XI. WHAT ACTIONS HAS ISOO TAKEN TO RESOLVE THE CURRENT
CONTROVERSY?

To resolve the current controversy surrounding misunderstanding and ambiguities in the language of the SF 189, ISOO has taken a series of actions. Below is a brief summary of the nature of these actions and what they are expected to accomplish.

1.

Meaning of "classifiable information"

Prior to the current controversy, ISOO had defined
"classifiable information" through correspondence in
response to individual inquiries. Now, to regulate formally
the meaning of "classifiable information, " on August 3,
1987, ISOO has defined the term in the Federal Register as
"information that meets all the requirements for
classification under Executive Order 12356, or under any
other Executive order or statute that prohibits the
unauthorized disclosure of information in the interest of
national security, but which, as a result of negligence,
time constraints, error, lack of opportunity or oversight,
has not been marked as classified information. A party to
SF 189 would violate its nondisclosure provisions only if he
or she disclosed without authorization classified
information or information that he or she knew, or
reasonably should have known, was classified, although it
did not yet include required classification markings."
On August 11, ISOO issued a further regulatory
clarification, noting that "the term 'classifiable' does not
include any information that is not otherwise required by
statute or Executive order to be protected from unauthorized
disclosure in the interest of national security."
written notices dated August 4 and 21, ISOO informed
executive branch agencies of these regulatory changes. This
definition of "classifiable information" is being added to
the second sentence of paragraph 1 in the SF 189. Future
reprints of the SF 189 will include this addition. Agencies
have been advised that employees may add this language to
current editions of SF 189.

2. Meaning of "indirect" unauthorized disclosure

In

To regulate formally the meaning of an "indirect"
unauthorized disclosure, ISOO defined the term in the
Federal Register on August 3, 1987, as "any situation in
which the knowing, willful or negligent action of a party to
the agreement results in the unauthorized disclosure of

assified inform reement does n assified infor eive it. Ap disclosure p sonably shou ult, or reas isclosure of

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classified information even though the party to the agreement does not directly communicate, deliver or transmit classified information to a person who is not authorized to receive it. A party to SF 189 would violate its nondisclosure provisions only if he or she knew, or reasonably should have known, that his or her action would result, or reasonably could result in the unauthorized disclosure of classified information."

ISOO informed executive branch agencies of this clarification in a letter to agency senior officials dated August 4, 1987. The definition is being added to the first sentence of paragraph 3 of SF 189 and SF 189-A.

Future reprints of the SF 189 and the SF 189-A will include this addition. Agencies have been advised that employees may add this language to current editions of SF 189.

3.

Conflict of SF 189 with "Whistleblower" statutes

The SF 189 does not conflict with the so-called "whistleblower" statutes (5 U.S.C. $2302). To end any confusion on this issue, the following statement is being added to the end of paragraph 4 of SF 189: "I understand that this Agreement does not supersede the provisions of Section 2302, Title 5, United States Code, which pertain to the protected disclosure of information by Government employees. Future reprints of SF 189 will include this statement. ISOO notified agencies of this addition on August 4, 1987. Agencies have been advised that employees may add this language to current editions of SF 189.

On

4. Conflict of SF 189 with constitutional provisions The Administration is confident that the SF 189 fully complies with all constitutional and legal standards. August 17, 1987, the National Federation of Federal Employees brought suit in the United States District Court for the District of Columbia challenging the constitutionality and legality of the Agreement. Pending some resolution of the issues in this litigation, on August 21, 1987, ISOO provided agencies with instructions concerning the execution and implementation of SF 189. instructions require agencies to place a moratorium on withdrawal of clearances or denial of access solely on basis of refusing to sign SF 189 and to provide individualized briefings for those who refuse to sign the SF 189 but retain clearances. The letter also instructs agencies that these instructions are temporary and that they should continue with implementation of the SF 189.

The

Also, on September 1, 1987, the American Federation of Government Employees filed suit against the Government challenging the constitutionality of the SF 189 and of Form 4193. Form 4193 is a nondisclosure agreement for sensitive compartmented information issued by the Central Intelligence Agency.

The SF 189 contains no requirement for prepublication review. Therefore, no action was necessary.

The first line of paragraph 7 of SF 189 reads: "I understand that all information to which I may obtain access by signing this form is now and will forever remain the property of the United States Government." The SF 189-A, composed over three years later, includes the word "classified" before the word "information." To correct the inconsistency in the language of the two forms, ISOO has added the word "classified" before the word "information" in the first sentence of paragraph 7 of SF 189. ISOO published this change in the Federal Register on August 3, 1987, and notified executive branch agencies of the change in a written notice dated August 4, 1987. Future reprints of SF 189 will reflect this change. Agencies have been advised that current editions of the SF 189 may be amended to reflect this change.

.

The third sentence of paragraph 7 of SF 189 and SF 189-A reads in part: "I agree that I shall return all materials which have, or may have, come into my possession or for which I am responsible because of such access By definition "all materials" refers only to "classified" materials. As it concerns the meaning of the phrase "or may have," it appears that the phrase should have read "may come. To clarify the meaning and intent of this language ISOO published these changes in the Federal Register on August 3, 1987, and notified executive branch agencies of these changes in a written notice dated August 4, 1987. Additionally, the word "classified" has been added before the word "materials" in the third sentence of paragraph 7 of SF 189 and SF 189-A. In the same sentence and paragraph of both forms, the second "have" from the phrase "which have, or may have come into my possession" has been deleted. Future reprints of SF 189 and SF 189-A will reflect these changes. Agencies have been advised that current editions of the SF 189 may be amended to reflect this change.

7. Other changes

Future reprints of SF 189 will include the witness and Acceptance block and Security Debriefing Acknowledgement block which currently appear in SF 189-A. The addition of the Witness and Acceptance block is intended to clarify the role of the witness and the role of the acceptor for the Government. By adding the optional Security Debriefing Acknowledgement block, SF 189 will provide for the

acknowledgement of both a security debriefing and a security briefing.

Mr. SIKORSKI. Thank you, Mr. Garfinkel.

Ms. Kathleen Buck is General Counsel for the Air Force. The subcommittee thanks you for your time and testimony, especially in light of the fact that your confirmation as Department of Defense General Counsel is fast approaching.

We look forward to discussion on the use of nondisclosure agreements at the Department of the Air Force and working with you to resolve the problems that have arisen.

STATEMENT OF KATHLEEN BUCK, GENERAL COUNSEL, U.S. AIR FORCE

Ms. Buck. Thank you, Mr. Chairman.

My testimony is actually very short.

Mr. SIKORSKI. Yes, why don't you go ahead?

Ms. Buck. So with your permission, I would like to go ahead and read that testimony.

Thank you for inviting me to appear today to discuss the classified information nondisclosure agreement and its implementation in the United States Air Force.

I am sure that we can all agree that in order to effectively provide for the nation's security, we must maintain the secrecy of appropriate defense information and protect against intentional and negligent disclosures of that information to unauthorized recipients.

The Air Force does not formulate the nation's policies regarding the protection of classified information. The legal and policy framework for the protection of classified information is established by statute and Executive Order.

In March 1983, the President issued National Security Decision Directive 84 and made the execution of a nondisclosure agreement a condition of access to classified information. The President assigned GSA's Director of the Information Security Oversight Office the responsibility to develop a standardized form for use by the agencies.

In February 1985, the Department of Defense issued instructions that all military and DOD civilian personnel with current access to classified information would be required to sign Standard Form 189 as soon as practicable. Those instructions also required that we maintain a file system from which executed agreements could be expeditiously retrieved.

In July 1985, the Department of Defense issued a 37-page pamphlet, and that is DOD 5200.1-PH-1, entitled "Classified Information Nondisclosure Agreement SF 189." It included a sample briefing regarding the agreement, copies of the legislative and executive authorities cited in Paragraph 10 in SF 189, and informational questions and answers regarding implementation of the agreement. In September 1985, the principal Director of Counterintelligence and Security Policy for the Department of Defense directed the military services to accomplish the execution of the SF 189 by all personnel as soon as possible. That letter emphasized the goal of 100 percent coverage of all cleared personnel and noted that ISOO would ask for an agency-by-agency status report for its annual report to the President.

It was in response to these directions that the Air Force first implemented procedures for the use of Standard Form 189.

In June 1986, the Department of Defense promulgated its information security program regulation, which is DOD 5200.1-R. Paragraph 10.102 of that regulation confirmed that DOD personnel could not be given access to classified information until they had received an initial security briefing and signed Standard Form 189. It also confirmed that personnel who already possessed a security clearance when the regulation became effective were required to sign the agreement as soon as practicable.

The obvious intent of those directives was that no one have access to classified information without first signing the agreement. At the time the Air Force developed its procedures, a very high percentage of Air Force members and employees possessed security clearances and were, thus, eligible for immediate access to classified information.

Those procedures reflected our desire to efficiently and reliably implement the government-wide policy that no one gain access to classified information without first signing a nondisclosure agreement.

In August 1987, the Information Security Oversight Office instructed that until further notice, no one should be denied access to classified information or have their clearance revoked solely because he or she has refused to sign the agreement, and the Air Force is, of course, complying with those instructions.

Only those Air Force members and civilians who require access to classified information are being asked to sign the nondisclosure agreement. Moreover, we are undertaking a thorough review of our procedures regarding the classified information nondisclosure agreement at the request of Senator Grassley.

I appreciate the opportunity to appear here today, Mr. Chairman, to review the program, and I would be happy to entertain any questions that you might have.

Mr. SIKORSKI. Thank you, Ms. Buck.

Let's see if we can get to the nitty-gritty here.

Mr. Garfinkel, you talk about the failure of prior and existing efforts to protect classified information. Can you describe to us the parade of horribles that has created this Standard Form 189 and that the form is addressing?

Mr. GARFINKEL. Mr. Chairman, there have been and continue to be unauthorized disclosures of classified information in every year of this administration and in every year of preceding administrations.

Mr. SIKORSKI. Okay. How many?

Mr. GARFINKEL. ISOO has had reported to it over the course of or since SF 189 was issued approximately 100 to 110 serious unauthorized disclosures per year.

Mr. SIKORSKI. One hundred ten since 1983?

Mr. GARFINKEL. Per year. So we are talking about a total of over 400 since that time.

Mr. SIKORSKI. Since 1983, and these are disclosures of classified "mation by federal employees?