ATTACHMENT

PROBLEMS WITH THE NONDISCLOSURE AGREEMENT

1. In accordance with paragraph 3, your letter, above subject, 27 June 86, I request that you address my concerns with the nondisclosure agreement program. I find (a) internal inconsistencies, (b) an implied and expressed threat, (c) a lack of preparation for administering the program, and (d) thus a considerable potential for its abuse.

2. My interest in pursuing these concerns is to establish a consistent framework to accomplish the goal all federal employees, military and civilian, indeed all citizens desire --the safeguarding of information whose release to a hostile government could cause damage to the United States. I do not believe that the program, as it is presently understood, will accomplish that goal.

3. My basic reaction to the program, one shared by many, is anger. No federal employee can take exception to a required statement of loyalty to the United States. Each has taken an oath upon entering into his position. Workers with security clearances have also signed a statement pledging to protect all classified information to which they may have access. The nondisclosure agreement is not a reaffirmation of that oath or that pledge. It is an agreement based on a presumption of incipient disloyalty for the most venal of purposes money. is insulting to the employee and demeaning to the Government.

4.

I seriously question the value of the form on a practical basis. It is difficult to assume that it will deter the one employee in a million who, through stupidity or greed, would provide classified information to a hostile government. It is counterproductive because it fosters an atmosphere of distrust between the parties to the agreement.

It

5. Paragraph 1 of the agreement states that "special confidence and trust shall be placed in" the individual who is granted access to classified information. Paragraphs 4,6,7,8 and 9 of the agreement by implication show how fragile that "confidence and trust" actually are. Paragraph 5, without equivocation, requires the assignment to the US Government of all enrichments that have, will or may result from dislosure of information. The use of the phrase "I hereby assign" in paragraph 5 requires that the signer of the agreement accept the special confidence and trust that has been placed in him/her and at precisely the same time agree to turn over to the Government the rewards he or she could only gain by violating that trust. This dichotomy is morally and ethically unacceptable. 6. A strong inference could be made from the use of the terms "classified" and "classifiable" that the target of this agreement is less the potentially disloyal employee and more the loyal employee who might try to correct waste or fraud by "whistle blowing." The atmosphere of mutual trust which which previously existed between the federal employee and his government and which would have previously permitted dismissal of this inference is no longer possible. threat in the agreement and the implications raised by the term "and classifiable" make any questioning of authority a most risky act.

The

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7.

The agreement says that any employee may be summarily fired for a security violation, or even on suspicion of one.

"Intending to be legally bound, I hereby accept..... [that] negligent handling of classified information could cause irreparable harm.....and am aware that any breach of this agreement.....may result in termination of my employment."

There is no indication or discussion of employee rights or protection from overzealous or hostile personnel. A refusal to sign the form is construed by top level management as de-facto evidence of disloyalty. Non-signer's clearances are to be revoked and the employee is to be fired.

8. Therefore, more information is required.

a. How does the Government intends to change the use of powers they have always have had, but are now using as a direct threat; that is how will the ordinary conduct of business change as a result of the new emphasis?

b. What steps are being taken to ensure a fair application of the dictates which are set out in the agreement, and elaborated by the Question & Answer section of the DoD Pamphlet? How will the administration of this Agreement will be uniform for everyone?

c. Where is conflict between, or modification of, the language of the agreement by the Q&A section, which will legally rule?

d. What system is or will be set up to adjudicate actions under the terms of this agreement?

e. How will people making use of the DOD Hotline to report fraud, waste and abuse be protected?

f. How will those persons who are frustrated by the system and go public to gain a hearing be protected?

9. As noted in Question 1 of the Q&A attachment to DoD 5200.1-PH-1, the SF 189 does not clearly state its purpose. The answer to that question does nothing to clarify that purpose. The fact that a clearance does not specifically establish an expressed obligation on the part of the employee or the government is a complete non-sequitur.

a. The fact that a request for a clearance is made carries in it the implication that one will use it in a manner consistent with the best interests of the United States. This position is roughly analogous to the implied warranty that a product is capable of being used for the purpose for which is is being sold. Does the answer to Question I say that the United States Government has now waived that implied responsibility?

b. Second, upon receiving our clearances, employees signed a paper to the effect that they would not improperly handle classified material. A contractual agreement has been established in form as well as in fact. Is that agreement likewise now null and void?

c. Third, (1) Section 641 of Title 18, USC, already "provides the Government with a clear basis to prevent or punish unauthorized disclosures." (2) Section 798, Section 952, and Section 783 of Title 50 reassert this authority. (3) Section 794 of Title 18 adds the death penalty during wartime to the administrative and prison penalties. (4) Title VI specifically extends protection to covert agents, and raises the administrative penalties substantially. (5) The answer to Question 8 states that the Supreme Court has already ruled on the matter of fiduciary obligation. (6) The answer to Question 9 cites seven penalties, including the ones spelled out in SF 189, which can be invoked. (7) It is a basic tenet of common law that a criminal may not profit from his crime. Therefore, why does the government need an additional basis for punishing unauthorized disclosure of classified material?

10. The answer to Question 15 states that the fact that an employee signed the SF 189 at a particular time may be classifiable in situations which might involve a particular classified project. On the basis that paragraph 1 states "or classifiable" our directorate security officer has stated that no one may retain a copy of the signed form.

a. Inasmuch as the Air Force is demanding that all employees, whether or not they have access to classified material, sign the form how can the above argument be valid?

b. Are there in fact any circumstances in which the fact that people known to be working for Air Force, and therefore known to have been required to sign the Form, could be considered "classifiable?"

C. Is the answer to Question 4, (which establishes that the employee only has liability when he "reasonably should have known that the information met the tests for classification") when most employees have no authority or responsibility for assigning a classification, legally binding upon the United States government? For that matter are any of the answers attached to DoD 5200.1-PH-1 legally binding on the government?

11. Question 6 is concerned with First Amendment rights. The answer to it, and to Question 7, avoids strict legal conflict with the First Amendment by creating the legal fiction that the Form does not require prepublication review. However, taken in context, the inference is clear that anyone would be very foolish not to have such a review if there were the slightest possibility that classified or classifiable material might be involved.

a. Why does the Government feel it is necessary to indulge in such legal convolutions to avoid the possibility of Supreme Court review of constitutional rights?

b. Given (1) the loose definition of classified and classifiable information, (2) the fact that the answer to Question 5 specifically states that these definitions may change in the future, and (3) the answers to Questions 18, 19, 20, 22, 24 and 25, is there any way in which these answers can be regarded as other than legalese specifically intended to provide escape clauses from constitutional challenge?

c. Given all of the above, is there any way to judge with certainty that a given item of information is not classified and will not become classifiable?

d. Does the possession of a prepublication review clearance from a current or last employing agency (Question 7) guarantee that a person might not be held liable if it is subsequently determined that the information cleared contained classified or classifiable material?

Mr. SIKORSKI. We are going to go vote. So we will be in recess for about ten to 12 minutes.

[Whereupon, a short recess was taken.]

Mr. SIKORSKI. The hearing will reconvene.

Mr. Garfinkel and Ms. Buck, have you worked out who is going first?

Mr. GARFINKEL. No, sir. Your pleasure.

Mr. SIKORSKI. Then I will introduce you, Mr. Garfinkel, as the Director of the Information Security Oversight Office, ISOO, the administrative component responsible for overseeing the information security system throughout the Executive Branch. Mr. Garfinkel has been the Director of the office since 1981, and the subcommittee looks forward to his help in examining the development and content, the implementation and purpose of these nondisclosure forms.

STATEMENT OF STEVEN GARFINKEL, DIRECTOR, INFORMATION SECURITY OVERSIGHT OFFICE

Mr. GARFINKEL. Thank you, Mr. Chairman.

Ordinarily I would waive reading my testimony, but I think under the circumstances of the number of witnesses testifying in favor of the SF 189, it is not a bad idea that I do read the testimony.

Mr. SIKORSKI. I agree.

Mr. GARFINKEL. Mr. Chairman, I welcome the opportunity to appear before you today to discuss the standard nondisclosure agreement that the Executive Branch developed and issued in 1983 as a means of helping to curb the unauthorized disclosure of classified information.

This is the Standard Form 189, Classified Information Nondisclosure Agreement, which we often refer to as the "SF 189." This nondisclosure agreement plays a critical role in the protection of our nation's vital secrets. It alerts cleared employees of the trust that is placed in them by providing them access to classified information and of their responsibilities to protect that information from unauthorized disclosure.

It also states the nature of that trust and those responsibilities. So if that trust is violated, the United States will be in a better position to enforce the agreement.

This marks the second occasion that a subcommittee of the House Post Office and Civil Service Committee has scrutinized the SF 189. In 1983-84, when the nondisclosure agreement was new, the Subcommittee on Civil Service studied the SF 189 in conjunction with its review of actions taken as a result of National Security Decision Directive 84, entitled "Safeguarding National Security Information."

Since that time, more than 1.75 million civilian and military personnel, including our top officials, have signed the SF 189, and thousands more are signing it each week. Until recently, the implementation of the nondisclosure agreement took place in an atmosphere of minimal controversy and confusion.

Instead of describing at length the background and history of the SF 189, I am submitting as an attachment to my testimony the fact

sheet that the Information Security Oversight Office, or ISOO, has prepared concerning it. The fact sheet covers everything from, "What is ISOO?" to a discussion of the particular issues of the current controversy and the steps that we have taken in an effort to resolve them.

However, I would like to take a few minutes to discuss the term "classifiable information," which has been the source of a great deal of confusion and misunderstanding, and which remains the most troublesome aspect of the SF 189 to most of its critics.

Paragraph 1 of the SF 189 as it currently reads includes the following definition, and I quote: "Classified information is information that is either classified or classifiable under the standards of Executive Order 12356 or under any other Executive Order or statute that prohibits the unauthorized disclosure of information in the interest of national security."

Recently it has been widely and erroneously reported that "classifiable" as used in the SF 189 refers to information that is not classified at the present time, but which may be classified in the future. Following up on this erroneous interpretation, it has also been alleged that an agency could use the SF 189 to "get" an unwanted employee, for example, a whistle-blower, by classifying the information after that employee had disclosed it.

Mr. Chairman, please be assured that the term "classifiable information," as ISOO has defined it for the Executive Branch, does not refer to information that an agency may or may not classify some time in the future. Nor may an agency punish a whistleblower by classifying a document after the fact of disclosure in order to create a violation of the nondisclosure agreement.

Rather, classifiable information refers to a very narrow and limited species of information. Basically it is classified information that for some reason, whether by accident or by design, does not contain the classification markings that are associated with its identification.

In other words, classifiable information, as used in the SF 189, is not a species of information separate and distinct from classified information, but almost in its entirety a very small subspecies consisting of unmarked classified information. As we define it, the only classifiable information that is not already classified is information that is currently undergoing a classification determination and requires interim protection as required by Executive Order 12356, the framework of our information security system.

Unfortunately, unmarked classified information is not something that we can afford to ignore. Very often it involves some of our nation's most sensitive information. For example, raw intelligence is often gathered under circumstances that do not permit the contemporaneous placement of markings upon it. Nevertheless, until those markings are applied, it is just as critical to our national security that this information not be subjected to unauthorized disclosure. To be sure, the major function of classification markings is the identification of information that is classified. Therefore, critical to the concept of liability for disclosing classifiable information is the knowledge requirement on the part of the offending party. To be liable, either that party knows that the unmarked information is classified or in the process of a classification determination, in