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, prepublication review requirement for employees with special compartmented 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 possible or perceived disclosure of classified or classifiable information is, in essence, an imposition of a blanket pre-publication requirement.

The requirement of pre-publication review constitutes an unlawful 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 formulated 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 apparent 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 arsenal 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 Intelligence 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 immediately 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 administration seeks changes in the law, the proper vehicle is through Congress, not through a unilateral usurping of congressional 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 bringing 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 emlovees.

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 unnoticed about the actual legal authority to implement these forms. I have mentioned I have five pages, actually ten pages of singlespaced questions dealing with conflicts of laws, property issues, contract issues, employee rights, effect on employees, indirect disclosure, 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 expecting a response from the government any day now. They had until the end of this week or early next week to reply to our complaint.

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 District 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 informed 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 suspended so that federal employees who question the form will not have their clearances revoked. But as with Mr. Brase, more subtle penalties 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 apprised by him that there has been a serious impact on his relationship with his supervisor, and this is something that normally happens when somebody is exercising their rights. Of course, we feel it should not.

Mr. SIKORSKI. But it is a natural reaction of supervisory personnel to take it personally.

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 someone 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 although 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 hearing 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' disclosure is a minor problem because the numbers are small, but that there is no linkage of the huge amount of classified information 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 employees 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 sensitive, 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 information 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 TSDD-84.

As Chairman Brooks pointed out, both polygraphing and pre-publication review forms are now a much greater problem than before, but the perception, as opposed to the reality, is that the administration 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 liability. Then some form comes about that is not based in statute, that is not based in anything but a vague linkage to some Executive Order, and it seems to conflict with the language of that Executive Order, and then there is some definition later on in the Federal 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 classified 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 addressed 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 something 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 establishment, 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 distinction 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 Government Accountability Project, GAP. Mr. Devine and GAP have

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 importantly 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 Constitution, 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 objective 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 suspect 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 commercially engaged in the trading of secrets. Those people are not stopped by a piece of paper, a signature, or criminal or civil statutes 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. Garfinkel 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.