CONTENTS Hon. Jack Brooks, a Representative in Congress from the State of Texas... Steven Garfinkel, Director, Information Security Oversight Office........ Kathleen Buck, General Counsel, U.S. Air Force..... James Peirce, president, National Federation of Federal Employees...... Charles Hobbie, deputy general counsel, American Federation of Govern- Congressional Research Service, Library of Congress, American Law Divi- sion: "Effect of Secrecy Agreements on Whistleblowing Protections"........ (III) CLASSIFIED INFORMATION NONDISCLOSURE AGREEMENTS THURSDAY, OCTOBER 15, 1987 HOUSE OF REPRESENTATIVES, COMMITTEE ON POST OFFICE AND CIVIL SERVICE, Washington, DC. The subcommittee met, pursuant to call, at 9:30 a.m., in room 311, Cannon House Office Building, Hon. Gerry Sikorski (chairman) presiding. Mr. SIKORSKI. Good morning. The subcommittee will come to order. Today the subcommittee will examine the development and content, implementation and purpose of Standard Form 189, the classified information nondisclosure agreement. Further questions will be raised about Form 4193, the nondisclosure form for the so-called SCI. Concerns about the broad and ambiguous language of SF 189, the coercive and authoritarian tone of implementing regulations, and the heavy-handed tactics used by the Air Force to get employees to sign the form particularly interest the subcommittee. Our investigation was requested by 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, and it follows the good work of other members of Congress, including Senator Grassley, Congresswoman Boxer, the Chairman of the House Government Operations Committee, Congressman Brooks, and the Chairman of the House Armed Services Committee, Congressman Aspin. In response to the congressional outcry led by these members, many who will be testifying today, and to growing employee concern, in August the Information Security Oversight Office, the ISOO, of the General Services Administration issued regulations formally defining and purportedly clarifying some of the terms contained in SF 189. As we will show here today, little clarity actually was achieved. On the issue of classifiability, for example, over two million federal employees must sign a statement saying that they will not disclose any, and I quote, "information that is either classified or classifiable.' Despite the recent regulations issued by the ISOO and the various sometimes inconsistent versions or definitions that Mr. Garfinkel of the ISOO has propounded in letters to this committee (1) and to others in Congress, the definition of "classifiable" is still threateningly vague and all-encompassing. Employees must speculate about what information may or may not be classified. Classifiable still can be, as Mr. Garfinkel once honestly 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 or criminal actions against them. And the chilling effect is as obvious as a Minnesota January night. What waste, what fraud, what incompetence, what malfeasance 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 and unacceptable that the term "classifiable" does not appear in SF 189-A, the nondisclosure agreement for private government contract employees doing the same kind of sensitive work as federal employees, many times on the same project, in the same building, using the same documents, with the same goal or purpose. The administration's explanation for the missing term in the document to be signed by private contract employees working for the Federal Government is that "contractors do not classify originally." Well, a huge majority of the federal employees affected by the 189 form do not classify originally either. In fact, contractors create thousands and thousands of classified documents which they are responsible for marking and protecting. Mr. Garfinkel may have come close to the real explanation when he said he was told that "classifiable" could not be included in the industry form because industry would come back screaming. We will hear today that Air Force employees who were prudent enough to question signing the form were bullied, threatened and harassed. In fact, original Air Force regulations on SF 189 made the "McCarthyesque" statement that the mere "reluctance to sign a nondisclosure agreement will be considered lack of personal commitment to protect classified information." We look forward to hearing an explanation by the Air Force. This record of inception, adoption, and implementation leads one to the inescapable conclusion that SF 189 is intended to control the vocal cords of federal employees by using sweeping terms whose definitions are as changeable as the weather and by threatening federal employees with the loss of their clearances and jobs. Public scrutiny of politically sensitive, perhaps embarrassing information can be squelched. This is a disturbing reappearance of that old phenomenon, the misuse of the term "national security interest," which has always been the last refuge of administrations, Democrat or Republican, more concerned with protecting their backsides than with protecting the public interest. In fact, this administration cannot point to a list of disclosures of classified information by federal employees warranting this action. In fact, the most renowned case I am aware of is that involving the late Director of the CIA, who evidently met over four dozen times with "Washington Post" reporter Bob Woodward. Mr. Casey apparently disclosed classified material on an ad hoc, unrestricted, and unmonitored basis at the same time he was pushing for tougher controls on this same thing on low-level public servants. Again we see, as John Kennedy pointed out, that the ship of state leaks from the top, and again, we do not hear a clamor from the administration to change this sorry state of affairs. There is no question of the need to protect classified information detailing our national defense or security interests or our 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, without any artificial and repugnant_distinctions between public and private employer or between CIA Director and Department of Transportation clerk or between Presidential friend and a GS-5. National security needs to 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 press, employee rights, and the public interest. Our first witness today will be Senator Charles Grassley from Minnesota's neighboring State of Iowa. Senator Grassley has been an outspoken and courageous critic of SF 189. As a member of the Senate Armed Services Committee, Senator Grassley has been a leader in Congress in an attempt to clarify the definition of "classifiable" material and the need for SF 189. [Mr. Sikorski's statement follows:] |