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This is an oversight hearing before the Subcommittee on Human Resources of the Committee on Post Office and Civil Service. Under Rule X of the U.S. House of Representatives, the Subcommittee is charged with reviewing and studying, on a continuing basis, the application, administration, execution, and effectiveness of laws related to Federal civilian personnel requirements

B. Purpose of Hearing

Today the Subcommittee will examine provisions of National Security Decision Directive 84 (NSDD 84), which directed all executive agencies to establish regulations requiring Federal employees with access to classified information or Sensitive Compartmented Information (SCI) to sign two types of nondisclosure agreements. Specifically, we will examine the development, content, implementation and purpose of Standard Form 189 (SF 189), the classified Information Nondisclosure Agreement. Further, questions will be raised about Form 4193, the nondisclosure form for SCI.

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Lost spring, as the Administration expanded its efforts to get employees to sign SF 189, several Air Force employees very properly raised questions and concerns about the broad and ambiguous language of SF 189. Concerns about the coercive and authoritarian tone of the implementing regulations ond the heavy handed tactics being used by the Air Force to get employees to sign the form were expressed.

At the request of Congressman John Dingell, Chairman of the House Committee on Energy and Commerce, and Congressman William Ford, Chairman of the Committee on Post Office and Civil Service, this Subcommittee initiated its examination of SF 189. At the same time, several other members of Congress, including Senator Grossley, Congresswoman Boxer, the Chairman of the House Government Operations Committee, Congressman Brooks, and the Chairman of the House Armed Services Committee, Congressman Aspin questioned the content, propriety and legality of SF 189.

In response to the Congressional outcry and growing employee concern, in August the information Security Oversight Office Ticmi

Jtivice Aurinistration issued regulations formally defining and purportedly clarifying some of the terms contained in SF 189. As we shall hear today, little clarity actually was achieved. Likewise, serious problems, questions, and concerns were not assuaged.

11.

DISCLOSURE FORMS

PROBLEMS AND QUESTIONS

A.

Content

Although there are a number of problems with SF 189's content, the use of the term "classifiable" is the most glaring. According to SF 189 every employee with access to classified material must sign a statement saying that they will not disclose any "information that is either classified or classifiable."

Despite the recent regulations issued by 1500, the definition is still threateningly vague and all encompassing. The definition still requires employees to speculate about what information may or may not be classified, even though the employees don't have the expertise or the authority to make original classification determinations. Given the broad categories of information that can be classified, "classifiable" still can be, as Mr. Garfinkel once declared, "just about anything."

Therefore, Federal employees place their jobs on the line whenever they release any information whether or not it was actually marked classified at the time of the release. They risk civil and criminal actions against them. The chilling effect is obvious as o Minnesota January.

SF 189 flies in the face of the statutory right and obligation of Federal employees to communicate with Congress so we can properly oversee Executive actions. What waste, fraud, incompetence; what mal feasance and misfeasance; what high crimes or misdemeanors would never have seen the healing light of legislative and public scrutiny if Federal employees of years past had been forced to contend with such an all-encompassing restriction?

It is also very curious that the term "classifiable" does not appear in SF 189-A, the nondisclosure agreement for private government contractor employees doing the same kind of sensitive work as Federal employees. The Administration's explanation for the missing term is that "contractors do not classify originally." In fact, contractors create thousands and thousands of classified documents which they are responsible for marking and protecting. And contract employees are indistinguishably involved in some of the most sensitive areas of federal activity.

Mr. Garfinkel may have come closer to the real explanation for this outright discrimination when he said he was told that "classifiable" could not be included in the industry form because "Industry (would) come back screaming." This double standard is inexcusable and unacceptable.

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At some agencies, SF 189 has been shoved upon Federal employees without consideration or respect for procedural due process. As we will hear today, Air Force employees who were prudent enough to question signing the form were bullied, threatened and harrassed.

Original Air Force regulations on SF 189 made the "McCarthyesque" statement that mere "reluctance to sign a nondisclosure agreement will be considered lack of personal commitment to protect classified information." The Subcommittee looks forward to hearing an explanation by the Air Force.

In addition, in the frenzy to get employees to sign o nondisclosure form, the Air Force even made employees without security clearances sign. The reason? "Administrative convenience," according to the Air Force.

Even after Mr. Garfinkel's agenco in response to legal action by two public employee unions issued a directive stating that agencies should not withdraw employee security clearances solely on the basis of refusal to sign on SF 189, the use of this intimidation tactic continued. One month after this ISOO directive, the Navy issued instructions to withdraw employee clearances if SF 189 wasn't signed.

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This record of inception, adoption, and implementation leads

to an inescapable conclusion: SF 189, is intended to control the vocal chords of Federal employees. Apparently the hope is that by using sweeping terms whose definitions are as able to change as the weather, and by threatening Federal employees with the loss of their clearances and jobs, public scrutiny of politically sensitive and embarrassing information can be squelched.

This is a disturbing reappearance of an old phenomenon, for the misuse of the term "national security interests" has always been the last refuge of administrations more concerned with hiding their problems than with protecting the public interest.

The concern about these nondisclosure forms is not new and not a partisan matter. Members of both houses and both parties have criticized the forms and fought to modify them.

There are tough criminal and civil laws, regulations and standards of conduct on the books aimed at protecting properly classified information. If the Administration is sincere about preventing just the release of properly classified information and they feel the current laws are inadequate, they have and should work with the Congress to come up with fair and effective lows that recognize the competing needs of security and liberty, oversight and overreach.

In fact, the Administration cannot point to a list of disclosures of classified information warranting this action. In fact, the most renowned case I'm aware of is that involving the late Director of the Col.A., who evidently met over 4 dozen times with Washington Post reporter Bob Woodward. Mr. Casey apparently disclosed disclosing apparently classified material on an ad hoc, unrestricted and unmonitored basis -- at the same time he was pushing for tougher controls on low level civil servants. Again we see, as John F. Kennedy pointed out, that the ship of state Teaks from the top. And again, we do not hear a clamor from the Administration to change this.

There is no question of the need to protect classified information detailing our national defense, security interests, and vital secrets. Carefully worded nondisclosure forms can be a useful tool with which to accomplish this goal by reminding employees about their responsibilities. However, these forms must apply to all who are custodians of the information -- and without an artificial and repugnant distinction between public or private employer, or between CIA Director and DOT clerk, or between presidential friend and a GS-5.

National security needs must be balanced with the public's right to know about the workings of their government, the need for a free press, and individual free speech rights. SF 189 clearly tips the scale in favor of secrecy at the expense of the press, Federal employee rights and the public interest.

STATEMENT OF HON. CHARLES GRASSLEY, A U.S. SENATOR

FROM THE STATE OF IOWA Senator GRASSLEY. Thank you very much, Mr. Chairman, and I want to extend my thanks to you and to the members of your hard working subcommittee for inviting my testimony, and of course, I see you have many other interested parties, but we are all being invited on what I consider to be a matter of profound importance.

It is, as we all know, a natural propensity of the Executive Branch, and this could be under any Republican or Democratic President, to protect information generated by the government and its agents. If done legitimately, our nation's secrets, the disclosure of which would endanger our security, remain protected.

However, if done zealously, it can be threatening, if not violate the rights of free speech for individual employees. It can inhibit the flow of information to Congress, and it can hinder our ability to perform our constitutional responsibility.

So it is the business, Mr. Chairman, of the Congress to protect the individual's rights to free speech, to encourage the free flow of information, and to insure that nonclassified information remains in the public domain.

These are the grounds, as far as I am concerned, for judging the administration's implementation of Standard Form 189. We, in the Congress, must ask ourselves this very basic question: Is 189 a legitimate attempt to prevent disclosure of classified information or is the administration overreaching its authority, seeking to gag public servants in order to prevent embarrassing disclosures of waste and abuse?

This is the question that I would like to address to you, Mr. Chairman, and your subcommittee. On the surface, you might conclude that the intent of the administration is a legitimate attempt to safeguard our nation's secrets.

I think the evidence indicates otherwise. My personal involve ment and dealings with the Executive Branch officials on this matter indicate to me an attempt on their part to go way nd the legitimate protection of classified information.

Their intent, in my view, is to place a blanket of silence over all information generated by the government. It is a broad, I might say very broad, grab for power by any standard and it begs to be addressed immediately by the Congress.

I would like to briefly discuss how I have come to this conclusion. To begin with, we have to review some fundamental facts, and these are very basic: that the Code of Government Ethics requires the legitimate disclosure of waste, abuse and mismanagement.

Second, current law actually encourages and protects such disclo

sures.

And, third, there are already statutes prohibiting the disclosure of classified information.

In the face of these facts, it is up to the administration to provide a justification for why this broad-reaching measure is necessary.

Furthermore, any action taken should in no way conflict with the current law or rights provided under the Constitution.

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