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**[Rep. Henry A. Waxman]{.smallcaps}**

**[Ranking Minority Member]{.smallcaps}**

**[Committee on Government Reform]{.smallcaps}**

# U.S. House of Representatives

[November 9, 2005]{.smallcaps}

Fact Sheet

##### Questions and Answers: 

##### White House Security Clearances

The involvement of Karl Rove, the President's top political advisor, and
I. Lewis "Scooter" Libby, the Vice President's former chief of staff, in
the disclosure of the classified CIA employment of Valerie Plame Wilson
was first reported over two years ago. Since then, an orchestrated
disinformation campaign has emanated from the White House and its
allies. White House officials, Mr. Rove's attorney, Republican
lawmakers, and conservative pundits have repeatedly misinterpreted and
misrepresented the security obligations applicable to Mr. Rove, Mr.
Libby, and the President.

A consistent theme in this campaign has been the effort to overlook the
requirements of Executive Order 12958 and the related federal
regulations that govern the handling of classified information by
federal officials. The obligations of federal officials to protect
national security secrets are not limited to the narrow requirements of
the criminal code being investigated by Special Prosecutor Patrick
Fitzgerald. There are important additional security obligations
applicable to federal officials set forth in the executive order and
related regulations. And the sanctions for violating these
administrative requirements are significant, including the loss of a
security clearance and dismissal.

This fact sheet uses a question and answer format to explain the legal
requirements of Executive Order 12958 and related regulations and to
describe the administrative sanctions that should be assessed for
violations.

**[Table of Contents]{.underline}**

**Is it permissible to disclose classified information inadvertently?
2**

**Is it permissible to "pass along" or "repeat" classified information**

**learned from one reporter to another reporter? 3**

**Is it permissible to disclose classified information about an
intelligence**

**official if the employee holds a "desk job" at the CIA? 4**

**Is it appropriate for President Bush to wait until a criminal
investigation**

**is complete before taking action on security breaches? 4**

**Is it appropriate for President Bush to allow White House officials to
retain**

**security clearances pending a leak investigation? 5**

**Is it appropriate for President Bush to apply different security rules
to**

**White House officials than are applied to other federal officials? 7**

**[Questions and Answers]{.underline}**

**Is it permissible to disclose classified information inadvertently?**

One of the major arguments being made by defenders of Karl Rove is that
any disclosure he made regarding Ms. Wilson's position at the CIA was
unintentional. Mr. Rove's attorney, for example, has argued that Mr.
Rove "did not know of her covert status."[^1]

It is not clear at this point what Mr. Rove knew about Ms. Wilson.
*Time* reporter Matthew Cooper has stated that Mr. Rove informed him
that Ms. Wilson worked at the CIA on issues related to weapons of mass
destruction.[^2] Mr. Cooper said that when Mr. Rove disclosed this
information, he did so on "deep background," prohibiting Mr. Cooper from
revealing Mr. Rove as his source.[^3] According to Mr. Cooper, Mr. Rove
also stated that "I've already said too much" and that "things would be
declassified soon."[^4] It has also been reported that Mr. Rove was a
source for columnist Robert Novak, who first revealed that Ms. Wilson
was "an agency operative on weapons of mass destruction."[^5]

Even if it is assumed that Mr. Rove did not know that Ms. Wilson's job
at the CIA was classified, his actions would still be a violation of
Executive Order 12958. Mr. Rove's lawyer has argued that Mr. Rove "never
[knowingly]{.underline} disclosed classified information."[^6] Section
5.5(b) of the executive order, however, prohibits "knowing, willful or
[negligent]{.underline}" disclosures of classified information.[^7] In
addition, the adjudicative guidelines for determining whether someone
should be granted access to classified information state that the
"unauthorized disclosure of classified information" is a "disqualifying"
condition for "violations that are deliberate or multiple or [due to
negligence]{.underline}."[^8]

It is a fundamental mistake to equate the narrow criminal laws being
investigated by Special Prosecutor Fitzgerald with the obligations of
Mr. Rove and other White House officials. Under the executive order,
federal officials have an obligation to safeguard national security
secrets from both intentional and negligent disclosures.

**Is it permissible to "pass along" or "repeat" classified information
learned from one reporter to another reporter?**

When Mr. Rove's conversations with journalists first became public,
White House officials "attempted to draw a distinction between leaking
the name of an operative and thereby breaking the law, and calling the
attention of reporters to that information after it already has been
made public."[^9] Similarly, Mr. Rove's lawyer has maintained that "he
breached no law because he learned Plame's name from journalists."[^10]
The premise of this argument is that it is permissible for a federal
official to repeat classified information so long as the official can
attribute the information to a reporter or other non-classified source.

Government officials, however, are not at liberty to repeat classified
information until they first check to see if the information had been
declassified. Section 1.1(b) of the executive order provides that
"\[c\]lassified information shall not be declassified automatically as a
result of any unauthorized disclosure of identical or similar
information."[^11] In addition, the "briefing booklet" on safeguarding
classified information makes clear that "disclosure in a public source
does not declassify the information."[^12] As the briefing booklet
explains, officials are required to first "confirm through an authorized
official" that the information was not classified before repeating it to
reporters.[^13]

**Is it permissible to disclose classified information about an
intelligence official if the employee holds a "desk job" at the CIA?**

Some Republicans have argued that Ms. Wilson's position at the CIA was
not classified because she worked at a "desk job" at CIA headquarters at
Langley, Virginia. For example, House Majority Whip Roy Blunt stated on
the television program *Face the Nation:*

> You know, this was a job that the ambassador's wife had that she went
> to every day. It was a desk job. I think many people in Washington
> understood that her employment was at the CIA, and she went to that
> office every day.[^14]

Contrary to Mr. Blunt's assertion, the executive order does not contain
a "desk job" exception. Nor does it allow security clearance holders to
make their own individual case-by-case determinations about whether
information is in fact classified. In the case of Ms. Wilson, her
position at the CIA is secret. Special Prosecutor Fitzgerald found that
"her employment status was classified" and that "Valerie Wilson's
affiliation with the CIA was not common knowledge outside the
intelligence community."[^15]

**Is it appropriate for President Bush to wait until a criminal
investigation is complete before taking action on security breaches?**

At a June 10, 2004, press conference, President Bush stated that it was
"up to the U.S. Attorney to find the facts" about who leaked Ms.
Wilson's status as a CIA official.[^16] On numerous occasions since
then, the President has asserted that he was waiting for the outcome of
Mr. Fitzgerald's investigation before taking action.[^17]

This passive approach by the President conflicts with his obligation
under section 5.5(e) of the executive order, which requires the
President to "take appropriate and prompt corrective action when a
violation or infraction under paragraph (b) of this section
occurs."[^18] Moreover, the White House position is also a violation of
federal regulations implementing the executive order. Under the
regulations, any White House employee "who has knowledge of the loss or
possible compromise of classified information shall ... report the
circumstances to the EOP Security Officer."[^19] The EOP Security
Officer is then required to "immediately initiate an inquiry to
determine the circumstances surrounding the loss or compromise for the
purpose of taking corrective measures and/or instituting appropriate
administrative, disciplinary, or legal action."[^20] The EOP Security
Officer is also directed to take "prompt action to investigate" and
recommend "appropriate administrative action with respect to
violators."[^21]

**Is it appropriate for President Bush to allow White House officials to
retain security clearances pending investigation?**

President Bush has taken no action to suspend the security clearance of
Mr. Rove. His current public position is that he will take no action
unless Mr. Fitzgerald determines that "someone committed a crime."[^22]

President Bush's failure to suspend Mr. Rove's security clearance
conflicts with his obligations under the executive order. As noted
above, section 5.5(e) requires the President to "take appropriate and
prompt corrective action when a violation or infraction ...
occurs."[^23] The available corrective actions include "loss or denial
of access to classified information."[^24] Under the executive order,
the obligation to take this action is not contingent on the filing of
criminal charges.

The rules of other agencies are instructive on this point. Defense
Department rules state that "known or suspected instances of
unauthorized public disclosure of classified information shall be
reported promptly and investigated to decide the nature and
circumstances of the disclosure, the extent of damage to national
security, and the corrective and disciplinary action to be taken."[^25]
The Pentagon regulations further provide that the suspension of a
security clearance can occur well before any criminal investigation:

> The commander or head of the organization shall determine whether, on
> the basis of all facts available upon receipt of the initial
> derogatory information, it is in the interests of national security to
> continue subject's security status unchanged or to take interim action
> to suspend subject's access to classified information or assignment to
> sensitive duties (or other duties requiring a trustworthiness
> determination), if information exists which raises serious questions
> as to the individual's ability or intent to protect classified
> information or execute sensitive duties (or other duties requiring a
> trustworthiness determination) until a final determination is made by
> the appropriate authority.[^26]

Congressional rules are similar. The Government Accountability Office
has promulgated this rule:

> The administrative withholding of classified information access is
> appropriate when significant clearance eligibility questions arise.
> ... The suspension of a security clearance is an interim procedure to
> protect the national security.[^27]

GAO has issued a disciplinary guide that sets forth suggested penalties
for various security breaches. For cases in which unauthorized
disclosures of classified information "result in compromise of the
material," the suggested penalty for a first offense is "14-day
Suspension to Removal," depending on the severity of the breach and the
criticality of the information disclosed.[^28] The suggested penalty for
more than two offenses is simply "Removal."[^29]

Actions after a potential security breach can be relevant to an
individual's trustworthiness and an agency's decision whether to suspend
a security clearance while an investigation continues. In this case, Mr.
Rove compounded his previous breaches by claiming to White House Press
Secretary Scott McClellan that he was not involved in discussions with
reporters about Ms. Wilson's status as a CIA employee.

On September 29, 2003, Mr. McClellan stated that Mr. Rove assured him
personally that he was not involved in discussions with journalists
regarding Ms. Wilson's status as a CIA employee.[^30] Based on these
assurances, Mr. McClellan addressed the White House press corps, stating
more than 30 times that the White House had no information regarding the
involvement of any White House officials in any conversations with any
journalists about Ms. Wilson's status as a CIA employee.[^31]

**Is it appropriate for President Bush to apply different security rules
to White House officials than are applied to other federal officials?**

In effect, President Bush is seeking to apply a different rule to his
top political advisor, Karl Rove, than applies to other federal
officials. Other federal officials routinely lose their security
clearances pending investigations into potential leaks of classified
information. Mr. Rove, by contrast, has been allowed to retain his
security clearance despite direct testimony from *Time* reporter Matthew
Cooper that Mr. Rove disclosed Ms. Wilson's status as a CIA employee to
him.[^32]

There are many cases in which the Administration has suspended the
security clearances of government officials pending investigations and
without criminal charges being filed. For example:

-   Army Reserve Lt. Col. Anthony Shaffer was a Defense Department
    official who sought to inform Congress about the Pentagon's "Able
    Danger" program that reportedly "identified four Sept. 11 hijackers
    before the 2001 attacks."[^33] One day before he was scheduled to
    testify before the Senate Judiciary Committee about the program, the
    Defense Department suspended his security clearance.[^34] His
    alleged security violations reportedly ranged from "flashing
    military identification while intoxicated"[^35] to "questions about
    \$67 in personal charges to a military cellphone."[^36] Lt. Col.
    Shaffer has never been indicted or accused of criminal wrongdoing.

-   Two mid-level employees of the Department of Homeland Security had
    their security clearances suspended after they were accused of
    warning friends and family members of terrorist threats to New York
    City.[^37] There is no indication that these employees were indicted
    or accused of criminal wrongdoing.

-   Donald Van Winkle, an employee of the Blue Grass Army Depot, had his
    security clearance suspended after exposing that the facility's
    "monitoring system for deadly VX nerve toxin \[was\] incorrectly
    configured, threatening the lives of employees."[^38] There is no
    indication that Mr. Winkle was indicted or accused of criminal
    wrongdoing.

-   Russ Tice, a National Security Agency official, had his security
    clearance suspended after he "reported suspicions that a female
    co-worker showed signs of being a Chinese spy."[^39] Mr. Tice has
    never been indicted or accused of criminal wrongdoing.

-   Sgt. Samuel Provance had his security clearance revoked after he
    talked to several media outlets "about the mistreatment of a
    16-year-old boy and other abuses by interrogators at Abu Ghraib
    prison in Iraq."[^40] Sgt. Provance was not indicted or accused of
    criminal wrongdoing.

-   Bill Savich, a State Department official working in a U.S. embassy
    overseas, had his security clearance suspended in 2003 when he was
    accused of "having an improper relationship with a local
    woman."[^41] Mr. Savich denied the accusations, claiming that the
    Administration is basing its administrative actions on "gossip" and
    "innuendo."[^42] Mr. Savich was not indicted or accused of criminal
    wrongdoing.

-   Daniel Hirsch, a State Department diplomat for 20 years, was
    recalled to Washington and had his security clearance suspended in
    February 2003 "after his wife asked for marital counseling."[^43] He
    claimed that the Administration initiated "an investigation into the
    question of spousal abuse and then, of course, found no evidence of
    spousal abuse."[^44] There is no indication that Mr. Hirsch was
    indicted or accused of criminal wrongdoing.

A close parallel to Mr. Rove's situation is the case of former National
Security Advisor Sandy Berger. In July 2004, the press reported that Mr.
Berger was under criminal investigation for "removal of classified
documents from the National Archives."[^45] Mr. Berger's security
clearance was promptly suspended pending the criminal investigation.

Executive Order 12958 applies by its terms to all "\[o\]fficers and
employees of the United States Government, and its contractors,
licensees, certificate holders, and grantees."[^46] These rules apply to
White House officials.[^47] There is no basis in the executive order for
applying a different standard to Mr. Rove than has been applied to these
other federal officials.

[^1]: *Rove's Security Clearance Widely Questioned,* Los Angeles Times
    (Nov. 6, 2005).

[^2]: Matthew Cooper, *What I Told the Grand Jury,* TIME Magazine (July
    25, 2005).

[^3]: *Id.*

[^4]: *Id.*

[^5]: Robert Novak, *The Mission to Niger,* Chicago Sun-Times (July 14,
    2003).

[^6]: *The Rove Factor,* Newsweek (July 11, 2005) (emphasis added).

[^7]: Executive Order 12958, as amended by Executive Order 13292, sec.
    5.5(b) (Mar. 25, 2003) (emphasis added).

[^8]: Adjudicative Guidelines for Determining Eligibility for Access to
    Classified Information (Mar. 24, 1997) (emphasis added).

[^9]: *Privilege Claim Is Possible in Leak Probe,* Los Angeles Times
    (Oct. 7, 2003).

[^10]: *Rove's Security Clearance Widely Questioned,* Los Angeles Times
    (Nov. 6, 2005).

[^11]: Executive Order 12958, sec. 1.1(b).

[^12]: *Id.*

[^13]: Information Security Oversight Office, National Archives and
    Records Administration, *Briefing Booklet: Classified Information
    Nondisclosure Agreement* (Standard Form 312) (undated).

[^14]: *Face the Nation,* CBS News (July 17, 2005).

[^15]: Grand Jury Indictment of I. Lewis Libby, also known as "Scooter
    Libby," p.3 (Oct. 28, 2005) (emphasis added) (hereinafter Libby
    Indictment).

[^16]: The White House, *President Holds Press Conference Following the
    G8 Summit* (June 10, 2004).

[^17]: See, e.g., White House, *President's Remarks to the Travel Pool
    at Summit of the Americas in Argentina* (Nov. 4, 2005); White House,
    *President Meets with Cabinet, Discusses Hurricane Preparation*
    (Oct. 24, 2005); White House, *President Holds Press Conference*
    (Oct. 4, 2005); White House, *President Welcomes Prime Minister of
    Australia to the White House* (July 19, 2005).

[^18]: Executive Order 12958, sec. 5.5(e).

[^19]: 5 C.F.R. sec. 1312.30.

[^20]: *Id.*

[^21]: 5 C.F.R. sec. 1312.22(a)(3).

[^22]: The White House, *President, Prime Minister of India Discuss
    Freedom and Democracy* (July 18, 2005).

[^23]: Executive Order 12958, sec. 5.5(e).

[^24]: Executive Order 12958, sec. 5.5(c).

[^25]: Department of Defense Directive 5210.50, *Unauthorized Disclosure
    of Classified Information to the Public,* sec. 4 (July 22, 2005).

[^26]: Department of Defense Directive 5200.2-R, *Personnel Security
    Program,* sec. C8.1.3 (Jan. 1987, incorporating through Change 3,
    Feb. 23, 1996).

[^27]: Government Accountability Office, GAO *Security Manual, Order
    0910.1,* sec. 20 (June 1, 1998).

[^28]: Government Accountability Office, Order 2751.1 --- Discipline
    (Appendix 1 --- Guide for Disciplinary Offenses and Penalties,
    Offense #16) (May 21, 2001).

[^29]: *Id.*

[^30]: The White House, *Press Briefing with Scott McClellan* (Sept. 29,
    2003).

[^31]: *Id.* (stating that "I have spoken with Karl about this matter";
    "I've made it very clear that he was not involved, that there's no
    truth to the suggestion that he was"; that "it is not something I
    needed to ask him, but I like to, like you do, verify things and
    make sure that it is completely accurate," that "there is simply no
    truth to that suggestion," that "that is not the way this White
    House operates," that "I've made it very clear, from the beginning,
    that it is totally ridiculous," and that "I've made it clear that it
    simply is not true, and I'm speaking on behalf of the White House
    when I say that").

[^32]: Matthew Cooper, *What I Told the Grand Jury,* TIME Magazine (July
    25, 2005).

[^33]: *Hunter Asks for Probe of Pentagon Actions Against
    Whistle-Blower,* The Hill (Oct. 27, 2005).

[^34]: *Id.*

[^35]: *Id.*

[^36]: *Rove's Security Clearance Widely Questioned,* Los Angeles Times
    (Nov. 6, 2005).

[^37]: *Washington in Brief,* Washington Post (Oct. 19, 2005).

[^38]: *Chemical Weapons Worker Seeks Whistleblower Status,* Associated
    Press (Sept. 3, 2005).

[^39]: *Security Access Denial At Issue,* Washington Times (Feb. 20,
    2005).

[^40]: *Sergeant "Flagged" for Telling News Media About Prison Abuses,*
    Chicago Tribune (May 22, 2004).

[^41]: State Department Workers Protest Security Measures, National
    Public Radio (Aug. 16, 2005).

[^42]: *Id.*

[^43]: *Id.*

[^44]: *Id.*

[^45]: *FBI Probes Berger for Document Removal,* Washington Post (July
    20, 2004).

[^46]: Executive Order 12958, sec. 5.5(b).

[^47]: Executive Order 12972 (defining the term "agency" to include "any
    other entities within the executive branch that comes into
    possession of classified information").