Mr. FITZGERALD. Thank you, Mr. Chairman.

I had submitted originally as attachments to two pieces of correspondence classified documents which I viewed as improperly classified, which I requested be declassified. I have never heard from either of those requests substantively.

However, in response to a request from the House Armed Services Committee, the National Security Council has already declassified one of these papers, which was a March 12, 1986 memorandum from Admiral Poindexter to Secretary of Defense Weinberger, and I believe your staff has gotten copies of that for you.

I think in examining that memorandum you can see why the administration, and probably as Senator Grassley has said, other administrations, would like to have the power to cover up this kind of stuff.

The document itself is classified "secret," and it is nothing more than a plan to bamboozle Congress. There is not one iota of true national security information in that document.

Mr. SIKORSKI. Mr. Fitzgerald, we are talking of a letter on White House stationery dated March 12, 1986, classified "secret," and stamped over that is a larger "unclassified" stamp at this point; is that correct?

Mr. FITZGERALD. Yes, sir, that is correct, and down at the bottom it has the notation

Mr. SIKORSKI. "Declassified"?

Mr. FITZGERALD. Yes, sir, on the 8th of September 1987.

Mr. SIKORSKI. And this memo is from John Poindexter for the President to the Honorable Casper Weinberger, Secretary of Defense, and the subject is implementation of the recommendations of the President's Commission on Defense Management.

The second paragraph is interesting. "The NSDD❞—that is the National Security Decision Directive

Mr. FITZGERALD. It eventually became 219.

Mr. SIKORSKI [continuing]. On the Packard Commission reforms, "is intended to strengthen your hand"-this is Poindexter writing Weinberger-"vis-a-vis the legislation now in both Houses and maintain your control of the implementation process. We have tried to be sensitive to the President's desire to implement the Commission's recommendations without infringing on your," Weinberger's, "authority or prerogatives. The events of the past week have demonstrated the Hill has been most favorable towards the Commission's report. The report thus gives the President considerable leverage in dealing with the more radical proposals for reform than now abound in both Houses. Because of our need to sustain momentum on this and your pending trip to Europe, I hope we can have your comments this week before you leave."

The only thing I have not read is the first paragraph that just cites the memo and the tabs that are in draft letters to Houses of Congress.

It does not seem to be top secret to me.

Mr. FITZGERALD. Not properly so, Mr. Chairman, in my opinion, but from the standpoint of wanting to use what in your other committee has come to be known as the "Poindexter-Packard scam" to head off procurement reform, it was absolutely necessary that they keep their intentions secret, and that was done.

This letter is dated March 12, 1986, and it was not declassified until the damage was done, and as you well know, you and Mr. Dingell have written extensively about this, and Chairman Dingell wrote to the President about this matter exactly a year ago today, on October 15, 1986. He wrote a real blast to the President, requesting that administrative and criminal sanctions be invoked as appropriate for misuse of security classification.

Nothing has been heard of that except to intensify the pressure on government employees to keep their mouths shut.

I have another example. I notice that Chairman Brooks came in, but I have another example.

Mr. SIKORSKI. Let's finish on this one. This one has no basis for national security interest classification. There is nothing about defense or cryptology or any projects whose technology or anything else relates to our national security interest. This is pure legislative strategy that could be embarrassing if it became public in one sense because it is very honest, and it shows frame of mind with regard to how the White House was treating the concern for real reform in procurement of defense materiel and weaponry, but also in the sense that it shows that this whole push against waste, fraud and abuse was more a scam than it was sincere.

Mr. FITZGERALD. Yes, sir, and the more you dig into the substance that was back of this, the more convinced you become of just those points.

Now, with respect to the government employees seeing this, before the big, new drive on the gag order, there would have been no reason why any employee should not have brought this to you or any other member of Congress. All of you have clearances.

Mr. SIKORSKI. In fact, under whistleblower protections, an employee would have been required to disclose this.

Mr. FITZGERALD. Certainly under the Code of Ethics, in my view, and to turn it around, an employee seeing this absent the "secret' stamp would have no notion that it could be "classifiable." Yet it was classified by the highest authorities in the land for the President. You cannot get much higher than that.

Mr. SIKORSKI. Thank you.

We are going to return to this panel. At this point, however, we want to introduce Chairman of the House Government Operations Committee, distinguished Congressman Jack Brooks.

His committee has vigorously examined National Security Directive 84 and other troubling aspects of the administration's security policies. The subcommittee is honored to have you testify before us today.

STATEMENT OF HON. JACK BROOKS, A REPRESENTATIVE FROM THE STATE OF TEXAS

Mr. BROOKS. Thank you, Mr. Sikorski. I am delighted to be with you, and I want to commend you for holding these hearings on this very, very critical issue.

As you know, the policy of imposing nondisclosure contracts or secrecy pledges on hundreds of thousands of federal employees was adopted by President Reagan when he issued his infamous National Security Decision Directive 84 back in March of 1983.

NSDD 84 was severely criticized at that time both in Congress and in the national media. The media understood it. As you recall, I introduced legislation to block the most controversial portions of that directive, those dealing with massive polygraph testing and censorship contracts.

In the face of growing support for that legislation, the President announced his intention to abandon those portions of the directive, but despite the President's announcement, those controversial policies authorized under NSDD have continued to be implemented throughout the administration and are in effect today.

Although some people believe the President when he says he is not going to do something, and the perception does persist that these alarming policies were curtailed, the truth is, the fact is that the bureaucracy has just kept right on going with polygraph testing and secrecy pledges. I hope today's hearings will dispel that false impression and illuminate the truth that the NSDD monster, for all practical purposes, is alive and well today.

Specifically with regard to nondisclosure agreements, NSDD 84 had two separate provisions. One (a) required all persons with authorized access to classified information to sign a nondisclosure agreement, and 1(b) required "all persons with authorized access to sensitive, compartmented information," to sign a nondisclosure agreement, which includes a provision for pre-publication review. It was this latter requirement, the SCI contract with a pre-publication review requirement, that raised the most concern back in 1983. The Government Operations Committee, which I chair, held hearings on this requirement, and on the polygraph provisions.

Professor Thomas Emerson of the Yale Law School, considered by many to be the leading expert on the First Amendment, testified that:

The essence of Directive 84 is to impose a sweeping prior restraint. It sets up a classic and virulent scheme of censorship. As Chief Justice Berger has said, "prior restraints are the most serious and least tolerable infringements on First Amendment rights."

Professor Bollinger of the Michigan Law School concurred, stating:

For more than six decades now the courts of this country have struggled with the task of defining a workable set of concepts and principles for the First Amendment. Throughout this time, however, a virtual consensus has formed around one basic idea, and that is that prior restraints are the least favored the most distrusted method of proceeding against harmful speech activity. Licensing or prior restraint, as it has been repeatedly noted in the literature had in cases, is the one matter, perhaps the only matter, we can be confident that the framers intended to prohibit by the free speech clause.

In November of 1983, the Government Operations Committee issued a report entitled "The Administration's Initiatives to Expand Polygraph Use and Impose Life-long Censorship on Thousands of Government Employees." In our report, 98-578, the committee concluded that the pre-publication review agreements required by the President's Directive constituted an unwarranted prior restraint in violation of the First Amendment.

I introduced legislation the following year to prohibit them. Within a month or so Robert McFarland, the then National Securi

ty Advisor, informed Congress that the President had decided to suspend NSDD 84 1(b), which required pre-publication review.

Nevertheless, the facts are and the truth is that today hundreds of thousands of federal employees have signed and are being required to sign life-long pre-publication review contracts, and that contract is labeled Form 4193.

And, in addition, millions of government and government contractor employees have been required to sign Form 189, another life-long nondisclosure agreement developed to implement NSDD 84 1(a).

I would like without objection to submit the Standard Form 189 if I may, sir. Thank you very much.

Although this contract does not contain an explicit pre-publication review requirement, it contains numerous other provisions which impinge deeply upon First Amendment rights. The contract prohibits the disclosure of classified or classifiable information.

Now, that is kind of a neat, little word they put in there, "classifiable." Think about it. Almost everything in the world could be construed as "classifiable": the temperature, the date.

Mr. SIKORSKI. Your golf score.

Mr. BROOKS. I do not have one.

But can you imagine how much of a chill that word alone can put on free speech, "classifiable"? Almost anything.

And who would determine what is "classifiable"? Anything that somebody said they do not like would be "classifiable."

Now, further, in Form 189 it specifies that government information is government property. As Professor Emerson pointed out, the government is laying the basis for an official secrets act. Will the government use the federal theft statutes to criminally prosecute leaks, as they would somebody who steals a typewriter?

In addition, Form 189 indicates that employees who sign are in positions of special confidence and trust. Does this implicitly require pre-publication review of their writings?

The list of problems with Form 189 goes on and on. The time has come for Congress to fully examine the entire policy of using these life-long contracts with employees to implement the government's rules regarding protection of classified information.

There is no doubt that our national security requires protection of truly sensitive military and diplomatic secrets: The administration, however, is using contracts to lay down and enforce rules that must be made directly by statute through the democratic process. By using contracts, the administration is attempting to unilaterally legislative sweeping, new constraints that run directly counter to the American approach to free speech and open debate. Perhaps it would be appropriate to require employees to sign a simple statement acknowledging that they are aware of their responsibilities in handling classified information; that they will be subject to statutory and regulatory sanctions for the unauthorized disclosure of such information. But pre-publication censorship, prohibitions against the release of "classifiable information," the use of property statutes to police disclosure and back-hand attempts to chill permissible speech are unwarranted and dangerous in a democracy.

In short, this administration is overreaching. If you want to know just how far they are reaching, you might be interested, Mr.

Chairman, knowing that the Department of Energy has recently sent me and I was probably the wrong one to send it to a Form 189, nondisclosure contract, to sign so that I can have access to a report done by the GAO for the United States Congress. I could hardly wait to get it. [Laughter.]

Now, I believe that is overreaching.

I have provided the Department of Energy with an appropriate response.

Mr. SIKORSKI. Without objection, it will be included in the record. [The above-referenced material follows:]