GRASSLEY AMENDMENT - CONFERENCE REPORT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90M00005R001400010021-8
• Release Decision: RIPPUB
• Original Classification: U
• Document Page Count: 117
• Document Creation Date: January 4, 2017
• Document Release Date: October 17, 2012
• Sequence Number: 21
• Publication Date: August 18, 1988
• Content Type: MEMO

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18 August 1988
OCA 2811-88
STAT
'STAT
MEMORANDUM FOR: Deputy Director for Administration
General Counsel
Director of Security
DGC/AS/OGC
C/ICAD/OGC
C/ALD/OGC
LD/OGC (Attn:
PAO/DCI (Attn:
FROP?.: Legislation Division
Office of Congressional Affairs
SliBJ bCZ: Grassley Amendment - Conference Report
1. Attached for your information is a copy of the report
of the conferees on H.R. 4775, the Fiscal Year 1989 Treasury,
Postal Service and General Government Appropriations bill
(Tat A - Congressional~Record, 11 August 1988, pp. Y.6975-84;
House Report 100-881). The report {p. H6982, amen6rr:ent No 137)
reflects the conferees agreement to reenact for Fiscal Year
1989 the so-called "Grassley amendment" restricting the use of
secrecy agreements containing the term "classifiable".
2. As noted, the conferees agreed to restore the provision
which was containeG in the original House bill, H.R. 4775, but
subsequently deleted by the Senate Appropriations Committee and
thereafter passed in that form by the Senate (Tab E - copies of
relevant pages of Senate-passed bill attached).
3. On 10 August,. the Legislation and National Security
Subcommittee on the House Government Operations Committee
(chaired by Representative Brooks) held a hearing on the
provision. Copies of the witness list and various witness'
statements are attached for your information (Z~ab C) . Z'he
hearing appears to have been-held to build the support for
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STAT
overcoming the Senate opposition to the amendment. In this
regard, we_ understand that Senators Grassley and Proxmire, both
members of the Senate Appropriations Committee, strongly
supported reinclusion of the provision in the bill.
4. Swift action on the report is expected when the
Congress returns in September and the President is expected to
sign the legislation thereafter. This office and the Office of
General Counsel are working, to include favorable language on
the matter in the PresiBent's signing statement.
5. The imrneaiate effect of reenactment appears to be to
preserve against a claim of mootness the appeal of the.district
court's decision holding the FY '88 version of the legislation
unconstitutional.
6. Please contact us if you .h.a~ any ~-uestions.
Attachments
a~ stated
STAT ocA/PS/bsb ~g Aug 88
Distribution:
Orig - .addressee(s)
1 - D/OCA , (w/o ..att. )
1 - DD/LLF77G (w/o att . )
~1-~=~-YOGA cords (w/att: )~
1 - PS C7~rorio (w/o ` at? :-)-
1 - OCA/LEG Subj. File (Secrecy Agreements)(w/att.)
FOR THE RECORD - A oomplete package of the attachments were given to DDA,
STAT DGC/AS/OGC and LD/ Only Tab C,
STAT (Testimony) was given to Others were sent
a note asking them to ca me or copies if they needed
a ccx~~lete package .
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nominated, and the other one who will
be nominated shortly. '
Is it not great to live in a land where
we can all speak up and speak out? We
can.have :a:difference: of opinion with-
out having a difference of-principle.
I? have had a .number of other jobs,
but I have never. had any position
where I have had m?re voluminous
mail than I have had as a Member of
Congress, because as a Member of
Congress, we are faced with all kinds
of issues from every different point of
view, whereby whether I was a public
service commission, TVA Director, or
president of a college, it was a specific
issue; but now it is a broad ,range of
issue.
Mr. Speaker, we have tl:e message
now, and I thank the Chair for giving
me the opportunity to .gay a few
words.
[P,ursuant to the order of the House on Aug.
11, 1988, the following Conference. Report
was filed on Aug. 12, 1988J, .
CONFERENCE REPORT ON H.R.
-4775
Mr. ROYBAL submitted the follow-
ing conference report and statement
on the bill ($.R. 4775) making appro-
priations for the Treasury Depart-
ment, the U.S: Postal Service, the Ex-
ecutive Office of the President, and
certain Independent Agencies, for the
fiscal year ending September 30, 1989,
and for other purposes:
CONFERENCE REPORT (H: REPT. 100-881)
The Committee of Conference on the dis-
agreeing votes of the two Houses on the
amendments of the Senate to the bill (H.R.
4775) making appropriations for the Treas-
ury Department, the United States Postal
Service,. the Executive Office of the Presi-
dent, and certain Independent Agencies, for
the fiscal year. ending September 30, 1989,
and for other purposes, having met, after
full and free conference, have agreed to rec-
ommend and do recommend to their respec-
tive Houses as follows:
That the Senate reeede from its amend-
ments numbered 6, .8, 13, 14; 29, 32, 48, 51,
52, 54, 57, 59, ?0, 79, 82, 83, 84, 86, 87, 94, 95,
9G, 108, 109, 110, 111, 112, 115, 118, 119, 120,
126, 130 136, 139, 140, 147, 148, 150, 151, and
155.
That the House recede from its disagree-
ment to the amendments of the Senate
numbered 5, 9, 1?, 18, 20, 21, 22, 23, 36; 37,
38, 40, 55, 58, 64, 65, 66, 67, 69,, 73, 78, 99.
101, 103,.104, 105, 107, 114, 123, 124, 125. 127,
128, 129, 131, 132, 133, 134, and 135.
Amendment numbered 1:
That the House recede from Its disagree-
ment to the amendment of the Senate num-
bered 1, and agree to the same with an
amendment, as follows:
In lieu of the matter stricken and inserted
by said amendment, Insert the following:
OFFICE OF THE SECRETARY
SALARIES AND EXPENSES
For necessary expenses of the Office of the
Secretary, including operation and mainte-
slance of the Treasury Building and-Annex;
)rire of passenger motor vehicles; rot to
exceed $22,000 for official reception and rep-
resen"t?tion expenses; not to exceed $200,000
for unforeseen emergencies of a confidential
nature, to be alloc?ted and expended under
the direction of the Secretary of the Tre?s-
ury and to' 6e accounted for solely on his cer-
CONGRESSIONAL RECORD ~ HOUSE
tific?te; not to exceed $573,000, to remain
dvailable until expended, for repairs- and
improvements to the Main Treasury Build-
ing aril Anriex; $59,618,000.`
- ~ :INTERNATIONAL AFFAIRS
For necessary expenses of the internation-
al affairs function of the office of the Secre-
tary; hire ojpassenger motor.vehicles; main-
tenance, repairs, and improvements of, and
purchase .of commercial insurance policies
for, real properties leased or owned overseas,
when. necessary for the. performance of offi-
cial business; not to exceed $2,000,OOOfor of-
ficial travel expenses; ?nd not to exceed
$73;000 for official reception and represent?-
tion expenses; 522,000,000.
And the Senate agree to the same.
Amendment numbered 3:
That the House recede from its disagree-
ment to the amendment of the Senate num-
bered 3, and agree to the same with an
amendment, as follows:
In lieu of the sum proposed by said
amendment insert $277,230,000; and the
Senate agree to the same.
Amendment numbered 4:-
That the House recede from its disagree-
ment to the amendment of the Senate num-
bered 4, and agree to the same with an
amendment, as fpllaws:
In lieu of the sum proposed by said
amendment insert $13,237,000; and the
Senate agree to the same.
Amendment numbered 7:
That the House recede from its disagree-
ment to the amendment of the Senate num-
bered 7, and agree to the same with an
amendment, as follows:
In lieu of the sum proposed by said
amendment insert $234,000,000; and the
Senate agree to the same.
Amendment numbered 12:
.That the House recede from its disagree-
ment to the amendment of the Senate num-
bered 12, and agree to the same with an
amendment, as follows:
In lieu of the sum proposed by said
amendment insert $1,025,411,000; and the
Senate agree to the same.
Amendment numbered 15:
That the House recede from its disagree-
ment to the amendment of the Senate num-
bered 15, and agree to the same with an
amendment, as follows:
In lieu of the number proposed by said
amendment insert $16,739; and the Senate
agree to the same.
Amendment numbered 19:
That the House recede from its disagree-
ment to the amendment of the Senate num-
bered 19, and agree to the same with an
amendment, as follows:
In lieu of the sum proposed by said
amendment insert $47, 000, 000; and the
Senate agree to the same.
Amendment numbered 24:
That the House recede from its disagree-
ment to the amendment of the Senate num-
bered 24, and agree to the same with an
amendment, as follows:
In lieu of the sum proposed by said
amendment insert $1,740,353,000; and the
Senate agree to the same.
Amendment numbered 26:
That the House recede from its disagree-
ment to the amendment of the Senate num-
bered 26, and agree to the same with an
amendment, as follows:
In lieu of the "sum proposed by said
amendment insert $2,800,000; and the
Senate agree to the same.
Amendment numbered 27:
That the House recede from its disagree-
ment to the amendment of the Senate num-
bered 27, and agree to the same with an
amendment, as follou~si
In -lieu" of the sum proposed by said
amendment insert $2,800,000: and the
Senate agree to the same.
Amendment-numbered 28:
That the House recede from its disagree-
ment to the amendment of the Senate num-
bered 28, and agree. to the same with an:
amendment, as follows:
In lieu of the sum proposed by said
amendment insert $1,434,921,000; and the
Senate agree to the same. "
Amendment numbered 30:
That the House recede from its disagree-
ment to the amendment of the Senate num-
bered 30, and agree to the. same with an
amendment, as follows:
In lieu of the sum proposed by said
amendment insert $357,500,000: and the
Senate agree to the same.
Amendment numbered 33:
That the House recede from its disagree-
ment ;8 the amendment of the Senate num-
bered 33, and agree to the same with an
amendment, as follows:
In ~ lieu of the sum proposed by said
amendment insert $16,850,000; and the
Senate agree to the same.
Amendment numbered 34:
That the House recede from its disagree-
ment to the amendment of the Senate num-
bered 34, and agree to the same with an
amendment, as follows:
In lieu of the sum proposed by said
amendment insert $225,000; and the Senate
agree to the same.
Amendment numbered 43:
That the House recede from its disagree-
ment to the amendment of the Senate num-
bered 43, and agree. to the same with an
amendment, as follows:
Yn lieu of the sum proposed by said
amendment insert $119,820,000; and the
Senate agree to the same.
Amendment numbered 50:
That the House recede from its disagree-
ment to the amendment of the Senate num-
bered 50, and agree to the same with an
amendment, as follows:
In lieu of the sum proposed by said
amendment insert $532,865,000; and the
Senate agree to the same.
Amendment numbered 56:
That the House recede from its disagree-
ment to-the amendment of the Senate num-
bered 56, and agree to the same with an
. amendment, as follows:
Restore. the. matter stricken by said
amendment, amended as follows:
In lierl of the sum named by said amend-
ment,-insert._$11,000,000; and the Senate
agree to the same.
Amendment numbered 61:
That the House recede from its disagree-
ment to the amendment of the Senate num-
bered 61, and agree to the same with an
amendment, as follows:
In lieu of the sum proposed by said
amendment insert $200,000,600; acid the
Senate agree to the same.
Amendment numbered 97:
That the House recede from its disagree-
ment to the amendment of the Senate num-
bered 97, and agree to the same with an
amendment, as follows:
In lieu of the sum proposed by said
amendment insert $108,000,000; and the
Senate agree to the same.
Amendment numbered 106:
That the House recede from its disagree-
ment to the amendment of the Senate num-
bered 106, and agree to the same with an
amendment, as follows:
Restore the matter stricken by said
amendment, amended as follows:
In lieu of the section number named,
insert 509A; and the Senate agree to the
same.
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H 6976 CONGRESSIONAL RECORD -HOUSE August 11, 1988
Amendment numbered 137: In lieu of the matter stricken and instead tives instead of $11,737,000 as proposed by
That 'the House recede from its disagree- by said amendment, insert the following: the House and $14,737,000 as proposed by
moot to the amendment of the Senate num- For necessary expenses of the Federal Law the Senate.
bored 137, and agree to the same with an Enforcement Training Center, aS a bureau PAYMENT OF GOVERNMENT LOSSES IN SHIPMENT
amendment, as follows: of the Department of the Treasury, includ-
Restore the matter stricken by said ing purchase (not to exceed fifteen for Amendment No. 5: Deletes appropriation
amendment, amended as follows: police-type usel and hire of p?ssenger motor language proposed by the House. This exact
In lieu -of the section number named, vehicles; for expenses for student athletic language is included 3n Amendment No. 22.
insert 619; and the Senate agree to the ?nd related activities; uniforms without BUREAU OF ALCOHOL, TOBACCO AND FIREARMS
same. reg?rd to the general prcrch?se price limits- Amendment No. 6: Deletes language .pro-
Amendment numbered 144: tion for the current fiscal year,' the conduct- posed by the Senate which would have ex-
That the House recede from its disagree- ing of and p?rticip?ting in firear'rns empted the bureau from the general pur-
ment tb the amendment of the Senate num- matches and present?tion of aw?rds; for chase price limitation on police-type vehi-
bered 144, and agree to the same with an public ?wareness and enh?ncing communi- cles.
amendment, as follows: ty support of Zaw enforcement training; not Amendment No. T Appropriates
Restore the matter stricken by said to exceed 55,000 for official reception ?nd 234,000,000 for salaries and expenses in-
amendment, amended as follows: representation expenses; room and board for $
In lieu of the section number named, student intents; and services ?s ?uthorized stead of $231,003,000 as proposed by the
insert 624; and the Senate agree to the by 5 U:S.C. 3109: Provided, That the Center House and $240,000,000 as Proposed by the
same. is authorized the aecept?nce of 9i,.fts: Provid- Senate.
The committee of conference report in ed further, Y7t?t funds ?ppropri?ted in this Amendment No. 8: Makes available
disagreement amendments numbered 2, 10, account shall be available for State and $15,OOQ000 for the Federal Alcohol Admin-
11, 16, 25> 31, 35, 39, 41, 42, 44, 45, 46, ~7, 49, local government law enforcement training istration Act is proposed by the House "in-
53, 60, 62, 63, 68, 71, 72, 74, 75, 76, 77, 80, 81, on a space-?vailable basis; training of for- stead of $20.000,000 as proposed by the
85, 88, 89, 90, 91, 92, 93, 98, 100, 102; 113, eign law enforcement officials on a space- Senate.
116, 117, 121, 122, 138, 141, 142, 143, 145, .46, available basis with reimbursement of Amendment No. 9: Establishes a base level
149, 152, 153, and 154. ?ctu?l costs to this appropriation; training of 3,701 full-time equivalent positions as
EDWARD R. ROYBAL, - Of private ? sector security officials on a proposed by the Senate instead of 3,451 as
DANIEL Fi. AKAKA, space-available basis with reimbursement ~of proposed by the House.
STENY H. HOVER, actu?1 costs to this appropriation; travel ex- Amendment No. 10: Reported in technical
RONALD D.'COLEA4AN, poorer of non-Federal personnel -to attend disagreement. The managers on the part of
State and Zoc?Z course development meetings the house will offer a motion to recede and
EDWARD P. BOLAND, ?t the Center. Provided further, That the concur in the amendment of the Senate
SIDNEY R. PATES. Feder?Z Law Enforcement Training Center which allocates 543 full-time equivalent po-
(except 92), shall hire up to and maint?in an ?verage of sitions to the Armed Career Criminal Ap-
JAMIE L. WRITTEN, not less than 425 direct full-time equivalent prehension Program.
JOE SKEEN, positions for fiscal year 1989; 534,664,000: Amendment No. 11: Reported in technical
BILL LOWERY, prorrided further, That none of thefttnds ap- disagreement. The managers on the part of
FRANX R. WOLF, propri.ated under this heading sh?ZZ be used the House will offer a motion t0 recede ;and
SILVZO O. COxTE, to reduce the level of advanced training or concur in the amendment of the Senate
M?n?gers on the Part of the House. other training ?ctivities of 'the Federal Law making funds available for the purchase of
DENNIS DECONCINI, Enforcement Training Center at Marna, certain equipment.
WILLIAM PROXMIRE, Arizona. U.$. CIISTOMS SERVICE
B.A. MIKULSKI, ACQUISITION, CONSTRUCTION, IMPROVEMENTS,
JOHN C. STENNIS, AND RELATED EXPENSES Amendment No. 12: Appropriates
PETE DOMENICI, FOr acquisition, construction, improve- $1;025,411;000 for salaries and expenses 'in.-
ALFONSE M. D'AMATO, moots, and rei?ted expenses .(to include stead of $1,004,821,000 as proposed by the
MARK O. HATFIELD, design, equipment furnishing, and other House and $1,046,000,000 as proposed try the
M?n?gers on the Part of the Senate. such costs) for the Federal Law Enforcement Senate.
JOINT EXPLANATORY STATEMENT OF Training Center, 520,000,000 to remain evsxolxs coorERATIOx covxclL
THE COMMITTEE OF CONFERENCE available until expended: Pmvaded, Th?t of The 'Conferees agree that the Commis-
The managers on the part of the House this amount 57,000,000 shall remmin ?v?iZ- stoner of Customs is authorized to fund the
and the Senate at the conference on the die- able for the ?cquisition, renovation, and ad- 1989 Customs Cooperation Council annual .
agreeing votes of the two Houses on the ?pt?tion of the former Artesia Christian meeting in 1989. Such funding is to come
amendments of'the Senate to the bill (H:R. College camprss in Artesia, New Mexico, as a from monies appropriated in this Act for
4775) making appropriations for the Treas- facility of the Federal L?w Enforcement the Customs Service for I"iscal Year 1989.
Training Center.' Provided further, That
ury Department, the 'United States Postal The Customs Cooperation Council is a
Service, the Executive Office of the Pres'i- 513,000;000 shall be available for the first worldwide Customs group of .103 member
dent, and certain independent agencies for phase of implementation of the Master Plan nations, responsible for multi-national ef-
the fiscal year ending September 30, 1989, Jor the exp?nsion of the Federal Law En. forts to coordinate and make consistent the
forcement Training Center at GZynco, Geor-
and for other purposes, submit the follow- various Customs practices of member coun-
ing joint statement to the House and the gi?, and for onrgoing m?intenance, facility tries. The forum includes development of
Senate in explanation of the effect of the improvements, and related equipment: Pro-. the Harmonized System of classification
action agreed upon by the managers ;end vided further, Th?t the Master Plan for the and nulnerous initiatives directed at facili-
recommended in the accompanying confer- Federal L?w Enforcement .Training Center tating world trade.
once report: shall make provision for construction of ?n The Conferees note that U.S. participa-
advanced lirearms training "range ;for p?r-
TITLE I-TREASURY DEPARTMENT ticip?ting agencies with specialized .fire- tion in the Convention is an important com-
OFFICE OF THE SECRETARY arms training requirements. ~ ponent in overall world trading arra,nge-
Amendment No. 1: Establishes separate The managers on the part of the Senate moots. It is in recognition of this factor that
appropriation accounts for the Office of the will move to concur in the amendment of the Conferees authorize the Commissioner
Secretary .and International Affairs aspro- the House to the amendment of the Senate. to fund the 1989 Customs Cooperation
posed by the House instead of consolidating This amendment appropriates funds for Council Convention.
those accounts into one account as proposed salaries and expenses and .for construction OAKLAND 'AND SAN FRANCISCO'5ELECTIOx
by the Senate. Appropriates $59,618,000 for at the Federal Law Enforcement Tlaining PROCESSING SITE
salaries and expenses of the Office of the Center at Glynco,'Georgia. It also appropri- The Conferees direct the Customs Service
Secretary as proposed by the House and ap- ates $7;000;000 for acquisition, renovation not to take any action which would result in
propriates $22,000,000 for' international af- and adaptation of the former Artesia Chris- the consolidation of the Oakland and San
fairs. The Senate proposed total funding of, flan College campus in Artesia, New Mexico, ~?rancisco Selection Processing Site func-
$83,000,000 fOrbOth aCCOllnt5 cOmbiri@d. .. FINANCIAL MANAGEMr"PIT SERVICE floor at San Francisco airport. Nor spay any
FEDERAL LAW ENaoxcEMENT TRAINING Amendment No. 3: Appropriates steps be taken; to:reduce the staff. or. mission
CENTER $277,230,000 for salaries and expenses in- of the two facilities until such time as the
Amendment No: 2: Reported in technical stead of $280,461,000 as proposed by the Department holds .public hearings to deter-
disagreement. The managers on the part of House and $276,000,000 as proposed by the mine Lhe impact of such actions and reports
the House will offer a motion to recede and Senate: to the Committee on the results of those
concur in the amendment Df the. Senate Amendment . No. 4: Makes ~ available meetings and the need to consolidate i~ese
amended to read as follows: $13,237,000 for systems moderization initia- functions.
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august 11, 1988
CONGRESSIONAL RECORD -HOUSE ~"I 6977
U.S. CUSTOMS SERVICE: EXPORT CLEARANCE
The Conferees note that the Kenai Penin-
sula in Alaska has experienced an increase
in exports from Alaska going to overseas
destinations. Vessels coming from overseas
to pick up such exports must be cleared by
the United States Customs Service when
they arrive to pick up cargo destined for for-
eign markets.
Given that such trade authority is on the
increa,:;e, the Conferees direct the United
States Customs Service to study the feasibil-
ity of providing reimbursable services to the
ports along the Kenai Peninsula with specif-
ic emphasis on in-place presence. The
United States Customs Service shall submit
a report of its analysis to the Senate and
House Committees on Appropriations no
later than February 1, 1989.
DELAYS AT II.S.-MEXICO PORTS OF ENTRY
The Conferees are encouraged by recent
action taken by the U.S. Customs Service to
reduce delays at U.S: Mexico Ports of Entry.
Nevertheless, traffic at the border continues
to grow and the problem of delays will exist
for the foreseeable future.
The Customs Service has testified that it
is increasing personnel at the Southwest
harder and it now has the capability to staff
ell allotted inspection positions. The Con-
ferees direct Customs to report on the effec-
tiveness of the personnel increases and
other steps being taken to reduce delays at
commercial and passenger crossings.
As part of this report, the Conferees
would like the Customs Service to evaluate
the cooperation between Federal agencies
with border responsibilities.. Specifically,
Customs should address the success of the
Customs agreement with the Immigration
and Naturalization Service to divide lane
staffing duties on a fifty-fifty basis. Cus-
toms should evaluate its relationship with
INS on the entire Southwest border and dis-
cuss particular successes and problems at
these locations. Tire Customs Service should
state its views on what steps need to be
taken regarding current and potential prob-
lems that contribute to delays at the U.S.-
Mexico Ports of Entry. This report should
be provided to the House and Senate Com-
mittees on Appropriations no later than
March 1, 1989.
Amendment No. 13: Restores a provision
regarding the Customs User Fee account as
proposed by the House.
Amendment No. 14: Restores a provision
proposed by the House and deleted by the
Senate which prohibits the redirection of
the Equal Employment Opportunity Pro-
gram.
Amendment No. 15: Establishes a base of
16,739 full-time equivalent positions instead
of 16,599 as proposed by the House and
16,799 as proposed by the Senate.
Amendment No. 16: Reported in technical
disagreement. The managers on the part of
the House will offer a motion to recede and
concur in the amendment of the Senate
which provides that all additional Customs
positions will be allocated only for commer-
cial operations.
OPERATIONS AND THE MAINTENANCE, AIR
INTERDICTION PROGRAM
Amendment No. 17: Appropriates
$142,262,000 for operations and mainte-
nance as proposed by the Senate instead of
$132,262,000 as proposed by the House.
Amendment No. 18: Deletes language as
proposed by the Senate which prohibits the
transfer of certain equipment on a perma-
nent basis.
U.S. MINT
Amendment No. 19: Appropriates
$47,000,000 for salaries and expenses instead
of $47,869,000 as proposed by the House and
$46,000,000 as proposed by the Senate.
BUREAU OF THE PUBLIC DEBT
Amendlent No. 20: Appropriates
$219,430,000 for salaries and expenses as
proposed by the Senate instead of
$242,840,000 as proposed by the House.
Amendment No. 21: Inserts the phrase
"shall be available" as proposed by the
Senate.
PAYMENT OF GOVERNMENT LOSSES IN SHIPMENT
Amendment No. 22: Inserts a provision ap-
propriating $960,000 as proposed by the
Senate.
INTERNAL REVENUE .SERVICE
Amendment No. 23: Appropriations
$87,165,000 fcr salaries and expenses aspro-
posed.by the Senate instead of $94,547,000
as proposed by the House.
IRS PAYROLL
The Conferees are aware of the efforts
that IRS has made to correct the problems
associated with the IRS payroll system.
The Conferees understand that the De-
partment of the Treasury is considering
abolishing the Office of Fiscal Operations
and the Resources Systems Development
Division of the Detroit Data Center and
transferring its payroll/personnel functions
to the Department of Agriculture.
The Conferees are convinced that the
IRS, at the Senate Committee's request, has
made significant progress in rectifying the
deficiencies cited in the Committee's FY
1988 report.
Accordingly, the Conferees direct the Sec-
retary of the Treasury to continue the cur-
rent payroll system throughout FY 1989.
Amendment' No, 24: Appropriates
$1,740,353,000 for processing tax returns in-
stead of $1,850,134,000 as proposed by the
House and $1,691,076,000 as proposed. by the
Senate.
Amendment No. 25: Reported in technical
disagreement. The managers on the part o~
the House will offer a.moticn to recede and
concur in the amendment of the Senate
amended to read as follows:
In lieu of the sum striken and inserted by
said amendment, insert the following:
$1, 932,441, 000.
The managers on the part of the Senate
will offer a motion to recede and concur in
the amendment of the House to the amend-
ment of the Senate.
This amendment makes available
$1,932,441,000 for examinations and appeals.
Amendment No. '26: Makes available
$2,800,000 for the Tax Counseling for the
Elderly program instead of $2,850,000 as
proposed by the Senate and $2,650,000 as
proposed by the House.
Amendment No. 27: Makes available
$2,800,000 for the Tax Counseling for the
Elderly program instead of $2,850,000 as
proposed by the Senate and $2,650,000 as
proposed by the House.'
Amendment No. 28: Appropriates
$1,434,921,000 for investigation, collection
and taxpayer service instead of
$1,490,225,000 as proposed by the House and
$1,431,058,000 as proposed by the Senate.
U.S. SECRET SERVICE
Amendment No. 29: Deletes a provision
proposed by the Senate which would have
exempted the Service from the general pur-
chase price limitation for police-type vehi-
cles.
Amendment No. 30: Appropriates
$357,500,000 for salaries and expenses in-
stead of $362,000,000 as proposed by the
House and $354,500,000 as proposed by the
Senate.
TITLE II-U.S. POSTAL SERVICE
SENSE OF SENATE PROVISION
Amendment No. 31: Reported in technical
disagreement. The managers on the part of
the House will offer a motion to recede and
concur in the amendment of the Senate
which provides that it is the Sense of the
Senate that a certain contract entered into
between the Postal Service and Perot Sys-
tems not be implemented until certain con-
ditions are met.
U.S. POSTAL SERVICE: SUN CITY, ARIZONA
The Conferees are concerned about the
unfortunate situation of mail theft from
curbside mail boxes in Sun City, Arizona,
primarily a retirement community. Under
Postal Service regulations, residential devel-
opments constructed after 1978 will not re-
ceive door mail delivery, but will only be
able to receive either curbside mail delivery
or delivery to local area "cluster" boxes.
The purpose of these regulations'is to con-
tain costs involved in delivering the mail.
In light of the mail security problems re-
cently experienced by the elderly residents
of Sun City, Arizona, the Conferees direct
the United States Postal Service to study
the economic feasibility of amending Postal
Service regulations to provide door mail de-
livery to retirement communities construct-
ed after 1978 nationwide if a majority of tY:e
residents favor such a change in their mail
delivery. The Conferees further direct the
LISPS. to report the conclusions of their
study to the House and' Senate Appropria-
tions Committees by no later than June 1,
1989.
POSTAL FACILITY FOR THE TZERRASANTA AREA OF
SAN DIEGO, CALIFORNIA
The Conferees continued to be .concerned
over the lack of a Postal Service facility for
the Tierrasanta .area of San Diego. This
project is on-the Postal Service's five year
uled to be completed by 1989. The Confer-
ees believed that this facility should contin-
ue to be a pricrity for the Postal Service.
The Postal Service i1as stated that it has
been unable to obtain a suitable site for a
permanent facility for Tierrasanta. To ad-
dress the problem in the short-term, the
Postal Service plans to establish a Tempo-
rary Carrier Annex to serve the Tierrasanta,
Sierra Mesa and Grantville areas of San
Diego. The Committee supports this plan,
but believes the Postal Service should ad-
dress the lack of planned walk-up window
service for Tierrasanta.
The Conferees urge the Postal Service to
continue seeking a site for a permanent full
service postal facility for Tierrasanta and
requests that the Postal Service keep it in-
formed of its effort to address the mail serv-
1ce problem for these areas of San Diego.
PALATINE, ILLINOIS POSTAL FACILITY
The Conferees are concerned about a sit-
uation occurring between the Village of Pal-.
atine, Illinois and the United States Postal
Service. The Conferees understand ttlat the
Village of Palatine has been attempting in
good faith to find an alternative site for a
Postal Service distribution facility. The
Conferees understand that failure to find
an alternative to the site being proposed by
tiro Postal Service could have a devastating
effect on the tax base of Palatine and on
the schools and parks districts. Therefore,
the Conferees direct the Postal Service to
work with the Village of Palatine to find an
alternative site that would meet postal
needs, before expending any funds for.
design and/or constuction work on the
Postal Service's preferred site
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H 6978
CONGRESSIONAL RECORD -HOUSE
ADMINISTRATIVE PROVISION
Amendment No. 32: Restores a provision
inserted by the House and stricken by the
Senate which mandates certain services to
the people of Holly Springs, Mississippi.
TITLE III-EXECUTIVE OFFICE OF THE
PRESIDENT
OFFICE OF ADMINISTRATION
Amendment No. 33: Appropriates
$16,850,000 for salaries and expenses instead
of $16,900,000 as proposed by the House and
$16,800,000 as proposed by the Senate
NATIONAL CRITICAL MATERIALS COIINCIL
Amendment No. 34: Appropriates $225,000
for salaries and expenses instead of $178,000
as proposed by the House and $300,000 as
proposed by the Senate.
OFFICE OF MANAGEMENT AND BIIDCET
Amendment No. 35: Reported in technical
disagreement. The managers on the part of
the House will offer a motion to recede and
concur in the amendment of the _ Senate
amended to read as follows:
In lieu of the sum stricken and inserted by
said amendment insert the following:
539,640,000, of which not to exceed
51,000,000 may be available fora consolidat-
ed Federal budget and financial informa-
tion system to improve the management oJ'
Executive agencies.
The managers on the part of the Senate
will move to concur in the amendment oi`
the House to the amendment of the Senate.
This amendment appropriates $39,640,000
for salaries and expenses and authorizes not
to exceed $1,000,000 for a Federal budget
and financial information system.
Amendment No. 36: Inserts the word "al-
tering" as proposed by the Senate and de-
letes the word "review" proposed by the
House. This provision prohibits OMB from
altering the transcripts of certain testimony
under certain conditions as proposed by the
Senate instead of prohibiting OMB from re-
viewing the testimony as proposed by the
House.
Amendment No. 37: Deletes a, provision
proposed by the House. The Conferees em-
phasize their position on this issue by in-
serting the following statement" on determi-
nation and compliance with Congressional
intent:
DETERMINATION AND COMPLIANCE'WITH
CONGRESSIONAL INTENT
The Conferees take strong exception to
action by the Director of the Office of Man-
agement and Budget in his Memorandum
for Cabinet Officers and Agency Heads
dated March 15, 1988. That memorandum
reminded them, and all employees of their
agencies, that Congressional reports have
no force of law and claiming the right of the
Executive Branch to substitute its judgment
as to which projects to fund.
APPROPRIATIONS CAN BE IISED ONLY FOR THE
PIIRPOSES FOR WHICH MADE
Title 31 of the United States Code makes
clear that appropriations can be used only
for the purposes for which they were appro-
priated, as follows:
Section 1301. Application:
(a) Appropriations shall be applied only t0
the objects for which the appropriations
were made except as otherwise provided by
law.
STATEMENT OF INTENT INCLUDED IN
CONTINUING RESOLIITION
Section 107 of Public Law 100-202, the
Continuing Resolution for fiscal year 1988,"
says:
Amounts and authorities provided by this
resolution shall be to accordance with the
reports accompanying the bills as passed by
or reported to the House and the Senate
and in the Joint Resolution.
Executive Branch wishes cannot substi-
tute for Congress' own statements as to the
best evidence of.Congressionai intentions-
that is, the official reports of the Congress.
IINANTICIPATED NEEDS
Amendment No. 38: Inserts center head
proposed by the Senate and deletes a center
head proposed by'the House.
E%PENSES OF MANAGEIENT IMPROVEMENT
Amendment No. 39: Reported in technical
disagreement. The managers on the part of
the House will offer a motion to recede and
concur in the amendment amended to read
as follows:
In lieu of the matter proposed "by said
amendment, insert the following:
EXPENSES OF MANAGEMENT IMPROVEMENT
For expenses necessary to provide a com-
prehensive office automation system, in-
cludting equipment" and software, for the
Office of Management and Budget,
$1,000,000, to remain available until ex-
pended.
The managers on the part of the Senate
will move to recede and concur in the
amendment of the House to the amendment
of the Senate.
This amendment appropriates $1,000,000
to provide a comprehensive office automa-
tion system far the Office of Management
and Budget. .
TITLE IV-INDEP"ENDENT AGENCIES
ADVISORY COMMISSION ON
INTERGOVERNMENTAL RELATIONS
Amendment No. 40: Appropriates
$1,040,000 for salaries and expenses as pro-
posed by the Senate instead of $1;275,000 as
proposed by'the House.
ADVISORY COMMITTEE ON FEDERAL PAY
Amendment No. 41: Reported in technical
disagreement. The managers on the past of
the House will offer a motion to recede and
concur in the amendment of the Senate
amended to read as follows:
In lieu of the matter stricken by said
amendment, insert the following:
ADVIBORY COMMITTEE ON FEDERAL PAY
SALARIES AND EXPENSES
For necessary expenses of the Advisory
Committee on Federal Pay, established by 5
U.S.C. 5306;. 5205,000: Provided, That the
annual report of the Advisory Committee on
Federal Pay shall be submitted to the Appa-o-
priations Committees of the House and
Senate and other appropriate Committees of
the Congress at the same time the report is
submitted to the President.
The managers on the part of 'the Senate
will move to concur in the amendment of
the House to the amendment of the Senate.
This amendment appropriates $205,000
for the Advisory Committee on Federal Pay.
The Conferees are concerned that the
report of the Advisory Committee on Feder-
al Pay is not available in a timely fashion
for review by the Congress and have includ-
ed.language to require that the report be
submitted to the Congress at the same time
the report is submitted to the President.
GENERAL SERVICES ADMINISTRATION
FEDEAAL BUILDINGS FUND LIMITATIONS ON
AVAILABILITY OF REVENUE
Amendment No. 42: Reported in technical
disagreement. The managers on -the past of
the House will offer a motion to recede and
concur in the amendment of the Senate
amended to read as follows:
In lieu of the sum "stricken and inserted by
said amendment, insert the following:
53,024,217,000.
The managers on the part of the Senate
will move to concur in the amendment of
the House to the amendment of the Senate.
August 11, 1988
This amendment establishes a total limi-
xation on the availability of funds in the
Federal Buildings Fund.
Amendment No. 43: Establishes a limita-
tion of $119,820,000 on construction instead
of $92,139,000 as proposed by the House and
$137,147,000 as proposed by the Senate.
Amendment No. 44: Reported in technical
disagreement. The managers on the Part of
the House will offer a motion to recede and .
concur in the amendment of the Senate
amended to read as follows:
In lieu of the sum named in said amend-
ment, insert the fallowing: $14,000,000.
The managers on the part of the Senate
will move to concur in the amendment of
the House to Lhe amendment of the Senate.
This amendment makes available
$14,000,000 for construction of the Lake-
land, Florida Federal Building.
Aanendment No. 45: Reported in technical
disagreement. The managers on the part of
the House will offer a motion to recede and
concur 11I the amendment of the Senate
which makes available $16,758,000 for con-
struction of a Federal Building, Courthouse
in Baton Rouge, Louisiana.
Amendment No. 46: Reported in technical
disagreement. 'The managers on the part of
the House will offer a motion to recede and
concur in the amendment of the Senate
which makes available $250,000 for site and
design of a parking facility 'in Newark, New
Jersey.
Amendment No. 47: Reported in technical
disagreement. The managers on the part of
the House will offer a motion to recede and
concur to the amendment of the Senate
which makes available $5,000,000 for a grant.
to the University of New Mexico.
Amendment No. 48: Deletes a provision
proposed by the Senate which would have
made $7,000,000 available for the Martha
Graham Center of Contemporary Dance.
Amendment No. 49: Reported fII technical
disagreement. The managers on the part of
the House will offer a motion to recede and
concur in the amendment of the Senate
amended to read as follows:
In lieu of the sum named in said amend-
ment, insert the following: 5500,000.
The managers on the part of the Senate
will move to concur in the amendment of
the House to the amendment of the Senate.
The amendment makes available $500,000
for other selected purchases.
Amendment No. 50: Establishes a limita-
tion of $532,805,000 for repairs and alter-
ations instead of $550,673,000 as proposed
by the House and $b17,424,000 as proposed
by the Senate.
FEDERAL IISE OF POST OFFICE BIIILDINC IN
JAMESTOWN, NORTH DAISOTA
The Conferees direct the Administrator of
General Services, by no later than Septem-
ber 15; 1988, to submit a written report to
the House and Senate Committes on Appro-
priations outlining in detail the potential
uses of the former United States Postal
Service building located on First Avenue
and Third Street S.W. in Jamestown, North
Dakota for Federal Offfice space. The
report shalt include, but not be limited to
the following information regarding the po-
tential Fedeal utilization of this Postal Serv-
ice fafclity:
utilization of no less than 60 percent of
the total square feet in such building;
utilization of such building for storage or
as a depository for Government. records,
documents, or other materials;
which Federal agenceis are potential ten-
ants of such building;
the cost of renovation of the building to
accommodate any and all Federal uses;
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August Il, 1988 CONGRESSIONAL RECORD -HOUSE H 6979
.the timetable for relocating Federal
agency personnel and equipment to the
building; and
possible financing options to cover the
cost of renovating, purchasing, or otherwise
preparing the postal service building for oc-
cupancy by Federal agencies.
The Conferees believe that the Adminis-
trator of General Services should make
every possible effort to explore all potential
Federal uses for this facility in Jamestown.
JOHNSTOWN, PENNSYLVANIA FEDERAL COIIRT
The Conferees_.understand that pursuant
to 28 U.S.C. 118, Johnstown, -Pennsylvania is
designated as a seat for a Federal court for
the Western District of Pennsylvania. The
Conferees are concerned about the need for
the establishment of a satellite court #acili-
ty in Johnstown to accommodate residents
of the surrounding counties. Therefore, the
Conferees direct the General Services Ad-
ministration to establish and maintain a sat-
ellite court facility for the Western District
of Pennsylvania in Johnstown.
Amendment No. 51: Restores a provision
proposed by the House and deleted by the
Senate which makes available $1,000,000 for
a grant to the County of Los Angeles.
Amendment No. 52: Restores a provision
proposed by the House and deleted by the
Senate which makes available $800,000 for a
grant to California State University.
Amendment'No. 53. Reported in technical
disagreement. The managers on the part of
the House will offer a motion to recede and
concur in the amendment of the Senate
.amended to read as follows:
In lieu of the sum named in said amend-
ment, insert the following: $5,000,000. "
The managers on the part of the Senate
will move to concur in the amendment of
the House to the amendment of the Senate.
This amendment makes available
$5,000,000 for the repair and alteration of a
Federal Building, Courthouse 1rI San Fran-
cisco, California.
Amendment .No. 54: Restores a provision
proposed by the House and deleted by the
Senate which makes available $29,000,000
for the Ariei Rios Federal Building, New
Post Office in Washington, D.C.
Amendment No. 57: Restores a provision
proposed by the House and deleted by the
Senate which makes available $19,970,000
for the James V. Forrestal Building in
Washington, D.C.
Amendment No. 58: Makes available
$6,500,000 for the Interior Department at
Avondale,. Maryland as proposed by the
Senate instead of $6,000,000 as proposed by
the House.
Amendment No. 59: Deletes a provision
proposed by the Senate which would have
made available $2,900,000 for the Grove
Arcade Federal Building in Asheville, North
Carolina.
Amendment No. 60: Reported in technical
disagreement. The managers on the part of
the House will offer a motion to recede and
concur in the amendment of the Senate
amended to read as follows:
In lieu of the matter stricken and inserted
by said amendment, insert the following:
Capital Improvements of United St?tes-
d4exico Border Facilities, $42,150,000 as fol-
lows:
Arizona:
Dougl?s, AZ: New facility/R&A/Safety,
$820,700
Lukevilte, AZ: R&A/Safety, $229,100
Naco, AZ:
Newf?cility/R&A/Safety, $320,900
Nogales, AZ:
Gr?nde Ave./Morley G?te, New Station/
R&A/Safety, $2,420,900
M?ripos?, R&A, $746,800
Sasabe, AZ: New facility/R&A/Safety,
$355,300
S?n Luis, AZ: RBrA/Safety, $499,300
C?lifornia
Andrade, CA: New station/R&A/Safety,'
$454,300
C?Zexico, CA: New station/R&A/Safety,
$4,830, S00
S?n Ysidro/Ot?y Mes?, CA:
New facility/Ot?y Mes? $721,700
Safety/S?n Ysidro/Ot?y Mesa, $2,673,900
R&A/Signs/Security/Commerci?Z Zot im-
provements, $4,956,200
Tecate, CA: New station/R&A, $861,800
New Mexico:
Antelope Wells, NM.' Security/Housing,
- $158,500
Columbus, NM.?Security, $236,300
Sant? Teresa, NM.? New station, $1,668,000
Texas:
Amastad D?m, TX: R&A, $83,400
Brownsville, TX:
Gatew?y Bridge, Security/R&A/Lane ex-
pansion/New Bridge, $5,783,600
B&lvl Bridge, Replace station, $1,794,300
Los Indios, Replace station, $105,;700
Del Rio, TX: Security/Lane exp?nsion,
$597,700
Eagle P?ss, TX: Security/R&A, $2,251,800
EZ P?so, TX:
Bridge of the Americ?s, Design/R&A/
Import Lot Paving, $1,700,300
Paso del Norte, Extension/R&A, $639,400 .
Yslet?, Design/Construction, $1,501,200
F?bens, TX: Site acquisition/Security,
$444,800
Falcon Dam, TX: R&A, $172,400
Hid?lgo, TX: Safety/Design/R&A,
$617,200
Laredo, TX:
Ju?rez-Lincoln Bridge, Site/Design/R&A,
$1, 668, 000
New bridge, 5278,000
Co~avent Street, Design upgr?de, $1,473,400
Presidio, TX: Security/Housing, $556,000
Frogresso, TX: Security/R&A, $222,400
Roma, TX: Safety, $305,800
The managers on the part of the Senate
will move to concur in the amendment of
the House to the amendment of the Senate.
This amendment makes available
ATF HEADQUARTERS
The Conferees are determined that the
proposed renovation of the Ariel Rios Fed-
eral Building will be effected in such a
manner so as not to unduly disrupt the vital
law enforcement and excise tax collection
functions of the Bureau of Alcohol, Tobacco
and Firearms, which is the principal occu-
pant of the Rios Building. It should be
noted that it was by action of this Commit-
tee that the building was named iII memory
of Ariel Rios, an ATF agent murdered in an
undercover narcotics operation in South
Florida.
To avoid undue disruption, the Conferees
direct that ATF will not be required to tem-
porarily relocate its Headquarters activity
during the renovation in any space deemed
unacceptable by the Director of ATF. Fur-
ther, appropriation of funds for renovation
of the Rios building is made with the clear
understanding that ATF will re-occupy the
Rios building immediately upon completion
of the renovation.
Amendment No. 55: Deletes a .provision
proposed by the House and deleted by the
Senate which would have made available
$12,000,000 for General Accounting Office
in Washington, D.C.
Amendment No. 56: Restores a provision
proposed by the House and deleted by the
5enaie and makes available $11,000,000 for
th?e GSA Headquarters in Washington, D:C.
instead of $23,000,000 as proposed by the
House.
$42,150,000 for capital improvements of will move to concur in the amendment of
United States-Mexico Border Facilities. the House to the amendment of the Senate.
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Amendment No. 61: Establishes a limita-
tion of $200,000,000 for minor repairs and
alterations instead of $212,780,000 as pro-
posed by the House and $194,780,000 as pro-
posed by the Senate.
Amendment No. 62: Reported in technical
disagreement. The managers on the part of
the House will offer a motion to recede and
concur in the amendment of the Senate
which makes available $2,000,000 to fund a .
pilot project establishing, safe areas of
refuge from fire for the disabled in six exist-
ing Federal buildings as proposed by the
Senate.
Amendment No. 63: Reported in technical
disagreement. The managers on the part of
the House will offer a motion to recede and
concur in the amendment of the Senate
which makes available $10,000,000 as pro-
posed by the Senate to provide additional
funding for United States-Mexico Border
Facility projects under certain circum-
stances.
Amendment No. 64: Establishes a limita-
tion of $133,000,000 for payment on pur-
chases contracts as proposed by the Senate
instead of $142,450,000 as proposed by the
House.
Amendment i\To. 65: Establishes a limita-
tion of $1,177,532,000 for rental of space as
proposed by the Senate instead of
$1,200,000,000 as proposed by the House.
Amendment No. &6: Establishes a limita-
tion of $882,000,000 for real property oper-
ations asproposed by the Senate instead of
$881,703,000 as proposed by the House.
Amendment No. 67: Establishes a limita-
tion of $49,000,000 for program direction
and centralized services as proposed by the
Senate instead of $49,740,000 as proposed by
the House.
Amendment No. 68: Reported in technical
disagreement. The managers on the part of
'the House will offer a motion to recede and
concur in the amendment of the Senate
amended to read as follows:
in lieu of the sum stricken and inserted by
said amendment, fnsert the following:
$130,000,000 of which 52,200,000 shall be
made avail?ble for a grant to the Marine Bi-
ological Laboratory ?t Woods Hole, Mass?-
chusetts and of which $127,800,000 sh?li be
avail?ble
The managers on the part of the Senate
will move to concur in the amendment of
the House to the amendment of the Senate.
This amendment establishes a limitation
of $130,000,000 for design and construction
services and provides a grant to a Marine Bi-
ological Laboratory.
Amendment No. 69: Deletes a citation pro-
posed by the House and inserts a citation
proposed by the Senate.
Amendment No. 70: Restores a provision
proposed by the House and deleted by the
Senate which excepts the Memphis, Tennes-
see Internal Revenue Service Center from
certain requirements.
Amendment No. 71: Reported in technical
disagreement. The managers on the part of
the House will offer a motion to recede and
concur in the amendment of the Senate
which exempts the Baton Rouge Louisiana
Federal Building, Courthouse and the Lake-
land, Florida building from certain require-
ments
Amendment No. 72: Reported in technical
disagreement. The managers on the part of
the House will offer a motion to recede and
concur in the amendment of the Senate
amended to read as follows:
In lieu of the sum stricken and inserted by
said amendment, insert the following:
$3, 024, 217, 000
The managers on the part of the Senate
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amended to read as follows:
In lieu of the matter proposed by said
.amendment, insert the following:
Ssc. 11. Notwithstanding any other provi-
sion of taro, the Administrator of General
Services is hereafter authorized to transfer
from the available resources of the Federal
Buildings Fund, in accordance with such
rules and procedures as may be established
by the .Office of Management and Budget
and the Department of the Treasury, such
amounts as are necessary to repay the prin-
u!ipal amount of General Services Adminis-
tration borrowings from the Federal Financ-
ing Bank when such borrowrings are legal
obligations of the Fund.
The Managers on the part of the Senate
will move to concur in the amendment of
the House to the amendment of the Senate.
This amendment authorizes the Adminis-
trator of General Services to transfer from
the available resources in the Federal Build-
ings Fund to repay certain borrowings.
Amendment No. 90: Reported in technical
disagreement. The managers on the part of
the House will offer a motion to recede and
concur in the amendment of the Senate
amended to read as follows:
Yn lieu of the section number named in
said amendment, insert the following: 12
The managers on the part of the Senate
will move to concur in the amendment of
the House to the amendment of the Senate.
This amendment authorizes the General
Services Administration to sell, at competi-
tive bid, a Federal building in Lakeland,
Florida.
Amendment No. 91: Reported in technical
disagreement. The managers on the part of
the House will offer a motion to recede and
concur in the amendment of the Senate
amended to read as follows:
In lieu of the section number named in
said amendment; insert the following: 13
The managers on the part of the Senate
will move to concur in the amendment of
the House to the amendment of the Senate.
This amendment prohibits the sale and
certain other methods of disposal of certain
lands !n the vicinity of Bull Shoals Lake, Ar-
kansas without the specific approval of Con-
gress.
Amendment No. 92: Reported in technical
disagreement. The managers on the part of
the House will offer a motion to recede and
concur in the amendment of the Senate
amended to read as follows:
In lieu of the matter proposed by said
amendment, insert the following:
Sec. i4. None of the funds appropriated by
this Act iruay be obligated or expended in
any way for the purpose of the sale, excess-
ing, surplusing, or disposal of lands in the
vicinity of Norfork Lake; Arkansas admin-
istered by the Corps of Engineers, Depart-
ment of the Army, urithout the specffic ap-
proval of the Congress.
Ssc. 15. Notu+tthstandtng any other provi-
sion of this Act the amount appropriated for
Gen
l M
t
era
anagemen
and Administra ion,
? 31{5 amendmenr appropriates 330,000,000 , This amendment authorizes the Adminis- Shcaries and Expenses Of the General ~erv-
for.'the National Defense~Stockpile'Transac? , trator of"General Services to hire and main- ~ ices Administration is x120,774,000 Jor fiscal
tibn Fund. s r' ~ ~ . ~ ! . fain an annual average' of ~ not -less `than year 1989. ~~ ~
awa
y z a anoa pursuant
amended to read as follows: to 50 U.S.C 98a and 98g(al, for a grant to
In lieu of trie sum stricken and inserted by construct and equip a strategic materials re-
said amendment, Insert the following: searchfaeility, $14,000,000;
$10,800,000 - Loyol? College in Maryland pursuant to
The managers on the part of the Senate 50 U.S.C. 98a and 98g(al, for a grant to pay
will move to concur in Lhe amendment of the Federal share of the cost of construction
the House to the amendment of the Senate. and equipment including approaches ?nd
H 6980 CONGRESSIONAL RECORD -HOUSE ` ' 'August 11;"1988
? Thos amendment establishes atotal-limi- Amendment No. 81: Reported in technical? ? 2,000 full-time equivalent positions not later
tation on the availability "of funds in the disagreement. The managers on the part of than fiscal year 1992 for the Federal Protec-
Federal Buildings Fund. the House will offer a motion to recede and five Service.
? FEDERAL SUPPLY SERVICE concur in the amendment of the Senate The Committee directs GSA to conduct a
Amendment No. 73. Appropriates amended to read as follows: study on salary comparability of members
$47,000,000 for operating expenses as pro- In lieu bf the matter stricken and inserted of the Federal Protective Service with other
posed by the Senate instead of $47,829,000 by said amendment, insert the following: law enforcement agencies and submit a
as proposed by the House. University of Texas at El Paso pursuant to report to the Committees on Appropriations
FEDERAL PROPERTY RESOURCES SERVICE 50 U.S.C. 98a and 98g for a grant to study by January 31, 1989.
and facilitate the development, transfer, and Amendment No. 89: Reported in technical
Amendment No. 74: Reported In technical installation of strategic materials technol- disagreement. The managers on the part of
disagreement. The managers on the part of ogies among American industries; the"House will offer a motion to recede and
the House will offer a motion to recede and 83,000,000; concur !n the ,amendment of the Senate
concur in the amendment of the Senate Universit of H
ii t M
for the Federal Property Resources Service.
REAL PROPERTY RELOCATION
Amendment No. 75: Reported in technical
disagreement. The managers on the part of
the House will offer a motion to recede and
concur in the amendment of the Senate
amended to read as follows:
In lieu of the sum stricken and inserted by
said amendment, insert the following:
x4, 000, 000
The managers on the part of the Senate
will move to concur in the amendment of
"thc House to the amendment of the Senate.
This amendment appropriates $4,000,000
for real property relocation.
Amendment No. 76: Reported in technical
disagreement. The managers on the part of
the House will offer a motion to recede and
concur in the amendment of the Senate
which makes available $1,b00,000 for certain
relocation .costs associated with the facility
at Loran Station, Island of Kauai, Hawaii.
INFORMATION RESOURCES MANAGEMENT
SERVICE "
Amendment No. 77: Reported in technical
disagreement. The managers on the part of
the House will offer a motion to recede and
concur in the amendment of the Senate
amended to read as follows:
In lieu of the sum stricken and inserted by
said amendment, insert the following:
x31,875,000
The managers on the part of the Senate
will move to concur in the amendment of
the House to the amendment of the Senate.
This amendment appropriates $31,875,000
for the Information Resources Management
Service.
OFFICE. OF INSPECTOR GENERAL
Amendment No. 78: Appropriates
$25,000,000 for the Office of Inspector Gen-
eral as proposed by the Senate instead of
$25,400,000 as proposed by the House.
ALLOWANCES AND- OFFICE STAFF POR FORMER
PRESIDENTS
Amendment No. 79: Appropriates
$1,431,000 as proposed by the House instead
appurtenances and costs already incurred,
of a Center for Advanced Ir~ormation and
Resource Management Studies x3,000,000,?
University of Idaho pursuant to 50 U.S.C
98a and 98g(al for a grant to construct and
equip a Strategic Research and Environ-
mental Laboratory, $3,000,000; and
University of Utah pursuant to 50 U.S.C.
98a dnd 98g(al(2)(CI Ior a grant to pay the
Federal share of the cost of construction and
equipment for a Center for Biomedical Poly-
mers, x7, 000, 000.
The managers on the part of the Senate
will move to concur in the amendment of
the House to the amendment of the Senate.
This amendment appropriates .$30,000,000
for protects under the National Defense
Stockpile Transaction Fund.
The Conference agreement provides
$14,000,000 for a grant to construct a strate-
gic materials research facility at the Univer-
sity of Hawaii. Although this is less than
the amount recommended by the House,
the managers intend Lo complete this
project by providing the balance of the
funds for this facility at a later date.
Amendment No. 82: Restores a provision
proposed by the House and deleted by the
Senate which authorizes funds to be made
available for the payment of rent under cer-
tain circumstances.
Amendment No. 83: Restores a section
number as proposed by the House.
Amendment No. 84: Restores a section
number as proposed by the House.
Amendment No. 85: Reported in technical
disagreement. The managers on the part of
the House will offer a motion to recede and
concur in the amendment of the Senate
which authorizes and directs the General
Services Administration to charge the De-
partment of the Interior for the design of
.the Avondale, Maryland property as pro-
posed by the Senate.
Amendment No. 86: , Restores a provision
proposed by the House and deleted by the
Senate which authorizes the acquisition of a
building in Memphis, Tennessee for the In-
ternal Revenue Service.
Amendment No. 87: Restores a provision
NATIONAL'DEFENSE STOCKPILE TRANSACTION r w~~ '~' "-`" ""?c oa.u ucicucu vy uaac
Senate which authorizes construction at the
Foxn Center for Disease Control campus in
Amendment No. 80: Reported In technical Chamble, Georgia.
disagreement. The managers on the part of Amendment No. 88: Reported in technical"
the House will offer a motion to recede and disagreement: The managers on-the part of '
concur in the amendment of the Senate the House will offer a. motion to recede and
amended to read as follows: concur in the amendment of the Senate
In lieu of the sum stricken and inserted by amended to read as follows:
said amendment, insert the following: In lieu of the section number proposed by
$30,000,000 said amendment, insert the following: 1e
.The managers- on the part of the Senate The managers on .the part of the Senate
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August 11D .1988
CONGRESSIO:iTAL RECORD -HOUSE H 6951
SEC 1S. 37te Administrator of General
Services shall transfer, without consideri
atson, to the .Secretari of the Army the ap-
liroxirnately 24 acres located in Laurel,
Maryland, and cl?ssified as surplus property
under the title `F'DA-Beltsville Research
Facility': .Such property shall be used in
connection with the Maryland National
Guard.
SEC. 17. 77te Secretary of the Interior,
within 30 days oJen?ctment of this Act shall
designate a consolidated agency of no less
!lean 400 people within the Department of
the Interior for reloe?tion to Avondale,
Maryland. The Administrator of General
Services shall relocate the designee to the
Avandale facility no later th?n 90 days after
the Administrator determines design and al-
teration of the facility is completed.
SEC 18. Notwithst?nding any other provi-
sion of ,this Act, no ,funds made available
from ,the Federal Buildings Fund for new
construction for ,fiscal year 1989 may be
used to fund Cite St. Croix Federal Building,
Courthause located in the Virgin Islands.
SEC. 19.None of the .funds appropriated by
this or any other Act in any fiscal year m?y
be obligated or expended in any way Jor the
purpose of the .sale, lease, rental, excessing,
surplusing, or disposal of any portion of
Land identified as a portion of the Middle
8iver Federal Depot located in Baltimore
County, Maryland before October 1, 1989:
Provided, That such Zand may be sold before
that time if the General Services Admirtis-
tration enters into a mutually agreed upon
sale agreement .with the State of MaryZ?nd
and~or Baltimore County, Maryland.
The managers on the part of the Senate
will move to concur in the amendment of
the House to the amendment of Lhe Senate.
Section 14 of this amendment prohibits
the sale and certain other methods of dis-
posal of lands in Lhe vicinity of Narfork
Lake, Arkansas without the specific approv-
al of Congress.
Section 15 of this amendment provides
that the Lotal amount appropriated to the
General Management and Administration
account is $120,774,000.
Section 18 of this amendment concerns
property located in Laurel, Maryland. The
Conferees have included this provision to
provide for a transfer of surplus property in
Laurel, Maryland to the Secretary of the
Army without consideration for use by the
Maryland National Guard.
Section 17 of this amendment concerns a
facility .at Avondale, Maryland. The Confer-
ees have included this provision to insure
that within 30 days after enactment the
Secretary of the Interior shall designate to
the Administrator of General Services a.
consolidated agency of no less than 400
people which will be relocated to the Avon-
dale property. The Administrator is expect-
ed to move quickly to renovate the Avondale
property for the designated agency and relo-
Cate the designated agency no later than 90
days after the renovation is completed.
Section 18 of this amendment deletes all
funding in this Act for the new construction
of the St. Croix Federal Building, Court-
house located in the Virgin Islands.
Section 19 of the amendment concerns the
Middle River Federal Depot. The Conferees
have. included this provision which prevents
GSA from selling, or in any way disposing
of, the Middle River Federal Depot located
in Baltimore County, 1Vlaryland before Octo-
ber i, 1989: The provision further provides
that G,SA ma.y sell this property before that
time if it enters into a mutually agreed upon
sale agreement with the State'of Maryland
and/or Baltimore County, Maryland.
NATIONAL ARCIiIVES AND RECORDS
ADbIINISTRATiaN
OPERATING EXPENSES
Amendment No: 93: Reported in technical
disagreement. The mangers on the part of
the House will offer a motion to recede and
concur in the amendment of Lhe Senate
amended to read as follows:
In lieu of the sum stricken and inserted by
said anendment,. insert the following:
,5121, 900, 000, of which $125, 000 shall be
made available directly to the Forbes Li-
branj, Northampton, Massachusetts for such
expenses as are necessary for the proper
preservation, restoration, ?nd display of the
Presidential papers of Calvin Coolidge, and
The managers of the part of the Senate
will move to concur in the amendment of
the House to the amendment of the Senate.
This amendment appropriates
$121,900,000 for Lhe National Archives and
makes available $125,000 for the Presiden-
tial papers of Calvin Coolidge.
Amendment No. 94: Deletes a phrase pro-
posed by the Senate which would make a
technical change in the sentence structure.
Amendment No. 95: Deletes a word pro-
posed by the Senate which would make a
technical change in the sentence structure.
Amendment No. 96: Restores a provision
proposed by the House and stricken by the
Senate which makes available $4,100,000 for
construction at the John F. Kennedy Li-
brary in Boston, Massachusetts.
OFFICE OF PERSONNEL MANAGEMENT
Amendment No. 97: Appropriates
$108,000,000 for salaries and expenses in-
stead of $107,477,000 as proposed by the
House and $108,9?7,000 as proposed by the
Senate.
Amendment No. 98: Reported in technical
disagreement. The managers on the part of
the House mill offer a motion to recede and
concur in the amendment of the Senate
amended to read asfollows: -
In lieu of the matter proposed by said
amendment, insert the following: not to
exceed $1,000,000 may be made available Jor
establishment of Federal he?lth promotion
and disease prevention programs for Federal
employees;
The managers on the part of the Senate
will move to concur in the amendment of
the House to the amendment of the Senate.
This amendment provides that OPM may
use up to.$1,000,000 for certain programs.
Amendment No. 99: Inserts the word
"and" proposed by the Senate.
Amendment No. 100: Reported in techni-
cal disagreement. The managers on the part
of the House will offer a motion to recede
and concur in the amendment of the Senate
amended to read as folilows:
In lieu of the matter proposed by said
amendment, insert the following: not to
exceed 5500,000 may be made available for
implementation of the Combined Federal
C?mpaign in fiscal year 1989;
The managers on the part of the Senate
will move to concur in the amendment of
the House to the amendment of the Senate.
This amendment provides that OPM may
use up to $500,000 for the CFC.
OFFICE OF SPECIAL COUNSEL
Amendment No. 101: Appropriates
$5.000,000 for salaries and expenses as pro-
posed by the Senate instead of $4,761,000 as
proposed by the House. .
TITLE V
GENERAL PROVISIONS-THIS ACT
Amendment No. 102:.Reported in techni-
cal disagreement. The managers on the part
of the House will offer a motion to recede
and concur in the amendment of the Senate
which prohibits the procurement of hand
and measuring tools not produced in the
United States unless certain conditions are
met.
Amendment No. 103: Inserts new section
number proposed by the Senate.
Amendment No. 104: Inserts new section
number proposed by the Senate:
Amendment No. 105: Inserts new section
number proposed by the Senate.
Amendment No. 106: Restores a provision
proposed by the House and deleted by the
Senate which prohibits the closing of a Fed-
oral Information Center of the General
Services Administration located in Sacra-
mento, California, and changes the section
number.
Amendment No. 107: Inserts a phrase pro-
posed by the Senate which prohibits the
transfer of the Federal Law Enforcement
Training Center located at Marana, Arizona
out of the Treasury Department. '
Amendment No. 108: Restores a provision
proposed by the House and deleted by the
Senate:
Amendment No. 109: Restores section
number proposed by the House.
Amendment No. 110: Restores section
number proposed by the Hours.
Amendment No. ill: Restores section
number proposed by the House.
Amendment No. 112: Restores a provision
proposed by the House and stricken by the
Senate which provides that funds shall be
used to evaluate, test, relocate, upgrade or
.purchase stockpile materials to meet certain
National Defense Stockpile goals and speci-
fications.
Amendment No. 113: Reported in techni-
cal disagreement. The managers on the part
of 'the House will offer a motion to recede
and concur in the amendment of the Senate
amended to read as follows:
In lieu of the section number named in
said amendment, insert the following: 519
The managers on the part of the Senate
will move to concur in the amendment of
the House to the amendment of the Senate.
This amendment prohibits the procure-
ment of stainless steel flatware not pro-
duced in the- United States except under
certain circumstances.
Amendment No. 114: Deletes a provision
proposed by the House and deleted by the
Senate regarding the "port of arrival imme-
diate release and enforcement determina-
tion" program.
Amendment No. 115: Restores a section
number proposed by the House.
Amendment No. 116: Reported in techni-
cal disagreement. The managers on the part
of the House will offer a motion to recede
and concur in the amendment of the Senate
amended to read as follows:
Restore the matter stricken by said
amendment, amended to read as follows:
Ssc. 521. Not later than October i, 1989, of
the a4nounts obtained .from the sale, tmns-
fer, or disposition of silver,from the Nation-
al Defense Stockpile, not less than 51,000,000
shall be obligated Jor a pilot project to up-
grade cobalt deposited in the National De-
fense Stockpile to the highest purity levels
required .for critical military applications.
The funds used in this section Jor upgrading
shall not exceed 52,000,000.
The managers on the part of the Senate
will move to concur in the amendment of
the House to the amendment of the Senate.
This amendment makes funds available in
the National Defense Stockpile for upgrad-
ing cobalt deposited in said Stockpile. Con-
ferees note the serious deficit of high purity
cobalt in the Stockpile and consequently
direct that these funds be obligated by Oc-
tober 1, 1989 to commence a pilot project to
upgrade cobalt deposited in the National
Defense Stockpile to the highest purity
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the House will offer a motion to recede and
concur in the amendment of the Senate
amended to read as follows:
Restore the matter stricken by said
amendment, amended to read as follows:
SEC. 522. The Administrator of General
Services, under section 210/hl of the Federal
Property and Administrative Services Act of
1949, as amended, may acquire, by means of
a lease of up to 30 years duration, sp?ee for
the United States Courts in Tacoma, Wash-
ington, at the site of Union Station,
Tacoma, Washington.
The managers on the part of the Senate
will move to concur in the amendment of
the House tq the amendment of the Senate.
This amendment provides authority to
the Administrator of General. Services to ac-
quire space for the United States Courts in
Tacoma, Washington.
Amendment No. 118: Restores a section
number proposed by the House:
Amendment No. 119: Restores a section
number proposed by the House:
Amendment No. 120: Restores a section
number proposed by the House.
Amendment No. 121: Restores in technical
disagreement. The managers on the part of
the House will offer a motion to recede and
concur in the amendment of the Senate
amended to read"as follows: '
In lieu of the section number named in
said amendment, insert the following: 526
The managers on the part of the Senate
will mgve to concur in the amendment of
the House to the amendment of the Senate.
This amendment provides that sums for
the 1989 pay raises authorized by this Act
shall be absorbed within the levels, appropri-
ated.
e a
n e ucataonal e~pertence Qf atte~
disagreement. The managers on, the part of dees at the Institute.
H 6y82 CONGRESSIONAL RECORD - k-IOU5~ August 11, 1988
levels required for critical military applica~ , plies- a"nd equipment for the Federal Eiecu- Amendrrteht - No. 136: Inserts a section
tions. five Institute for the enhancement of the number'proposed by the Senate.
Amendment No. 117: Reported in techical moral
d d -
In lieu of the matter proposed by said space and service levels based on amounts This amendment provides a pay increase
amendment, insert the following: appropriated. The Conferees are aware that for Federal employees. The Conferees
SEC. 527. (?lli/ Notwithstanding any other some Stahdard Level User Charge (SLUG) strongly support parity for civilian and mili-
provision of this Act, no department, requests are reduced with the expectation tart' employees in adjustments of compensa-
agency, or instrumentality of the United that the level of service provided by the tion. The Conferees have provided for a
States Government receiving appropri?ted GSA not be reduced. The Conferees'are also 4.1% adjustment for civilian workers as was
funds under this Act for fiscal year 1989, aware that those reductions are made be- provided in the Defense Authorization Bill
shall during fiscal .year 1989, obligate and cause SLUG estimates are not reviewed but approved by bdth Houses of Congress. The
expend funds for consulting services involy- simply included in an agency request. Since Conferees have remained silent on the mill-
ing management and professional services; such reductions have the effect of reducing ,tart', adjustment, however, military employ-
special studies and analyses; technical as- revenues ih the Federal Buildings Fund, the ees are. protected under section 1009 of Title
sist?nce; and .management review of pro- Conferees recommend that the problems 37 of the United States Code which provides
gram funded organizations; in excess of an that could be caused by such reductions be that military employees shall receive no less
amount equ?i to 85 percent of the amount reviewed. of an adjustment than civilian employees.
Amendment No. 127: Inserts a section The Conferees have excluded Members of
obligated and expended by such department, number proposed by the Senate.
agency, or instrumentality for such services Amendment No. 128: Inserts a sectIoh Congress from the pay adjustment along
dacring fiscal year 1987. number proposed by the Senate. with any employee whose basic rate of
(2l The teen "consulting services" shall be Amendment No. 129: Inserts a section salary is equal to or greater than level III of
defined co~asistent with the provision of number proposed by the Senate. the Executive Schedule C$82;500).
OMB Circ2clarA-120 dated January 4, 1988.. Amendment No. 130? Restores language Amendment No. 139: Deletes a provison
/b/ The Director of the Office of Manage- proposed by the House and deletes a phrase proposed by the Senate which would pro-
ment and Budget shall take such ?ction as proposed by the Senate which prohibits ren- vide fora 4% pay increase for all Federal
may be necessary, through budget instruc- ovating, remodeling, or making other employees except Members of Congress.
lions or otherwise, to direct e?ch depart- changes in offices under certain conditions Amendment No. 140: Deletes a provision
meat, agency, and instrumentality 4f ?the unless notice is given to the Committees on Proposed by the Senate which would require
United States to comply with the provisions Appropriations. The Conferees agree that that no pay increase for Members of Con-
of section 1114 of title 31, United Slates approval by (not notice to> the Committees press can be enacted unless certain proce-
Code. on Appropriations is required. dures are followed.
/c/ All savings to any department, agency, Amendment No. 131: Deletes a provision Amendment No. 141: Reported in techni-
or instrumentality which result from the ap= proposed by the House related to child care cal-disagreement. The mangers on the part
plication'of subsection /al, shall be used for services. The Conferees agree that this pro- of the House wilt offer a motion to recede
the 4.1 percent increase in rates of pay in vision is not necessary because it is perma- and concur in the amendment of the Senate
-.such department, agency, or instrumentality nent law. amended to read as follows:
made under this Act Amendment No. 132: Inserts a section In lieu of the matter "stricken by said
Sec. 528. Section 509 of this Act shall have number proposed by the Senate. amendment, insert the following:
no force or effect. Amendment No. 133: Inserts a sectign Sec. 621. Effective October 1, 1988, the Se~-
Sea 529. The Office of Personnel Manage- number proposed by the Senate. _ retary shall sell, within fiscal year 1989, 2.5
ment may, during the fiscal year- ending Amendment No. 134: Inserts a section million fine troy ounces of silvr-held by the
September 3U, 1989, accept donations of sup- number propgsed by the Senate. Treasury sugject to Sec: 824 of this .Act q
The managers on the part of the Senate
will move to concur in the amendment of
the House to the amendment of the Senate.
Section 527 of this amendment limits ex-
penditures for certain consulting services.
Section 528 of this amendment nullifies
Section 509 of the general provisions in this
Act. The Conferees have included a provi-
sion which nullifies and thereby gives ho
meaning, force or effect to section 509 of
the bill. This approach is necessary because
technical factors which relate solely to the
rules and procedures of Congress prevent
the Conferees from simply deleting the text
of section 509. It is the intent of Congress
that section 528 operate tq nullify section
b09 and have the same result as if section
509 did hot appear as part of the text of the
Treasury, Postal Service and General Gov-
ernment Appropriations Act, 1989. Section
509 has been rendered unnecessary by the
enactment of a provision of law (Section
8093 of the Departanent of Defense Appro-
priations Aot, 1988, P.L. 100-202) which the
General Accounting Office has correctly de-
termined to be permanent and government-
wide. (See the April 11, 1988 letter opinion
of the Comptroller General.)
Section 529 of this amendment authorizes
the Office of Personnel Management to
accept certain donations.
heading proposed by the house and deleted
by the Senate.
.Amendment No. 137: Restores a provision
proposed by the House and deleted by the
Senate which prohibits the government
from interfering ,with Federal employees
disclosure of information under certain cir-
cumstances,
Amendment No. 138: Reported in techni-
cal disagreement. The managers on the part
of the House will offer a motion to recede
and concur in the amendment of the Senate
amended to read as follows:
In lieu of the matter stricken by said
amendment, insert the following:
SeC. 620. lal(11 Notwithstanding any other
provision of Zaw, in the case of fiscal year
1989, the overall percentage of the adjust-
ment under section 5305 of title 5, United
States Code, in the rates of 'pay under the
General Schedule, and in the rates of pay
under the other statutory pay systems /as de-
fined by section 53011e1 of such title/, shall
6e an increase of 4.1 percent
121 Each increase in a pay rate or schedule
which takes effect pursuant to paragraph l1l
shall, to the maximum extent Pr?cticable, be
of the same percentage, and shall take effect
as of the first day of the first applicable pay
period commencing on or after January- 1,
1989.
TYTLE VI-GENEFZAL PFZ?~1ISIONS Iblll/ Notwithstanding any other provi-
DEPARTMENTS, AGENCIES AND CORPORATIONS sion of this Act or any other law, no adjusl-
Atnendment No. 123: Deletes a provision ment in rates of pay under section 5305 of
proposed by the House and stricken by the title 5, United States Code, which becomes
Senate which would have prohibited certain eJ.fective on or after October 1, 1988, and
Ptarchase contract projects. before October 1, 1989, shall have the effect
Amendment No. 124: Inserts a section of increasing the rate of salary or basic pay
number proposed by the Senate. for any
Amendment No. 125: Inserts a section The managers on the part of the Senate
number proposed by the Senate. will move to recede and concur in the
Amendment No. 126: Deletes a provision amendment of the House to the amendment
Amendment No. 122: Reported in techni-
cal disagreement. The managers on the-part
of the House will offer a motion to recede
and concur in the amendment of the Senate
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^ ~ .,,.
August 11, 188 CONGRESSIONAL RECORD --HOUSE ~I 6983
The managers on the part of the Senate In lieu of the matter stricken by said where the family will reside! if such individ-
u?ill move to concur in the amendment of amendment, insert the following: ual-
the House to the amendment of the Senate. Sec. 628. lal No department, agency, or in- `yA/ during the Jive years preceding eligi-
This amendment 'mandates 'the. ?sale of strumentality of the United States receiving bility to receive an annuity under subchap?
silver subjectto'certain conditions. appropriated funds under this Act for fiscal ter III of chapter 83; or of chapter 84 of this
Amendment No. 142:. Reported in techni= year.1989, or under any other Act appropri- title, and there?JEer, has been transferred in
cal disagreement' The managers an-the part acing .funds for fiscal year 1989, shall obli- the interest of the Government from one of-
of th"e House will offer a motion to recede gate. or expend any. such funds, unless such jicial station to another for per?zurzent duty
and concur fn the amendment of the Senate department, agency, or instrumentality has as a. career ?ppointee in the Senior Execu-
amended to read as follows: in place, and will continue to administer in live Service; and
In lieu of the matter stricken by said good .faith, a written policy designed to ,ygl ~ eligible to receive an anzzuity upon
amendment insert the following: ensure that all of its work places are free such separation under the provisions of sub-
Sec: 622. Effective October i, 1989, the Sec- from the illegal use, possession, or distribu- chapter III of chapter 83 or chapter 84 of
retary shall sell, within fiscal year 1990, 2.5 lion of controlled substances (as defined in this title.':
million fine troy ounces ojsilver held by the the Controlled Substances ActJ by the offi- !bl The amendments made by subsection
Treasury subject to Sec. 624 of this Act. cers and employees of such department, lal shall be carried out by agencies by the
The managers on the part of the Senate agency,. or instrumentality.
will move:to concur in the amendment of 161 No funds so appropriated to any such use of funds .appropriated or .otherwise
the House to the amendment of the Senate. department, agency, or instrumentality available for the administrative expenses of
This amendment mandates the sale of shall be available for payment in connection each of such respective agencies. The amend-
silver under certain conditions. with any grazzt, contract, or other ?gree- meats made by such subsection do not ?zo-
Amendment No. 143: Reported in techni- mend unless the recipient of such grant, ~?~e ~ appropriation of funds iu
cal disagreement. The managers on the part contractor, or party to such agreement, as amounts exceeding the sums othenoise au-
of the House will offer a motion to recede ~ case may be, has in place and will con- thorized to be appropriated for such agen-
and concur in the amendment of the Senate time to administer in good faith a written cxes.
amended to read as follows: policy, adopted by such recipient, contrac- The managers on the part of the Senate
In lieu of the matter stricken by said tor, or party's board of directors or other will move to concur in the amendment of
amendment, insert the following: governing ?uthority, satisfactory to the the House to the amendment of the Senate.
Sec. 623. Effective October 1, 1990, the Sec- head of the department, agency, or instru- This amendment authorizes certain pay-
retary shall sell, within fiscal year 1991, 2.5 mentality making such payment, designed meats related to certain relocation expenses
million Line troy ounces of silver held by the to ensure that all of the workplace of such for Senior Executive Service personnel.
Treasury subject to Sec. ?624 of this Act. recipient, contractor, or party are free from Amendment No. 153: Reported in-techni-
The managers on the part of the Senate cal disagreement. The managers on the part
the illegal use, possession, or distribution of
will move to concur !n the amendment of controlled substances !as defined in the Con- of the House will offer a motion to recede
the House to the amendment of the Senate. trolled Substances Actl by the officers and and concur in the amendment of the Senate
This amendment .mandates the sale of amended to read as follows:
silver under certain conditions. employees of such recipient, contractor, or In lieu of the section .number named in
party.
Amendment No. 144: Restores a provision said intendment, insert the following: 630
The managers on the part of the Senate
proposed by the House and stricken by the will move to concur in the amendment of The managers on the part of the Senate
Senate and changes the section number. will move to concur in the amendment of
the House to the amendment of the Senate.
This amendment allows the Secretary of This amendment provides authority the House to the amendment of the Senate.
the Treasury to reduce the amount of silver This amendment makes technical and con-
sold if he submits a written determination Which will help to achieve a drug free work- forming changes to existing law related to
to Congress that such a sale severely dis- plaC~' the transfer of the William Lariger Jewel
rupts the domestic market for silver. The Amendment No. 150: Deletes a provision gearing Plant from General Services Ad-
Committee understands that silver sales in a proposed by the Senate regarding interagen- ministration to the National Defense Stock-
declining market shall be considered severe- cy funding. pile.
ly disruptiy~ to the domestic market for Amendment No: 151: Deletes a provision Amendment No. 154: Repotted in Lecllni-
silver. proposed by the Senate which would have cal disagreement. The managers on the part
Amendment No. 145: Reported in techni- eliminated a requirement for an analysis to of the House will offer a motion to recede
cal disagreement. The managers on the part' be done by the Office of Management and 'and concur in the amendment of the Senate
of the Hours will offer a motion to recede Budget. amended to read as follows:
and concur In the amendment of the Senate Amendment No. 152. Reported in techni- In lieu of the section number named iIi
ameltded to read as follows: cal disagreement. The managers on the part said amendment, insert the following: 631
In lieu of the section number named in of the, House will offer a motion to recede -The managers on the part of the Senate
said amendment, insert the following: 625 and concur in the amendment of the Senate will move to concur in the amendment on
The managers on the part of the Seriate amended to read as follows: the House to the amendment of the Senate.
will move to concur in the amendment. of In ,lieu of the matter proposed by said This amendment provides that a certain
the House to the amendment of the Senate. amendment; insert the following: hospital is deemed to be located in Franklin
This amendment prohibits the purchase, SEC. 629. (al Section 57241x1 of title 5, County, Missouri retroactively effective for
construction, or lease of space under certain United States Code, is amended- discharges beginning on or after December
conditions for law enforcement training. /1/ by striking out "and" at the end of 22, 1987.
Amendment No. 146: Reported In techni- paragraph (11; Amendment No. 155: Deletes a provision
oil disagreement. The managers on the part 12/ by strtking out the period at the end of proposed by the Sedate which would pro-
of the House will offer a motion to recede paragraph 121 and inserting in lieu thereof vide that none of the funds appropriated by
and concur in the amendment of the Senate ;' and';- and this Act may be obligated or expended to
amended to read as follows: 131 by adding at the end the following: enter into any contract for the construction,
In lieu of the section number named in 131 upon the separation of a career ?p- alteration, or repair of any public building
said amendment, insert the following: 626 pointee (as defined in section 31321a1(4J of or public work in the United States or any
The managers on the part of the Senate this title/, the travel expenses of that.indi- territory or.possession of the United States
will move to concur in the amendment of vidual, the transportation expenses of the with any contractor or subcontractor of a
the House to the amendment of the Senate. immediate family of such individual, and foreign country, or any supplier of products
This amendment provides certain benefits the expenses of movizzg !including trans- of a foreign.country, during any period in
to certain employees of the Federal Proper- porting, p?cking, crating, temporarily stor- which that foreign country denies certain
ty Resources Service of the General Serv- ing, dra_ving, and unpacking) the household market opportunities for products and serv-
ices Administration. goods of such individual and personal ej- ices of the United States.
Amendment No. 147: Deletes a provision Jects not in excess of 18,000 pounds net
proposed by the Senate which would allow weight, to the place where the individal will DEFINITION OF PROGRAM, PROJECT, AND
funds to be Used for One year' contracts reside within the United States, its territo- ACTIVITY
which are to be performed In two fiscal. Ties or possessions, the Commonwealth oJ, During fiscal year 1989, for purposes of
years under certain circumtarlces. Puerto Rico, or the areas and installations the Balanced Budget and Emergency Deficit
Amendment No. 148: Restores a section in the Republic of Panama m?de available Control Act of 1985 (Public Law 99-177), as
number proposed. by the House. to the United States pursuant to the amended, the following information pro-
- Amendment No. 149: Reported in techni- Panarria Canal Treaty of 1977 and related. older the definition of the term "program,
cal disagreement. The managers on the part agreements, as described in section 31a1 of project, and activity" for departments and.
a of the.House will offer a, motion to recede th8 Panama Canal Act of 1979 /or, of the in- agencies under the jurisdiction of the Treas-
and concur in the amendment of the Senate dividual dies before the travel,. transports- ury, Postal. Service, and General Govern-
amended to read as follows: lion, and moving is completed, to the place- meat Subcommittee. The term "program;-
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~i X954
CONGRESSIONAL RECORD -HOUSE
August 11, 19&S.
project, and activity" shall include the most
specific level of budget items identified as a
dollar amount in the Treasury, Postal Serv-
ice, and General Government Appropria-
tions Act, 1989 (H.R. 4775), the House and
Senate committee reports (H. Rept. 100-
679) and S. Rept. 100-387), and the confer-
ence report and accompanying joint explan-
atory statement of the managers of the
committee of conference (Under the above
definition, the Federal Buildings Fund, the
Bureau of Engraving and Printing Fund,
and other intragovernmental funds are
among the accounts exempt from sequestra-
tion altogether.).
In implementing a Presidential Order, de-
partments and agencies shall apply the per-
centage reduction required for fiscal year
1989 pursuant to the provisions of Public
Law 99-177, as amended, to each budget
item that is listed under said accounts in the
budget justifications submitted to the
House and Senate Committees on Appro-
priations as modified by subsequent appro-
priataons acts (including joint resolutions
providing continuing appropriations), and
accompanying House and Senate Committee
reports, conference reports, or joint explan-
atory statements of the committee of con-
ference.
CONFERENCE TOTAL-WITH COMPARISONS
The total new budget (obligational) au-
thority for the fiscal year 1989 recommend-
ed by the Committee of Conference, with
comparisons to the fiscal year 1988 amount,
the 1989 budget estimates, and the House
and Senate bills for 1989 follow:
New budget (obligational)
authority, fiscal year
1988 ..................................... $15,115,699,000
Budget estimates of new
(obligational) authority,
fiscal year 1989 ................. 16,163,725,000
House bill, fiscal year 1989 16,113,771,000
Senate bill, fiscal year
1989 ..................................... 15,917,514,000
Conference agreement,
fiscal year 1989 ................. 16,019,910,000
Conference agreement "
compared with:
New budget (obligational)
authority, fiscal year
1988 ..................................... +904,211,000
Budget estimates of new
(obligational) authority,
fiscal year 1989 ................. -143,815,000
House bill, fiscal year 1989 -93,861,000
Senate bill, fiscal year
1989 ..................................... +102,396,000
EDWARD R. ROYBAL,
DANIEL K. AKAKA,
STENY H. HOYER,
RONALD D. COLEMAN,
EDWARD P. BOLAND,
SIDNEY R. PATES
(except 92),
JAMIE L. WHITTEN,
JOE SKEEN,
BILL LOWERY,
FRANK R. WOLF,
SILVIO O. CONTE,
Mangers on the Part of the House.
DENNIS DECONCINI,
WILLIAM PROXMIRE,
B.A.1vIIKULSKI,
JOHN C. STENNIS,
PETE DOMENICI,
. ALFONSE M. D'AMATO,
MARK O. HATFIELD,
M?n?gers on the Part of the Senate:.
CONFERENCE REPORT ON H.R.
. 4387
Mr. STOKES submitted the follow-
ing conference report and statement
on the bill (H.R. 4387) to authorize ap- and intelligence-rel?ted activities of the ele-
propriations for fiscal year 1J89 for in- ments listed in such section, ?re those speci-
telligence and intelligence-related ac- fled in the classified Schedule of Authoriz?-
tiVltieS of the United States Govern- bons prepared by the committee of confer-
ment, for the Intelligence Community ence to accompany KR. 4387 of the One
Staff, for the Central Intelligence Hundredth Congress.
Agency Retirement and Disability Ibl The Schedule of Authorizations de-
System, and for other purposes: scribed in subsection (?I sh?iZ be made
available to the Committee on Apprapria-
CONFERENCE REPORT (H. KEPT. 100-879) Lions Of the Senate ?nd Of the Honse Of Rep-
The committee of conference on the dis- resentatives and to the President. The Presi-
agreeing votes of the two Houses on the dent shall provide jor suit?ble distibution df
amendment of the Senate to the bill (H.R. the Schedule, or of appropriate portions of
4387) to authorize appropriations far fiscal the Schedule, within the executive br?nch.
year 1989 for intelligence and Intelligence- PERSONNEL cEltaxG ADJUSTMENTS
related activities of the United States Gov-
ernment, for the Intelligence Community SEC. 103. The Director of Central Intelli-
Staff, for the Central Intelligence Agency Bence may authorize employment of civilian
Retirement and Disability System, and for personnel in excess of the numbers author-
other purposes, having met, after full and ized for fiscal year 1989 under sections 102
free conference, having agreed. to recom- and 202. of this Act when he determines that
mend and do recommend to their respective such action is necesssary to the perform?nce
Houses as follows: of important intelligence ,functions, except
That the House recede from its disagree- that such number m?y not, jor any element
went to the amendment of the Senate and of the Intelligence Community, exceed 2 per
agree to the same with an amendment as centum of the number of civilian personnel
follows: authorized under such sections jor such ele-
In lieu of the matter proposed to be in- ment. The Director of Central Intelligence
serted by the Senate amendment insert the shall promptly notify the Permanent Select
following: Cormittee on Intelligence of the House of
That this Act may be cited as the `7ntelli- Representatives and the Select Committee
Bence Authorization Act Fisc?Z Year 1989." on Intelligence of the Senate whenever he ex-
TITLE I-INTELLIGENCE ACTIVITIES ercises the authority granied by this section.
AUTHORIZATION OF APPROPRIATIONS .RESTRICT/ON ON SUPPORT FOR hfILJTARY OR
SEC. 101. (al Funds are hereby authorized FARAMILITARY OPERATIONS IN NJCARAGUA
to be appropriated jor jisc?l year 1989 for -SEa 104. Funds available to the Central
the conduct of the intelligence and intelli- Intelligence Agency, the Department of De-
gence-related activities of the following ele- Tense, or any other ?gency or entity of the
ments of the United States Government: United St?tes may be obligated and expend-
(Il The Central Intelligence Agency. ed during fiscal year 1989 to provide funds,
/21 The Department of Defense. materiet or other ?ssist?nce to the Nicara-
(31 The Defense Intelligence Agency. guan democratic resistance to support mili-
/41 Thz National Security Agency. Lary or p?r?military operations in Nicara-
(5/ The Department of the Army, the De- gua only ?s authorized in section 101 and ?s
partment of the Navy, and the Department specified in the classified Schedule of Au-
of the Air Force. thorizations referred to in section 102, or
/61 The Department ojState. pursuant to section 502 of the National Se-
(7) The Department of the Tre?sury. curity Act of 1947, or pursuant to any provi-
/81 The Department of Energy. sion of law specZficaiZy providing such
/9/ The Feder?1 Bureau of Investigation. funds, materiel or assistance.
(101 The Drug Enforcement Administra- TITLE II-INTELLIGENCE COMMUNITY
tion. STAFF
lbl None of the funds authorized to be ap-
propri?ted by this ACt may be used t0 pT0- AUTHORIZATION OF APPROPRIATIONS
cure more th?n three GUARDRAIL RC-12X SEa 201. There is ?uthorized to be ?ppro-
aircraft and sensor suites until the Depart- pri?ted for the Intelligence Community
ment of the Army has submitted to the Per- Stajj jor fiscal year 1989 the sum of
manent Select Committee on Intelligence $23,745,000.
and the Committee on Armed Services of the
House of Representatives and to the COm- AUTHORIZATION OF PERSONNEL END STRENGTH
mittee on Armed Services of the Senate a
report detailing the Zong-range pl?ns and
budgetary commitments to meet the future
requirements jor t?rtical airborne recon-
n?issance in support of the United States
Army. The report should include, but not be
limited to, the contribution of remotely pi-
loted vehicles ?nd other reconnaissance
assets.
lcl Of the funds authorized to be appropri-
?ted in this Act jor the Defense Intelligence
Agency, the Seeret?ry of Defense m?y trans-
fer not to eseeed $15,100,000 to ?ppropri?-
tions for. the foreign counterintelligence ?c-
tivities jor the Federal Bureau of Investiga-
tion.
ldl The expiration date provided for in
section 8031b1 of the Intelligence Authoriza-
tion Act jor Fiscal Ye?r 1'986 (Public L?w
SEa 202. la/ The Intelligence Community
Staff is ?uthorized 244 full-time personnel
?s of September 30, 1989. Such personnel of
the Intelligence Community Staff may be
perm?nent employees of the Intelligence
Community Stajj or personnel detailed from
other elements of the United St?tes Govern-
ment.
(bl During Fiscal Year 1987, person~:el of
tlae Intelligence Community Staff shall be se-
lected so as to provide appropriate represen-
t?tion from elements of the United States
Government engaged in intelligence and in-
telligence-rel?ted activities.
lcl During Fiscal Ye?r 1989, any officer or
employes of the United States or a member
of the Armed Forces who is detailed to the
Intelligence Community Staff from ?nother
?i.,,..,,,..s ,a ss... .,__._~ ... _,_ .._. .
-
,eu,c vc acccv.cu:u we u T6Z7lC07bTS?Ole. D?S2S,
1989. ~ .
except that any such officer, ;employee or
CLASSIFIED SCHEDULE OF AUTHORIZATIONS member may be detailed on ? nonreimbursa-
SEC. 102. (21 The amounts authorized to be ble basis jor ? period of less ,than .one ye?r
appropriated under section 101, and the au- jor the performance of temporary Junctions Q
thorized personnel ceilings as. of September as required by. the Director of Central InteZ-
30, 1989, for the conduct of the intelligence Ligence..
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100Tx CONGRESS ~ ?
`ZD SEB6ION
.4775
IN THE HOUSE OF REPRESENTATIVES
JuIvE 27, 1988
Ordered to be printed R~ith the amendments of the Senate numbered
Making appropriations for the Treasury Department, the United
States Postal Service, the Executive Office of the Presi-
dent, and certain Independent Agencies, for the fiscal year
ending September 30, 1989, and for other purposes.
1 Be it enacted by the Senate a-nd House of I-lePresenta-
2 tives o f the United States o f America. in Congress assembled,,
3 That the following sums a,re appropria-ted, out of any money
4 in the Treasury not otherwise appropriated, for the Treasury
5 Department, the United States Postal Service, the Executive
6 Office of the President, and certain Independent Agencies,
7 for the fiscal year ending September 30, 1989, a-nd for other
8 puIposes, namely:
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89
1 Laws 99-500, 99-591, and 100-202 may continue and may
2 cover additional employees in fiscal year 1989, the Office of
3 Personnel management may continue to operate by regula-
4 tion, notwithstanding chapter 63 of title 5, United States
5 Code, a program under which the unused accrued annual
6 leave of officers or employees of the Federal Government
7 may be transferred for use by other officers or employees who
8 need such leave due to a personal emergency as defined in
9 the regulations. The Office may provide by regulation for
10 such exceptions from the provisions of section 7351 of title 5
11 as the Office may determine appropriate for the transfer of
12 leave under this section. The Veterans' Administration may
13 operate a similar program for employees subject to section
14 4108 of title 38, United States Code. The programs operated
15 under this section shall expire at the end of fiscal year 1989,
16 but any leave that has been transferred to an officer or em-
17 ployee under the programs shall remain available for use
18 until the personal emergency has ended, and any remaining
19 unused transferred leave shall, to the extent administratively
20 feasible, be restored to the leave accounts of the officers or
21 employees from whose accounts it was originally transferred.
22 (136) A nnrttallT?T.nn
23 (137)~~~-~ ~e~~
24 et-he~ ~ ?er ?sea~ 3~ 418 be ueed to bnp'lemea~ e~
25 enferee tke ~ ~ 4S8 a~ 4~-9~3 e?
HR 4775 PP--7
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90
1 ~e e~ a~ e ~ ~- ?e~ e~
2 $g~ee~e~ ~? s~e~ ~e~e~; ?s~ e~ ~ee~e~~
5 e~~ee ~e ~e e~rs~~; e~; ~e~a~~e~ ~ ~a~
6 ~ e~~~ee ~e ~e ~r ~e ~eecss e? s
7 air;
11 ~es~'~- e~~~~ #~re e? a~ ~~ ~e
12 ~ e~ ~~s e? E~~ ~
13 a seet~~ e~ a~ ~~e~e~ ~ ~e a~ ~'~
14 ~r~ e# ~e E~~
16 ~ -~ ~ ~ a see~~
17 a~ $~ ~ tie ~~ $~~~ e# #~e ~e~-
18
19 ~ ~~ ~` e~~ga~a~~ e~ ~s ~
20 des ~~=sue sit-~~;~e~'~
21 ~'~,e~i~e~ ~:~ ~~ ~ see~e~ s~1 $?~ee~ #~e e~-
24 ~e~a~:
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104
1 repair o f a public building or public work, o f vehicles
2 or construction equipment of a foreign country.
3 (5) The terms "contractor" and "subcontractor"
4 includes any person performing any architectural, en-
s gineering, or other services directly related to the prep-
6 oration. for or performance of the construction, alter-
? otion, or repair.
8 (e) Paragraph. (a)(1) of this section shall not apply to
9 contracts entered into prior to the date o f enactment o f this
10 pct.
11 (f) The provisions o f this section are in addition to, a.nd
12 do not limit or supersede, any other restrictions contained in
13 any other Federal law.
14 This Act. may be cited as the "Treasury, Postal Service
15 and General Government Appropriations Act, 1989".
Passed the House of Representatives June 14, 1988.
Attest: DONNALD B. AI~TDERSON,
Clerk.
Passed the Senate with amendments June 27, 1988.
Attest: ~fiALTER. J. STEV~'AR~T,
Secretary.
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JACK BROOKS, TF7fA8. CHAIRMAN
JOHN CONYERS. JR., MICHIGAN
STEPHEN L HEAL. NORTH CAROLINA
SARNEY FRANK, MASSACHUSETTS
ROBERT E WISE J0., WEST VIRGINIA
9EN EROREICN, ALABAMA
GERALD D. KLECZKA WISCONSIN
~ongre~,~ of the ~lnite~ Mates
~unse of 'Re~resrntedues
LEGISLATION AND NATIONAL SECURITY SUBCOMMITTEE
OF THE
COMMITTEE ON GOVERNMENT OPERATIONS
RAYBURN MOUSE OFFICE BUILDING. ROOM 8-373
WASHINGTON, DC 20515
HEARING ON CONGRESS AND THE
ADMINISTRATION'S SECRECY PLEDGES
LEGISLATION AND NATIONAL SECURITY SUBCOMMITTEE
Wednesday, August 10, 1988, 10:00 a.m.
Room 2154 Rayburn House. Office Building
WITNESSES
Panel:
Honorable William Proxmire
United States Senate (Wisconsin)
Honorable Charles E. Grassley
United States Senate (Iowa)
Honorable Barbara Boxer
House of Representatives
(6th District, California)
Honorable Charles McC. Mathias
Former Senator (Maryland)
Jones, Davis, Reavis and Pogue
Honorable James C. Miller, III
Director
Office of Management and Budget
Honorable Stansfield Turner
Former Director
Central Intelligence Agency
Panel
Professor Harold H. Bruff
Redditt Professor of Law.
University of Texas at Austin
Professor Michael Glennon
Law School
University of California at Davis
Mr. Louis J. Rodrigues
Associate Director
National Security and International.Affairs Division
General Accounting Office
FRANK MORTON, NEW YORK
ROBERT S. WALKER, PENNS~'LVANIA
BEAU SOULTER. TEKAS
DONALD E. LUKENS. ONTO
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STATEh1Et~T OF THE HONORABLE FkANK HURTUN
LEGISLATION AND NATIONAL SECURITY SU.BCOMMIT.TEE
AUGUST 10, 1985
MR. CHAIRMAN, IT IS A PLESURE TO JOIN YOU HERE TODAY FOR
THIS MOST IMPORTAtJT HEARING. WE ARE GOING TO EXAMINE AN AREA
THAT SHOULD INTEREST EVERY MEMBER OF CONGRESS AND EVERY AMERICAN
AS WELL. WE WILL EXAMINE THE USE OF NONDISCLOSURE AGREEMENTS
AND PRE-PUBLICATION REVIEW CONTRACTS, THE CONDITIONS UNDER WHICH
THESE ARE AND SHOULD BE WARRANTED, AND THE ROLE OF CONGRESS IN
SETTING PARAMETERS FOR THEIR USE.
THE ISSUES ARE COMPLEX AND RAISE QUESTIONS ABOUT THE BALANCE
BETWEEN LEGITIMATE NATIONAL SECURITY .CONCERNS ON ONE HAND AND
CONSTITUTIONAL RIGHTS ON THE OTHER.
A RECENT FEDERAL DISTRICT COURT RULED AS UNCONSTITUTIONAL
CONGRESS ROLE IN THE USE OF NONDISCLOSURE AND PREPUBLICATION
REVIEW AGREEMENTS. THE SAME COURT, HOWEVER, ONLY A FEW WEEKS
LATER, RULED AS UNCONSTITUTIONAL SOME OF THE VERY ELEMENTS OF
THESE AGREEMENTS WHICH CONGRESS SOUGHT TO ELIMINATE. I
UNDERSTAND THAT THE FIRST DECISION THE ONE REGARDING THE ROLE
OF CONGRESS IN THIS .AREA -' IS CURRENTLY ON APPEAL TO THE
SUPREMEN COURT. I HOPE THIS CASE IS HEARD.
I HOPE IT IS HEARD FOR A NUMBER OF REASONS, NOT THE ,LEAST OF
WHICH IS MY SUSPICION THAT THIS CASE MAY HAVE IMPLICATIONS FOR
OTHER LAWS GOVERNING ACCESS TO INFORMATION -' PRESIDENTIAL
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DOCUMENTS IN PARTICULAR.- LAWS THAT COME TO MIND ARE THE
INSPECTOR GENERALS ACT, THE FREEDOM OF INFORMATION ACT, THE
CLASSIFIED INFORMATION PROCEDURES ACT, CERTAIN WHISTLEBLOWER
PROTECTION STATUTES AND OTHERS.
MR. CHAIRMAN, I UNDERSTAND AS WELL AS ANYONE THE IMPORTANCE
OF CONTROLLING SENSITIVE, CLASSIFIED INFORMATION. THOSE WHO
WANTONLY AND KNOWINGLY DISCLOSE SUCH INFORMATION SHOULD BE
PUNISHED WITH THE FULL FORCE OF LAW, WHETHER OR NOT THEY HAVE
SIGNED THESE NON-DISCLOSURE AGREEMENTS. THAT SAID, I BELIEVE
STRONGLY THAT AGREEMENTS BINDING GOVERNMENT EMPLOYEES TO
NON-DISCLOSURE OF INFORMATION, AND GOVERNMENT CONTROL OF THEIR
WRITING, SHOULD BE RESTRICTED TO CLASSIFIED INFORMATION ONLY. I
BELIEVE ALSO THAT ACCESS BY INDIVIDUALS WISHING TO DISCLOSE
INFORMATION TO PIEMBERS OF CONGRESS SHOULD NOT BE RESTRICTED, SO
LONG AS CONTACT CONFORMS TO ESTABLISHED RULES OF THE HOUSE AND
SENATE.
h~R. CHAIRMAN, MORE THAN ~UU,000 PRE-PUBLICATION REVIEW
CONTRACTS ARE IN FORCE. THIS NUMBER INDICATES TO ME THAT
CONTROLS ARE NEEDED OVER THEIR USE, AND THAT PERHAPS CONDITIONS
UNDER WHICH THESE ARE PRESCRIBED OUGHT- TO BE MORE NARROWLY
DEFINED. I LOOK FORWARD TO EXPLORING THIS ISSUE TODAY.
FINALLY, t~IR. CHAIRMAN, I WANT TO MAKE THIS POINT. I AM
DISTURBED BY WHAT I SEE AS A TREND IN CONGRESS ABDICATING I7S
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AUTHORITY IN CRITICAL AREAS. IN THE PAST EIGHT WEEKS ALONE WE
NAVE CONSIDERED LEGISLATION TO GRANT SWEEPING AUTHORITY TO THE
SECRETARY OF DEFENSE TO CLOSE MILITARY BASES NATIONWIDE -' WITH
NO CONGRESSIONAL OVERSIGHT. WHY? THE CONCLUSION I HEARD MOST
OFTEN WAS THAT CONGRESS CAN NO LONGER AND THEREFORE SHOULD NOT
BE TRUSTED WITH THIS,.ITS LEGITIMATE TASK.
WE HAVE EXAMINED THE USE OF NATIONAL SECURITY DECISION
DIRECTIVES, WHEREBY EVERY NRE,SIDENT SINCE HARRY TRUMAN HAS
IMPLEMENTED POLICIES WITH NO ACCOUNTABILITY WHATSOEVER. AND
AGAIN WE HEARD SUGGESTIONS THAT CONGRESS COULD NOT BE TRUSTED TO
KNOW.
NOW WE ARE QUESTIONING THE ROLE OF CONGRESS IN SETTING
PARAMETERS FOR THE USE OF NONDISCLOSURE AGREEMENTS. AS I HAVE
STATED, THERE ARE CIRCUMSTANCES THAT WARRANT THEIR USE, MOST
NOTABLY IN THE AREAS OF NATIONAL SECURITY AND INTELLIGENCE.
HOWEVER, THESE SHOULD:NOT BE USED IRRESPONSIBLY AND ON A
,WIDESPREAD BASIS. CONGRESS SHOD SHAPE POLICIES THAT GOVERN
THEIR USE AND STRIKE THE NEEDED BALANCE BETWEEN CRITICAL
NATIONAL SECURITY NEEDS AND CUNSTITUTIONAL GUARANTEES.
SIR. CHAIRMAN, AGAIN, I AM VERY PLEASED TO JOIN YOU IN THIS
HEARING THAT WILL EXAMINE CONTROL OF CRITICAL INFORMATION,
CONSTITUTIONAL ISSUES AND ISSUES OF CHECKS'APJD'BALANCES BETWEEN
OUR THREE BRANCHES OF GOVERNMENT..
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Opefling Statement of Chairman Jack Brooks
Hearing on Congress and the Administration's Secrecy Pledges
Legislation and National Security Subcommittee
Wednesday. August 10, 1988
THIS MAY, A FEDERAL DISTRICT JUDGE OVERTURNED A STATUTE --
PASSED BY CONGRESS AND SIGNED INTO LAW BY THE PRESIDEIv'T ---WHICH
PLACED A ONE-YEAR MORATORIUM ON THE ADMINISTRATION'S USE OF SECRECY
PLEDGES. STATING THAT "THE STATUTE IMPERMISSIBLY RESTRICTS THE
FRESIDENT'S POWER TO FULFILL OBLIGATIONS IMPOSED UPON HIM BY HIS
EXPRESS CONSTITUTIONAL POWERS AND THE ROLE OF THE EXECUTIVE IN
FOREIGN RELATIONS," THE JUDGE RULED THAT THE STATUTE WAS
"UNCONSTITUTIONAL". THAT CASE IS PRESENTLY ON APPEAL TO THE
SUPREME COURT.
THE GOVERNMENT OPERATIONS COMMITTEE HAS LONG HAD AN INTEREST
IN THE USE OF SECRECY PLEDGES. IN 1983, THE COMMITTEE ADOPTED A
REPORT ENTITLED "THE ADMINISTRATION'S INITIATIVES TQ EXPAND
POLYGRAPH USE AND IMPOSE LIFELONG CENSORSHIP ON THOUSANDS OF
GOVERNMENT EMPLOYEES" (MOUSE REPORT N0. 98-5'78), IN WHICH THE
COMMITTEE FOUND THAT THE "PREPUBLICATION REVIEW AGREEMENTS" IN
THESE SECRECY CONTRACTS "CONSTITUTE AN UNWARRANTED PRIOR RESTRAINT
IN VIOLATION OF THE FIRST AMENDMENT" AND THAT THEY POSE "A SERIOUS
THREAT TO FREEDOM OF SPEECH AND NATIONAL PUBLIC DEBATE." THE
COMMITTEE RECOMMENDED THAT THE PRESIDENT'S REQUIREMENTS FOR
PREPUBLICATION REVIEW, CONTAINED IN NATIONAL SECURITY DECISION
DIRECTIVE 84, BE RESCINDED AND, IF NOT, THAT THE CONGRESS ENACT
LEGISLATION PROHIBITING THEM. A MORATORIUM ON THE USE OF THE
CENSORSHIP REQUIREMENTS, SPONSORED BY SENATOR MATHIAS, WAS QUICKLY
ENACTED {SECTION 1010 OF PUBLIC LAW 98-164).
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2
THE NEXT YEAR, I INTRODUCED LEGISLATION THAT WOULD HAVE
PROHIBITED SUCH CENSORSHIP CONTRACTS PERMANENTLY. AS MY BILL WAS
PROCEEDING THROUGH CONGRESS, THE PRESIDENT ANNOUNCED HIS INTENTION
TO SUSPEND THE CENSORSHIP REQUIREMENTS IN HIS DIRECTIVE. AS I WAS
TO LEARN LATER, THAT SUSPENSION WAS ILLUSORY; THE ADMINISTRATION
ONLY SUSPENDED ONE VERSION OF THE CENSORSHIP COT'TRACT. IN FACT,
THE REQUIREMENT CONTAINED IN THE PRESIDENT'S DIRECTIVE THAT
INDIVIDUALS WITH ACCESS TO CERTAIN FORMS OF CLASSIFIED INFORMATION
BE REQUIRED TO SIGN LIFELONG PREPUBLICATION CONTRACTS REMAINED IN
PLACE AND SUCH CONTRACTS ARE STILL BEING USED TODAY.
CONGRESS'S. CONCERNS WITH SECRECY PLEDGES CONTINUED AND VARIOUS
MEMBERS OF $OTH THE~HOUSE AND THE SENATE HAVE RAISED QUESTIONS
REGARDING OTHER ASPECTS OF THESE CONTRACTS. THEY PROHIBIT THE
DISCLOSURE NOT ONLY OF CLASSIFIED INFORMATION, BUT "CLASSIFIABLE"
INFORMATION AS WELL. RECENTLY,, A FEDERAL JUDGE HAS DETERMINED THAT
"CLASSIFIABLE".IS UNCONSTITUTIONALLY VAGUE AND MUST BE DEFINED
NARROWLY TO AVOID A VIOLATION. OF FIRST AMENDMENT RIGHTS. FURTHER,
THESE CONTRACTS SEEK TO RESTRICT DISCLOSURES BY WHISTLEBLOWERS TO
CONGRESS IN DIRECT CONTRAVENTION OF VARIOUS WHISTLEBLOWER STATUTES
AND THE LLOYD-LaFOLLETTE ACT WHICH PROVIDES THAT "THE RIGHT OF
PERSONS EMPLOYED IN THE CIVIL SERVICE OF THE UNITED STATES ... TO
FURNISH INFORMATION TO EITHER HOUSE OF CONGRESS, OR TO ANY
COMMITTEE OR MEMBER THEREOF. SHALL NOT BE DENIED OR INTERFERED
WITH." (5 U.S.C. 7211) THAT ACT WAS PASSED IN 1912 IN RESPONSE TO
SIMILAR EFFORTS BY PRESIDENT TAFT TO LIMIT EMPLOYEES' DISCLOSURES
TO CONGRESS.
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BECAUSE THE CONTROVERSY HAS CONTINUED. CONGRESS ENACTED
ANOTHER MORATORIUM OF THESE SECRECY PLEDGES LAST YEAR. AS I HAVE
INDICATED, HOWEVER, THAT STATUTE HAS NOW BEEN OVERTURNED. TODAY'S
HEARINGS WILL FOCUS ON CONGRESS' AUTHORITY TO LEGISLATE LIMITATIONS
ON THE ADMINISTRATION'S USE OF SECRECY CONTRACTS.
I FIND IT INCREDIBLE THAT A COURT HAS CONCLUDED THAT A LAW --
VOTED ON BY THE CONGRESS AND SIGNED .BY THE PRESIDENT -- IS AN
INAPPROPRIATE METHOD TO SET THE BALANCE BETWEEN NATIONAL SECURITY
AND FIRST AMENDMENT CONCERNS THAT THESE CONTRACTS RAISE. UNDER THE
HOLDING OF THE CASE, THE DECISIONS OF EXECUTIVE AGENCY BUREAUCRATS
ARE TO BE PREFERRED TO THOSE OF THE ELECTED OFFICIALS IN OUR
GOVERNMENT. THE CONSTITUTION DOES NOT~ASSIGN EXCLUSIVE AUTHORITY
FOR NATIONAL SECURITY OR FOREIGN POLICY TO ANY BRANCH OF
GOVERNMENT; RATHER, POWER IS SHARED UNDER THE CONSTITUTIONAL
FRAMEWORK. THIS OPINION CASTS A BIG SHADOW OVER CONGRESS'S
AUTHORITY UNDER OUR CONSTITUTIONAL SYSTEM OF GOVERNMENT.
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Statement by Senator William Pro~nire
On Congress and Secrecy Pledges
Before the Subcommit"tee on Legislation and National Security
Of the House Committee on Government Operations
August 10, 1988
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Chairman Brooks, members of the subcommittee,
pleased and honored to have been invited to testify in these
hearings.
I first want to commend the chairman for initiating this
review of the Administration's efforts to restrict the flow
of information between the executive branch and congress. I
especially want to praise Chairman Brooks for the fight he
has waged over many years to inject common sense into
Congress' relations with executive agencies and to prevent
the White House from overstepping its bounds under the banner
of national security. I am hopeful that this hearing will
lead to legislation resolving the policy issues raised by the
nondisclosure agreements, or secrecy pledges, required by the
Administration.
In the broad scheme of things the contents of the
nondisclosure agreements in question, SF I89 and SF 4193, may
seem relatively inconsequential. But that is not so.
For one thing, the agreements are of fundamental
importance because they abridge the rights and the freedom of
millions of federal employes to speak out and to communicate
with their elected representatives.
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It is one of the ironies of our time that an
Administration which prides itself on defending freedom and
human rights around the world has gone to such lengths to
limit the freedom and rights of its own government employees.
The twisted logic of this policy is something that future
historians will have to unravel.
I would only observe that the Administration has
followed a policy of restricting the right of government
employees to speak out against waste, mismangement and
corruption in government programs. Many employees and
officials have left government service frustrated by their
inability to prevent wasteful uses of taxpayers money and
abuses of trust. Countless others have .been cowed into
silence or coerced into collaboration.
One has only to think about the current Pentagon fraud
scandal to realize how widespread the problem of corruption
is and how 'long it has been going on. It takes no leap of
the imagination to wonder whether fewer restrictions on
government employees would have encouraged honest career
civil servants in the Pentagon to demand that dishonest
practices stop and to turn in the crooks and connivers long
before the present situation came to light.
The fact that this and other Pentagon scandals involve
illegal trafficking in classified documents and wholesale
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leaks of classified information by Pentagon officials to
defense contractors underlines the ineffectiveness and
misguided nature of the
The White House likes to picture Congress as a major
' source of security leaks. The nondisclosure agreements are,
in large par-, intended to prevent executive employees from
giving classified information to members of congress who
might leak it to others. But experience shows it is the
executive brcnch, especially the Pentagon, which is the. major
source of security leaks.
Most of the leaking done in recent years has been done
for one simple reason: private profit. Greed, the excessive
desire to get more than one deserves, has been the motivating
force behind the leaks of information from the Pentagon to
Soviet agents and from the Pentagon to defense contractors.
There is another side to this issue, strongly linked to
the rights of employees to communicate with. congress. That
is, the right of congress to get information from government
employees.
The struggle over this right is old and neverending and
STAT
(STAT:
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bipartisan. .Administrations are always nervous about what.
government employees might tell congress about the conduct of
government programs. They are always concerned about what
congress and the public might find out about the way
taxpayers' money is spent. Some have gone further than
others in trying to gag employees but all, inevitably, take
steps in that direction.
Efforts to gag employees date at least to the turn of
the century when, in 1902, President Theodore Roosevelt
issued an executive order forbidding employees from
attempting to influence legislation except through the heads
of their departments. President Taft broadened the
restriction in a new executive order, issued in 1909, which
prohibited federal employees from responding to any request
for information from congress except through the heads of
their departments.
Congress finally passed legislation to overrule these
gag rules in 1912 with what has come to be known as the
Lloyd-LaFollette Act. The central provision of that act is
as follows:
The right of persons employed in the civil service
of the United States, either individually or
collectively, to petition Congress or any Member
thereof,, or to furnish information to any House of
Congress or to any committee or Member thereof,
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shall not be denied or interfered with.
There have been numerous efforts to abrogate or whittle
down the Lloyd-LaFollette Act, direct and indirect, blunt and
subtle. The nondisclosure agreements required by the
present Administration originate in the same impulse that led
to the gag rules earlier in the century.
Congress has enacted legislation to protect
"whistleblowers" in recent years because it recognizes the -
importance of preserving access to information in the
possession of federal employees. It is worth recounting the
story of one of our most honored whistleblowers, A.Ernest
Fitzgerald.
Just about 20 years ago, in the Fall of 1968, I
conducted an inquiry into certain Air Force weapons programs
including the C-SA cargo aircraft. Mr.Fitzgerald was on a
panel testifying before the-Joint Economic Committee when I
asked him about the cost status of the C-SA. He replied,
truthfully, that the program had incurred a cost overrun of
About $2 billion.
The disclosure was significant because Air Force
officials had previously testified to other committee that
the program was on schedule and within budget, and it was
rare if not unique for a Defense Department official to ever
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admit that a program was in trouble before the Defense
Department or one of the Services was ready to make an
official admission.
To shorten a long story, Mr.Fitzgerald was fired under
the Johnson Administration, persecuted by the Nixon
Administration, ignored by the Carter Administration, and
barely tolerated by the Reagan Administration. Despite the
ill treatment of his superiors, he has remained faithful to
his principles and has persisted in telling congress the
truth.
Characteristically, he has refused to sign a
nondiclosure agreement. It is obvious to me that these
agreements, as presently structured, serve both as an
employee's gag and a congressional blindfold. We can be
thankful for the Fitzgeralds in the civil service who risk
their careers and their livelihoods to defy efforts to gag
them. We in congress are direct beneficiaries of these acts
of defiance as they help us maintain our .access to
information in the Executive Branch. But we have to do our
part; too.,
The point~is we have to protect the rights of federal
employees in order to protect congress' rights in order to
protect the taxpayers' rights.
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~, ri _
That, Mr.Chairman, concludes my statement. I applaud
this subcommittee's work and look forward to early
legislative action.
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STATEMENT OF CONGRESSWOMAN BARBARA BOXER BEPORE THE
LEGISLATION AND NATIONAL SECORITY SUBCOMMITTEE
HOUSE GOVERNMENT OPERATIONS-COMMITTEE
GOVERNMENT SECRECY AGREEMENTS
August 10, 1988
Mr. Chairman, I commend you for holding these hearings today.
The issues you will consider are serious and important. They deal
with the respective rights of the executive and legislative branches
to control national security information. They also have to do with
the responsibility of this Congress to exercise its proper
oversight role over government activities. As you know, that
responsibility rests to a great extent on the information we receive
from whistleblowers, those who direct our attention to problems and
wrongdoing of which we would otherwise have no knowledge.
Specifically, this .hearing is about the implications of Judge
Oliver Gasch's decisions with respect to Section 630 of the .FY 1988
Continuing Resolution, and of the future of certain non-disclosure
forms, including Standard Form 1.89.
As you remember, Mr. Chairman, you and Senator Grassley-and I
testified last year before Congressman Sikorski's Human Resources
Subcommittee, about our concerns over the requirement that many
federal employees and members of the armed services sign flawed
non-dislosure forms. My particular concern was Standard Form 189.
The vagueness of the word 'classifiable' would have a chilling
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effect.on would-be vhistleblowers, fearful that embarrassing or
damaging disclosures might be retroactively classified. I called
for SF 189 to be suspended, pending a Congressional review of the
policy. Prior to the hearing federal employees' unions fil-ed suit
,~ to stop the implementation of SF 1.89 and 4193, which calls for
pre-publication review.
Senator Grassley tried particularly hard to reach an agreement
on this issue with the Administration that would strike the proper
balance between the need to keep secret legitimate national security
information and the need to guarantee the rights of federal
employees to communicate with Congress.. Dnfortunately, that effort
failed and Section 630 was added to the Continuing Resolution.
I believe Section 630 does strike the proper balance. It
prohibits non-disclosure agreements containing the word
'classifiable`, but recognizes restrictions on properly classifed
information or information in the process of a classification
determination. It stresses the continuation of disclosures to
Congress that are consistent with law. In short, it prohibits the
use of SF 189 in its current form.
However, the Administration has not fully complied with the
law. They made little effort to void the offending non-disclosure
agreements made ,before December 22 of last year. This was
unacceptable and we were forced to file suit to force compliance.
We now face the distressing implications of Judge Gasch's two
rulings in this case, one in May and one in July. Reluctantly, we
have now elevated `our case to the Supreme Court.
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First, as you know, fn his Kay decision, Judge Gasch, found
Section 630 to be unconstitutional because it infringes on the
Executive's right to protect the national security. He objects to
Section 630 because he says it only demands secrecy of national
security information that is mandated by law. He feels the
President has the right to determine what should remain secret.
Sut what Section 630 says is that a non-disclosure agreement should
not impose remedies inconsistent with statutory law. The language
reflects Congress'concern that .these nondisclosure forms trample on
the legal rights of whistleblowers.
The implications of Judge Gasch's decision are appalling and its
effects are already striking close to home.,
On June 22, Acting Assistant
Attorney General Thomas M. Boyd
wrote to the chairman of the-Armed Sezvices Committees commenting on
certain provisions of the committee's FY 1989 Defense Authorization
Bill. He objected to my provision which provides better protections
for military whistleblowers. Mr. Boyd charges, and I will submit
his letter for the record, Mr. Chairman, that military whistleblower
protection is unconstitutional because 'it threatens the President's
control over national security matters" and "undermines his ability
as Commander-in-Chief to control members of the armed forces."
Mr. Chairman, the provision, which is now part of the FY 1989
Defense Authorization Act, simply says that 'No person may restrict
a member of the armed forces in communicating with a Member of
Congress or an Inspector General." The whistleblower provis-ion does
not apply to a communication that is unlawful. Yet Justice has
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seized on Judge Gasch's decision to inhibit military whistleblowfng.
Both the House and the Senate have approved that language. It
is reasonable and responsible. Congress must have access to all
information to do its job, unless the disclosure of that information
is prohibited by law. If information is too sensitive to be
disclosed to all members of Congress, both the executive and
legislative branches should determine by statute what conditions and
limits should apply.
Again, i am concerned about the chilling effect such reasoning
will have on military personnel concerned about wrongdoing. I think
particularly, of the kind of information that military
whistleblowers have been responsible for bringing to the attention
of Congress.
Let me give you some examples.
Colonel Jim Burton testified before Congress about the adequecy
of~testing of the Bradley Fighting Vehicle. As a result of his
courage, we will have an upgraded model of the Bradley which is less
vulnerable to enemy weapons.
One of the reasons I introduced my Military Whis?tleblower
Protection Act in the 99th Congress was concern for Air Force airman
Thom Jonsson, who brought me the example of the 7600 coffee brewer
on the C-5 cargo plane, the 300 'No Smoking' sign and the ~b00
armrest. His testimony contributed to Congressional action to curb
overpriced spare parts.
e
'Two military whistleblowers recently testified before the House
Armed Services Committee in support of my bill. One, Peter Cole,
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investigated major problems in the inventory supply system in Europe
in the mid 1970'x. Chief Petty Office Michael Tufariello protested
payments to Naval Reserve Officers for training missions they never
flew.
It would have been a great loss if these brave men had been
deterred from speaking out. Yet, they all paid a price. That is
why Congress passed my legislation - to encourage whistleblowers to
disclose waste, fraud and abuse and to deter those who would harass
them.
The opinion of the Justice Department, based on Judge Gasch's
flawed decision, is dangerous anal irresponsible because it sends the
opposite message. If military whistleblower protections are struck
down, and SF 189 with its prohibition against the disclosure of
'classifiable" information is allowed to stand, future Col. Burtons
and Michael Tufariellos might never speak out.
I am alarmed that Judge Gasch's N,ay decision may be the
beginning of a new campaign to challenge all whistleblower
protections. In fact, Judge Gasch's decision threatens
whistleblower protections for .federal employees. Inhibiting federal
employees from making disclosures of information to Congress is
contrary to the intent of the 1978 Civil Service Reform Act and the
pending Whistleblower Protection Aet of 1988:
For these reasons I believe it essential to reenact the language
of Section 630 for the next fiscal year.
A brief comment on Judge Gasch's most recent decision on SF
189. I am gratified that Judge Gasch found the use of the term
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"c'lassifiable" ovezly broad. But his decision to allow the
administration to define the world 'classifiable' is wrong., I
disagree that the Administration should be allowed to rely on the
last clarification of the word 'classifiable' printed in-the federal
register. That definition said that holding individuals liable
because they should have known information was in the process of a
classification determination is flawed. I. am concerned this will
fozce would-be whistleblowers to have to ask their superiors about
classification determinations. This would act to stop the
whistleblower. In contrast, Section 630 only covers information an
employee knows is in the process of classification determination.
I support Judge Gasch's second suggestion, to eliminate the use
of the word 'classifiable' from the non-disclosure form. I
understand that such an offer was made to you by the Administration
and I hope they follow through.
Again, Mr. Chairman, I applaud your efforts today. I believe
that the provisions of Section 630 must be re-enacted and should
stand until we have solid legislation that addresses the respective
rights of the executive and legislative branches in these very
sensitive matters.
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ST~.Z~TP SY SEi~'1[~7R CBARIffi C~iASSL6Y
~ZI~JNY BF~~ORE
SQBOQ~'IITTEE QJ L?GISLATIQ~ AAID I~TZQ~L S1~URr!'Y
)~JSE QOr~iITl'EE ON OPERATI~IS
APRIL 10, 1988
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Mr. Chairman, I would like to thank you for the opportunity to
testify on what I consider potentially 'the most important First
Amendment issue to face Congress since I have been in the
United States Senate.
I would like to commend your efforts to ensure the free flow of
information between the executive branch and the Congress.
Without congressional access to such information, the checks
and balances that are the foundation of any democracy are
severely weakened.
At issue, here, Mr. Chairman, is the use of secrecy agreements
by the executive branch to protect not only classified
information, the protection of which is essential to the
national security, but also information that may encompass
anything at all, including unclassified information that is
simply embarrassing to the executive branch. Such information
may be embarrassing at times, but the effective functioning of
a democracy often depends on knowledge of such information, if
not by the public, then certainly by another branch of
government.
It is my belief that secrecy agreements serve a useful purpose
in safeguarding national security information, if used
judiciously. However, if used zealously, they can create a
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chilling effect within the government and a barrier to the free
flow of vital information to the Congress. SF-189, SF-4193,
and other secrecy agreements used by the Executive may have
started out with judicious intentions. But the record speaks
to the contrary. There is a clear sense of unreasonableness
associated with the Administration's policy, statements and
negotiations of these forms. Unless Congress acts to alter
-the Adminstration's course, we're simply paving the road to a
Secret Government.
That is why I commend your efforts, Mr. Chairman, to bring this
issue into the public domain and to urge that Congress take
decisive legislative action.
Toward that end, I would like to discuss what I feel are areas
in need of permanent legislation.
To begin with, Mr. Chairman, the recent decision handed down by
the US District Court for the District of Columbia will have a
detrimental impact on the free flow of information to the
legislative branch.
Congress requires information to meet its constitutional
responsibilities for oversight, for its role in policymaking.
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and for passing legislation.
Many. members of Congress have voiced their concerns about these
secrecy forms being used by the executive branch as
unjustifiable restrictions on the flow of information from
federal employees to Congress, in violation of both Congress'
right to have such information and the employee's right to
petition Congress.
After unsuccessfully trying to negotiate with the
Administration for a reasonable resolution to this at-tempt to
go way beyond the legitimate protection of classified
information, the Congress passed a provision late last year
placing a moritorium on the continued use of these forms. This
is known as Section 630 of the FY 1988 Continuing Resolution.
I am concerned with the recent decision by the district court
that declared this statute unconstitutional on the grounds that
it intrudes upon exclusive Presidential authority over foreign
policy and national security.
This sets an ominous precedent, that the President can restrict
information that would otherwise be available to Congress.
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.
The executive branch's concern for protecting national security
should not include the ability to decide what should or should
not be given to Congress.
The need for Congressional access to classified information. has
increased dramatically in recent times.
Monitoring covert operations, Pentagon "black budgets",
executive branch activities, arms control treaties, conduct by
executive officials, the multitude of legislation that affects
national security and defense matters, all require that
Congress have access to classified material.
The presupposition guiding this requirement is that Congress
itself has a vested interest in maintaining secrecy to protect
its reputation as a responsible partner in these matters.
The record of Congress' ability to protect against unauthorized
disclosures, plus the commendations by a number of well-
respected former top executive branch officials as to Congress'
discretion, are documented in a study prepared for this hearing
by Frederick M. Raiser of the Congressional Research Service.
A'ith your permission, Mr. Chairman, I would like to enter that
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study into the record.
It is also important to note that Congress is taking further
steps to protect classified information. For instance, the new
Office of Senate Security and the Senate Security Manual were
established by law in 1987 to provide greater safeguards for
protecting the nations secrets here in the halls of Congress.
A much more comprehensive analysis of congressional efforts in
this regard is also contained in the CRS report.
But beyond Congress' well-established need for classified
information, Mr. Chairman, is the fact that Congress also
relies heavily on a wide range of unclassified information from
the executive branch simply to conduct its day-to-day business
affairs.
The Senate Budget Committee, as one case in point, relied
significantly on the testimony of whistleblowers Franklin
Spinney, Earnest Fitzgerald and Ompal Chauhan in freezing the
FY 1986 Defense .Budget in April of 1985. And I personally
carried their testimony and data to the Senate floor in May of
1985 and won an historic victory for the taxpayers of this
country, saving $17 billion.
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The benefits to Congress and the nation of an uninhibited flow
of information is untold. Conversely, policies which create a
chilling effect for whistleblowers will diminish those
benefits. By ruling that Section 530 is unconstitutional, the
court gave legitimacy to the chilling effect created by these
standard forms.
As you know, Mr. Chairman, that decision is on appeal before
the Supreme Court. If the ban is dropped from the
Appropriations bill, it is likely that the appeal would become
moot. For that reason, it is in the interest of Congress to
protect its prerogatives by maintaining the ban until .the
Supreme Court has decided the issue.
In addition, Mr. Chairman, the lower court accepted the
Administration's definition of the word "classifiable". That
definition would hold an employee liable for disclosing
information which he or she "should have known" was in the
process of a classification determination. In other words, if
the employee is not certain if information might some day be
classified, he or she must ask a supervisor. As a result, the
potential whistleblower would be~identified, and the supervisor
could block disclosure of the information, even if it was not
classified and had never intended to be classified, but was
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simply embarrassing to the Administration.
Besides this weakness in the court's decision, the forms
themselves still contain a provision requiring prior
authorization for disclosure. This is a direct violation of a
federal employee's right to petition Congress. And some of
these forms require employees to submit their writings for
prepublication review. This amounts to a lifetime censorship,
even after the employee leaves the government.
I believe these are all areas, Mr. Chairman, in which the
court's ruling did not go far enough, and in which Congress,
and indeed this subcommittee, should pass permanent, corrective
legislation. But most critical at this time, Congress must
pass for another year the moratorium known as Section 630 as
part of this year's Appropriations process. This matter is
currently pending in conference, and .I have every confidence
that the Senate will support the House position and extend the
ban for an additional year.
Finally, Mr. Chairman, I?d like to analogize the context of
this problem by drawing upon a book that most of us are
familiar with.
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The book is by Arthur C. Clarke, and is titled 2001: A Space
Odyssey. In that book, a super computer named HAL, on board
the space craft, decided that the human astronauts on board
were of little value, that they couldn`t handle the information
they were collecting as part of their voyage. HAL thought they
were superfluous, and a detriment to the successful completion
of the mission.
You may recall that HAL carried this to an extreme, and tried
to eliminate the astronauts. This, of course, put the crew,
the ship and the mission itself at much risk.
It seems to me, Mr. Chairman, that in this-case, HAL is to the
astronauts what the Administration is to Congress. The
Administration often views Congress as superfluous, and a
detriment to its mission. And if that`s the case, we should
deal with this Administration on this issue the way the
astronauts dealt with HAL. They began to disconnect HAL. In
response, HAL cried out that he was reformed, that he would be
good, that he now recognized the value of the astronauts.
Let me suggest, Mr. Chairman, that passage of the' moratorium,
as well as other legislative remedies -- just like the
disconnecting of HAL -- may get the Administration to finally
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recognize that Congress is a partner in maintaining a safe and
strong democracy.
I will be pleased to continue working with you and the members
of this subcommittee to find a balance between safeguarding the
nation's secrets and maintaining the flow of information. Once
again, I thank you for inviting my testimony, and I would be
pleased to answer any questions.
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Statement by
Senator Charles McC. Mathias, Jr.
Legislation .and National Security Subcommittee
Committee on Government Operations
House of Representatives
Washington, D.C.
August 10, 1988
Prior restraint on the printing, circulation or publication
of works in writing is inimical to that free exchange in ,ideas
that is vital to the American constitutional system. The whole
theory of the American political process is founded on the
ability to reach rational decisions after a comprehensive
discussion of the facts. The first amendment is not only a
guarantee of the personal satisfaction of free expression, it
is also a bulwark of national existence that encourages the
mature judgment of the citizens. To the extent that any form
of censorship or ,restraint is applied, it diminishes the
ability of the citizen to do his duty.
Thus there are real constitutional problems with prior
restraint and it is hard to overcome them. It may be
sanctioned in some narrow, specific cases, such as those
entering into a contract of employment with the National
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Security Agency or the Central Intelligence Agency. It is
extremely difficult, however, to justify this form of
censorship for those who work for the government in less
sensitive agencies.The experience of public service is a part
-of national life and should be shared both to increase
confidence in its positive aspects and to promote correction of
its faults. To single out civil servants to be censored is not
only offensive to the Constitution in general, but strikes at a
specific activity contemplated by.the Constitution, the
widespread discussion of public affairs.
It will be said that prior restraint is "flexible," that it
does not prohibit publication, it merely filters out the -
chaff. The fact is that censorship results in a silent
operation as well as its overt side. Knowing that a manuscript
will be read by an official censor can chill the author in a
way that will congeal the thoughts and freeze the ink. The
best ideas and the worst may not be exposed to public praise or
public ridicule and the public will have a less accurate
.standard of comparison.
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There are policy reasons in addition to constitutional
grounds for resisting the policy of prior restraint on the
works of thousands of civil servants. At a time when we seek
to make the government less intrusive and less expensive, it is
.unusual to propose a system of censorship that will require a
new and dangerous bureaucracy. Censorship is the job of -.
censors, who will doubtless take their job seriously. when
they think prohibited words are eluding them, they will begin
to search them out. The impact of such authority can be
estimated when ,it is recalled that by 1986 over 200,000 federal
employees in addition to NSA and CIA personnel were covered by
contract restrictions. To oversee the possible literary
production of this army is a major undertaking, notwithstanding
the efforts to minimize it. It will require manpower and it
will cost money.
For what purpose are these expenditures proposed? It is
said that prior restraint is necessary to control the
unauthorized disclosure of official secrets. As a practical
matter, it is the least likely method of controlling leaks.
The source of leaks is not usually identified. Few authors
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sit down with pen in hand and deliberately set down classified
information in a tent that they plan to sign and authenticate.
Leakers, on the contrary, are clandestine. They whisper to
reporters whom they arrange to meet in empty garages. They
make anonymous telephone tips. They drop careful hints. They
do not often write books. It is true, I suppose, that
occasionally some slip of the pen in a personal memoire might
reveal a secret inadvertently. But the risk is not very high
that such errors would occur so often and deal with such
sensitive information that we nave to create a"new arm of
government to deal with it.
To suggest that members of Congress or Cabinet members
might logically come under the ban some day exposes the
weakness of the proposal. Such officials are privy to
classified information in order to do their jobs. They are not
expected to sit on the information like hens hatching eggs.
They are supposed to use it in executing their duties. If
every speech or statement had to be vetted before it was
delivered, the response to events would be stale-and useless.
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Equally compelling is the congressional need for
information before making important decisions. The concept
that testimony before congressional committees be subjected to
even more scrutiny than is presently the case is hardly
supportable.
The Constitution will not Permit widespread, indiscriminate
prior restraint on thousand's of citizens merely because they
work for their government and know its business. Common sense
will not support the creation of a censorship for civil
servants out of all proportion to the"risks that they
represent. Prior restraint is another ezample of the desire
for automatic answers to solve the difficult human problems
that demand leadership and understanding. Running a government
is hard work and it is natural to seek labor saving devices,
but this is an idea that is not only wrong, but will cause-more
trouble than it avoids.
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? ~ J-uguet 4, ;1988 ? ~ ~ , ,
Testimony on Pre-Publication Review
.f or
House Legislation and National Security Subcommittee
by
St?nsfield Turner
August 10, 1988
Mr. Chairman: I HAVE ONLY TWO BRIEF POIKTS TO MAKE ON THE
SUBJECT OF PRE-PUBLICATION REVIEWS. FIRST, THAT THE REVIEWS AS
CONDUCTED BY THE CIA AND NSA ARE SUBJECT TO ABUSE AHD SHOULD BE
PLACED UNDER SOME OUTSIDE REGULATION. SECOND, THAT THERE IS
GREATER DANGER THAN BENEFIT IN EXTENDING THE PRE-PUBLICATION
REVIEW REQUIREMENT TO OTHER AGENCIES OF. OUR GOVERNMENT.
ON THE FIRST POINT,- MY EXPERIENCE IN OBTAINING CLEARANCE FROM
THE CIA FOR MY BOOK "SECRECY AND DEMOCRACY" WAS A PAINFUL AND
COSTLY PROCESS FOR ME. I WOULD ROTE THAT THIS WAS DURING THE,
TENURE OF WILLZAM CASEY AT THE CIA, A PERIOD IN WHICH THERE WAS
EXTENSIVE OVER-CLASSIFICATION OF MATERIALS. I HAVE FOUND A MUCH
MORE REASONABLE ATTITUDE SINCE JUDGE WEBSTER BECAME THE
DIRECTOR. MY POINT, THOUGH, IS THAT THE POTENTIAL FOR ABUSE
EXISTS AS PROVEN BY MY EXPERIENCE DURING MR. CASEY'S TIME.
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 :FOR INSTANCE, I `MA5 ~tOT P?Rt[ITT?D ZN `!tY BDOK TO REFBR TO THC 1fBB
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?" OF `PHOTOGRAPHIC ..SATELLITES POR ANY PURPOSE OTHER THAN
VERIFICATION OF ARMS CONTROL AGREEMENTS. IT ZS, OF COURSE,
ABSURD TO ATTEMPT TO TELL -THE AMERICAN PEOPLE THAT ME HAVE
PHOTOGRAPHIC. SATELLITES AHD DO NOT ?EMPLOY THEM FOR ANY OTHER
PURPOSE THAN ARMS CONTROL. THE AMERICAN PEOPLE DESERVE TO KNOW
THAT OUR GOVERNMENT HAS THE CAPABILITY TO PROTECT OUR INTERESTS
THROUGH THE USE OF SATELLITE PHOTOGRAPHY.
FIVE MONTHS AFTER- MY BOOK WAS PUBLISHED, THE CZA SENT
REPRESENTATIVES TO COURT TO TESTIFY IN THE CASE OF A MAN NAMED
MORISON. MORISON HAD PURPORTEDLY GIVEN U. S. SATELLITE
PHOTOGRAPHY TO A JOURNAL PUBLISHED IN ENGLAND. THE PHOTOS IN
QUESTION WERE OF SOVIET AIRCRAFT CARRIERS. AIRCRAFT CARRIERS ARE
NOT A PART OF ANY ARMS CONTROL AGREEMENT. THUS, THE CIA WAS
DISCLOSING PRECISELY WHAT I HAD BEER FORBIDDER TO DISCLOSE.
NOW, I RECOGNIZE THAT. FROM TIME TO TIME THE GOVERNMENT DECIDES
THAT SOME OVERRIDING INTEREST MAKES IT WORTHWHILE TO DECLASSIFY
SOMETHING CLASSIFIED. I AM SUGGESTING, THOUGH, THAT THE AGENCY'S
WILLINGNESS TO BREAK THEIR RULE ON SATELLITE PHOTOGRAPHY SO
READILY INDICATES THAT THERE WAS LITTLE SUBSTANCE BEHIND IT.
TO RUB SALT IN THE WOUNDS, IT TOOK TKE AGENCY 21 MONTHS - LET ME
REPEAT THAT, 21 MONTHS - TO MY RE?UEST TO BE PERMITTED TO SAY
JUST WHAT THE CZA REPRESENTATIVE HAD SAID IN COURT. THAT IS A
GROSS ABUSE OF THE CONSTITUTIONAL RIGHT OF A CITIZEN TO FREE
SPEECH, IN MY OPINIOAI.
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INTELLIGENCE, I GAVE A NUIiBER OF UNCLASSIFIED SPEECHES TO
AUDIENCES WITH NO SECURITY CLEARANCES. IN OHE OF THOSE I GAVE A
HYPOTHETICAL EXA?1PLE OF HOW ME INTEGRATE VARIOUS TYPES OF
INTELLIGENCE COLLECTION. WHEN I ATTEMPTED TO QUOTE MY OWN
UNCLASSIFIED SPEECH IN MY BOOK, I WAS DENIED PERMISSION. YET, I
OBTAINED QUITE FREELY A COPY OF MY SPEECH FROM THE CIA AND
ASSUME, SINCE IT IS NOT CLASSIFIED, THAT YOU OR ANY CITIZEN
COULD DO SO TODAY. RE-CLASSIFICATION OF WHAT IS IN THE PUBLIC
DOMAIN IS AN ACT THAT RECALLS THE KING MHO ATTEMPTED TO PUSH BY
THE TIDE. MOREOVER, THERE WAS NOTHING CLASSIFIED IN MY
HYPOTHETICAL EXAMPLE, THOUGH I CANNOT GIVE IT TO YOU TODAY AS I
AM STILL BOUND BY THIS RIDICULOUS RULING.
I .WOULD ALSO LIKE TO COMMENT THAT THE CIA IS SERIOUSLY SHORT OF
STAFF TO CONDUCT THE PRE-PUBLICATION REVIEWS. THEY HAVE NO
CONCEPT THAT TIME IS WORTH MONEY TO AN AUTHOR. WHEN THEY TOOK
WEEKS TO REVIEW A CHAPTER I WOULD SEND THEM, IT WOULD INTERRUPT
THE PROGRESS OF MY WORK. AND, THEN, I WOULD APPEAL SOME RULING
AND MORE WEEKS WOULD ELAPSE. IT BECAME DIFFICULT TO KEEP TRACK
OF WHERE WE STOOD AND WHICH ARGUMENT WAS WHICH. I ESTIMATE THAT
THE PRE-PUBLICATION REVIEW PROCESS CONSUMED 20X OF MY EFFORT IN
PRODUCING MY BOOK. THAT IS UNACCEPTABLE AHD I SUSPECT THAT I
RECEIVED FAR BETTER TREATMENT THAN THE AVERAGE AUTHOR.
BECAUSE THE PRE-PUBLICATION REVIEW PROCEDURES CAN BE ABUSED, I
BELIEVE SOME PRECAUTIONS ARE IN ORDER. I SUGGEST THE FOLLOWING:
3
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CONDUCT ANNUAL OVERSIGHT OF THE REVIEM PROCESS WITH SPO?
CHECKS ON THE TYPES OF DELETIONS MADE AND THE LENGTH OF
TIME AUTHORS WERE REQUIRED TO WAIT FOR DECISIONS.
2. THAT THE OBLIGATION OF ANY INDIVIDUAL TO SUBMIT HIS
WRITINGS FOR REVIEW BE LIMITED TO 10 YEARS. CERTAINLY THE
CIA COULD SAY THAT SOME SECRETS EXTEND PAST 10 YEARS, BUT
IN MATTERS LIKE THESE WE MUST MAKE A BALANCE BETWEEN THE
INDIVIDUAL'S RIGHT TO SPEAK AHD THE PUBLIC'S RIGHT TO
HEAR ON THE ONE HAND, AND THE CIA'S NEED FOR SECRECY ON
THE OTHER. IN MAKING THAT BALANCE WE SHOULD KEEP IN MIND
THAT THE VAST MAJORITY OF THOSE DOING THE WRITING ARE
CONSCIENTIOUS AND WOULD HARDLY REVEAL SOMETHING SO SECRET
THAT IT NEEDED TO BE SECRET AFTER 10 YEARS. THOSE WHO ARE
NOT CONSCIENTIOUS WILL LET THE CAT OUT ONE WAY OR
ANOTHER.
MY SECOND POINT IS CLOSELY RELATED TO THESE LAST COMMENTS. IT
CONCERNS WHETHER LITERALLY HUNDREDS OF THOUSANDS OF ADDITIONAL
PUBLIC SERVANTS SHOULD BE REQUIRED TO SUBMIT TO PRE-PUBLICATION
REVIEW. I.EMPHATICALLY SAY "NO" FOR THREE REASONS:
1. THE ABUSES Z HAVE EXPERIENCED NOT ONLY COULD, BUT VERY
LIKELY WOULD, BE EXPERIENCED FREQUENTLY.
2. THE BUREAUCRACY TO HANDLE .HUNDREDS OF THOUSANDS OF
4
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HAND WITH THE CIA AS TH? NUtiBER OF RETIREES DOING WRITING
HAS INCREASED. 3 BELIEVE IT WOULD BECOME UNMANAGEABLE
WZTH HUNDREDS OF THOUSANDS AND MOULD END UP BEING
IGNORED.
3. WHILE THERE ARE LOTS OF IMPORTANT SECRETS IN OUR
GOVERNMENT, THERE ARE NOT AS MANY CRITICAL ONES IN MOST
AREAS. OF GOVERNMENT AS IN THE CIA AND NSA. OUR FORM OF
GOVERNMENT IS BUILT ON THE ASSUMPTION OF A WELL INFORMED
ELECTORATE. AS WE STIFLE EXPRESSION FROM PEOPLE WITH
FIRST-HAND EXPERIENCE IN GOVERNMENT, WE REDUCE THE
LIKELIHOOD THAT THE ELECTORATE WILL BE WELL INFORMED.
IT IS STRICTLY A JUDGMENT CALL. BUT I BELIEVE THAT UNLESS
THERE ZS A COMPELLING CASE FOR SECRECY, WE SHOULD ALWAYS
COME DOWN ON THE SIDE OF OPENNESS. THERE ARE EXCEPTIONS,
BUT SO MANY OF THE "SECRETS" IN THE AVERAGE AGENCY OF OUR
GOVERNMENT ARE NOT SECRET AT ALL, THAT I COME DOWN ON THE
SIDE OF NO PRE-PUBLICATION REVIEW OUTSIDE THE CIA AND
NSA.
THANK YOU, MR. CHAIRMAN.
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Legislation and National Security Subcommittee
Committee on Government Operations
U.S. House of Representatives
Statement of Harold H. Bruff
John S. Redditt Professor of Law
The University of Texas at Austin
August 10, 1988
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I am pleased to give the Subcommittee my views on the recent
'district court decision in American_Foreign Service Assn v.
Garfinkel,l which held unconstitutional ? 630 of the Continuing
Resolution for Fiscal Year 1988.2 The case is especially
important because the statute limits the executive's use of
nondisclosure agreements with its employees, and because the
court's opinion finds exclusive presidential authority over broad
areas of national security..
Section 630 provides that no appropriations for fiscal year
1988 may be used to implement nondisclosure forms if they concern
information not-known by the employee to be classified, if they
contain the term "classifiable," if they obstruct communications
between employees and Congress, or if they contravene existing
statutory law. Thus the statute's purposes sound equally in
individual rights and the separation of powers. Congress is
attempting to protect the rights of employees and former
employees of the executive to write and speak about their
experiences,-and the rights of Congress, and ultimately the
people, to monitor executive bra"nch activity. Yet the executive,
and the nation, have obvious needs to protect sensitive
information, as many unhappy events in recent years have shown.
Has this statute gone too far?
L
This controversy stems from President Reagan's order that
1. Civ. Action No. 88-0440-OG (D.D.C. Sept. 1, 1987),, appeal to
the Supreme Court filed, June 3, 1988.
2. Pub. L. No. 100-202, 101 Stat. 1329 (Dec. 22, 1987).
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employees in sensitive positions sign nondisclosure agreements as
a condition of their access to classified information.3 To
implement the order, the executive developed Standard Form 189
(and similar SF 4193, for access to Sensitive Compartmented
Information). These forms bind employees never to divulge
classified or "classifiable" information to anyone, including
Congress, without prior authorization from their employing
agency. By late 1987, more than 1.7 million of the 2.5 million
federal employees who have access to classified information had
been_compelled to sign SF 189.4 Violations of the agreements are
punishable by a range of sanctions including loss of security
clearance and employment.
The AFSA litigation is a suit by an association of foreign
service employees and seven Members of Congress to compel
compliance with ? 630 and to void previously signed agreements.
The executive defendants challenged the constitutionality of ?
630 under the doctrine of separation of powers. The district
court found it likely that the executive was not in compliance
with ? 630. Then, in vague but broad language, the court ruled
that the statute is unconstitutional.
Judge Gasch's opinion began by recognizing that the
3. National Security Decision Directive 84, Safeguarding
National Security Information, reprinted in National Security
Decision Directive 84, Hearing Before the Sen. Comm. on
Governmental Affairs, 98th Cong., lst Sess. 85-86 (1983).
4. Also, another 200,000 outside the CIA and NSA had signed SF
4193. Classified Information Nondisclosure Agreements: Hearing
Before the Subcomm. on Human Resources of the House .Comm. on Post
Office and Civil Service, 100t,h Cong., 1st Sess. 62, 67 (1987).
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Constitution does not explicitly say which branch of government
may regulate national security information. ;He noted, however,
that Presidents have traditionally controlled the classification
process by executive order, without relying on express statutory
authority. He seemed to think that the congressional role has
historically been limited to bolstering but not regulating this
executive activity, for example by furnishing the criminal
sanctions in the Espionage Act.S He concluded that the
President's role in foreign affairs "requires that congressional
intrusion upon the President's oversight of national security
information be more severely limited than might be required in
matters of purely domestic concern." Section 630 was not
"consistent with this principle."
Apparently, ? 630 failed in two respects to conform. to the
principle that Judge Gasch announced. First, he thought that
Congress overreached by forbidding interference with its attempts
to obtain information about executive activity. Second, he read
the provision that forbids agreements that are "inconsistent .with
statutory law" to allow the executive to protect secrecy "only by
those means authorized by Congress."
The court's approach was oversimplified throughout. its
outcome, the invalidation of ? 630, is incorrect and should be
reversed by the Supreme Court. My explanation will follow the
general outlines of the court's analysis, correcting it where
necessary.
S. 18 U.S.C. ? 793.
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The Constitution distributes national powers over defense
and foreign relations to both President and Congress. The
President's powers in these fields, although certainly broad, are
not always-- or even usually-- exclusive of those of Congress.6
The text of the Constitution makes this clear. The President~is
Commander in Chief, but Congress declares war, raises and
regulates the armed forces, and funds all military operations.
The President has various powers related to foreign affairs, for
example to negotiate treaties and to receive ambassadors, but
Congress regulates foreign commerce and the Senate ratifies
treaties.
There are two principal sources for modern arguments that
notwithstanding the Constitution's apparent purpose to empower
both branches in this realm, the President must be regarded as
having plenary powers exclusive of Congress. First, some
overbroad statements in Supreme Court opinions have been torn
from context and offered as a gloss on the constitutional text.
Second, and probably accounting for the first, the conditions of
modern life require executive power to deal successfully with a
dangerous world in which instant and unilateral action is
sometimes necessary. I think, though, that ? 630 can be
reconciled with both judicial precedent and executive necessity.
The broadest claims of exclusive executive power usually
rely on Justice Sutherland's expansive opinion in United States
v. Curtiss-Wright Corp..,? for example his reference to the
6. See generally L. Henkin, Foreign Affairs and the Constitution
(1972).
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"plenary and exclusive power of the .President as the sole organ
of the federal government,in the-field of international
relations-- a power which does not require as a basis for its
exercise an act of Congress." It is one thing, however, to claim
that the President may act without express statutory authority,
and quite another to say that he may ignore statutory
constraints. Curtiss-Wright itself simply upheld a statute
delegating power to the President to stop foreign arms sales.
The case stands for the sound proposition that Congress may
constitutionally delegate more power to the President in foregn
affairs. than in domestic contexts. The Court's broader
statements are dicta, and have never been well received by
neutral observers.8
The modern judicial approach to delineating the respective
powers of President and Congress stems from Youngstown Sheet &
Tube Co. v. Sawyer,9 in which the Court invalidated President
Truman's seizure of the steel mills in wartime, because a statute
forbade the seizure. "Justice Jackson, a former Attorney General,
wrote a famous concurring opinion in which he noted that the
President is often able to act in the absence of clear statutory
authority, but that when he acts contrary to statute,l0
7. 299 U.S. 304 (1936).
8. Lofgren, United States v. Curtiss-Wright Export Corporation:
An Historical Reassessment, 83 Yale L.J. 1 (1973); Levitan, The
Foreign Relations Power: An Analysis of Mr. Sutherland's Theory,
55 Yale L.J. 467 (1946).
9. 343 U.S. 579 (1952).
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his power is at its lowest ebb, for then he can rely
only upon his own constitutional powers minus any
constitutional powers of Congress over the matter. Courts
can sustain exclusive presidential control in such a.case
only by disabling the Congress from acting on the subject.
Presidential claim to a power at once so conclusive and
preclusive must be scrutinized with caution, for what is at
stake is the equilibrium established by our constitutional
system.
In later cases, the Court has consistently followed this
approach. For example, ,in Dames & Moore v. Regan,ll the Court
upheld the executive agreements ending the iranian~hostage crisis
only after determining their consistency with statutory
authority.
The court's opinion in AFSA comes close to reversing this
approach, by announcing the "principle" that Congressional
intrusion on the executive is more "severely limited" in foreign
than domestic affairs., and by invalidating a statute without
requiring any weighty showing of executive need. Contrast
Youngstown, where the Supreme Court would not allow presidential
claims of necessity that were based on national security to
override a contrary statute. What the AFSA court should have
done was to uphold ? 630 if it could be interpreted to meet
11. 453 U.S. 654 (1981).
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identifiable constitutional claims of the executive for control
of national security information. I turn to that inquiry,
concluding that ? 630 can easily be read to remain within
constitutional limits.
Congress has left overall policy concerning which documents
should be classified to executive discretion.12 As each
administration sets its own policy by executive order,
substantial variations occur. The Reagan administration`s
order,13 more stringent than its predecessor, allows
classification of information posing~no danger in itself if "in
the context of other information," it might damage national
security.14 Once a document has been classified, the Freedom of
Information ActlS protects it from the mandatory disclosure to
which most agency records are subject, if it has been properly
classified. Courts review agency decisions to withhold; the
burden of proof is on the agency to justify withholding on both
procedural and substantive grounds.16 Another statute, the
Central Intelligence Agency Information Act,17 protects CIA
12. See generally P. Shane & H. Bruff, The Law of Presidential
Power 154-56 (1988).
13. Exec. Order No. 12,356, 3 C.F.R. 166 (1983).
14. See generally House Comm. on Government Operations, Security
Classification Policy and Executive Order 12,356, H.R. Rept. No.
731, 97th Cong., 2d Sess. (1982).
i5. 5 U.S.C. ? 552{b)(1).
16. Courts are authorized to order the release of information
contained in classified documents if it is both nonclassifiable
and segregable from protected portions of the documents.
Goldberg v. U.S. Dept. of State, 818 F.2d 71 (D.C. Cir. 1987).
17. 50 U.S.C. ?? 431-32; see Winchester & Zirkle, Freedom of
7
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"operational files," with some exceptions.
Thus, it would be quite inaccurate to characterize the
control of classified information as wholly in the discretion of
the executive. Moreover, FOIA requires the release of nonexempt
records to any member of the public, without any showing of
need. In contrast, Congress may be able to make a strong showing
of need for information in executive hands. Thus, if FOIA is
constitutional, as no one denies, it is hard to see how Congress
can lack power to control "classifiable" but as yet unclassified
information in at least some circumstances.
It is true that to date Congress has 3eft large areas of
national security information policy to the executive. In these
areas, the courts have usually upheld executive cliscretion.l8
For example, in Snepp v. United States,lg the Court enforced the
CIA's contract agreement with one of its employees to obtain
prepublication clearance of all information relating to the
agency. Yet where Congress has regulated executive papers, the
Court has upheld the statutes. In Nixon v. Administrator of
Information and the CIA Information Act, 21 U. Rich. L. Rev. 231
{1987).
I8. See generally Edgar & Schmidt, Curtiss-Wright Comes Home:
Executive Power and National Security Secrecy, 21 Harv. Civ.
Rts.-Civ: Lib. L. Rev. 349 (1986); see, e.g., Department of the
Navy v. Egan, 108 S.Ct. 818, 825: "(U)nless Congress specifically
has provided otherwise, courts traditionally have been reluctant
to intrude upon the authority of the Executive in military and
national security affairs." The Court has, however, recently
extended some constitutional protection to security-based
discharges of CIA personnel, in Webster v. Doe, 56 U.S.L.W. 4568
(June 15,1988).
19. 444 U.S. 5.07 (1980).
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General Services,20 the Court upheld the statutory regulation of
the President's own papers against separation of powers
challenge. The Court's test was whether the statute "prevents
the Executive Branch from accomplishing its constitutionally
assigned functions." Zf the potential for disruption was
present, the Court said, it would determine "whether that impact
is justified by an overriding need to promote objectives within
the constitutional authority of Congress." Surely this is the
correct test for the validity of ? 630. Let us apply it.
There are two~ways in which this statute could invade
executive prerogative. The first is by trying to require
explicit congressional authority foz all executive control of
national security information. The AFSA court so read ? 630, and
such a statute would risk invading the President's independent
constitutional powers. But the usual judicial practice is to
read statutes in ways-that preserve rather than destroy their
constitutionality. The portion of ? 630 the forbids executive
agreements that are "inconsistent with statutory law" appears to
refer only to the constraints of existing statutes. The court's
broad reading of it as a requirement for affirmative statutory
authority is strained. Moreover, it ignores the consistent
congressional practice of broad acquiescence in executive control
of information in the absence of statutory restriction. So a
straightforward reading of this provision, to require obeying
laws on the books, should remove constitutional doubt.
20. 433 U.S. 425 (1977).
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The second way that s 630 could be unconstitutional is by
infringing executive privilege. The Court recognized a qualified
constitutional executive privilege in United States v. Nixon.21
The extent of that privilege with regard to congressional demands
for information,. however, has never been made cleaz.22 Again, it
is possible to interpret ? 630 to preserve its .
constitutionality. It is only necessary to read the statute to
allow the executive branch to claim its privilege against
Congress where it would otherwise do so, subject to the
{uncertain) limits of existing law.
Thus, ? 630 does not, appear to disrupt the President's
ability to discharge his constitutional duties. N.oreover,
serves two important interests of Congress. First, it protects
the civil liberties of government employees. The First Amendment
obligates the executive to restrict its employees' speech no more
than necessary.23 Because the Reagan administration's executive
order on classification provides that documents not themselves
threatening to national security may be classified if they could
pose a threat in the context of "other information," the sweep of
a term like "classifiable" becomes extremely broad and vague.
The same district court that decided AFSA admitted as much when,
in related litigation, it ordered the executive to define that
term or cease its use.24 Surely it is within the power of
21. 418 U.S. 684 (1974).
22. See United States v. AT&T, 567 F.2d 121 (D.C. C.ir. 1977).
23. See, e.g., Brown v. Glines, 444 U,S. 348 (1980); McGehee v.
Casey, 718 F.2d 1137 {D.C. Cir. 1983).
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Congress to seek the same end of protecting First Amendment
rights by enacting a statute.
Second, ? 630 serves the need of Congress and the people to
monitor executive performance. It is firmly in the tradition .of
the Civil Service Reform Act's prohibition of retaliation against
whistleblowers for their communications to Congres~.25 Both
statutes attempt to assure those providing necessary information
to Congress that they will not be penali-zed for doing so. Both
are in aid of Congress' fundamental power to investigate
executive activity in aid of its legislative powers.26 Section
630 is clearly constitutional.
24. National Federation of Federal Employees v. United States,
Civ. Action No. 87-2284-OG (D.D.C. July 29, 1988).
25. 5 U.S.C. ? 2302 (b).
26. See, e.g., McGrain v. Daugherty, 273 U.S. 135:(1926).
11
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Professor of Law
IIniversity of California, Davis
Law School
Davis, California
COMMITTEE ON GOVERNMENT OPERATIONS
SIIBCOMMITTEE ON LEGISLATION AND NATIONAL SECIIRITY
IINITED STATES HOIISE OF REPRESENTATIVES
WASHINGTON, D.C.
August 10, 1988
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TESTIMONY OF MICHAEL J. GLENNON
prof?ssor of Law
University of California, Davis
Law School
Mr. Chairman and Members of the Committee:
Let me begin by thanking the Subcommittee for inviting me to
be here today, and by commending the Subcommittee for its interest
in the case of American Foreign Service Association jAFSA~, v.
Garfinkel, and, more generally, for its continuing concern about
governmental censorship. In AFSA, the United States District Court
for the District of Columbia., on May 27, 1988, struck down section
630 of the Omnibus Continuing Resolution for Fiscal Year 1988,
which placed limits upon the use of appropriated funds for the
implementation or enforcement of certain so-called "pre-publication
review agreements." The court did so on the theory that the
statute trenched upon the President's general foreign affairs
powers under the Constitution.
Mr. Chairman, the May 27 decision of the district court is not
simply without precedent: the decision is an ill-considered and
radical exercise of judicial activism.
The decision is ill-considered in that it is inconsistent with
the court's own later reasoning. Two months after its May 27 , 1988
memorandum opinion and order, the court handed down another opinion
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TESTIMONY OF MICHAEL J. GLENNON /3
in a companion case that is irreconcilable. On May 27, as I
mentioned, the court had struck down section 630 of the Continuing
Resolution as an unconstitutional intrusion by the Congress upon
the power of the Executive to conduct the nation's foreign
affairs.Z Yet in its July 29, 1988 memorandum opinion, the court
held that certain of those same agreements proscribed by section
630 -- those using the term "classifiable" -- are constitutionally
unenforceable. Can Congress not constitutionally deny funds for
the enforcement of agreements that are constitutionally
unenforceable? Does the Executive have constitutional power to
enforce constitutionally unenforceable agreements? If this matter
is within the exclusive constitutional prerogative of the
President, how is it that a federal district judge can substitute
his judgment for that of the President? One would have supposed
that the deference traditionally accorded an act of Congress --
long regarded as presumptively constitutional -- would have
counseled the need for more judicious and deliberate consideration
of this delicate issue.
The decision is radical in that it disregards fundamental and
time-honored doctrines of Anglo-American jurisprudence. It is
unsupported by judicial precedent. So far as I can find, it is the
only decision in American. case law in which a court has invalidated
an act of Congress on the basis of a general presidential foreign
affairs power. Moreover, so far ~as I can find, it is the only
decision in American case law in which a court has invalidated an
exercise of Congress's power over the purse as an unconstitutional
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TESTIMONY OF MICHAEL J. GLENNON
/4
encroachment on executive power.. I shall elaborate those two
points, and conclude with some comments on pre-publication review
agreements generally.-
PRESIDENTIAL POAER AI+dD THE CONGREBBIOIdAL WILL
Although it has often been asserted that the President is
possessed of plenary foreign affairs powers -- powers that do not
admit of the possibility of congressional limitation -- the truth
is that no court has ever held that. It may surprise some to hear
this, but eve time the courts have breached the merits in a
~~oreign affairs dispute pittinct Congress acLainst the Executive.
Congress has won.-
The seminal precedent, overlooked completely by the AFSA
court, is Little v. Barreme,3 decided in 1804 by Chief Justice John
Marshall and joined by a unanimous United States Supreme Court.
The events leading up to Little occurred during the
administration of President John Adams, when the United States was
engaged in an undeclared naval war with Frances Although the war
was not formally declared, Congress did prohibit American vessels
from sailing to French ports.6 Congress also enacted the means to
carry out_ this restriction. Specifically, it authorized the
President to order United States naval officers to (a) stop any
American ship if they had reason to suspect the ship to be bound
for a French port, and (b) to seize the ship if, upon searching
it, it appeared to be so bound.8 Congress further provided that
the captured ship be condemned -- auctioned or sold -- and, rather
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TESTIMONY OF MICHAEL J. GLENNON
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generously, that half the proceeds go to the United States and the
other half to the person who initiated the capture-and sale, pre-
sumably the ship's captain.9
When the Secretary of the Navy issued orders a month after
the law was enacted, he included a copy of the law. One recipient
of .those orders was Captain George Little, commander of the United
States Frigate .Boston., Unknown to Little, however, the orders
departed from the law in two key respects. First, they .directed
the seizure not only of ships that were clearly American, but also
of ships that appeared to be foreign but might really be American
or even merely carrying American cargo.10 Second, they directed the
seizure not only of ships bound to French ports, but also of ships
sailing from French ports.~~ The order therefore seemingly expanded
Little's authority, and the United States' risk of involvement in
hostilities, significantly beyond what Congress had contemplated.
Sure enough, the Navy seized the wrong ship -- a vessel with
Danish papers sailing from a French port. Captain Little captured
this ship, the Flying Fish, and sought to have her condemned.12 The
central issue in the condemnation proceedings was not whether the
Flying Fish should be condemned; Chief Justice Marshall agreed with
the courts below that the seizure of a neutral vessel was
unlawful.13 Rather, the case turned on whether the Danish owners of
the F1Ying Fish should be awarded damages for the injuries they
suffered.14 Little's defense was that he had merely followed orders,
and that those orders excused him from liability.15 Because the
Flying Fish fell squarely within the class of ships that the
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TESTIMONY OF MICHAEL J. GLENNON /6
President had ordered .seized, the Supreme Court had to consider
whether the President's instructions immunized his officer.
personally from an action for damages arising under the statute. j6
The Supreme Court affirmed the circuit court's judgment
awarding damages to the owners.~~ Marshall's first reaction, he
confesses in the opinion, was that, given Little's orders, a
judgment against him for damages would be improper. It is "indis-
pensably necessary to every military system," he writes, that
"military men usually pay implicit obedience to the orders
of their superiors."18 Yet Marshall changed his mind when he
considered the character of Captain Little's act: it directly
contravened the will of Congress. "[T]he legislature seems to have
prescribed the manner in which this law shall be carried into
execution," and in so doing, "exclude[d] a seizure of any vessel
not bound to a French port."19 Under the law enacted by Congress,
therefore, Captain Little "would not have been authorized to
detain" The Flying Fish.20 "[T]he instructions [from the Secretary
of the Navy]," Marshall concludes, "cannot change the nature of the
transaction, or legalize an act which, without those instructions,
would have been a plain trespass."21
Little v. Barreme is, in all, an extraordinary case --
extraordinary not only for what the opinion says, but also for what
it does not say. Nowhere in Little, for example, does Marshall
even consider the possibility that the President's order might have
fallen within independent powers the Executive might enjoy as "sole
organ'? of the United States in its foreign relations. Yet it was
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fiESTZMONY OF MICHAEL J. GLENNON
none other than John Marshall, speaking only two years earlier on
the floor of the House of Representatives, who apparently coined
the term. In the context of a debate on President Adams' power to
extradite to Britain an individual charged with murder, Marshall
declared: "The President is the sole organ of the nation in its
external relations, and ,its sole representative with foreign
nations."ZZ Although we might imagine that such rhetoric, if taken
seriously, would lead Marshall to declare the statute inl,~.ttle to
be an unconstitutional infringement of presidential power, such an
interpretation could not have been further from Marshall's meaning.
Far from arguing in his speech that President Adams had ~an
"inherent" or "independent" power to extradite to Britain an
individual charged with murder, Marshall in fact contended that it
was Adams' duty faithfully to execute the Jay Treaty, and that it
was that Treaty, not the President's exclusive constitutional
power, that authorized and indeed required the extradition in
question.24 The truth is, therefore, that it ,probably never
occurred to John Marshall or to any of his colleagues in 1804 that
the President, acting within the Constitution that many of them had
helped write, could disregard this congressional restriction.
That, most likely, is why Little is silent on the issue. The
argument for a royal prerogative was not new to these Founding
Fathers; while they had not encountered Oliver North, they had
encountered his ideological if not genealogical ancestor:, Lord
North . is
During the Korean War,.Marshall's analysis again became timely
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in another case also completely overlooked by the district court
in FS In 1952, Youngstown ee ~ Tube_ Co? v. ~awver --the
famed ee Seizure Case
presented the Supreme Court with a
stark choice. A nation-wide strike had broken out in the steel
industry. According to the oungstown court:
.The indispensability of steel as a component of sub-
stantially all weapons and other war materials led the
President to believe that the proposed work stoppage
would immediately jeopardize our national defense and
that governmental seizure of the steel mills was neces-
sary in order to assure the continued availability of
steel.
President Harry S Truman consequently issued an executive
order directing the Secretary of Commerce to take possession of
most of the mills and keep them running, arguing that the President
had "inherent power" to do so. The companies objected, complaining
in court that the seizure was not authorized by the Constitution
or by any statute.
Congress had not statutorily authorized the seizure, either
before or after it occurred. Congress had, however, enacted three
statutes providing for governmental seizure of the mills in certain
specifically prescribed situations, but the Administration never
claimed that any of those conditions had existed prior to its
action. More important, Congress had in fact considered, and
rejected, authorization for the sort of seizure Truman .actually
ordered.
Justice Hugo Black delivered the opinion of the Court. The
President, Justice Black wrote, had engaged in law-making, a task
assigned by the Constitution to Congress.27 The seizure was
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therefore unlawful, since the "President's power, if any, to issue
the order must stem either from an act of Congress or from the
Constitution itself . "28 Yet Youngstown is remembered mostly for the
concurring opinion of Justice Robert Jackson. In reasoning
strikingly reminiscent of Marshall's in ittle, Jackson wrote that
"[p]residential powers are not fixed but fluctuate, depending upon
their disjunction or conjunction with those of Congress. "~ Because
of the importance of Jackson's opinion, key portions are set forth
without paraphrase:
Presidential powers are not fixed but fluctuate,
depending upon their disjunction or conjunction with
those of Congress. We may well begin by a somewhat
over-simplified grouping of practical situations in which
a President may doubt, or others may challenge, his
powers, and by distinguishing .roughly the legal
consequences of this factor of relativity.
1. When the President acts pursuant to an
express or implied authorization of Congress, his
authority is at its maximum, for it includes all
that he possesses in his own right plus all that
Congress can delegate. In these circumstances, and
in these only, may he be said (for what it may be
worth), to personify the federal sovereignty. If
his act is held unconstitutional under these
circumstances, it usually means that the Federal
Government as an undivided whole lacks power. A
seizure executed by the President pursuant to an.
Act of Congress would be supported by the strongest
of presumptions and the widest latitude of judicial
interpretation, and the burden of persuasion would
rest heavily upon any who might attack it.
2. When the President acts in absence of
either a congressional grant or denial of author-
ity, he can only rely upon his own independent
powers, but there is a zone of twilight in which
he and Congress may have concurrent authority, or
in which its distribution is uncertain. Therefore,
congressional inertia, .indifference or quiescence
may sometimes, at least as a practical matter,
enable, if not invite, measures on independent
presidential responsibility. In this area, any
actual test of power is likely to depend on the
imperatives of events and contemporary imponderables
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rather than on abstract theories of law.
/10
3. When the President takes measures incom-
patible with the expressed or implied will of
Congress, his power is at its lowest ebb, for. then
he can, rely only upon his own constitutional powers
minus any constitutional powers of Congress over
the matter. Courts can sustain exclusive
Presidential control in such a case only by
disabling the Congress from acting upon the subject.
Presidential claim to a power at once so conclusive
and preclusive must be scrutinized with caution,
for what is at stake is the equilibrium established
by our constitutional system.
The opinion is thus notable for its unwillingness to decide
the case by reference to "inherent" presidential power, and in the
weight it accords congressional will. it remained for a former
Jackson clerk, Justice William Rehnquist, to give Jackson's opinion
the force of law. The Supreme Court formally adopted this mode of
analysis in Dames & Moore, v. Rectan,31 in which Justice William
Rehnquist applied Jackson's approach to uphold President Jimmy
Carter's Iranian hostage settlement agreement as having been
authorized by Congress.32 In so doing, Rehnquist wrote that
Jackson's opinion "brings together as much combination of analysis
and common sense as there is in this area."33 Rehnquist then
quoted from Jackson a passage that, today, is as significant as it
is timely. He said: "The example of such unlimited executive power
that must have most impressed the forefathers was the prerogative
exercised by George III, and the description of its evils in the
Declaration of Independence leads me to doubt that they were
creating their new Executive in his image."~
This, then, is the mode of analysis pursued by the United
States Supreme Court in the assessing the reach of presidential
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foreign affairs power. it bears repeating: "Presidential powers
are ~ fixed ~u fluctuate, ~ependinc upon their disjunction ~r
con-function with hose Qf Congress.?3' "When t e president takes
measures incompatible with the ext~ressed ~t imolied will ~f
Congress , his Power ~s~t its owest ebb ,~ _ _ _"~
Section 630 of the 1988 Continuing Resolution, Mr. Chairman,
placed presidential use of specified pre-publication review
agreements in this third category of Justice Jackson's analysis,
where his power to use those agreements is, at its lowest ebb. Any
other case used for comparison must therefore fall within this
third category. Cases dealing with presidential acts that fall
within Justice Jackson's first or second categories -- where
Congress has approved, and where Congress is silent -- are not on
point.
The four cases relied upon by. the district court in AFSA are
for this reason altogether irrelevant to the constitutionality of
section 630. The first case, Department of the Nav v. Ea an,s7
raised the issue whether the statutory structure permitted
administrative review of the merits of a security-clearance denial
underlying an employee's removal. The "statute's 'express
language' along with 'the structure of the statutory scheme, its
objectives, its legislative history, and the nature of the
administrative action involved "' all militated against such
review.3~ Congress thus agreed, rather than disagreed, with the
Executive's position. Zndeed, in an important passage unnoted by
the AFSA court, the Supreme Court in this case pointed out that
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deference to the Executive in military and national security
affairs is only appropriate " ss Congress ~snecifical~,y ~5
provided ptherwise."34 In section 630, Congress specifically
provided otherwise.
The second case is represented by part of the concurring
opinion of Justice Potter Stewart in Ts he PentaQOn a ers Case.4o
Unfortunately, the AFSA court neglected to include the most
pertinent portion of Justice Stewart's opinion -- his observation
that, in -that case, the Court was "asked neither to construe
specific regulations nor to apply specific laws." In other words,
the controversy fell within Jackson's second category -- the,"zone
of twilight." The case, unlike AFSA v. Garfinkel, presented no
disagreement between Congress and the Executive. (The AFSA court
also neglects to note the outcome of The Pentagon Papers Case: the
Executive lost.)
The third case, United States v. American Telephone and
Telegraph Co.,4t seems to be cited by the AFSA district court as
authority that the role of Congress in this realm is limited to
protecting its own access to classified information, rather-than
"intruding upon the President's oversight of national security
information ." In fact, the case said nothing of the sort.
While it did present "nerve-center constitutional questions,"~Z the
court expressly declined to resolve those issues,43 urging the
parties to pursue an out-of-court settlement. No statute was
struck down;. no executive act flouting the will of Congress was
upheld.,
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The fourth case, which deserves special attention in this
regard, is that old war-horse, U ite tS etas v. Curtiss-Wright.'
Those words -- ~urtiss-Wight -- often are ritualistically incanted
in executive efforts aimed at exorcising the demons of legislative
limitation.i5 But the holding of Curtiss-Wright hardly lends
itself to such labors, for the circumstances in which the case
arose -- the facts to which a holding is perforce confined --
constituted anything but a legislative-executive confrontation.
The posture of Congress in that case, unlike AFSA, was support for
the President, not opposition. Congress had enacted a very
ordinary law making certain arms sales illegal upon a finding by
the President that a ban on those sales would serve the cause of
peace. President Roosevelt made the finding, defendant Curtiss-
Wright violated the law, was indicted and convicted, and on appeal
challenged the constitutionality of the law on the ground that it
violated the six-month-old delegation doctrine. Court held that
delegation doctrine need be of concern only, or almost only, in the
case of prodigal ,domestic authorizations: the law in question was
not "vulnerable to attack under the rule that forbids a delegation
of the lawmaking power."~6
The case is known for its extravagant dicta concerning "the
very delicate, plenary and exclusive power of the President as the
sole organ of the federal government in the field of international
relations."47 But it is important to bear in mind that the Court's
comments represent precisely that: dicta. This is demonstrably not
a plenary powers case: A "plenary presidential power" is a one
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that is not susceptible of congressional limitation. Plenary ,power
refers to the power of the President to act gven ~ Congress
prohibits that pct. I gather that this is what the author of the
opinion, Justice George Sutherland, means by the term. Now, what
plenary power did President Roosevelt exercise under the facts of
Curtiss-Wright? Under no accepted principle of American con-
stitutional jurisprudence could the President promulgate by
executive fiat a criminal prohibition and, without congressional
concurrence, proceed to impose criminal penalties. It is emphati-
cally the task of Congress to legislate~9 -- most surely to enact
statutes imposing criminal penalties. One wonders what Sutherland
has in mind, therefore, when he announces that "we are dealing
here" not with statutory power alone, but with statutory power
"plus the very delicate, plenary and exclusive power of the
President" -- "a power which does not require as a basis for its
exercise an act of Congress. ."50 Does Sutherland seriously
mean to suggest that the President could have imposed criminal
penalties on Curtiss-Wright without any statutory "basis"? Can he
truly mean that, in the absence of any trace of congressional
authorization, the Executive could somehow have fined or jailed
Curtiss-Wright? Suppose under the facts of this case that Congress
had taken a contrary position; suppose that, instead of prohibiting
the arms sales in question, it had affirmatively permitted those
sales. If "we are dealing here" with a plenary po~,aer, then the
conclusion must be that the President could criminalize the arms
sales even over Congress's statutory opposition -- an absurd
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TESTIMONY OF MICHAEL J. GLENNON /l~
proposition that even George Sutherland presumably would reject.
Perhaps he meant for this impressionistic essay to be read less
rigorously. Perhaps by "here" he does not mean "here in this
case," but rather "here" in these generalized flights of fancy
about the manifold delicacies of plenary power. Perhaps; a little
precision would have gone a long way. In any event, one is com-
pelled to conclude that the discussion of plenary power has no
place in Curtiss-Wright case since, again, the posture of Congress
~in that case is approval of the President's initiative, not
disapproval. The case falls in Jackson's first category, not his
third.
The AFSA court thus relies upon precedential .props that
collapse under examination. No case that the court cites supports
the notion that the President can use appropriated funds to enforce
pre-publication review agreements when Congress has expressly
declined to appropriate funds for that purpose. In an effort to
shore up its shaky conclusion, the AFSA court thus turns to a
student law review note for the proposition that "[n]ever has the
President's authority in this area been dependent upon express
legislative authorization.t?S~ Unfortunately,.the note observes on
the very page cited by the court that "authority for the practice
is said to be implicit in a number of statutes."52 To the extent
that such authority is conferred statutorily, of course, it can be
limited or repealed statutorily. The court elsewhere seems not to
have appreciated the note's full import. The court, for example,
cites the note as authority for the proposition that Presidents
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"have been protecting national security information since World War
I." Yet woven throughout the note's discussion are repeated
references 'to relevant authorizing legislation, and the note
nowhere suggests that Congress would lack power to prohibit the use
of funds to limit the e~ ans by which national security information
is protected.53 Indeed, at no point in the this note does any
reference appear to pre-publication review agreements, for the
apparent reason that, whatever Presidents may have been doing
"since World War I," none other than the incumbent has widely and
routinely employed such agreements.
So much for the court's discussion of presidential power.
Let me turn now to another vital subject that the court again fails
to discuss: congressional power -- the power over the purse.
THE CONGRESSIONAL POWER OVER THE PURSE
Section 630 represents a classic, textbook exercise of
Congress's power over the purse. It prohibits the expenditure of
certain appropriated funds for a specified purpose.
The Constitution prohibits statutorily unauthorized expendi-
tures by the President. Article I, section 9, clause 7 confers
on Congress exclusive power over the purse. It provides that "no
money shall be drawn from the treasury, but in consequence of
appropriations made by law." The only prohibitions in the
Constitution against the use of the appropriations power to curtail
the activities of another branch are the requirements that the
Justices of the Supreme Court and the President receive a
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compensation that may not. be diminished. Had the Framers
'intended further limitations on the appropriations power they
seemingly would have included them. Indeed, in the case of
"national security" matters they went to the other extreme. In
addition to the power to appropriate funds -- and to refuse to do
so -- they gave Congress the power to "raise and support Armies~~ss
and to "provide and maintain a Navy"56 -- and to refuse to do so.
Its historical background reveals why the. appropriations
clause conferred such broad power upon Congress.s~ The provision
was framed against the backdrop of 150 years of struggle between
the King and Parliament for control over the purse, often centering
on military matters. In 1624 the House of Commons for the first
time conditioned a grant of funds to the king. The Subsidy Act of
that year prohibited the use of any military monies except for
financing the navy, aiding 'the Dutch, and defending England and
Zreland.s$ Two years later Charles I attempted to wage war without
popular support, but Parliament promptly denied him funds to
conduct it . 59
By the 1670's parliamentary control over the purse was firmly
established. Charles II insisted that the stationing of troops in
Flanders was a prerogative of the Crown. Parliament, however, saw
it differently: it enacted the Supply Act of 1678,60 requiring that
funds granted be used to disband the Flanders forces.61
Meeting in Philadelphia in 1787, the Framers were well aware
of the tradition of parliamentary power over the purse and its use
to check .unwanted "national security" activities. "The purse and
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the sword must not be in the same hands," George Mason said.'
Madison considered it "particularly dangerous to give the keys of
the treasury, and the command of the army, into the same hands."~
He regarded the power over -the purse as "the most complete and
effectual weapon with which any Constitution can arm the immediate
representatives of the people...."~ Accordingly, the Framers
chose, in the words of Jefferson, to transfer the war power "from
the. executive to the legislative body, from those who are to spend
to those who are to pay."bs
Early practice comported with a broad reading of the
appropriations clause in matters touching on national security.
Presidents Jefferson and Jackson, for example, when requesting
congressional instructions as to the proper course to pursue in the
fact of threatened aggression by Spain and marauding by South
American pirates, respectively, recognized that control of the
"means" necessary to carry out any military effort lies exclusively
with Congress. The Nixon Administration recognized the supremacy
of Congress's power over the purse even as it asserted broad power
under the commander-in-chief clause to prosecute the war in
Vietnam. Indeed, it conceded that Congress could use the power
over the purse to control troop deployment decisions.
The Supreme Court, accordingly, has never held unconstitu-
tional any use of the appropriations power to limit the exercise
of power by the executive branch.67 The only limitation on an
appropriation act that the Court has invalidated exceeded a
constitutional limitation on the power of Congress -- the prohibi-
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tion against bills of attainder. "Congress alone controls the
raising of revenues and their appropriations," Justice Robert
Jackson wrote in the Steel Seizure a e.70 Only it "may determine
in what manner and by what means they shall be spent for military
and naval procurement."~t
Congress thus relied upon its sole power over the purse to
end the Vietnam war. Beginning in 3973, seven statutory funding
limitations -- worded much like the Boland Amendment -- prohibited
the use of any appropriated funds for military or paramilitary
operations in, over, or off the shores of North Vietnam, South
Vietnam, Cambodia and Laos. Though strongly objecting on policy
grounds, the Nixon Administration never challenged the
constitutional power of Congress to cut off funds for the war.
Similarly, in 3975, when President Ford sent in the Marines to
rescue the container ship Mayactuez from the Cambodian military,
his administration never argued that those funding limitations were
unconstitutional -- only that they were inapplicable. If Congress
can use its power over the purse in time of war to control the use
of the armed forces, a fortiori Congress can employ that power in
time of peace to control the use of pre-publication review
agreements.
Nowhere does the AFSA court explain how the President can
expend funds for enforcing specified pre-publication. review
agreements when no money has been appropriated for that purpose.
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pRE-PQHLICATION NEVIEW AGREEMLNTB
Mr. Chairman, the public policy issues raised by the use of
pre-publication review agreements are largely beyond the scope of
my testimony today, in which I was asked to analyze the case of
AFSA v. Garfinkel. Nonetheless, I would be remiss if I failed, as
a citizen, to comment upon this matter.
Over the last decade, something terribly significant has
happened in this country, mostly unnoticed "beyond the Beltway^ and
often unheeded within it. ~ ,pall ~ government censorship as
descended unori vast .numbers of persons who are amon the most
expert on key matters of public concern. ~ regime of licensing has
been imposed upon a vitally important class of informed public
discussants. These individuals must seek the permission of a
government censor before publishing written work within their areas
of expertise. If a work is not submitted for government
censorship, the author may be penalized -- even though it contains
no classified information.
This system of censorship has been put in place following one
of the most unfortunate Supreme Court decisions in decades -- Snepp
v. United States. The Court there upheld the validity of a pre-
publication review agreement which was applied to information that
the government conceded was not classified and, indeed, was
available entirely on the public .record. Snepp had breached no
duty to protect classified information. Yet the Court disposed of
the First Amendment issue in a footnote, without even hearing oral
argument. It did not consider "whether national security is harmed
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by such disclosures, or, if so, whether the adverse effects are
resolved effectively by the Agency's scheme of secrecy
agreements."74 Most important, the Court declined to consider the
countervailing interests undercut by secrecy agreements.
Those interests are weighty. Indeed, they lie at the core of
our structure of government. Since the time of Blackstone, Anglo-
American law has taken a dim view of prior restraints on speech and
the press. In ,Near v. Minnesota, the Supreme Court found prior
restraints to be presumptively unconstitutional. The reason is
known to every student of American constitutionalism: our First
Amendment, as Justice Brennan wisely put it,
has a structural role to play in securing and fostering
our republican system of self-government Implicit
in this structural role is not only 'the principle that
debate on public issues should be uninhibited, robust,
and wide-open' but the antecedent assumption that
public debate must be informed. The structural model
links the First Amendment to that process of
communication necessary for a democracy to survive .
76
The censorship agreements at which section 630 was directed
undercut"uninhibited, robust, and wide-open" public debate. They
undercut the "process of communication necessary for a democracy
to survive." Who can begin to assess the chilling effect these
agreements have had upon free expression? How many articles about
the "disinformation" campaign against Libya -- about the illegal
mining of the harbors of Nicaragua -- about the sale of Hawk
missiles to Iran and the diversion of funds to the contras -- about
the most massive Pentagon .procurement scandal in the nation's
history -- how many articles have never been written -- how many
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TESTIMONY OF MICHAEL J. ~LENNON
f 22
speeches have never been given -- because a would-be author or
speaker was unwilling to submit to the heavy hand of the
_ government's censor? Can we ever begin to measure the damage
inflicted upon the marketplace of ideas in this country by
excluding from it information and ideas vitally important to to
petitioning Congress for a redress of grievances or to casting an
informed vote?
Mr. Chairman, I do not suggest that government has no interest
in keeping secrets. :Nor do I suggest that secrecy agreements are
always necessarily to be avoided. Narrow and precisely drafted
agreements might, for example, be justified in rare circumstances
involving individuals, employed by intelligence agencies, who have
direct access to extraordinarily sensitive information that is
legitimately classified because it relates to bona fide
intelligence sources or methods.
The point is, however, that Congress ought not be deluded into
accepting a false choice, one that suggests that our nation must
choose between massive censorship or national annihilation. It
does not. The art of statesmanship, in Congress or on the bench,
lies in devising a solution that strikes a balance between the
competing interests of free expression and national security, not
a solution of the sort imposed in AFSA that affirms one interest
while discarding altogether another set of vital
interests.
Mr. Chairman, in my judgment section 630 represented a soundly
reasoned and constitutionally valid act of statesmanship. I expect
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TESTIMONY OF MICKAEL J. GLENNON
that the g,~S~ decision will in due course be reversed.
/23
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TESTIMONY OF MICHAEL J. GLENNON
~1OTE8
1. Pub.L. No. 100-202 (Dec. 21, 1987).
2. Mem. op. at 25-30.
3. 6 U.S. (2 Cranch) 170, 179 (1804).
4. Id. at 179.
/24
5. ~ at 173, 177. See H. BLUMENTHAL, FRANCE AND THE UNITED
STATES: THEIR DIPLOMATIC RELATIONSHIP 1789-1914, 13-17 (1970); D.
MORAY, THE UNITED STATES AND FRANCE, 81-83 (1951).
6. Non-Intercourse Act, ch.
1800) .
2, ?1, 3 Stat.613 (1799) (expired
7 . ,~ at ? 5 .
8. Id.
9. Id. at ? 1.
10. Id. at i71.
11. Id.
12. Id. at 176. Little had some reason to suspect the Fling
Fish's true nationality: "[D]uring the chase by the American
frigates, the [Flying Fish's] master threw overboard the logbook,
and certain other papers." Id. at 173 [emphasis in original].
13. Id. at 172,.175-76.
14. Id.
15. Id. at 178-79.
16. Id.
17. Id. at 179.
18. Id. at 177.
19. Id.
20. Id.
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21.
~.
22.
6 ANNALS OF CONG. 613
{1800).
23. Jay Treaty, Nov. 19,
Stat. i16, T.S. No. 105.
1794,
24. ~.
/25
United States-United Kingdom, 8
25. Lord Frederick North, Prime Minister to George III at the time
of the War of Independence, was seen by many Englishmen and
Americans alike as subverting the British constitution with the
aim of achieving royal absolutism. S. MORRISON, THE OXFORD HISTORY
OF THE AMERICAN PEOPLE 198-99 (1965).
26. The Steel Seizure Case, 343 U.S. at 583.
27. ~_ at 587-89.
28. ~d. at 585.
29. 343 U.S. at 635 {Jackson, J., concurring).
30. The Steel Seizure Case, 343 U.S. 579, 635-38 (1952) {Jackson,
J., concurring).
31. 453 U.S. 654 {1981).
32. Id. at 688.
33. Id. at 561.
34. Id. at 662. Compare Alexander Hamilton, no admirer of
legislatures:
The history of human conduct does not warrant that
exalted opinion:of human virtue which would make it wise
in a nation to commit interests of so delicate and
momentous a kind as those which concern its intercourse
with the rest of the world to the sole disposal of
. a President of the United States.
THE FEDERALIST No. 75, at 505-06 (A. Hamilton)(J. Cooke ed. 1961).
An important recent reaffirmation of this approach is found
in Webster v. Doe, 56 U.S.L.W. 3880 (U.S., June 27, 1988),
discussed further below. Despite the protestations of the two
dissenters, the Court -- speaking again through Chief Justice
Rehnquist -- grounded on congressional will rather than
constitutional principle its conclusion that a former CIA employee
was not precluded from seeking judicial review of the decision by
which he was dismissed. Justice Scalia, dissenting, worried that
the majority's opinion
will have ramifications far beyond creation of the
world's only secret intelligence agency that must
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TESTIMONY OF MICHAEL J. GLENNON /26
litigate the dismissal of its agents.. If constitutional
claims can be raised in this highly sensitive context,
it is hard to imagine where they cannot. The assumption
that there are any executive decisions that cannot be
hauled into the courts may no longer be valid.
35. 343 U.S. at 635 (Jackson, J., concurring).
36. The~Steel Seizure Case, 343 U.S. 579, 635-38 (1952) {Jackson,
J., concurring).
37. 108 S.Ct. 818 (1988).
38. ~. at 825 [quoting Block v. Community Nutrition Institute,
467 U.S. 340, 345 (1984)]."
39. ~. [emphasis added].
40. New York Times v. United States, 403 U.S. 713 (1971).
41. 55I F.2d 384 (1976).
42. Id. at 394. These issues related to the petition of the
Justice Department to enjoin a telephone company from complying
with a congressional subpoena issued in the course of an
investigation into warrantless "national security" wiretaps.
43. Id. at 393.
44. 299 U.S. 304 (1936}.
45. MR. NORTH. [I]n the 1930s in the U.S. vs. Curtiss-Wright
Exhort Corporation the Supreme Court again held
that it was within the purview of the President of the
United States to conduct secret activities and to conduct
secret negotiations to further the foreign policy goals
of the United States.
MR. MITCHELL. If I may just say, Colonel, the
Curtiss-Wright case said no such thing. It involved
public matters that were the subject of a law and a
prosecution. .
I just think the record should reflect that Curtiss-
WriQht was on a completely different factual situation
and there is no such statement in the Curtiss-Wricaht
case.
MR. SULLIVAN. I disagree with you. I think it is
a little unfair to have a debate with Colonel
North. .
Testimony of Oliver North, IRAN-CONTRA INVESTIGATION: JOINT
HEARINGS BEFORE THE HOUSE SELECT COMMITTEE TO INVESTIGATE COVERT
ARMS TRANSACTIONS WITH IRAN AND THE SENATE SELECT COI~'iITTEE ON
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-~ ^.r, '"I,,,. .. .. ."~ r - .. ~:x _ ~ _ : .gin ~ r `hi~
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TESTIMONY OF MICHAEL J. GLENNON /27
SECRET MILITARY ASSISTANCE TO IRAN-AND THE NICARAGUAN OPPOSITION,
300th Cong., 1st Sess. [part Ii] 38 {1987)..
46. ~.
47. ~_ at 329-20.
48. He refers to these powers as "exclusive" and, in the next
sentence, contends that legislation "within the international field
must often accord to the President a degree of discretion and
freedom from statutory restriction which would not be admissible
were domestic affairs alone involved. ~. at 320.
49. The Steer Seizure Case, 393 U.S. 579, 587-88 (1952).
50. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320
(3936) .
51. The piece cited. is Developments in the Law -- The National
Security Interest and Civil Liberties, 85 HARV. L. REV. 1130
(1972}.
52. Id. at 1198 [emphasis added].
53. The court apparently accepts without criticism the
Administration's argument "that Congress [can] be excluded from
restricting the means by which the Executive protects national
security." It is difficult to take seriously the suggestion that
any means elected by the Executive to protect the national security
is constitutionally permissible and immune from congressional
restriction as well as judicial review -- yet that clearly seems
to be the implication of the court.
54.
U.S. CONST, art: II, ?
1, cl.. 6; art. III, ? 1.
55.
Id., art. I, ?
8, cl.
12.
56.
Id., art. I, ?
8, cl.
13.
57. See Qeneraily R. BERGER, EXECUTIVE PRIVILEGE: A CONSTITUTIONAL
MYTH 125-27 (1974) .
58. J. KENYON, THE STUART CONSTITUTION 58 (1966).
59. F. DIETZ, ENGLISH PUBLIC FINANCE 1558-1641 (2d ed. 1964).
60. 30 Car. II. c. 1 (1678).
61. See generally W. Abbot, The Lona Parliament of Charles II, 21
ENG. HIST. REV. 254 (1906}.
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62. M. FARRAND, 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787,
at 144 {1937).
63. 'THE FEDERALIST NO. 26 {Madison).
. 64. Farrand, note 62 suvra at 81.
65. 15 THE PAPERS OF THOMAS JEFFERSON 397 (J. Boyd, ed. 1958).
66. THE CHAIRMAN [Fulbright]: Do you question the
constitutionality of the right of Congress to bring back
the troops from Europe? Do you think it is going beyond
our constitutional power?
Secretary [of State William] ROGERS: Well, no. As
I understand Senator Mansfield's resolution, it refers
to appropriation of funds, and that is, of course, within
the constitutional powers of the Congress.
THE CHAIRMAN: It is clearly within our powers.
WAR POWERS LEGISLATION: HEARINGS BEFORE THE COMM. ON FOREIGN
RELATIONS, U. S. SENATE, 92d Cong., 1st Sess. 504 (1971).
67. CONGRESSIONAL RESEARCH SERVICE, U.S. LIBRARY OF CONGRESS, THE
CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND
INTERPRETATION, S. Doc. No. 82, 92d Cong., 2d Sess. 1597-1619
(1973) (setting forth a summary of all acts of Congress held
unconstitutional in whole or in part).
68. United States v. Lovett, 328 U.S. 303 {1946).
69. U.S. CONST. art I, ? 9, cl. 3.
70. Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579, 643 (Jackson,
J., concurring).
71. Id. at 644.
72. Section 30 of the Foreign Assistance Act of 1973 was typical
except in referring to "military or paramilitary operations?f rather
than to "combat activi_ties1t or "involvement. in hostilities."
Section 30 provides: "No funds authorized or appropriated under
this or any other law may be expended to finance military or
paramilitary operation by the United States in or over Vietnam,
Laos, or Cambodia." 87 Stat. 732. The other provisions. were:
Department of Defense Appropriation Act, 1975 Pub. L. No. 93-437,
Section 839, 1974 U.S. CODE CONG. & ADM. NEWS 1400 (1974);
Department of Defense Appropriations Act, 1974 Section 741, 87
Stat. 1045; Department of Defense Appropriation Authorization Act,
1974, Section 806, 87 Stat. 615 (1973); Department of State
Appropriations Authorization Act of 19?3 Section 123, 87 Stat. 454;
Joint Resolution of July 1, 1973, Pub. L. No. 93-52, Section 108,
87 Stat. 134; Second Supplemental Appropriations Act, 1973 Section
307, 87 Stat. 129.
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 y k~X`.'y?'~..'L}.-~-i e~7,. _ ~,.;,~~+- ~'- -_ ~r ,.' y ~'T y~.,;~X ~ ~ ~~_~ ~ t _ r..~ -.:s ,.~?L .z,F.. 's'ue ~ :r'~.;'Z .~ ?,~ ~ `: _~ , ~ ?t
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TESTIMONY OF MICHAEL J. GLENNON
73. 444 U.S. 507 (1980).
/29 .
74. Franck & Eisen, ~alancina National Security and Free speech,
14 N.Y.U. J. INTL. L. & POL. 339, 343 (1982).
75. 283 U.S. 967 (1931)
76. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 587-88
(1980)(Hrennan, J., concurring)(emphasis in original).
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. - United States ,General Accoanting Office '
Testimony
FOR RELEASE ON CLASSIFIED INFORMATION
DELIVERY EXPECTED NONDISCLOSURE AGREEMENTS
AT 10:00 A.M. EDT
i.ZEDNESDAY
AUGUST 10, 1988
STATEMENT OF
LOUIS J. RODRIGUES
ASSOCIATE DIRECTOR
NATIONAL SECURITY AND INTERNATIONAL
AFFAIRS DIVISION
BEFORE THE
SUBCOMMITTEE ON LEGISLATION AND NATIONAL SECURITY
COMMITTEE ON GO~Z:Ft]VMENT OPERATIONS
UNITED STATES HOUSE OF REPRESEI'TATIVES
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? -
Mr. Chairman anc~ Members of the Committee:
We are pleased to be here today to discuss the use of nondisclosure
agreements by executive branch agencies.
The data we are summarizing today were compiled from responses to
questionnaires sent to executive branch agencies and preliminary
data. provided by the Department of Defense (.DOD) for calendar
years 1986 and 1987. We have not received DOD's formal response to
the current questionnaire; therefore, some changes to the overall
data are likely.
BACKGROUND
You and the Chairmen of the House Committee on Post Office and
Civil Service and Senate Committee on Governmental Affairs,
Subcommittee on Federal Services, Post Office., and Civil Service,
requested the.General Accounting Office to update information
obtained through previous questionnaires on-the federal
government's personnel and information security programs.
Specifically, you asked that we compile data from a questionnaire
you sent to about 50 executive branch agencies and identify trends
using prior data. This questionnaire is the fourth one sent to
federal agencies since .1983. We reported the results of the
responses to the earlier questionnaires in 1983, 1984, and 1986.
We are in the process of obtaining the final responses to the
recent questionnaire and drafting a report.
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REQUIREMENTS FOR NONDISCLOSURE AGREEMENTS
National Security Decision Directive 84, dated March 11, 1983,
requires government and contractor employees to sign a
nondisclosure agreement as a condition of access to classified
information. In addition, the Director of Central Intelligence
requires individuals with access to sensitive compartmented
information (SCZ)--information related to intelligence matters--to
sign a separate nondisclosure agreement. Those individuals must
sign such agreements as Form 4193, its successor Form 4355, or
DD Form 1847-1 (see atts. I through III). Other government
agencies also require specialized agreements before granting access
to the government's many non-SCI special access programs.
National Security DEC1Slon Directive 84 required the Director,
Information Security Oversight Office, General Services
Administration, to develop a standardized agreement form for all
persons to sign as a condition of access to classified information.
He issued Standard Form 189 in September 1983 for use by government
employees and Standard Form 189-A in November 1986 for use by
contractor employees (see atts. ZV and V). Because of the large
number of individuals involved, only newly cleared individuals must
sign the agreements before receiving access to classified
information. DOD uses the annual security refresher briefincTS as
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an appropriate time for individuals with existing clearances to
sigr. the agreements.
The Directive also provides that agreements for persons authorized
,. access to SCI must include .a provision requiring a prepublication
review. These reviews are required of all materials prepared .for
public disclosure that contain SCI or related classified
information or a description of activities that produce or relate
to SCI. However, as reported to.you in September 1986,1 agency
employees with SCI access have been required to sign nondisclosure
agreements with liietirne -prepublication review requirements since
the issuance of Form 4193 in 1981. Although the President
suspended the prepublication review provision of the Directive on
February 15, 1984, the suspension has had little effect on
prepublication review requirements. This is because employees are
still required to sign a -Form 4193 or DD Form 1847-1 before being
granted access to SCI.
NUMBER OF NONDISCLOSURE AGREEMENTS INCREASED
Executive agencies reported that about 2.5 million current and
former government employees had signed Standard Form i89 as of
December,31, 1987. The total number of contractor employees who
had signed Standard Form 189-A was unknown. DOD, which accounted
1Information and Personnel Security: Data on Employees Affected by
Federal Security Programs (GAO/NSIAD-86-189FS), Sept. 29, 1986.
3
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for about 85 percent o.f all contractor employees with clearances,
said that the number signed was not available. DOD said that its
contractors' 1.1 million employees with security clearances had
until December 31, 1988, to sign the agreements. Other agencies
reported that about 102,000 contractor employees (about half of
their contractor employees with clearances) had signed Form 189-A.
Thy number of current and former agency employees who have signed
SCI nondisclosure agreements with a provision for prepublication
review has increased substantially since calendar year 1982.
During this Committee's hearing on National Security Decision
Directive.84 in October 1983, we reported that, excluding employees
of the Central Intelligence Agency (CIA) and the National Security
Agency (NSA), about 113,000 government employees with SCI access
would have been required to sign nondisclosure agreements
containing a prepublication review provision. We estimate that, as
of December 31, 1987, about 453,000 current and former employees,
excluding those employees of the CIA and NSA, have signed such SCI
agreements.
In addition, other agreements also require prepublication reviews.
For example, the Federal Bureau of Investigation's employment
agreement contains a prepublication review provision (see. att. VI).
Data available showed that about 49,000 non-SCI agreements included
prepublication review provisions in December 1985, increasing to
about 53,000 in December 1987.
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In summary, over 500,000- signed nondisclosure agreements require
prepublication reviews.
You asked agencies to report the number of nondisclosure agreements
signed after section 630 of Public Law 100-202 became effective on
December 22, 1987. The law~put a moratorium on the use of Forms
189, 4193, and any other nondisclosure agreements that contained ,
objectionable items, such as use of the word classifiable. Critics
of the agreements have expressed concern, for example, that use of
such a term could subject employees to penalties for disclosing
unclassified information that the government later classifies.
On December 29, 1987, the Information Security Oversight Office
advised agencies of the law. The Office instructed the agencies to
cease implementation of Standard -Forms 189 and 189-A, pending
resolution of the congressional concerns.
However, federal employees with access to SCI were still required
by the D:.rector of Central Intelligence to sign an amended Form
4193. The amendment consisted of a paragraph which states that the
agreement will be enforced in a manner consistent with section 630
of Public Law 100-202. On March 22, 1988, Standard Form 4193 was
replaced by Standard Form 4355, which omits the term "classifiable
information" but continues the requirement of prepublication
review.
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eighteen agencies reported-about 43,000 Standard Forms 189 and
6,000 SCI nondisclosure agreements were signed from December 22,
1987, to March 31, 1988. This does not include the Army, which
reported that the number of agreements signed during the period was
unknown. DOD did not tell its contractors to stop using Standard
Form 189-A until N,arch 22, 1988. As noted previously, DOD does not
know how many contractor employees had signed Form 189-A.
UNAUTHORIZED DISCLOSURES
National Security Decision Directive 84 also requires agencies to
adopt procedures to report and investigate unauthorized disclosures
of classified information, and to maintain records of such
disclosures and investigations. The Directive requires agencies to
report unauthorized disclosures to the Department of Justice.
Agencies repocteci a total of 328 unauthorized disclosures ror the 5
years ending December 1982. For the years 1983 through 1987, they
reported unauthorized disclosures of 43, 151, 165, 60, and 81,
respectively.
The percentage of unauthorized disclosures referred to the
Department of Justice increased since the Directive was issued. In
1984, agencies referred about 30 percent of the unauthorized
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disclosures to the Department. This percentage increased to about
32 percent in 1985, S3 percent in 1986, and 60 percent in 1987.
You asked for information on unauthorized disclosures through
writings or speeches ?by current or former employees. These
comprised 21-of 328 reported unauthorized. disclosures for 1978-
82. For subsequent years, agencies reported the following:
-- One of 43 disclosures in 1983 was through a speech or
publication by a then-current employee of a contractor.
-- Eight of the 1S1 disclosures in 1984 were made through
published writings or speeches. Six of the 8 were by
then-current employees, and 2 were by former employees.
Seven of the 165 unauthorized disclosures in 1985 were made
through speeches or published writings. Five of the 7
were by then-current employees and.2 were by former
employees.
-- Six of 60 disclosures in 1986 were by published writings or
speeches of then-current employees.
-- Three of the 81 in 1:987 were by published writings or
speeches of then-current employees.
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We do not know how many of these disclosures were by individuals
who had signed nondisclosure agreements with prepublication review
provisions. Agencies reported no disclosures by former employee'
published writings or speeches in 1986 or 1987.
Mr. Chairman, this concludes my prepared statement. We would be
pleased to answer any questions.
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 A;tl:liL'l4t'7~NT 3. ,tl,list.tu7T.ivt d.
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An Agreement 9ctwetn ~ and the United Starts
(Name -'hinted or Typed-
1, Intending to be legally bound, 1 hereby accept the obligtions sontained in this Agra in etortsidc-anon of my being
wanted access to information protected within $pecia! Access 'Programs, hertdnafter referred to in this i+-sreement a Sensitive Com-
panmented Information ISC11. !have been advised that SCI involves or derives from intelligence sonroa or methods and is classified
or classifiable under the standards of Executive Order 12065 or other Executive order or:tatute. I anderstsnd and accept that by being
wanted access to SCI, special confidence and trust shall be placed in me by the United States Government.
2. i hereby acknowledge that 1 have received a security indoctrination concerning the nature and protection of SCI, including
the procedures to be followed in ascertaining whether other persons to whom 1 cotttcmpiate discbsing this information have betn
approved for access to it, and I understand these procedures. I understand that I may be required to sign subsequent agreements upon
being granted access to different categories of SCI. !further understand that all my obligations under this Agreement continue to exist
whether or not I am required to sign such subsequent agreements.
3. I have been advised that direct or indirect unauthorized disclosure, nnauthorized retention, or negligent handling of SCI by
me could cause irreparable injury to the United States or be used to advantage by a foreign nation. I hereby agree that I will never
divulge such information to anyone who is not suthorized to receive it without prior written authorization from the United States
Government department or agency (hereinafter Department or Agency) that last authorized my access to SC1. 1 further understand
that 1 am obligated by law and regulation not to disclose any classified information in an unauthorized fashion.
?4. In consideration of being granted atxess to SCI and of being assigned or retained in a position of special ounfedence and truut
ttquiring access to SCi.?I hereby agree to submit for security review by the Department or Agency that last authorized my access w such
information, all information or materials, including works of fiction, which contain or purport to contain any SCI or description of activi-
ties that product or relate to SCI or that 1 have reason to believe arc derived from SCI, that I contemplate disclosing to any person not
authorized to have access to SCi or that I have prepared for public disclosure. !understand and agree that my obligation to submit such
information and materials for review applies during the course of my access to SCI and thereafter, and 1 agree to make any required
submissions prior to discussing the information or materials with, or showing them ta, anyone who is trot authorized to have access to SC1.
t further agree that 1 will not disclose such information or materials to any person not authorized to have accts to SCI until 1 have
received written authorization from the Department or Agency that last authorized my access to SCi that such disclosure is permitted.
S. I understand that the purpose of the review described in paragraph 4 is to give the United States a reasonable opportunity to
determine whether the information or materials submitted pursuant to paragraph 4 set forth any SCI. !further understand that the
Department or Agency to which 1 have submitted materials will acs upon them, coordinating within the Intelligence Community when
appropriate, and make a response to me within a reasonable time, not to exceed 30 working days from date of receipt.
b. 1 have been advised that any breach of this Agreement may rauit in the termination of my access to SCI and retention in a
position of special confidence and trust requiring such access. as well as the termination of my employment or other relationships with
any Department or Agency that provides me with access to SC1. In addition, 1 have been advised that any unauthorized disclosure of
SCl by me may constitute violations of United States criminal laws, including the provisions of Sections 793, 794, 748, and 952, Title
18, United States Code, and of Section 783(bl. Title S0, United States Code. Nothing in tfiis Agreement constitutes a waiver by the
United States of the right to prosecute me for any statutory violation.
7. l understand that the United States Government may seek any remedy available to it to enforcx this Agreement including,
but not limited to, application for a court order prohibiting disclosure of information in breach of this Agreement. t have been advised
that the action can be brought against me in any of the severe{ appropriate United .States District Courts where the United States
Government may elect to file the action. Court cosu and reasonable attorneys fee incurred by the United States Government r*+ay be
assessod against me if 1 lose such anion.
8. I understand that all information to which I may obtain access by signing this Agreement is now and will forever remain the
property of the United States Government. i do not n^w, nor wilt (ever, possess any right, interest. title, or claim whatsoever to such
information. I agree that 1 steal{ return all materials, which may have come into my possession or for which 1 am responsible because of
such access, upon demand by an authorized representative of the United States Government or upon the conclusion of my employment
or other relationship with the United States Government entity providing me access to such materials. tf 1 do not return such materials
upon request, 1 understand this may be a violation of Section 793, Title 18, United States Codc, a United States criminal law?.
9. Unless and until 1 am released in writing by an authorized representative of the Department or Agency that last provided me
with access to SCI, t understand that all conditions and obligations imposed upon me by this Agreement apply during the time 1 am
granted access to SCI, and at a!1 times thereafter.
10. Each provision of this Agreement is severable. If a coup should find any provision of this Agreement to be uncnforccabic, all
other provisions of this Agreement shall remain in full force and effect. This Agreement concerns SC1 and does not set forth such other
eanditions and obligations not related to SCI as may now or hereafter pertain to my employment by or assignment or relationship with
the nepattmcm or Agency.
1 1. I have read this Agreement carefully and my questions, if any, have bttn answered to my satisfaction. 1 acknowledge that
the briefin? officer has made available Sections 793, 794, 798, and 952 of Title 18, United States Codc, and Section 783(b1 of Title 50.
United States Codc, and Executive Order 12065, as amended, so that 1 may read them at this time, if I so choose.
12. 1 hcrcby assign to the United States Government all ri?hts, title and interest, and all royalties, remunerations, and emoluments that
have resulted, will result, or mzy result from any disci~ure, publication, or revelation not consistent with the terms of this Agreement.
'~M 4143 ?socrTt -rrvrov: R.,,~., f..,_.~. a~..~.~..,e.,os
- ~~ , ton ior. ..a.a ~ .e..r....s -a ,,., .. ,..e ~
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 ~~. l tYtake ih~ Att~cement without any ts7rtceming tfte Hawn and protection of classified information, indtading ti+e pro-
sriurn to be followed in ascertaining whether other persons to whom I notate disclosing this information hsva been approveC for sates: to it, and
that I understand these procedures. - - -
'' 3. 1 have been advised and am aware that direct or Indirect unauthorized disclosure, ufteuthorized retention, or npligent hsr+dling Of classified informa-
tion by me could carne irreparable injury to the United States or could be used to advantage by a foreign nation. I hereby agree trot I will never divulge
such infocrnetion unless 1 have officially verified tttet the recipient has Deer properly sutfiorixed by the United States Government to ret7eive it or I have
been given prior written notice of authorization from the United States Government pepsrtment or Agertty (hereinafter Departrrtertt or Agency) tali
granting me a security clearance that such disclosure is permitted. I further understand that 1 sm obligated to comply with taws end ragufatfons that
prohibit the unauthorized disclosure of classified information.
4. I have t:>Fen advised and am aware that any breach of this Agreement may result in the termination Of arty security elearonaes 1 hold: removal from any
- position of special confidence and trust requiring such clearances: and the termination of my employmert or other relationships with the Departments or
Agencies Chet granted my security clearance or Uesranees. In addition, 1 have Dean advised and am aware that any unauthorized disclosuro of classified
informatior. by me may constitute a violation or vialatiorts of United States criminal laws, including the provisionu of Saaions 641,793, 794, 798, and
5-52, Titre 18. United States Code, the provisions of Section 783(bi, Title 50, United States Code, and the provisions of ttte Inteltigertce identities Protec-
tion Act of 1982 1 recognize that nothing in tftia Agreement constiwtes a waiver by the United States Of the right to prosecute rrte for any statutory
- violation.
5. I hereby ensign to the United States Government all royalties, remunerations, and emoluments that have reverted, will result or may result from any
disdosuro, publication, or revetadon not consistent with the terms of tht! Agreement
6. I understand that the United States Government may seek env remedy available to it to enforce this Agreerttertt including, Out not limited to, applica-
tion for a couR order prohibiting disclosure of information in breach of this Agreement
7. I understand 7tat ell information to which t may obtain access by signing this Agreement is now and will forever remain the property of the United
Statd Government ! do not now, nor will I ever, possess any right, interest, titre, or claim whatsoever to such information. I agree that I shall return all
materials which have, or may have, come into my possession or for which 1 arrt responsible because of sudt encase, upon demand by an authorized repre-
sentative of the United Stag Government or upon the conclu~on of my employment or other refetionstfip with the Department or Agency that last
granted me a security clearance. If t do not return sudt materials upon request, 1 understand tf)at this may be a violation of Se1:5on 793, Titre 18, United
States Code, a United States criminal taw,
8. Unless and until 1 am released in writing qy ar. authorized representative of the United States Government, t understand that aN conditions and Obliga-
tions imposed upon me by this Agreement apply during the time 1 am granted access to classified information, and at sil times thereafter.
9. Each provision of this Agreement is severable. if a court should find arty provision of this Agreement to be unenfareeabie, all other provisions of this
Agreement shall remain in full force and effect
i0. 1 have read this Agr~ment carefully and my questions, if any, have been answered to my satisfaction. 1 acknowledge that the briefing officer has
made available to me Sections 647. 793. 794, 798, and 952 of Title 18. United States Code, Section 783(bl of Title 50, United States Coda, the Intelli-
gence Identities Protection Act of 7982, and Executive Order 12356, so that !may road them at this time, if I so choose.
17. I make this Agreement without mental reservation or Durpose of evasion.
SOCIAL SECURITY NO. (See
nodes Dslotar)
The execution of this AgreelTtent was witnessed by tfie undersigned, who, on behalf of the United States Govern-
ment, agreed to its terms and accepted it as a prior condition of authorizing access to classified information.
NOTICE: The Privacy Act, S VS.C. 552a, redutres that tetleral agencies Inform intllvitluals, at the time Intormatlon IS sollcftetl from them, wnether tree
dlsclOSUre Is mandatory or voluntary, by wrest authority such Intormatfon Is soilelted, antl what uses will be made of th? intormatlon. YOU are hereby
advised that authoriy for sollciting your Social Security Account Number {55 `r) Is Executive Order 9377. `lour SSN will be used *o Identify you pre.
elseiy when It Is necessary to 1) Certlry that you have access to the intormatlon Indicated above or 2: determine that your access to the intormatlon
Indicated has tefmlhaTetl. AItnOUgh tlisctOSUre Ot your $SN iS ndt TfantlatOry, your failure t0 tl0 SO may Imbede the prOCLSSIng Ot Su Ch CtRlfleatl0ni dr
determinations.
STANDARD FORM 789 (8.83)
irescTlt?d av GSA/1500
n~a wren+. v n :-r+s~
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 Al.tlll,riSi'~3:iYJ; V _ +~~.`aavr~c ~d~~~
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CLASSiIFlED ~NFORMATEGN NflNDi5C1i..t3SURE AGREEMENT
ttNDUSTRfiAL/COMMERCIALINON-GOVERNl1AENT)
AN AGREEMENT $ETWE~N AND THE UNITED STATI
lNsmt ollndi~tdud ? ?)'D~ orOrint)
1. intending to be legally bound, I hereby accept the obligatiors contained in this Agreement in consideration of r
being granted access to Classified ir.formatirn. As used in this Agreement, classified information is information tt?~c;
classified under the standards %~f Executive Order 12356, or under any other Executive order or statute that proh'~
the unauthorized disclosure o' information in the interest of national security. 1 understand and accept that by bet
granted access to classified information, special confidence and trust shall be placed in me by the United States Gover
ment.
2. I hereby acknowledge that I have received a security indoctrination concerning the nature and protection of clan
fled information, including the procedures to be followed in ascertaining whether other persons to whom i contempl~
disclosing this information have been approved for access to it, and that I understand these procedures.
3. 1 have been advised and am aware that direct or indirect unauthorized discltsure, unauthorized retention, rr nee
gent handling of classified information by me could cause irreparable injury to the United States or could to us~~
advantage by a foreign nation. I hereby agree that 1. will never divulge such information unless 1 have officially verifi~
that the recipient has been property authorized by the United States Government to receive it or !have been given pri
written notice of authorization from the United States Government Department or Agency (hereinafter Department
Agency) responsible for the classification of the information th2t such disclosure is permitted. I further understand th
I am obligated to corimply with laws and regulations that prohibit the unauthorized disclosure of classified information.
4. i have been advised and am aware that any breach of this Agreement may result in the termination of any securi
clearances I hold and removal from any position of special confidence and trust requiring such clearances. In addition
have been advised and am aware that any unauthorized disclosure of classified information by me may constitute a vio
lion, or violations, of United States criminal laws, including the provisions of Sections 641, 793, 794, and 798, Title 1
United States Code, and the provisions of the Intelligence Identities Protection Act of 1982. 1 recognize chat nothing
this Agreement constitutes a waiver by the United States of the right io prosecute me for any statuton~ violation.
5. I hereby assign to the United States Government all royalties, remunerations, and emoluments that have resuitE
wilt result or may result from any disclosure, publication, or revelation not consistent with the terms of this Agreemen
6. I understand that the United States Government may seek any remedy available to it to enforce this Agreement i
eluding, but not limited to, application for a court order prohibiting disclosure of information in breach of this AgrE
meat.
7. I understand that alt classified information to which I may obtain access, by signing this Agreement is now and w
forever remain the property of the United States Government. I do not now, nor will I ever, possess any right, intere:
title, or claim whatsoever to such information. I agree that I shall re-turn all materials which have, or may have, con
into my possession or for which I am responsible because of such access, upon demand by an authorised representati
of the United States Government or upon the conclusion of my Pmpioyment or other relationship that requires access
classified information. If 1 do not return such materials upon request, I understand that this may be a violation of Se
lion 793, Title 18, United States Code, a United States criminal law.
8. Unless and until I am released in writing by an authorized representative of the United States Government, 1 undt
stand that al! conditions and obligations imposed upon me by this Agreement apply during the time I am granted acce
to classified information, and at all times thereafter.
9. Each provision of this Agreement is severable. If a court shoul~ find any provision of this Agreement to be une
forceable, all other provisions of this Agreement shall remain in full ~crce and effect.
5TANOARD FOFM 189-A (6.3
Pta coibx Dv GSM~I ~'YJ
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-
-----a ------
'In~Eligence identities Protection Act of 1982, and Execi,ti~e Order 12356, so t>?-et 1 may read them at pia tler~l, ~
choose.
11. I make this Agreementwitt!out mental reservatign ar purpose of evasion.
socAi` sECURt r~u~eeE~ ~.
Notleie Odoo1
`CONTRACTOR. LICENSEE. GRANTEE OR AGENT NAME. ADDRESS AND. IF ADPt.1CABLE, FEDERAL SU PLY CODE NUMBER (Typf o-DrtnU
VyITNESS
-ACCEPTANCE `
THE EXECUTION OF THIS AGREEMENT WAS
WITNESSED BY THE UNDERSIGNED.
THE UNDERSIGNED ACCEPTED THIS AGREEMENT
BEHALF OF THE UNITED STATES GOVERNMENT.
SIGNATURE
DATE
SIGNATURE
DATE
NAME ANO ADDRESS tT)'De orDruft)
NAME AND ADDRESS (2yp+ orD-tni)
SECURITY DEBRIEFING ACKN?1dVLEDGMENT
(The use of this acknowledgment far security debriefings is optional.)
1 reaffirm that the provisions of the espionage laws and other federal criminal taws app{;cable to the safeguarding of classified informati
have been made available to me; that I have returned all classified information in my custody; that I wilt not communicate or Lransmit ciie
fled inf_rma*.ion t0 any unauthorized person or agency; that I will promptly report to the i=ederaf Bureau of Investigation any attempt by
unauthorized person to solicit classified information, and ;hat t (have) (have not) (strike out inappropriate ward or words) received a fil
oral security briefing.
NOTICE: Tne PrtvacY ACt, S US.C. 551a. reaulref test fsaeral a4enclet tntOrm Inaly laualf, at the tlm/ Information It folfcttea from tn~m, whetn er the 0{t
aft hereDY aOviseC'
fof will toe magi Of the IntOrmitlOn. YOU
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furs ff man CatOry Or vOWMirY, Dy wnai autnOflty fuCn InfOrmatlOn h fO1lCltea, ana w
auto Orlty TOr fOIlCltlnq your SOCItI SacurltY Account NumDar SSN) If Executly? Of aer 9397. Vour SSN will W tlfeb t0 taco Illy you PrK Rely wMn It !f
eit:ary t0 1) certify that you news KCefa t0 tn? In lOtmatlOn nClCateO aDOV? Or 1) Determine that yOtir sc Cesf t0 th? IMOrmatlOn Inatute0 naa taimina
AItnOUgn OtfctOwre Ot yCUr SSN Is not manaafOry, your failure t0 a0 s0 may result In ine Qenlal Ot Your De1nQ grantt6 acceu t0 clazstfMC IntOrmatlOn.
Declassified in Part -Sanitized Copy Approved for Release 2012/10/17 :CIA-RDP90M00005R001400010021-8
 } _ ~ / w: ~ t
Declassified in Part -Sanitized Copy Approved for Release 2012/10/17 :CIA-RDP90M00005R001400010021-8
EMPLOYM:NT AGR~=h1FN7
As ccnsidera:icn fcr er,,;,!cyrert in ;he Federal 6::reau of Investigation (F31), United States Depa :rmenf of Justice,
a:,c as a cc ... , cr far cc:,:~~.:e_ e-acy-ent, 1 heresy dec:a.' .~: ! ir.t_n tc be ? y a.. ! vr,L cc...;. y ..,
~ tOllcwing provisions:
(t) Tt',at I am heresy adviseC and i understand that Federa! Law inGuding statutes, re;ulations issued by the
A;tomey General anC Orders of the President Of the Unittd States Drahibi: loss. misuse or ynau:horzed
disclosure or production of infor-ration in the files of the F31.
(2) 1 unders:a.^C that unauthorwe: disGesure of intor-..ation in the fles of ~e sal or infc.:..aticn tray ac.;uire
as an employee of the Fat coulC result in impairment of national security, place `,uman Gte in jeopardy, or
result in the denial cf due process to a person or persons who are subje~ of ar. F31 investigation, or
prevent the Fat trom effectively discharging its responsiSTties. 1 understand the need for this secrecy
agreement; therefore, as consideration for employment ! a;ree that I will never divulge, publish, or reveal s
either by werC or conduct. or by other means disGcse to any unauthorized recipient without affiaa! written
authori~.ation by the Director of the F31 or his delegate, any information fro:., ~ e investigatory files of Ltie F3!
or any information relating to material contained in the fles, or dssclose any information or produce any
material ac~uirez: as a part of the performance of my official duties or because of my offcial status. The
border. is on me to determine, prior to disclosure. whether information may be disclosed and in this regard 1
agree to recuest aoprova! of the Director of the Fat in each such instance by presenting the full text of my
proposed disUcsure in writing tc the Director of the fi.;.'1 at least thirty (30) Lays prior to disGosure. I
understand that this agreement is not intended to aapty to information wh;~h has been placed in Ltie Dubuc
domain or tc prevent me from writing or speaking about Ltie F3i but it is intended to prevent dis:~oswe of
information where disUcsure woufC be con4ary to taw, regulation or public policy. 1 agree the Director of
the F3i is in a better position than ! to make that determination;
(3) I agree that all irform..afion ac:,uired by me in connection with my official duties wish the F31 and off officio!
material to which I have access remains the p~perty of the United States of America, and !wit( su.7ender
upon demand by the Directcr of the F31 or his delegate, or upon separatism from the F91, any materfal
retating tc such information of Dropery in my pcssessior;
(c) That I understand unautherizeC cisclesure ray be a vioiaticn of Federal Izw and prosecuted as a criminal
offense and in addition to this agreement may be enforceC by means of an injunction or other Evil remedy.
t accept the abcve provisions as conditions for my erployment and continued ermployment ir, the F31. I agree -
to com;,ly with these provisions both Burins my empicyment in the F3i .and following terr,:ination of such employment:
Witnesses and accepter, in behalf of the Directcr, r~l, on
(?ype or print nar-,e)
(Sis_afore)
Declassified in Part -Sanitized Copy Approved for Release 2012/10/17 :CIA-RDP90M00005R001400010021-8