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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 evidences 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 whistleblowing statute.
While the administration has not demonstrated a need for corrective action, there is a rationale for suggesting why 189 is desired by the administration. It is a fact of life that administrations, Republican or Democrat, view whistleblowers as a germ within government.
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 problem 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 impossible for any reasonable person to understand what "classifiable” 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 disclosure 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.
Now, I have dealt with the administration on this matter directly 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 narrower 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 reasonable 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 agreement, given the stubbornness and the unreasonableness of administration 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 contractual 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 require the administration to start at ground zero and to demonstrate 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 inviting my testimony and for inquiring in this very basic and important 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 article 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 committee and the others who are working on this matter for your per
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. Garfinkel, 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 constraints, error, lack of opportunity, or oversight has not been marked as classified information. That is repeated in a slightly different 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 associated with its identification.
Then there is a fourth definition that "classifiable" material is not already classified information but that which is currently undergoing a classification determination and requires interim protection.
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 agreement 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 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.
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 explanation 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
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 perchance 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.
they have backed up subsequent to your agreement.
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 jurisdiction, 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 consequences are like they are in 189.
It is also important, in my view, to examine why it is that nondisclosure 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 scrutiny and control of National Security Decision Directives, the Legislative 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 administration, 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 protector 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.
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. SIKORSKI. 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 magnanimous I am. If you win the World Series, I will give you the bottle of wine at least.
Mr. SIKORSKI. 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 important 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 Standard 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 military and civilian employees of the Department of Defense who refuse to sign Form 189 are threatened with the loss of their security clearances.
It disturbs me greatly that our pleas went unheeded. Had it not been for the lawsuits filed by two unions representing federal employees, 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 therefore, 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,