THE WHITE HOUSE WASHINGTON Dear Mr. Adler: November 6, 1987 Thank you for your letter of October 21, 1987 to Mr. Carlucci. He has asked me to reply on his behalf. Your letter objects to a reference that Mr. Carlucci made to the American Civil Liberties Union (ACLU) in recent congressional correspondence concerning SF 189, the "Classified Information Nondisclosure Agreement. It similarly objects to such references in correspondence by Mr. Steven Garfinkel, Director of the Information Security Oversight Office (ISOO), and in an ISOO "Fact Sheet" on the same subject. Mr. Carlucci's letter noted that ACLU was one of a number of organizations that commented on SF 189 before it was issued. Like Mr. Garfinkel's letter and the ISOO Fact Sheet, it also noted that no legal challenges to SF 189 had been made by ACLU or anyone else during the four-year period following its introduction in August 1983. We regret to learn that you believe these statements, which are accurate, somehow present a distorted picture of ACLU's position with respect to the Form. It certainly was not our intention to depict ACLU's position, nor would we presume to do so in this or any other context. It was our intention merely to underscore the substantial efforts that the Administration generally, and ISOO in particular, have made to consult with and address the concerns of interested organizations (including ACLU) in the course of developing and implementing the Classified Information Nondisclosure Agreement. Accordingly, while we reject your assertion that these statements were "deliberately crafted to imply that the ACLU communicated its approval of SF 189" or to "promote an inference that the ACLU did not and does not disapprove of SF 189," we nonetheless shall refrain from referring in the future to ACLU's discussions with ISOO in this regard. We have asked Mr. Garfinkel to do likewise. Sincerely, Maitre Grant S. Green, Jr. Mr. Allan Adler Legislative Counsel American Civil Liberties Union 122 Maryland Avenue, N.E. Washington, D.C. 20002 CC: Mr. Steven Garfinkel Director Information Security Oversight Office RE: SF 189, "Classified Information Nondisclosure Agreement" The ACLU finds no inherent constitutional barrier to an Executive Order requirement that government employees and other individuals, as a condition of being granted access to classified information, must sign an agreement which (a) imposes an obligation not to disclose such information without authorization and (b) is legally-enforceable in a civil action for breach of contract. This position, however, is premised upon the understanding that the nondisclosure obligation accepted by the individual who signs such an agreement does not require prepublication review, and will be breached only where that individual has obtained properly classified information by virtue of a clearance requiring the agreement and has knowingly, willfully or negligently disclosed such information to a person or persons not authorized to receive it. SF 189, the "Classified Information Nondisclosure Agreement" required pursuant to National Security Decision Directive 84 in implementation of the safeguarding requirements of Executive Order 12356, is purported to be such a narrowly-crafted contractual instrument. However, some of the key provisions prescribing the nature and scope of the obligations and potential liability of an individual who signs it rely on terms 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. The ACLU believes that these problems can be resolved administratively by rescission of SF 189 in its present form, and issuance of a new version of SF 189 including remedial changes in the contractual language. S as Alternatively, if rescission and reissuance are not feasible, appropriate clarifications of the obligations and liability imposed by the agreement (perhaps incorporating the Q & A format developed by the Information Security Oversight office, included in the Defense Department's briefing pamphlet, DOD 5200.1-PH-1) should be made a formal addendum to SF 189 or issued by ISOO or the National Security Council as part of a revised directive or regulation implementing the agreement. The ACLU, however, urges that legislative action to properly limit the scope of SF 189 should be undertaken if administrative solutions are not forthcoming. "Classifiable" Information Aside from its unnecessarily menacing and legalistic tone, the principal problem with the present language of SF 189 is the use of the term "classifiable" in a manner implying that the nondisclosure obligations of the contract extend to information which qualifies for classification under the standards and criteria of Executive Order 12356 but has not in fact been classified pursuant to the procedures of that Order. Literal reliance on this term, in effect, prohibits the individual from disclosing concededly unclassified information and makes a mockery of the legal framework of statutes and Executive Orders that distinguishes between "classified" and "unclassified" information in order to assure proper safeguards for the former which would be inappropriate as access and dissemination restrictions on the latter. Federal caselaw upholding the constitutionality of nondisclosure agreements of this kind clearly establishes that "the First Amendment limits the extent to which the United States, contractually or otherwise, may impose secrecy requirements upon its employees..." McGehee v. Casey, 718 F.2d 1137, 1141 (D.C.Cir. 1983), citing United States v. Marchetti, 466 F.2d 1309, 1313 (4th Cir.), cert.denied, 409 U.S. 1063 (1972). Specifically, the court in Marchetti noted that it would "decline enforcement" of the secrecy agreement signed by a CIA employee when he left the agency "to the extent that it purports to prevent disclosure of unclassified information, for, to that extent, the oath would be in contravention of his First Amendment rights." 466 F.2d at 1317. See also Snepp v. United States, 444 U.S. 507, 521 n.1l (1980) (Stevens, J. dissenting) ("It is noteworthy that the Court does not disagree with the Fourth Circuit's view in Marchetti, reiterated in Snepp, that a CIA employee has a First Amendment right to publish unclassified information.") Executive Order 12356, like its predecessors, provides specific standards and procedures for purposefully distinguishing between "classified" and "unclassified" information. For example, the Executive Order, at Sec. 1.3(b), makes it clear that information 2 must be Classified if it is detentined to concern one or more of the categories listed in the Drder and an original TABELFADEL.on authority as determines that its mauthorized 1.8TLOBUZE, either by itself or in the context of other information, ressonarly could be expected to cause damage to the national securacy. Moreover, the Executive order, at Ser. 1.5, requires specific "dentification and Markings" to be "shown on the face of 302 classified documents, or clearly associated with order forms of classified information in a manner appropriate to the medium involved..." Congress, through the statutory mechanism of the Freedom of Information ACT, 3 D.B.C. 552 (D)(2), permits withholding of national security information as a matter of law only when the information concerns natters that "are (1) specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy are in fact properly classified pursuant to such Executive Order." in wired we wood too, & folex, 509 F.2d 1362 (4th Cir.), Bu bath, 422 0.8. 992 (1975), a "sequel" to the Marchetti FOLA requirement for protectible national security information to be in fact properly classified" led the court to conclude that, in reviewing deletions made from published materials pursuant to a secrecy agreement, the deletion items should be suppressed only if they are found both to be classified and classifiable under the Executive Order." Clearly, the court used the tern "classifiable" to mean that the classified information in question "in fact" qualified for classification, on the basis of the two-step determination made by an original classification authority pursuant to the Executive Order. SP 189 does not use the term "classifiable" as a qualification on "classified, the way it was used by the court in Colby; instead, it uses it to identify a separate category of nondisclosable information. An individual who agrees not to disclose *classifiable information is thus expected, quite unreasonably, to perform the task of the original classification authorities under the Executive Order; that is, to determine whether the information is within one of the "Classification Categories" and Whether its unauthorized disclosure "reasonably could be expected to cause damage to the national security" so as to qualify for classification. The overwhelming majority of individuals who are cleared for access to classified information are not authorized to make original or even derivative classification determinations, as such authority is enumerated or delegated under Executive Order 12356. Moreover, it should be clear that basic fairness prohibits holding an individual responsible for disclosure of classified information that the individual could not reasonably have known to be classified. This is obviously the underlying purpose of the "Identification and Marking" requirements of Executive Order 12356, as well as the statutory qualification protecting national security information only when it is "in fact properly classified pursuant to such Executive Order." If an individual is to be held responsible for recognizing and protecting "classifiable" information, the Government must bear a substantial burden of proof to demonstrate that the individual knew or reasonably should have known that the information would have been "in fact properly classified" but for the lack of an opportunity for proper marking according to the standards and procedures of the Executive Order. It cannot be enough that the information appears to fall within one or more of the "Classification Categories" listed in the Executive Order, since those categories clearly embrace a great deal of information which is not only "unclassified" but "unclassifiable" because it would not meet the standard of "damage to national security." The Executive Order itself does not impose safeguarding obligations for "classifiable" information, aside from the "Exceptional Cases" at Sec. 1.2(e) where an employee, contractor, licensee, or grantee of an agency that does not have original classification authority "originates information believed by that person to require classification..." [emphasis added]. It is noteworthy that these "Exceptional Cases" do not include instances where information is obtained by the individual in the course of employment, and they impose an obligation only where the individual believes the information requires classification. The Question & Answer materials developed by the Information Security Oversight office to explain SF 189 acknowledge these problems (#4) in explaining that "classifiable" information "refers to information that meets the criteria for classification under Executive Order 12356, but which has not yet been properly marked because of time limitations, oversight Consequently, the Q & A materials provide that "[a]n employee with authorized access to classified information would only be liable for disclosing 'classifiable' information when he or she reasonably should have known that the information met the tests for classification and should have been marked as such." or error. The Q & A explanation acknowledges that, with respect to an alleged disclosure of "classifiable" information, the Government bears the substantial burden of having to prove that the individual in the absence of appropriate markings --should have known from other facts and circumstances that (1) the information qualified for classification, and (2) the information would have been "in fact properly classified" but for time limitations, oversight or error. Such "time limitations, oversight or error" are an additional part of the Government's burden of proof and could not be presumed from the nature of the information and the absence of proper markings. The example accompanying the Q & A explanation, concerning the status of notes taken by an employee at a classified briefing prior to an opportunity to review and mark them, illustrates the very narrow nature of the "time limitations" exception in which |