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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 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."

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:

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"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 over sees
implementation of SP 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

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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. 52302, 7211, or any other statutory free speech protections; or that exceed

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nondisclosure requirements specifically required by law. Similarly, this body could neutralize SF 189 by making it a 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 furtier 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

Mr. Chairman, your continued leadership will be

in Courage

necessary to restore freedom of dissent in the civil service

system.

Mr. SIKORSKI. Yes. People talk admiringly about the people described 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 something 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 information.

You may recall that in your subcommittee under Chairman Dingell the GAO refused to give to Chairman Dingell some information 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. SIKORSKI. There is a "Poindexterity" here.

We thank you once again for your assistance and for your willingness to do the work on this issue. This morning we had Jose Napolean 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 motherhood, but it is a problem that affects millions of people intimately as well as Congress ability to fulfill its constitutional oversight responsibilities. 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-blowers. 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, subject to the call of the Chair.)

[The following material was received for the record:)

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Rep. Gerry Sikorski
Chairman, Subcommittee on Human Resources
House Committee on Post Office & 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, 198.7 hearing on the Executive Branch's standard Form 189, classified Information Nondisclosure Agreement, and the Reagan Administration's policy for its implementation and enforcement.

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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 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

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