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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 Executive Order 12356.
Mr. GARFINKEL. That is correct.
Mr. GARFINKEL. Now, the other part is information that is classified information. For example, Mr. Chairman, if I were to reveal to you the source of some intelligence information, my oral presentation 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. Yes, I may take classified information and negligently 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 classified information, and I am subject to sanction under this agreement.
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 information 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.
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 classification guides.
Mr. SIKORSKI. You have too many definitions of one word. You know the Dewey problem solving process says you identify a problem 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, unmarked classified information.
Mr. SIKORSKI. Oh, wait a minute. Wait a minute.
Mr. SIKORSKI. Wait a minute. I think I feel a new definition coming on. Now we are just talking about unmarked classified information?
Mr. GARFINKEL. Mr. Chairman, for purposes of this I want to explain that major category of the information. There is a very minor, and we have discussed this information that is in the process of being classified, and I hope that we can agree that that information needs to be protected. I would hope that we can agree to that.
Mr. SIKORSKI. We can agree that national security, defense, intelligence sources and all of the information that I have seen, cryptology and other things, listed in the Executive Order need to be protected. 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 definition of that that is finite and absolute and says these are the parameters 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 employees doing the same thing.
On these definitions, you have danced very well, the best polkaing 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 vacation, 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 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 subcommittee, 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 briefing, I did not see that committee come out with any language critical of the need to protect against unauthorized disclosures of classified information.
Mr. SIKORSKI. No one is disagreeing with that, Mr. Garfinkel, and I think that is quite a fine tactic, to retreat behind the national 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 embrace Senator Grassley's definition which you apparently agreed to with him before it was blown out of the water back up on Pennsylvania Avenue?
Mr. GARFINKEL. I would suggest that we are very close with Senator Grassley to agreeing on a definition. There was a misunderstanding.
Mr. SIKORSKI. He is hot as Hades on that.
Mr. GARFINKEL. Well, I would suggest that those of us in the Executive Branch feel very similarly to the way he feels, and apparently 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. BUCK. People may sign them. If they do not sign them, then no action is taken with respect to their security clearance, in accordance 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?
I understand that everyone in some areas was asked to sign including 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. SIKORSKI. 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. Fitzgerald's quote of Mr. Garfinkel.
Mr. SIKORSKI. 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. SIKORSKI. 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 recently 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 administrative context.
Mr. SIKORSKI. 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 subcommittee and look forward to working with you on it.
reupon, a short recess was taken.]
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 Federation 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 Federal Employees. He has been a forceful and highly effective leader and advocate of the more than 150,000 employees that NFFE represents. This was the first union to file suit against the use of this form, and the subcommittee thanks you for being here this morning 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 Government's continued enforcement of SF 189.
NFFE has actively pursued relief from what we view as the extremely punitive nature of the form and its effect on federal workers. NFFE represents approximately 75,000 civilian employees throughout DOD. Many of our bargaining unit members hold security 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 complied with this requirement until six months ago. Since the increased 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 employing agencies. However, many have signed the agreement because of explicit threats of having their security clearances revoked, thus leading to a possible job loss.
In response to the widespread concerns of our membership, NFFE filed a lawsuit A'igust 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 permanent injunction to stop the use of SF 189.