Mr. SIKORSKI. Wait a minute. Do you dispute having said industry would come back screaming? Mr. GARFINKEL. I do not recall whether I said those exact words. I would certainly love to see the context in which I said those words and any other words that Mr. Fitzgerald wants to quote for me. I always prefer to be quoted by speaking for myself rather than having members of the media or even members of the Congress have Mr. Fitzgerald quote for me. Mr. SIKORSKI. Don't we all? We all want that. Your statement tells us today that it is important to use "classifiable" because, for example, there is raw intelligence being gathered, and before it is marked classified, it is treated as classified, and that is what you are attempting to protect, correct? Mr. GARFINKEL. That is correct. Mr. SIKORSKI. As one example. Mr. GARFINKEL. That is correct. Mr. SIKORSKI. Now, contract employees can be put into the same situation. Mr. GARFINKEL. Contract employees would almost never be subject to receiving raw intelligence. Mr. SIKORSKI. Are you telling us that there are no contract employees at the Central Intelligence Agency? Mr. GARFINKEL. Yes, but those contract employees would have signed a nondisclosure agreement other than the SF 189, for example, the Form 4193, that would make specific reference to classifiable information. So those same employees would have signed a form that includes that term. Mr. SIKORSKI. So we have contract employees signing 189, “unclassifiable"? Mr. GARFINKEL. We have contract employees who are signing nondisclosure agreements that include reference to "classifiable" information. We have some who have signed the SF 189. Mr. SIKORSKI. I think I know what the answer is. We have everyone who is dealing with this raw intelligence signing "unclassifiable"? Mr. GARFINKEL. I think that is fair to say. Mr. SIKORSKI. Then we have a whole bunch of people, millions, who do not deal with raw intelligence who are signing "unclassifiable" because they are a federal employee, and probably a million contract employees who are not signing "unclassifiable" and not dealing with raw intelligence. So your example does not help support the distinction between public and contract employee. You suggest elsewhere that the contractor or contract employee does not have original authority for classification. Therefore, they cannot be reasonably assigned the responsibility or liability for "classifiable" information. Mr. GARFINKEL. There is a very real difference between the United States government, the Executive Branch, and its contractors with respect to classified information. Mr. SIKORSKI. Well, let me talk about not the difference between the government and the contractors, but between the contract employees and the government employees with regard to classified information, just so we are talking apples and apples. Mr. GARFINKEL. I do not think that you can distinguish those points of difference here because it is with respect to the fact that contractor employees may not generate new classified information that the term "classifiable" Mr. SIKORSKI. Wait. I do not want to interrupt you, but contract employees do not generate classified information? Mr. GARFINKEL. I said they do not generate new classified information. In other words, original classified information. Mr. SIKORSKI. Only technically, because they are not the original classifier, but you are surely not going to tell me that General Dynamics does not produce new diagrams of the most sophisticated Stealth submarine that become classified in the highest form, do you? Are you telling me they do not produce them? Mr. GARFINKEL. Yes, they do produce them. They produce them under instructions that they receive from the agency that is contracted with them. Mr. SIKORSKI. But they produce those new classified pieces of information. Mr. GARFINKEL. Pursuant to instructions that they have received concerning the classification. Mr. SIKORSKI. What difference does that make in terms of protecting that information? Mr. GARFINKEL. It does not make any difference in terms of protecting that information, but it- Mr. SIKORSKI. What difference does it mean in terms of signing SF 189? Mr. GARFINKEL. The difference is that in the SF 189 we were intending to impart the concept that there is a great deal of information that is classified, but is unmarked, and that information, especially within the context of intelligence data and related data, is extraordinarily sensitive information and needs to be protected just like marked classified information. Mr. SIKORSKI. What is the difference between General Dynamics's diagrams of their new super secret submarine and that raw intelligence data coming in from Mr. GARFINKEL. Because those diagrams are marked, Mr. Chairman. Those diagrams are marked pursuant to the instruction they received concerning the—— Mr. SIKORSKI. Who is marking them? Mr. GARFINKEL. The contractor is marking them. Mr. SIKORSKI. So the contractor is classifying data and producing new classified data. Mr. GARFINKEL. The contractor is producing classified data, as instructed by the user agency. Mr. SIKORSKI. And for some reason, because there is an instruction up here, the people below that are touching this stuff and are responsible for securing it and protecting it do not have to be worried about▬▬ Mr. GARFINKEL. They have to be just as worried. Mr. SIKORSKI. But they do not have to sign off on SF 189. You took "classifiable" away from them. Mr. GARFINKEL. We have not taken away the concept of unmarked classified information. Mr. SIKORSKI. You just have not stuck them with it. Mr. GARFINKEL. They would still be liable, Mr. Chairman, if they were to disclose Mr. SIKORSKI. How would they be liable? Mr. GARFINKEL. If they knew that information they possessed was classified information. Mr. SIKORSKI. Classifiable. Mr. GARFINKEL. Mr. Chairman, the definition that we have given "classifiable" is, as I have said in my testimony, a subset of classified information. Mr. SIKORSKI. Wait a minute. Assuming that we accept that definition for the time being, they know it. They are liable. How are they liable? Mr. GARFINKEL. For an unauthorized disclosure of classified information. Mr. SIKORSKI. And how are they going to get "gotten"? Mr. GARFINKEL. Presumably they would lose their security clear ance. Mr. SIKORSKI. And there may be criminal penalties? Mr. GARFINKEL. There may be. Mr. SIKORSKI. The system that you just told me was faulty a few minutes ago is now the system that is going to protect some of our most sensitive diagrams. Mr. GARFINKEL. Mr. Chairman, a few minutes ago I said I believe that the criminal sanctions are faulty in that there is a no criminal sanction that specifically addresses the unauthorized disclosure of all classified information as a criminal violation. Mr. SIKORSKI. Okay. But they are going to take away the criminal sanctions; civil and disciplinary sanctions are going to entail here. The same thing against the federal employee. Now, tell me, please, the distinction between that employee for General Dynamics on a contract to the U.S. Navy and the federal employee who is working with them on the same diagrams. Tell me the distinction from a security, classified information position that requires the federal employee to sign off on classifiable, but not the contract employee. Mr. GARFINKEL. There is no difference as far as potential liability is concerned. Mr. SIKORSKI. Oh, yes, there is. They sign off on "classifiable," the federal employee. Mr. GARFINKEL. "Classifiable" does not mean something that is outside the realm of "classified." Mr. SIKORSKI. Then why is it in there and not in the contract employee form? Mr. GARFINKEL. Because, Mr. Chairman- Mr. SIKORSKI. Because industry would scream, and they would not accept it. Mr. GARFINKEL. Because, Mr. Chairman, when we drafted the SF 189, there was a very strong belief that the concept of protecting unmarked classified information needed to be expressed. That term was derived from a pre-existing form used within the intelligence community that also used the term "classifiable information" to express the requirements that unmarked classified information be protected. Mr. SIKORSKI. Mr. Garfinkel, I am not going to make this statement as applied to you personally because I do not know if it is the case, and I would suspect it is not the case, but we have seen in this subcommittee different treatment for contract employees all the way down the line. They do not take drug tests to the extent that federal employees are now expected to take drug tests. They are treated dissimilarly now here under this classification system. Even the form gathering shows the difference between the two groups even though the contract employee must sign a less objectionable form than the federal employee, a much higher percentage of federal employees have signed. So let me just suggest that there is a pattern here that is not very seemly. I have spent a lot of time on this issue. Your logic behind making this distinction does not hold up, and I think you had better make changes, and if you do not the Congress is going to step in and make the changes for you, because federal and contract employees are doing the same thing. What is good for one set of people is good for another. What is good for the goose is good for the gander. If you are responsible for protecting this information, you have got to be responsible all the way down the line. If this form is so important, then it had better be the same for both hands that are on that piece of paper. We can't have some artificial distinction made because private industry might not go along with SF 189, and if they do not go along, maybe they have a reason that you should consider. Let me focus because of your response to the last question on the distinctions between different definitions. In the Federal Register, after the brouhaha, you defined classifiable material as information which meets the requirements for classification "but which as a result of negligence, time constraints, error, lack of opportunity, or oversight has not been marked as classified information." In the fact sheet you included with a copy of your testimony, you claim that classifiable material is "unmarked information that already is classified or meets the standards for classification and is in the process of being classified." Today you told us that classifiable information is classified information "that for some reason, whether by accident or design, does not contain the classification markings that are associated with its identification," and you go on, "and information that is not already classified, but is currently undergoing a classification determination," and there are, I think, two definitions in there. And then you point in your testimony, as well, to the Department of Defense's handy little pamphlet, which is not so handy a pamphlet as it turns out. You said that is an easy reader guide to what is classifiable, but that definition is again dissimilar in part from the definitions you have already given us. Now, I am a federal employee. I am asked to sign this form. What is the definition of "classifiable" that I sign to? Mr. GARFINKEL. Mr. Chairman, I think all of those definitions are the same. Mr. SIKORSKI. Oh, no. Mr. GARFINKEL. One may be a little more elaborate than the other. The definition as it currently appears in the Federal Register, as published in the Federal Register, is the formal definition of "classifiable information," but I would suggest that my statements elaborating on that definition are just as conclusive about what that information entails. Mr. SIKORSKI. Let me just suggest that there are major conflicts. Now, I do not purport to be the best lawyer around. I do have some credentials in law. They are available to anyone who would like to look at them, but one of the first things I learned the first month in law school was in cannons of construction. The first cannon is that you take the meaning that is on the paper. Let me just suggest that you have several different meanings on paper. The definition in the Federal Register does not suggest that material in the process of being classified is classifiable. That suggestion was first made in ISOO's fact sheet attached to a September 21 letter to Congresswoman Boxer. That fact sheet states that material which fulfills all of the requirements for classification, but which is in the process of being so stamped, is covered by SF 189. In today's testimony you now suggest that even material which has not yet been determined to fulfill the requirements for classification, but which is "undergoing a classification determination," is classifiable. Mr. GARFINKEL. Mr. Chairman, there is no difference. If you look at the definition, it says that the term Mr. SIKORSKI. Which definition? Mr. GARFINKEL. The definition that appears in the August 11 edition of the Federal Register. It refers to information that meets all of the requirements for classification under Executive Order 12356. Executive Order 12356 is the current framework for our security classification system, and under that Executive Order there is a reference to the fact that when information is being considered for classification, when it is in the midst of a classification determination, it should be protected as if it were classified. Mr. SIKORSKI. Thank you. Mr. Garfinkel, Executive Order 12356 states, and you quoted in your testimony, officers and employees of the United States government and its contractors, licensees and grantees shall be subject to appropriate sanction if they knowingly, willfully or negligently disclose to unauthorized persons information properly classified under this order. Mr. GARFINKEL. Mr. Chairman, the Executive Order also says, If there is reasonable doubt about the need to classify information, it shall be safeguarded as if it were classified pending a determination by an original classification authority who shall make that determination within 30 days. Mr. SIKORSKI. Okay. You have cited negligence, oversight, delay et cetera that have not hindered the determination process. Now, how does that fit in to your definition and this Executive Order? Mr. GARFINKEL. Remember there are- Mr. SIKORSKI. Wait a minute. Please answer the question. I have elaborated on the definition by suggesting that you have two categories of information that may fall within it. The smaller category is that which is undergoing a classification determination. |