[Mb-civic] Karl Rove's Nondisclosure Agreement By Rep. Waxman YubaNet.com

[Michael Butler]

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    Karl Rove's Nondisclosure Agreement
    By Rep. Waxman
    YubaNet.com

    Friday 15 July 2005

    A fact sheet released today by Rep. Waxman explains that the
nondisclosure agreement signed by Karl Rove prohibited Mr. Rove from
confirming the identity of covert CIA agent Valerie Wilson to reporters.
Under the nondisclosure agreement and the applicable executive order, even
"negligent" disclosures to reporters are grounds for revocation of a
security clearance or dismissal.

    Karl Rove's Nondisclosure Agreement Today, news reports revealed that
Karl Rove, the White House Deputy Chief of Staff and the President's top
political advisor, confirmed the identity of covert CIA official Valerie
Plame Wilson with Robert Novak on July 8, 2003, six days before Mr. Novak
published the information in a nationally syndicated column. These new
disclosures have obvious relevance to the criminal investigation of Patrick
Fitzgerald, the Special Counsel who is investigating whether Mr. Rove
violated a criminal statute by revealing Ms. Wilson's identity as a covert
CIA official.

    Independent of the relevance these new disclosures have to Mr.
Fitzgerald's investigation, they also have significant implications for: (1)
whether Mr. Rove violated his obligations under his "Classified Information
Nondisclosure Agreement" and (2) whether the White House violated its
obligations under Executive Order 12958. Under the nondisclosure agreement
and the executive order, Mr. Rove would be subject to the loss of his
security clearance or dismissal even for "negligently" disclosing Ms.
Wilson's identity.

    Karl Rove's Nondisclosure Agreement

    Executive Order 12958 governs how federal employees are awarded security
clearances in order to obtain access to classified information. It was last
updated by President George W. Bush on March 25, 2003, although it has
existed in some form since the Truman era. The executive order applies to
any entity within the executive branch that comes into possession of
classified information, including the White House. It requires employees to
undergo a criminal background check, obtain training on how to protect
classified information, and sign a "Classified Information Nondisclosure
Agreement," also known as a SF-312, promising not to reveal classified
information. [1] The nondisclosure agreement signed by White House officials
such as Mr. Rove states: "I will never divulge classified information to
anyone" who is not authorized to receive it. [2]

    The Prohibition against "Confirming" Classified Information

    Mr. Rove, through his attorney, has raised the implication that there is
a distinction between releasing classified information to someone not
authorized to receive it and confirming classified information from someone
not authorized to have it. In fact, there is no such distinction under the
nondisclosure agreement Mr. Rove signed.

    One of the most basic rules of safeguarding classified information is
that an official who has signed a nondisclosure agreement cannot confirm
classified information obtained by a reporter. In fact, this obligation is
highlighted in the "briefing booklet" that new security clearance recipients
receive when they sign their nondisclosure agreements:

    Before ... confirming the accuracy of what appears in the public source,
the signer of the SF 312 must confirm through an authorized official that
the information has, in fact, been declassified. If it has not, ...
confirmation of its accuracy is also an unauthorized disclosure. [3]

    The Independent Duty to Verify the Classified Status of Information

    Mr. Rove's attorney has implied that if Mr. Rove learned Ms. Wilson's
identity and occupation from a reporter, this somehow makes a difference in
what he can say about the information. This is inaccurate. The executive
order states: "Classified information shall not be declassified
automatically as a result of any unauthorized disclosure of identical or
similar information." [4]

    Mr. Rove was not at liberty to repeat classified information he may have
learned from a reporter. Instead, he had an affirmative obligation to
determine whether the information had been declassified before repeating it.
The briefing booklet is explicit on this point: "before disseminating the
information elsewhere ... the signer of the SF 312 must confirm through an
authorized official that the information has, in fact, been declassified."
[5]

    "Negligent" Disclosure of Classified Information

    Mr. Rove's attorney has also implied that Mr. Rove's conduct should be
at issue only if he intentionally or knowingly disclosed Ms. Wilson's covert
status. In fact, the nondisclosure agreement and the executive order require
sanctions against security clearance holders who "knowingly, willfully, or
negligently" disclose classified information. [6] The sanctions for such a
breach include "reprimand, suspension without pay, removal, termination of
classification authority, loss or denial of access to classified
information, or other sanctions." [7]

    The White House Obligations under Executive Order 12958

    Under the executive order, the White House has an affirmative obligation
to investigate and take remedial action separate and apart from any ongoing
criminal investigation. The executive order specifically provides that when
a breach occurs, each agency must "take appropriate and prompt corrective
action."8 This includes a determination of whether individual employees
improperly disseminated or obtained access to classified information.

    The executive order further provides that sanctions for violations are
not optional. The executive order expressly provides: "Officers and
employees of the United States Government ... shall be subject to
appropriate sanctions if they knowingly, willfully, or negligently ...
disclose to unauthorized persons information properly classified."

    There is no evidence that the White House complied with these
requirements.

    End Notes

    [1] Executive Order No. 12958, Classified National Security Information
(as amended), sec. 4.1(a) (Mar. 28, 2003) (online at
www.archives.gov/isoo/policy_documents/executive_order_
12958_amendment.html).
    [2] Classified Information Nondisclosure Agreement, Standard Form 312
(Prescribed by NARA/ISOO) (32 C.F.R. 2003, E.O. 12958) (online at
http://contacts.gsa.gov/webforms.nsf/
0/03A78F16A522716785256A69004E23F6/$file/SF312.pdf).
    [3] Information Security Oversight Office, National Archives and Records
Administration, Briefing Booklet: Classified Information Nondisclosure
Agreement (Standard Form 312), at 73 (emphasis added) (online at
www.archives.gov/isoo/training/standard_form_312.pdf).
    [4] Executive Order No. 12958, sec. 1.1(b).
    [5] Briefing Booklet, supra note 3, at 73.
    [6] Executive Order No. 12958, sec. 5.5(b) (emphasis added).
    [7] Id. at 5.5(c). 8 Id. at 5.5(e)(1). 9 Id. at 5.5(b).