAL,
SECRET, or TOP SECRET).
There is nothing that prevents a civil servant from doing
the same thing. t
III. ATTACK ON THE WHISTLEBLOWER STATUTE
5 U.S.C. ?2302(b)(8), the whistleblower provision of the
Civil Service Reform Act, makes it illegal to retaliate against
an employee or applicant as reprisal for the disclosure of
information by the employee which he or she reasonably believes
evidences illegality, mismanagement, gross waste of funds, abuse
of authority, or a substantial and specific danger to public
health or safety, unless the disclosure is specifically
prohibited by relevant statute or executive order. SF 189 flatly
defeats the whistleblower statute, by requiring retaliation
against employees who make disclosures beyond the scope of
Executive Order 12356.
The administration has argued that SF 189 is legal because
it is based on E0 12356, which the civil service law permits as a
restriction on public disclosures. The rationalization cannot
withstand scrutiny. The whistleblower law permits restrictions
- 8 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06
CIA-RDP91B00390R000200150028-2
130
specifically identified in a statute or executive order. In
1978, our organization helped defeat an administration push to
commit broader restrictions flowing from rules and regulations
that implement congressional statutes. Congress rejected the
administration's language, and speech can only be specifically
restricted by the text of an executive order or statute -- not
from a derivative that interprets or implements the former. Sen.
Rpt. 95-969, at 21-22. SF 189 is at best a derivative of a
derivative. It implements National Security Decision Directive
84, which states in the opening paragraph that its terms are "in
addition to" the requirements of EO 12356. In short, this con-
tract cannot co-exist with civil service law -- definitionally,
it represents precisely the type of gag Congress rejected.
Second, the administration has argued that a clause. in EO
12356 protects whistleblowers, because the Executive Order
forbids information from being classified to conceal misconduct.
.Unfortunately, SF 189 establishes liability based on the contents
of information, not the government's motive in any particular
classification decision. Information that couldn't be classified
to cover up a scandal arguably could be classified under various
hypotheses for legitimate purposes.. If that possibility exists,
the would-be whistleblower could still face prosecution for
disclosing national security breakdowns to Congress.
If there were any doubt about the gag order's illegality, it
should be dispelled by a July 28, 1987 legal opinion from the
Congressional Research Services' American Law Division. The
- 9 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2 31
opinion, which was prepared at Senator Grassley's request,
concluded:
To be consistent with (civil service] whistleblowing
protections, it would appear that the secrecy agreement
would have to permit without punishment or negative
personnel action, the public disclosure of information
which the employee believes evidences a violation of
law, or waste, fraud or abuse, and which is not
specifically classified information or specifically
required to be kept secret under E0 12356 or other
executive order, and must allow the disclosure of
information evidencing such illegality, waste, fraud or
abuse to the Special Counsel, and Inspector Gene-ral, or
to the Congress, even if the information is classified
or required to be kept secret.
(emphasis supplied).
More recently, the administration has declared that SF 189
does not violate the whistleblower statutes and cannot contradict
them. That assertion would be reassuring, if it had substance.
Unfortunately, the substance of the gag order and its
implementing regulations don't match the rhetoric.
The gist of the White House reasoning is that SF 189 only
covers classified information, albeit unmarked due to time
constraints, negligence, error, or oversight. How is the
whistleblower to know whether the government was negligent or
made a mistake and failed to classify the classified information?
There is no notice or warning required. The dissenting employee
will not know definitely until he or she is charged with a
criminal violation of the nondisclosure agreement. At that
point, the government can assert that it erred by not marking the
records classified originally. But the whistleblower could face
loss of job or criminal prosecution for not correcting the
agency's error. Under the new rationalization, we have merely
- 10 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2 132
shifted from a gag order that says anything could be classified,
to one that says anything already was classified. It just wasn't
designated. That is no progress at all.
Fundamentally, the latest excuse is simply wrong as a matter
of law. The heart of the current White House position is that
classifiable information already is classified, and in fact is
merely a subset of the entire pool of classified data. Unless
the records are so designated, however, under current law they
simply do not qualify for that status. Initially, turn to
Executive Order 12356 and its section 1.5 on Identification and
Markings. That provision requires classified records to be
clearly marked "at the time of original classification."
Further, Section 5.4(b)(1), Sanctions, only imposes liability for
disclosure of "information properly classified under this Order
or predecessor orders...." (emphasis supplied). Section 6.1(g),
Definitions, provides the requirements for proper classification:
"'original classification means an initial determination which
information requires, in the interest of national security,
protection against unauthorized disclosure, together with a
classification designation signifying the level of protection
required." (emphasis supplied). Quite clearly the liabilities
imposed by SF 189 violate the standards of EO 12356, both with
respect to definitions and to liability.
Similarly, the Industrial Security Manual provides a
definition of classified information in section I.3(k): "This is
information or material that is: (i) owned by, produced by or
for, or under the control of the U.S. government; (ii) determined
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
under EO 12356 or prior orders to require protection against
unauthorized disclosure; and (iii) so designated." (emphasis
supplied)
The courts have not viewed "classifiable" as an expansive
term for data that is classified without markings, either.
Rather, the term has been a restrictive device to assure that
information marked as classified properly deserved that status.
For example, in Alfred A. Knopf, Inc., v. Colby, 509 F.2d 1362
(4th Cir), cert. denied 421 U.S. 992 (1975), the court used the
term "classifiable" to test whether classified information "in
fact" qualified for classification. To avoid release under the
Freedom of Information Act the court required that data be both
"classified and classifiable." (emphasis supplied). The
administration doublespeak changes the standard for criminal
liability to classified or classifiable. In short, there is no
basis in law for the administration's assertion that classified
information does not have to be so marked. In the courts or ever
under its own regulations, the administration's core premise for
defending SF 189 against charges of violating the whistleblower
law is a legal fantasy.
The final criteria to examine-the legality of this
nondisclosure agreement under the whistleblower protection
statute is its impact. In terms of effect, the American Law
Division explained,
In a practical sense, to the extent that the secrecy
agreement because of its apparent breadth and vagueness
of terms shows or discourages the disclosure of any
information which evidences waste, fraud, corruption or
illegality in government, that effect or result will be
- 12 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2 134
.in contrast to and in derogation of the intended
results of the whistleblower statute.
(citations omitted). Until the term "classifiable" has a
concrete definition with objective, tangible boundaries, it is an
uncontrollable octopus that can strangle freedom of speech. The
text of even the recent clarified gag order will at least chill,
and probably deep-freeze, dissent in the civil service system.
It has no place in a free society, or in the merit system.
IV. BREAKDOWN IN EXECUTIVE BRANCH STRUCTURE TO
PROTECT FREEDOM OF SPEECH
Specifically, the agency that has avoided its duties is the
Office of the Special Counsel (OSC) of the Merit Systems
Protection Board (MSPB or Board). Over the last few months six
Senate and House Office (Senators Grassley and Pryor, and
Representatives Sikorski, Boxer, Schroeder, and Wolf) have
requested that the Office of the Special Counsel petition the
MSPB for stays of any personnel actions taken in response to a
civil servant's failure to sign an SF 189. Recently the OSC has
responded, informing Congress that no action "is warranted at
this time."
In her Pontius Pilate letters; Special Counsel Mary Wieseman
offered three reasons in abbreviated fashion, which appear to
correspond to the following legal grounds not to act: (1) The
OSC does not have jurisdiction, because no employees have called
the Special Counsel to complain or seek assistance. (2) There
is no OSC jurisdiction, because the administration's Information
Security Oversight Office has told agencies to stop revoking
- 13 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
135
security clearances pending a district court test. (3) It would
be improper for the OSC to preempt the district court, and more
appropriate "to look forward to a resolution of the issues in
dispute by the Court."
Each of the rationalizations above is factually mistaken or
legally inadequate for the OSC to wash its hands of SF 189,
currently the most wide-ranging, significant threat to free
speech/dissent rights in the civil service system. The OSC
resPonse also is a weathervane for the Special Counsel's recent
testimony about the "new OSC" that vigorously supports freedom of
speech and wants to actively participate in rewriting the
whistleblower protection laws.
The five congressional offices requesting the OSC stay
efforts are leaders in the drive for a Whistleblower Protection
Act. Besides this Subcommittee Chairman, they include the Senate
and House Subcommittee Chairs (Senator Pryor and Representative
Schroeder, respectively) responsible for ongoing oversight of the
Special Counsel. As a result, this issue may be an excellent
test for the OSC's rhetoric in determining what is ultimately its
proper role, in any, in the final version of the reform
legislation.
(1) Lack of jurisdiction due to lack of complainants. This
is a legal red herring. As stated in 5 U.S.C. 1206(a)(3), "(T]he
Special Counsel may, in the absence of an allegation, conduct an
investigation for the purpose of determining whether there are
reasonable grounds to believe that a prohibited personnel
practice has occurred, existed or is to be taken." The Special
- 14 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
-2,1A-RDP91B00390R000200150028-2
136
Counsel's regulations recognize and incorporate this portion of
the statute. 5 C.F.R. 1251.1(c).
Similarly, there are no restrictions on the OSC's ability to
take corrective action after a self-initiated investigation. The
Special Counsel can act to correct prohibited personnel practices
"in connection with any investigation" under 5 U.S.C. 1206. 5
U.S.C. 1206(c)(1).
The legislative history for the Civil Service Reform Act
explains the congressional intent here. As the Senate Report
states, at 32:
The Special Counsel should not passively await employee
complaints, but rather, vigorously pursue merit system
abuses on a systematic basis. He should seek action by
the Merit Board to eliminate both individual instances
of merit abuse and patterns of prohibited personnel
practices.
Even if the OSC excuse were not legally baseless, it is
easily corrected. ISO? records received by GAP reveal numerous
leads to identify uncorrected prohibited personnel practices, if
the Special Counsel wants to look.
(2) Lack of jurisdiction due to ISO? reprieve of security
clearance revocations. This reasoning also is legally incorrect
and factually incomplete. Legally,-the OSC has authority to act
when there are "reasonable grounds to believe" an agency "will
take" a prohibited personnel practice. The Special Counsel
always has interpreted that provision to mean jurisdiction is
established when an agency proposes an improper personnel action.
On this issue the, facts are that numerous revocations of
security clearances have been proposed, and none have been
- 15 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2137
withdrawn. ISO? merely has halted processing of the adverse
actions pending court decisions. Under civil service law, each
act of proposing security clearance revocations for failure to
sign SF 189 was, and remains, a prohibited personnel practice.
Second, there is a major loophole in the ISOO reprieve. It
only halts actions to take away employees current jobs.
Agencies are still free to engage in passive reprisals by
imposing career paralysis, barring government job applicants from
new positions until they sign the SF 189 or placing them on
ineligible lists for promotion. These are listed personnel
actions under 5 USC 2302(a) and therefore can represent ongoing
prohibited personnel practices. The Special Counsel should plug
the loophole.
(3). Impropriety of OSC initiatives while litigation is
pending. There is nothing in the Civil Service Reform Act that
requires administrative agencies like the OSC to step aside in
favor of letting the courts get the first crack at disputes on
civil service law. To the contrary, since Bush v. Lucas, 462
U.S. 367 (1983) the restrictions have been in the oppoSite
direction: the courts don't get involved when there is an
administrative remedy.
Successful OSC stay requests at the administrative level
could have a significant, constructive impact on the courts.
Indeed, if the Special Counsel succeeded in staying or defeating
the SF 189 adverse actions at the administrative level, the
courts may temporarily defer to the administrative process and
- 16 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
.7,1A-RDP91B00390R000200150028-2
138
ultimately decide that the issues are moot. The OSC should do
its share, like all other good faith defenders of free speech.
Finally, the OSC could play a vital role short of litigation
by using the same technique that it claims has made litigation
unnecessary since 1981 -- effective negotiation. That is Ms.
Wieseman's defense against criticisms that the Office has been
receiving $4 million per year to defend whistleblowers but has
spent at least the last $25 million without conducting a
corrective action hearing to restore a whistleblowers job.
Certainly SF 189 would be the ideal issue to test whether the
OSC's negotiating clout makes hearings unnecessary on the most
significant merit system threats.
SOLUTIONS
Recently there have been a series of inherently flawed
attempts to solve the problems created by SF 189. For example,
the administration has issued a series of clarifying rules in the
Federal Register that civilize and otherwise modify the terms of
the gag order. Unfortunately, the changes have been too
incremental to be significant. This testimony attacks the
revised versions of SF 189. Further, Federal Register notices
come and go with the political tides. They can be revised again
in the future to restore repressive features that have been
modified. But the text of SF 189 is permanent and an employee's
signature lasts a lifetime. The solution must be just as
permanent.
- 17 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2 139
Additionally, the administration recently attempted to
assuage Congress through unenforceable rhetoric. For example, in
the. fact sheet: attached to Mr. Garfinkel's'testimony.today, as
well as to a September 21 letter from the. National Security
Counsel to Representative Boxer, the administration explained,
"The only fact patterns in which an employee might beheld liable
for disclosing unclassified information could occur when the
employee knows, or reasonably should know, that the information
is in the process of a classification determination, and requires
interim protection as provided in Section 1.1(c) of Executive
Order 12356."
At first, free speech advocates-were-excited by this
rhetoric. It meant that whistleblowers no longer would be liable.
for making. the same mistake about the merits of classification
that the agency made when it failed by negligence, error, or
oversight to mark the document. This would have meant that the
criteria for liability had shrunk from both substantive and
process criteria, to merely the latter. Unfortunately, the
.administration has refused so far. to issue a clarifying rule
incorporating this language. This bad faith reassurance raises
questions whether the rhetoric is worth the paper on.which it is
written. The lesson to learn from this incident is that we won't
reach a solution- by taking the administration's word for it.
A third approach to solving .the problem is o file lawsuits.
The American Law Division of the Library of Congress, however,
has warned of the risks from-accepting a flawed secrecy
agreement, and expecting the courts to "repair" it in practice:
- 18 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
-2,1A-RDP91B00390R000200150028-2 [40
"However, cases and experience have shown that whistleblowing
protections may be difficult to enforce in court on behalf of an
employee." (citations omitted). Indeed, even if one court
throws out the gag orders as unconstitutional or otherwise
illegal, other courts may uphold its legality and create a war of
the circuits. Or the administration may appeal a district court
favorable decision and seek a stay pending the outcome, to
maintain the chilling effect of ?SF 189 for years. We cannot
count on the courts to solve this problem.
Congress must attack the' gag order directly. This can be
done through several means. One suggestion, for example, would-
be to cut off all funds used to implement or enforce SF 189. A
second suggestion would be to cut off funds for the White House's
Information Security Oversight Office, which oversees
implementation of SF 189. This office was created to help
declassify information, but in practice it has turned into just
the opposite-- the administration's office to expand free speech
restrictions through its legal mutant, the "classifiable"
concept. Congress is under no obligation to finance this type of
abuse.
More directly, Congress could -simply abolish the gag order
by statute. Congress should declare null and void any
nondisclosure contracts, agreements, rules, regulations or other
Executive Branch actions prohibiting the disclosure of
information other than specifically marked as classified; that
violate or have the effect-of violating 5 U.S.C. ?2302, 7211, or
any other statutory free speech protections; of that exceed
- 19 -
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
141 '
nondisclosure requirements specifically required by law.
Similarly, this body could neutralize SF 189 by making it
prohibited personnel practice to discriminate against an employee
for communicating with Congress, or for retaliating against an
employee for disobeying an illegal nondisclosure agreement. The
law should be clear that this right is absolute. This initiative
would provide enforceability for 5 U.S.C. 7211, which established
the right but provides no ,remedy. Finally, Congress should take
the offensive to pass a strengthened Whistleblower Protection
Act. SF 189 is by no means the administration's only attack on
freedom of dissent. Last year the=House passed the Whistleblower
Protection Act, but the administration stalled its consideration
in the Senate and even threatened to veto the free speech
legislation. This year, during the last few months the
administration has been pressuring Representatives Schroeder and
Horton of the Civil Service Subcommittee to gut the Whistleblower
Protection Act, under threat that otherwise the bill will be
stalled to death again in the Senate. Congress should go on the
offensive to pass the legislation without furter compromises.
If anything, the bill should be strengthened to develop further
protections that neutralize SF 189.-
The administration has gloated that only 24 employees have
refused to sign SF 189. That is no grounds to boast. It means
that 1.7 million employees are so intimidated by the repression
of the last seven years they that perceive no other choice but to
sacrifice their rights to freedom of speech and due process. The
24 who have said no are the real freedom fighters of this
government. Without your assistance and support, however, these
24 freedom fighters could each be their own chapter of Profiles
in Courage. Mr. Chairman, your continued leadership will be
necessary to restore freedom of dissent in the civil service
system.
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06 :
DIA-RDP91B00390R000200150028-2
142
Mr. SIKORSKI. Yes. People talk admiringly about the people de-
scribed in "Profiles in Courage," but all of them were left for an
obscure writer later on to dig out and dust off. Ernie, do you want
to discuss the issue of indirect responsibility?
Mr. FITZGERALD. Yes, Mr. Chairman. I wanted to reinforce some-
thing Mr. Hobbie said.
Mr. Colin Parfitt, my associate who has also not signed his form,
and I were both threatened by the Assistant General Counsel of
the Air Force about including in prepared congressional testimony
"proprietary" information on contractors, and in the process of
that, we discovered the principle of indirect responsibility.
We were told that we were responsible for the security of that
information after it had been given to the congressional committee.
If it had been leaked, it was our responsibility.
The same thing applies here as far as I can tell, and this alone
would chill relations with Congress and Congress's ability to get in-
formation.
You may recall that in your subcommittee under Chairman Din-
gell the GAO refused to give to Chairman Dingell some informa-
tion that they had collected on those very grounds.
The final thing that I would want to say, Mr. Garfinkel denied
some statements attributed to him. I want to say that he made
them. I was present. I was not alone. He attributed them to my
quote.
Mr. Stockton and Mr. Chafin were with me. All three of us were
talking to Mr. Garfinkel. Mr. Chairman, he said it.
Mr. SIKORSKI. I do not think that he denied saying it. He said he
did not recall.
Mr. FITZGERALD. Okay. I can refresh his recollection. He said it.
Mr. Sixoxsm. There is a "Poindexterity" here.
We thank you once again for your assistance and for your will-
ingness to do the work on this issue. This morning we had Jose Na-
polean Duarte addressing us, and we had Mary Beth Whitehead
over in another subcommittee that I am on. SF 189 does not grab
the headlines like peace in Central America or surrogate mother-
hood, but it is a problem that affects millions of people intimately
as well as Congress ability to fulfill its constitutional oversight re-
sponsibilities. Thank you for your willingness to continue to work
on it.
Mr. DEVINE. Mr. Chairman, I am also concerned that indirect
disclosure liability can chill the flow of information to whistle-blow-
ers. Other members of the Pentagon could be prosecuted for giving
information to Ernie Fitzgerald because they, quote, should have
known he would go public and tell people about the scandal.
Mr. SIKORSKI. Thank you.
[Whereupon, at 1:55 p.m., the subcommittee was adjourned, sub-
ject to the call of the Chair.]
[The following material was received for the record:]
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
143
December 7, 1987
Rep. Gerry Sikorski
Chairman, Subcommittee on Human Resources
House Committee on Post Office 4 Civil Service
406 Cannon House Office Building
Washington, D.C. 20515
Dear Mr. Chairman,
At the kind invitation of your staff, I write on behalf of
the American Civil Liberties Union to request that this letter
and the attached correspondence be made a part of the record of
the Subcommittee's October 15, 1987 hearing on the Executive
Branch's Standard Form 189, Classified Information Nondisclosure
Agreement, and the Reagan Administration's policy for its
implementation and enforcement.
The attached correspondence between myself and the office of the
President's National Security Advisor, Frank Carlucci, addresses
the ACLU's concerns regarding references to the ACLU by
Administration officials in statements to Members of Congress
extolling the reasonableness and legality of SF 189 as written
and implemented.
These references, including one in the written testimony
submitted to the Subcommittee by the Director of the Information
Security Oversight Office, imply that the ACLU did not object to
SF 189 when it was issued and does not object to it now. Since
the implications do not square with the facts, the ACLU objected
to Mr. Carlucci and sought to eliminate such misleading
references to the ACLU from future Administration statements. By
placing our letter and the official response into the hearing
record, we hope to clarify our views on SF 189 and to dispel any
mistaken impressions that may exist.
Background
No organization has played a more active role in attempting to
safeguard the First Amendment rights of government employees in
the context of secrecy agreement requirements than the ACLU.
The ACLU argued the First Amendment rights of former CIA
employees in each of the major court cases upholding the
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06 :
CIA-RDP91B00390R000200150028-2
144
constitutionality of such agreements and the consequent
enforcement of prepublication review requirements. See, Snepp v.
United States, 444 U.S. 507 (1980); Alfred A. Knopf,
Colby, 509 F.2d 1362 (4th Cir.), cert. denied, 421 U.S. 992
(1975); United States v. Marchetti, 466 F.2d 1309 (4th Cir.),
cert. denied, 409 U.S. 1063 (1972); McGehee v. Casey, 718 F.2d
1137 (D.C.Cir. 1983).
Moreover, the ACLU Washington Office has been the leading critic
of prepublication review agreements before the Congress, usually
in hearings held at the urging of the ACLU. For example,
following the Supreme Court ruling in the pnepp case, the ACLU
argued for a legislative response before the House Permanent
Select Committee on Intelligence. Prepublication Review and
Secrecy Agreements: Hearings Before the Subcomm. on Oversight of
the House Perm. Select Comm. on Intelligence, 96th Cong., 2d
Sess. 115 (1980).
Similarly, when President Reagan issued National Security
Decision Directive 84 in March 1983, establishing requirements
for secrecy agreements with prepublication review requirements
outside the intelligence community, the work of the ACLU
Washington Office helped arouse House and Senate interest in
hearings which generated broad-based condemnation of the
Directive and legislative proposals to block its implementation.
See National Security Decision Directive 84: Hearing Before the
Senate Comm. on Governmental Affairs, 98th Cong., 1st Sess.
(1983); Review of the President's National Security Decision
Directive AA and the Proposed Department of Defense Directive on
Polygraph Use: Hearing Before A Subcomm. of the House Comm. on
Government Operations, 98th Cong., 1st Sess. (1983); Presidential
Directive gan the Use of Polygraphs and Prepublication Review:
Hearings Before the Subcomm. on Civil and Constitutional Rights
of the House Comm. on the Judiciary, 98th Cong., 1st and 2d Sess.
(1983 and 1984); Federal Polygraph Limitation and Anti-Censorship
Act of 1984: Hearings on H.R. 4681 Before the Subcomm. on Civil
Service of the House Comm. on Post Office and Civil Service, 98th
Cong., 2d Sess. (1984).
The ACLU Washington Office worked with House subcommittee staff
on both proposed legislation (H.R.4681) and a subsequent
committee report (H.Rpt. 98-961, Part 1), and helped obtain
adoption of the Mathias-Eagleton Amendment to the Department of
State Authorization Act, Fiscal Years 1984 and 1985, P.L. 98-164,
Section 1010, 97 STAT. 1061, which placed a five-month moratorium
on implementation of the prepublication review requirements of
NSDD-84 and ultimately forced the White House to "hold in
abeyance" plans for future implementation of such requirements
with a commitment to give prior notice to Congress.
In 1985 and 1986, staff of the ACLU Washington Office used the
earlier White House commitment to successfully urge the Director
of the Information Security Oversight Office to intercede on
behalf of an employee of the Defense Logistics Agency and block
that agency's efforts to implement a new prepublication review
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
145
requirement. [Correspondence regarding this matter is available
in the files of ACLU Washington Office staff.]
Focus on Prepublication Review
For the ACLU, as for the Congress and most government employees
as well, the chief controversy regarding secrecy agreements has
never really centered on the general proposition of whether a
government employee can, as a condition for obtaining access to
properly classified information, be required .to enter into a
written agreement in which the individual promises not to engage
in unauthorized disclosure of such information.
In the Marchetti, Knopf, Snepp, and McGehee cases, as well as in
Congressional hearings on NSDD-84, the primary First Amendment
objections were voiced by the ACLU and others not against
nondisclosure agreements per se, but against the enforcement of
prepublitation review requirements related to such agreements.
The ACLU Washington Office has consistently opposed
prepublication review requirements -- whether express, implied,
or judicially-imposed -- as censorship through prior restraint in
violation of the First Amendment. Although the Snepp decision has
made it impossible for us to prevent the continuing imposition of
prepublication review obligations on present and former employees
of the intelligence agencies, our active opposition to such
requirements undoubtedly contributed to the Administration's
decision to exclude prepublication review requirements from SF
189, the standardized Classified Information Nondisclosure
Agreement issued under NSDD-84, and to later explicitly disavow
the invitation of the Supreme Court in Snepp to imply such
obligations based on the existence of a fiduciary relationship.
See, e.g.. Pamphlet on SF 189, DOD 5200.1-PH-1 (July 1985) p.30
and Department of Justice Internal Security Order, DOJ 2620.8; 48
Fed. Reg. 3913 (daily.ed. August 30, 1983).
While this is not to suggest that the prepublication review issue
is the only troubling aspect of secrecy agreements, it is
important to understand that, until recently, it was the only
issue that elicited any substantial consideration from the courts
and concern from the Congress in response to arguments about the
First Amendment and the rights of government employees.
Recent Developments
The current controversy over SF 189, the standardized Classified
Information Nondisclosure Agreement, illustrates--a-number of
other considerations about nondisclosure agreements which also
raise significant concerns for the ACLU and the First Amendment
rights of government employees.
Even without prepublication review provisions, SF 189 has a
singularly oppressive quality which appears to have been
deliberately cultivated by the Administration through artful use
of intimidating language and ambiguous terms in order to threaten
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06 :
CIA-RDP91B00390R000200150028-2
146
individuals with a sweeping potential for liability with regard
to obligations that are not clearly defined.
With an excess of legal jargon and irrelevant but menacing
references to potential liability under criminal provisions of
the U.S. Code, SF 189 purports to establish a judicially-
enforceable contractual obligation on the part of the signee to
refrain from unauthorized disclosure of any classified
information obtained by the access which it authorizes.
In signing SF 189, the individual purports to "accept,"
"acknowledge," "understand," and "assign" in accordance with its
terms and to "make this Agreement without mental reservations..."
However, as explained in the attached ACLU memorandum of July 16,
1987, the vagueness and overbreadth of key terms in SF 189
undercut any notion of informed and voluntary consent, while
raising serious First Amendment questions about the need and
enforceability of such agreements beyond the safeguarding of
properly classified information.
Nondisclosure agreements are readily subject to constitutional
and other legal objections when they consist of ambiguous terms,
impose unreasonable obligations, extend beyond properly
classified national security information obtained in the course
of employment, provide for enforcement without due process, and
subject covered employees to sanctions which are disproportionate
to the nature of their actions. Beyond this, however, it is not
clear that the Government cannot reasonably and constitutionally
require them.
We hope the Subcommittee will continue to challenge the validity
of SF 189 and similarly questionable measures in pursuit of
information security policies which do not trample upon either
common sense or the Constitution The ACLU is willing to assist
the Subcommittee in this endeavor in any way it can.
Sincerely,
Allan Adler
Legislative Counsel
Enclosures
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
CIA-RDP91B00390R000200150028-2
Declassified in Part - Sanitized Copy Approved for Release 2013/11/06:
IA-RDP91B00390R000200150028-2 147
WASMNMIONOFFICE
October 15, 1987
The Honorable Frank Carlucci
National Security Advisor
The White House
1600 Pennsylvania Ave., N.W.
Washington, D.C. 20500
Dear Mr. Carlucci,
On behalf of the American Civil Liberties Union, I write to
protest the distortive manner in which you and Steven Garfinkel,
Director of the Information Security Oversight Office, have made
reference to the ACLU, in your correspondence. with several
Congressional offices regarding the controversy over Standard
Fort.189,."Classified Information Nondisclosure Agreement." .
Specifically-, I want to draw your.attention to the following
statements regarding SF 189 which appear both in Mr. Garfinkel's
July 10, 1987 letter to Kris Kolesnik of Sen.