The ACDT Washington Office worked with House subcommittee staff proposed legislation E.R.4682) and a subsequent Committee report 1.3pt. 94-961. Part 1, and helped obtain adoption of the Mathias-agleton Amendment to the Department of 14 korization Act, Fiscal Years 1984 and 1985, P.L. 98-164, Section 1313, 37 STAT. 1061, which placed a five-month moratorium Laglementation of the prepublication review requirements of $300-34 and ultimately forced the White House to hold in aceyance plans for frure implementation of such requirements With a commitment to give prior notice to Congress. In 1998 and 1994, staff of the ACCC Washington office used the extile Taite House commitment to successfully urge the Director the Information Security Oversight office to intercede on behalf of an employee of the Defense Logistics Agency and block that agency's efforts to implement a new prepublication review requirement. [Correspondence regarding this matter is available in the files of ACLU Washington Office staff.] Focus on Prepublication Review For the ACLU, as for the Congress and most government employees as well, the chief controversy regarding secrecy agreements has never really centered on the general proposition of whether a government employee can, as a condition for obtaining access to properly classified information, be required to enter into a written agreement in which the individual promises not to engage in unauthorized disclosure of such information. In the Marchetti, Knopf, Snepp, and McGehee cases, as well as in Congressional hearings on NSDD-84, the primary First Amendment objections were voiced by the ACLU and others not against nondisclosure agreements per se, but against the enforcement of prepublication review requirements related to such agreements: The or judicially-imposed - ACLU Washington Office has consistently opposed prepublication review requirements whether express, implied, as censorship through prior restraint in violation of the First Amendment. Although the Snepp decision has made it impossible for us to prevent the continuing imposition of prepublication review obligations on present and former employees of the intelligence agencies, our active opposition to such requirements undoubtedly contributed to the Administration's decision to exclude prepublication review requirements from SF 189, the standardized Classified Information Nondisclosure Agreement issued under NSDD-84, and to later explicitly disavow the invitation of the Supreme Court in Snepp to imply such obligations based on the existence of a fiduciary relationship. See, e.g. Pamphlet on SF 189, DOD 5200.1-PH-1 (July 1985) p.30 and Department of Justice Internal Security Order, DOJ 2620.8, 48 Fed. Reg. 3913 (daily ed. August 30, 1983). While this is not to suggest that the prepublication review issue is the only troubling aspect of secrecy agreements, it is important to understand that, until recently, it was the only issue that elicited any substantial consideration from the courts and concern from the Congress in response to arguments about the First Amendment and the rights of government employees. Recent Developments The current controversy over SF 189, the standardized Classified Information Nondisclosure Agreement, illustrates a number of other considerations about nondisclosure agreements which also raise significant concerns for the ACLU and the First Amendment rights of government employees. Even without prepublication review provisions, SF 189 has a singularly oppressive quality which appears to have been deliberately cultivated by the Administration through artful use of intimidating language and ambiguous terms in order to threaten individuals with a sweeping potential for liability with regard to obligations that are not clearly defined. With an excess of legal jargon and irrelevant but menacing references to potential liability under criminal provisions of the U.S. Code, SF 189 purports to establish a judiciallyenforceable contractual obligation on the part of the signee to refrain from unauthorized disclosure of any classified information obtained by the access which it authorizes. In signing SF 189, the individual purports to "accept," "acknowledge," "understand," and "assign" in accordance with its terms and to "make this Agreement without mental reservations..." However, as explained in the attached ACLU memorandum of July 16, 1987, the vagueness and overbreadth of key terms in SF 189 undercut any notion of informed and voluntary consent, while raising serious First Amendment questions about the need and enforceability of such agreements beyond the safeguarding of properly classified information. Nondisclosure agreements are readily subject to constitutional and other legal objections when they consist of ambiguous terms, impose unreasonable obligations, extend beyond properly classified national security information obtained in the course of employment, provide for enforcement without due process, and subject covered employees to sanctions which are disproportionate to the nature of their actions. Beyond this, however, it is not clear that the Government cannot reasonably and constitutionally require them. We hope the Subcommittee will continue to challenge the validity of SF 189 and similarly questionable measures in pursuit of information security policies which do not trample upon either common sense or the Constitution The ACLU is willing to assist the Subcommittee in this endeavor in any way it can. Sincerely, Allan Adler Allan Adler Enclosures ACLU WASHINGTON OFFICE October 15, 1987 The Honorable Frank Carlucci 1600 Pennsylvania Ave., N.W. Dear Mr. Carlucci, On behalf of the American Civil Liberties Union, I write to protest the distortive manner in which you and Steven Garfinkel, Director of the Information Security Oversight office, have made reference to the ACLU in your correspondence with several Congressional offices regarding the controversy over Standard Form 189, "Classified Information Nondisclosure Agreement." Specifically, I want to draw your attention to the following statements regarding SF 189 which appear both in Mr. Garfinkel's July 10, 1987 letter to Kris Kolesnik of Sen. Charles Grassley's staff, and in your July 23, 1987 letter to Rep. Gerald Sikorski: "Before [SF 189] was issued, several committees of In addition, please note the following statements which appear in the "Fact Sheet on SF 189" that was an attachment to your September 21, 1987 letter to Rep. Barbara Boxer as well as to written testimony submitted by Mr. Garfinkel to the House Subcommittee on Human Resources on October 15, 1987: "The SF 189 was the subject of extensive discussion These statements appear to have been deliberately crafted to imply that the ACLU communicated its approval of SF 189 to certain Administration officials. And, regardless of whether that implication was intentional in the wording, it seems clear that the purpose of repeating these references in your correspondence with Congressional offices was to promote an inference that the ACLU did not and does not disapprove of SF 189. It is true that ACLU staff, myself among them, were given an opportunity to review SF 189 before it was issued; however, we voiced objections to many of its provisions then as we do now. While it is also true that ACLU "had no plans to challenge the facial validity of the SF 189" and that "no legal action... resulted," this reflects only our tactical judgment regarding the likely results of such a court challenge and in no way signifies that the ACLU was favorably disposed toward SF 189. We are particularly troubled by these artful intimations in light of the fact that, with the exception of Mr. Garfinkel's letter to Senator Grassley's staff, all of the correspondence noted above occurred after Mr. Garfinkel had been apprised of certain ACLU objections to SF 189 through a July 16 ACLU memorandum which was circulated to those Congressional offices and other interested parties. Shortly thereafter, in a July 28 letter commenting on ISOO's proposed clarification of the term "classifiable," we quoted our July 16 memorandum regarding certain terms in SF 189 "that are vague and subject to overreaching ex post facto interpretations which would illegally and, we believe, unconstitutionally broaden the government's authority under this agreement to reach disclosures of unclassified information and other communications that are not prohibited by law." (emphasis in original) We feel certain that you would understand the ACLU's dismay regarding the deliberate nisrepresentation of our views on matters of consequence. We are no less dismayed when our actions are misinterpreted through inferences drawn from suggestive and manipulative characterizations of them. Accordingly, we request that any future references to the ACLU by Administration officials in the context of discussions on SF 189 accurately reflect the facts as stated in this letter. |