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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 request 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.

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 ISOO answering his questions. The response was mixed: some of their interpretations were reassuring, some were not. ISOO 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.

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 Federation of Government Employees, and is also an advocate for federal employees. Like NFFE, AFGE has filed suit against the use of SF 189.

The subcommittee thanks you for being here this morning to discuss this important issue. I have the statement of Ken Blaylock, the President of AFGE. You can summarize however you want.



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. Approximately 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 nondisclosure 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 ISOO 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 condition of access to such information.

It also requires all person with access to sensitive compartmented 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 security has been used to cover up governmental actions which were not related to national security, but were, instead, embarrassing or politically 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 whistleblower 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 constraints of national security, with emphasis on “legitimate constraints of national security.'

The nondisclosure forms go beyond national security interests to chill and suppress federal employee disclosure of mismanagement, 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 focused 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 information 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 employee to civil or criminal liability for a proper disclosure, for example 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 morning 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 testifying 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 redefine 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 classified. This slight amendment of the regulations, as characterized by the Director of ISOO 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 ISOO 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 whistle-blower protections provided for in the Civil Service Reform Act.

The prohibited personnel practices component of that Act expressly 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 protections with respect to general disclosures to the public, nor is National 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 Executive 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 Protection 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 renunciation 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 compelling.

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 prohibition in Standard Form 189 and Standard Form 4193 against disclosing 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 discovered.” Without further qualification, this could potentially conflict, obviously, with the requirements of the nondisclosure forms.

Moreover, the Freedom of Information Act permits the withholding of national security information only if it is required by Executive 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 withholding 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 determining the property rights of the writings and works of federal employees. The copyright clause of the Constitution, Article I, Section 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

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