The Department of Homeland Security is requiring thousands of employees and contractors to sign nondisclosure agreements that prohibit them from sharing sensitive but unclassified information with the public.
The department was rebuffed, however, when it also tried to require congressional aides to sign the secrecy pledges as a condition for gaining access to certain materials, majority and minority spokesmen for the House Select Committee on Homeland Security said yesterday.
DHS spokeswoman Valerie Smith said in an interview that all 180,000 employees and contractors are being required to sign the three-page forms as part of working for the agency, a policy formalized in May. State and local security officials are asked to sign the statement for classified information only.
Smith said the agreements do not exempt underlying information from disclosure under the Freedom of Information Act. Signers are given the form "simply to inform and educate them about the sensitivity of that information and the need to protect it. . . . It does not do anything to further obscure or shroud that information," she said.
But congressional critics and government watchdog organizations such as the Federation of American Scientists call the policy a potentially precedent-setting expansion of official secrecy whose provisions are overly broad and unworkable, if not unconstitutional.
Ken Johnson, spokesman for House Homeland Security Committee Chairman Christopher Cox (R-Calif.), said GOP aides have been approached by DHS officials as a group and individually. One junior aide contacted directly signed the agreement, but his supervisors and Cox repudiated it as soon as they found out.
"We have steadfastly refused to sign any nondisclosure agreements. From our perspective it would be inappropriate, and at the very least unnecessary," Johnson said. "This is unclassified material and Congress has a right to it without signing away our lives."
Democratic staff also refused to sign nondisclosure agreements, minority committee spokeswoman Moira Whelan said.
"They're forgetting who's overseeing who," another panel official said.
Steven Aftergood, editor of the federation's newsletter, which reported the policy last week, said the DHS is sweeping whole categories of government information under restrictions previously used only for classified data. Such categories include "official use only" and "law enforcement sensitive."
"Its likely consequence will be to chill even the most mundane interactions between department employees and reporters or the general public," said Aftergood, who obtained a copy of the form under the Freedom of Information Act. "Employees will naturally fear that even the most trivial conversation could mean a violation of this draconian agreement, and so the result will be a new wall between the government and the public."
The form defines as "sensitive" any information that could "adversely affect the national interest or the conduct of federal programs" or violate a person's privacy, a much lower barrier than damaging national security.
Violators risk administrative, disciplinary, criminal and civil penalties. One provision provides that signers consent to government inspections "at any time or place" to ensure compliance.
Scott Armstrong, representing U.S. newspapers and journalist groups, said the agreement imposes no limit on how long information can be restricted, and allows data to be declared sensitive or official "at the whim of any bureaucrat."
Armstrong expressed concern that pending legislation to overhaul the intelligence agencies would give a new national intelligence director authority to remake the clearance classification system along the lines of the DHS plans.
Senate aides said the goal is to shift authority for classifying information to the new director, not to broaden that authority.
"We have taken seriously the 9/11 Commission's concern that current security requirements nurture over-classification and excessive compartmentalization of information among agencies," Senate Governmental Affairs Committee Chairman Susan Collins (R-Maine) said yesterday in a written statement. "We want to allow as much transparency and information sharing as possible without threatening the need to protect information and sources that is required of intelligence missions."
By Spencer S. Hsu
Washington Post Staff Writer
Tuesday, November 16, 2004; Page A23