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and it turned out that, in fact, the changes published in the Federal Register do not go far enough. They leave too many loopholes allowing for retroactive classification after information has been disclosed.

So after months of negotiation, we still have not come to a satisfactory solution.

I firmly believe the whole process should be deferred pending congressional review of the entire policy. My main concern, which I share with my colleagues in Congress who have weighed in on this issue, is that Form 189 will impede the flow of information to Congress.

And, Mr. Chairman, you know as well as I do that is how we make our decisions. We need to have information, and while I have no quarrel with the need to protect classified material, the word “classifiable” is so broad and so vague that it could include anything.

To use Mr. Garfinkel's words when he was asked about the term several months ago, he said, "It could include anything." In other words, the form holds whistleblowers responsible for disclosing unclassified information to Congress, the Inspector General or to any legitimate recipient, information which might, after being disclosed, be retroactively designated as classified.

That whistleblower would then be liable for unauthorized disclosure of classified information. This would, indeed, have a serious, chilling effect on conscientious public servants considering whether to report evidence of waste, fraud and abuse to Congress, the Inspector General or any authorized recipient.

Mr. Chairman, you and I know too well that many government employees are already afraid to stick their necks out, to risk their careers to do what they know is right. They certainly do not need another deterrent.

We do need the information these people provide us. Without it, Congress and the American people are at a terrible disadvantage.

For instance, the House Armed Services Committee depended on candid, up-front assessments by military and civilian field personnel in its investigations of problems of the B-1B and the MX missile. Likewise, information about faulty and overpriced weapons and spare parts has come from both civilian and military employees of the Department of Defense.

It would be a tragedy if individuals such as these, on the front lines, with intimate knowledge of our defense procurement system, were further discouraged from reporting problems.

Mr. Chairman, the Post Office and Civil Service Committee has worked long and hard to improve whistleblower protection for federal employees. I introduced legislation to improve the remedies available for military personnel who disclose waste, fraud and abuse to the Inspector General or to the Congress.

These efforts are necessary because it is very difficult to protect whistleblowers. The current protections simply are not working, and, Mr. Chairman, I urge you to join me in that fight because we have yet to get that bill through the Armed Services Committee, and we are hoping for hearings this month.

I recognize that the administration has given us assurances that SF 189 will not supersede the existing statutes for protection of

whistleblowers. However, anyone contemplating blowing the whistle still has to fear potential prosecution and the personal and financial sacrifice it will entail to clear his or her name.

The administration has not yet made a convincing argument for the need to protect "classifiable" information. That does not seem to have been a problem before. Until this committee, Mr. Chairman, and other committees with jurisdiction over such matters can be convinced that there is a serious problem with the leaking of "classifiable" information, and until the nature and purpose of the nondisclosure form is agreed upon, I prefer that Form 189 be abandoned.

And I want to make one more point to you, Mr. Chairman, that I think is very important. Yesterday I was at a hearing over at the Armed Services Investigation Subcommittee, and we discussed a shocking report by the Defense Investigation Service about the lax security that exists at contractor sites involving work on highly classified or what we call “special access" or "black" programs.

Very briefly, this report concludes that these "black" programs are not receiving adequate oversight and that there are so many of them no one in the Defense Department even knows how many of these programs exist and what they are. There is no central repository for all of these "black" programs, and as a matter of fact, testimony yesterday indicated that only approximately 25 percent of these programs have the proper clearance.

Mr. SIKORSKI. We do not know how many there are. We do not know who is in charge of them. We do not know how much they cost the taxpayers, and we do know that security on some of these is incredibly bad.

Ms. BOXER. Exactly.

Mr. SIKORSKI. And these are the most sensitive programs. That is why they are not known to many people.

Ms. BOXER. That is exactly right, and as a matter of fact, this report, I believe, emanated from legislation authored by your colieague on your other committee, Energy and Commerce, Ron Wyden. This report was made available to us, and it is really shocking to see that here we have programs that are clearly supersecret programs, and they are treated with great laxity and lack of security.

So here we are worrying about "classifiable" information, supposedly, while we are in a mess over on the special access or the "black" program side. It says to me something else, Mr. Chairman. What it says to me is that this whole issue over this form, this entire issue is really a red herring; that we are really just trying to stop people from blowing the whistle on fraud, waste and abuse.

I would suggest that if the administration is really concerned about tightening up on the leaking of classified information, it should focus on implementing reforms to correct the deficiencies documented in that DIS report. That would seem to me a far more productive and fruitful effort than trying to scare government employees with that Form 189, a form that is a serious setback to congressional efforts to better protect whistleblowers.

Mr. Chairman, again, I want to thank you for your leadership on this issue. We have worked long and hard on many of these issues, and I look forward to working with you on this one.


Mr. SIKORSKI. Thank you.

I think we have hit classifiable. The other issue that you have raised is an important one, as we have seen in the Iran-Contra hearings, of congressional oversight without the capacity of federal employees to unfetteredly petition members of Congress to blow the whistle on fraud and waste, incompetence or misfeasance or malfeasance. We are not going to be able to do the oversight that we need to do, and there is going to be in the long term a breakdown in Executive Branch functioning as well.

Many would prefer not to have to come up and testify because it is not fun to take time out, prepare yourself, prepare the testimo ny, answer questions, attend long hearings a few times a week, sometimes many times a week. And yet that is an important part of the process if the Executive Branch is to do the job they are required to do under the law.

And the only way we can determine Executive Branch effectiveness is if we have information, and we are not going to get it if employees are any more intimidated than they already are.

Ms. BOXER. Exactly.

Mr. SIKORSKI. All right. We will put in the record without objection another article by the experts at the CRS, Library of Congress, on the history of use of Executive Orders and other statements that are not found in statute or in the Constitution to secure ever so tightly government information and the broadening of the terms that have now encompassed virtually any government document into this category of “classified” or “classifiable” information.

Thank you.

Ms. BOXER. Thank you very much, Mr. Chairman.

I think programs are classified or they are not, and any other word is just being used to stop people from telling the truth to Congress, and we have got to put an end to it. Simple.

Mr. SIKORSKI. Thank you.

Congressman Brooks is on his way. We will begin the next panel, and if he comes in, we will then take him.

Our next panel consists of two witnesses, Mr. Ernest Fitzgerald and Mr. Louis Brase. Mr. Fitzgerald is a Management Systems Deputy with the Air Force and a courageous, well-known whistle blower who helped bring this particular issue to light. He drew congressional and media attention when he refused to sign SF 189 because of the ambiguities in its text and their affect on employee rights. The subcommittee is honored to have Mr. Fitzgerald here to share his thoughts, experience, and expertise on employee nondisclosure agreements.

Why don't you come on up, Ernie. And Mr. Louis Brase is the Cryptological Maintenance Training Manager with the Air Force and has had the frustrating, embarrassing experience of facing the consequences of refusing to sign the SF 189 disclosure form. From the loss of his security clearance to his job transfer and recently to his reinstatement to his position as training manager, Mr. Brase will share with the subcommittee his nightmarish experience and thoughts on failing to sign SF 189. Come on up, Mr. Brase, and he is being accompanied

by his attorney, Mr. Joe Kennedy.

As I understand it, Mr. Fitzgerald, you do not have a statement; is that correct?

Mr. FITZGERALD. Not a prepared statement, Mr. Chairman.
Mr. SIKORSKI. Do you want to make any comments at this point?

Mr. FITZGERALD. Yes, I would like to explain briefly how I got into this mess and give you my observations of how we might get out of it.



Mr. FITZGERALD. I was minding my own business doing regular bureaucrat stuff in my office in the Pentagon when I was visited on the 13th of July by a military officer who threatened me: either sign this job or lose your security clearance.

That riled my competitive spirit, and I was compelled to start studying Standard Form 189 and its related procedures.

Then on the 2nd of July of 1987, I received a letter from another military officer, my new military boss, General Watts, in which he threatened to take away my security clearance and deny my access to classified information if I did not sign the paper. He gave me 30 days.

Šo that really galvanized me in my purpose, and I began to study this process in earnest.

I am not a lawyer, but I have read lots of contracts, and this is perhaps the worst contract I have ever seen in my life. I have seen some really bad ones, Mr. Chairman, in the Pentagon with giant corporations, but nothing as bad or one-sided as this.

The lawyers have told me it is called an adhesion contract, a oneway deal, and indeed, it is clear from the changes that have already been made since we began to make a fuss about it, that the employee's signature is intended to bind him forever, and that is a long time.

Now, even the Third Reich was only expected to last 1,000 years, but the government employee is bound forever. But the government claims for itself the right to change the terms of that contract at will. You know, the government can put out a new interpretation in the Federal Register every Monday morning, and the employee is bound by whatever the government comes up with.

I should add right here, I think, that there is a lot wrong with this so-called contract beyond “classifiable.” In this instance, the term “classifiable” was turned on its head. In the past it has been used as a limiting term, as in “properly classifiable and, in fact, classified."

Mr. SIKORSKI. In fact, the courts in more recent cases have embraced the term "classifiable” as meaning a limit on “classified." That is, Grandma's recipe that ended up with a classified marking is not classified because it is not classifiable; is that correct?

Mr. FITZGERALD. That is my understanding in the past, but in this instance they have turned a limiting term into an expansionary term, which Mr. Garfinkel said in my presence could mean anything, and I think we owe Mr. Garfinkel a real debt for his candor. I do not see how anybody can be comforted by what he says, but nevertheless, he has been candid about it.

So to summarize, I have submitted for you and your staff and for the record, if you wish, a long list of unanswered questions, questions, responses and my comments on those, and as a consequence of this long list of unanswered questions and the truly frightening answers to those that I did get, I began to look at why the administration was really doing this. It obviously was not for the stated purposes of alerting us to our duties and getting our commitment to protect classified information, which is exactly what General Watts wrote to me, and which I wrote back recommitting on those same points. If that were the case, it would have been solved on the 14th of July when I wrote back to General Watts.

In asking about the legal basis, I was told that it was the National Security Decision Directive 84. Ms. Buck, in her testimony, talks about the obligation to carry out the statutes and Executive Orders. This is neither.

We have somewhere between two and 300 NSDDs. Some are secret; some are part secret. It is truly Kafkaesque. You do not even know what you are being held accountable for in some cases, and I would endorse Senator Grassley's plea that this be looked at. This is truly scary, the fact that these things are viewed as having the force of law, particularly within the military.

The distribution within the Services at, least in the Air Force is through military channels. If I want to see an NSDD that is classified, I have to go hat in hand to the military, sign a register, and then they may let me read it.

You know, you do not know what we are being held accountable for, and we do not either. So I would emphasize that very strongly.

The basis for arguing that the NSDDs have force of law was said to be the Willard Commission report. Senate investigators furnished me a copy of one, and I wanted to read you something that confirms my conclusion, Mr. Chairman, that the Standard Form 189 and related procedures have nothing to do with true security protection.

In the Willard Commission report itself it says, “Present civil statutes and regulations permitting disciplinary action for unauthorized disclosures by government employees are generally adequate.” This was issued March 31, 1982. They obviously do not need this to protect classified information. They go on to say in the same sentence, “Except that they apply only to persons who disclose classified information, not to those who receive it."

Mr. Chairman, this whole document, the Willard Commission report, is aimed at the press and the Congress and recipients of information from the government. They admit that there is no problem in disciplining employees who reveal classified information, but it is necessary, since they are, as they complain, limited in their interrogation techniques. It would appear that they would welcome authority to use torture.

They sought apparently to intimidate the sources for Congress and the press. In my correspondence which you asked that I submit, I had attached originally

Mr. SIKORSKI. Responses to the Air Force and their response back will be put into the record at the appropriate place.

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