The following is from The Federal Times

December 06, 2004

Searches and gag orders: Homeland Security’s unprecedented campaign cloaks unclassified info

The Homeland Security Department is taking unprecedented steps to keep its unclassified information under wraps.

The department has issued a directive that employees and contractors share sensitive but unclassified information only with those having a need to know it. Employees can still share information with Congress and the Justice Department, according to the directive.

Further, employees and contractors can be searched at any place or any time to ensure they are in compliance with the policy. They can also face administrative, civil or criminal penalties if they violate the rules.

New employees and contractors are required to sign nondisclosure agreements for handling unclassified information. All 180,000 department employees and contractors are bound to the directive and the nondisclosure agreement, even if they didn’t sign the nondisclosure agreement or if they’re unaware of it, according to department spokeswoman Valerie Smith.

“All of the employees are held to the same standard. The document simply educates new employees about that standard,” Smith said.

Critics fear the policy at Homeland Security represents a worrisome precedent that, if not challenged, will be adopted at other federal agencies.

“The message is: ‘We don’t want you talking to anybody outside of government,’” said Steven Aftergood, a government secrecy expert at the Federation of American Scientists. “A huge door is closing within our government.”

The department’s detailed, 13-page directive informs employees how to handle, store and disseminate “sensitive but unclassified” information. No one has violated the policy since it was put into effect seven months ago, Smith said.

Some government secrecy experts, such as Bill Leonard, director of the Information Security Oversight Office at the National Archives and Records Administration, said they fear the department’s policy will squelch information sharing among the department, the public and other federal, state and local organizations.

“It creates an environment exactly opposite, I think, what we’re trying to do in the name of information sharing,” Leonard said. “It creates an environment of uncertainty. And in an environment of uncertainty, most people resort to a default position of ‘Do not share, because otherwise I might inadvertently violate a rule or regulation or a regime that I’m not even familiar with.’”

Also, some critics argue the policy inappropriately strips employees and contractors of their constitutional rights and deprives public policy debates of valuable insights and information.

The department’s Office of Security posted the secrecy rules on the department’s internal intranet in May and began requiring new employees and all employees in the department’s Information Analysis and Infrastructure Protection and Science and Technology directorates to sign the three-page nondisclosure agreement.

The policy received little media coverage until November. Department employees contacted by Federal Times for this story said they were unaware of the directive. They asked not to be identified for this story for fear of retribution.

The two largest federal unions — the National Treasury Employees Union and the American Federation of Government Employees — learned of the policy last month, and on Nov. 23 they formally called upon the department to retract the policy.

“The directive violates public policy and our national interest by providing a ready device for officials to suppress and cover up evidence of their own misconduct or malfeasance by stamping documents ‘for official use only,’” attorneys for the unions wrote in a letter to Homeland Security General Counsel Joe Whitley.

Stricter than other agencies’

Other federal agencies require employees to sign nondisclosure agreements to protect sensitive but unclassified information. What sets the Homeland Security’s agreement apart, critics say, is that it is stricter and more far-reaching than others.

For instance, unlike most other nondisclosure agreements, this one gives any employee or contractor the power to label information “for official use only,” immediately restricting its dissemination.

It also defines “sensitive but unclassified information” in broad terms: “An overarching term that covers any information . . . which the loss of, misuse of, or unauthorized access to or modification of could adversely affect the national interest or the conduct of federal programs.”

This definition is so broad, it will effectively intimidate employees and contractors from divulging any information, said Scott Amey, general counsel for the Project on Government Oversight, a watchdog organization.

“How does any employee possibly determine what falls under that?” he said.

Further, once unclassified information is put in a protected category, as described by the Homeland Security Department’s policy, it remains protected until the originator of the information or a supervisor determines otherwise.

By comparison, only a select group of federal employees are authorized to classify information as being confidential, secret or top secret. And classified information is required to be reviewed for possible declassification after certain periods.

Department officials also asked congressional staffers to sign the nondisclosure agreement, but they refused.

“From our perspective it would be inappropriate and at the very least unnecessary,” said Ken Johnson, spokesman for Rep. Christopher Cox, R-Calif. Cox chairs the House Select Homeland Security Committee.

“This is unclassified material, and we have a right to it without signing over our lives,” Johnson said. “We are the overseers, not the overseen.”

Johnson would not comment, however, on whether it was appropriate for department employees to sign the agreements.

Consequences

Some in the contracting community say they’ve already felt the impact of the policy since the media began covering it in November.

“The sources that we have had great rapport with in the past have now clammed up,” said Ray Bjorklund, senior vice president and chief knowledge officer of Federal Sources Inc., which provides market research on federal contracting.

“People [in the department] who have trusted us to properly protect and share the information . . . now they’re telling us they can’t talk to us.”

For instance, Federal Sources made a call to the Coast Guard to see if there was going to be a follow-up contract for the agency’s IT consolidation project. Federal Sources was told to contact public affairs.

“These procurement officials and program officials are immediately directing us to public affairs,” Bjorklund said. “They’re telling us they can’t talk to us. It inhibits the dialog between industry and the government.” Bjorklund said he and others in the company noticed the change around the week of Nov. 15.

The policy ultimately will hurt competition for the Homeland Security Department’s business, he predicted.

“If there is less information about pending procurements, then there will be less companies that are in a position to bid on those procurements,” he said.

Companies currently doing business with the department are more likely to have inside information on pending and anticipated contracts.

The policy also will promote abuses by department officials because it muzzles employees from speaking out when they witness wrongdoing, NTEU and AFGE argued in their joint letter to the department.

“The possibilities for abuse inherent in a regime that authorizes unlimited searches and provides supervisors unbridled discretion to censor employee speech by simply stamping documents ‘for official use only’ are obvious,” they wrote.

“There’s a clear intimidation factor,” said Mark Zaid, an attorney with Washington firm Krieger and Zaid, who deals with national security issues. “The language [in the agreement] is so powerful and the power that it evokes is potentially so intrusive.”

The biggest danger, Zaid said, is that the policy gives another line of offense for the agency to take personnel actions against its employees.

“I don’t think you’re going to see an onslaught of federal agents rushing to peoples’ homes to see if they have documents,” Zaid said. “But the authority is given there.”

Employees who sign the agreements are essentially walking around with duct tape over their mouths and their hands tied behind their backs, Zaid said.

“This is a fundamentally dysfunctional department,” said one industry expert who asked not to be identified. “In some ways I’m wondering if they are raising this curtain to protect their incompetency.”