Access to Classiied Imfforinmatnoini

This memorandum provides an opinion on various legal questions posed by a panel appointed by 

the Director o f Central Intelligence to make a recommendation on whether an official at the Departm ent o f State, Richard Nuccio, should be granted access to Sensitive Compartmented Information.

November 26, 1996

M e m o r a n d u m O p i n i o n f o r t h e G e n e r a l C o u n s e l

C e n t r a l I n t e l l i g e n c e A g e n c y

This memorandum responds to your request for our opinion on various legal 

questions posed by a panel appointed by the Director of Central Intelligence to 

make a recommendation on whether an official at the Department of State, Richard 

Nuccio, should be granted access to Sensitive Compartmented Information 

(“ SCI” ) . 1 The panel has stated that “ [it is] not asking that OLC take any position 

on the facts presented by Mr. Nuccio in his statement.” Panel Memorandum at 

1. Accordingly, we limit our role to providing our opinion on only the specific 

legal questions presented, and make no attempt to apply our legal conclusions 

to the facts in this matter. Nor, of course, do we express any opinion on the 

ultimate question of whether Mr. Nuccio should retain his SCI security clearance.

We have organized the legal questions posed by the panel into three categories: 

(1) the application of executive branch rules and practices on disclosure of classified information to Members of Congress, in light of relevant congressional enactments; (2) the applicability of the Whistleblower Protection Act, 5 U.S.C. § 2302; 

and (3) the applicability of Executive Order 12674, 3 C.F.R. 215 (1990).

1. D isclosure o f Classified Information to M em bers o f Congress

Two questions posed by the panel address the relationship between, on the one 

hand, Executive Order 12356, National Security Information, 3 C.F.R. 166 (1983), 

which governs the handling of classified information in the executive branch, 

along with the applicable nondisclosure agreement signed by individuals having 

access to SCI information, and, on the other hand, two congressional enactments 

concerning the rights of federal employees to provide information to Congress.2

1 See Letter for Richard L. Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel, from Michael 

J. O 'N eil, General Counsel, Central Intelligence Agency (Nov. 13, 1996), enclosing Memorandum for Michael J. 

O 'N eil from Kenneth W. Dam, John Podesta, and Terrence O ’Donnell (Nov. 12, 1996) ( “ Panel Memorandum” ). 

The Panel M emorandum attached a submission from Mr. Nuccio’s attorney setting forth various legal positions. 

See Letter for Terrence O ’Donnell, from Ronald W. Kleinman (Oct. 25, 1996), enclosing Statement of Richard 

A. Nuccio Submitted to the Review Panel in Response to Proposed Withdrawal of SCI Clearance (“ Nuccio Statem ent” ). The Panel Memorandum set foith questions (a) through (g) for us to address, but the panel subsequently 

withdrew questions (d) and (g).

’ Question (c) asks that we address “ 5 U.S.C. §7211 (‘Lloyd La Follette A ct’) including the legitimacy of nondisclosure agreements for those having access to SCI information and the issues raised in National Federation o f

Federal Employees v. U.S., 695 F. Supp. 1196 (D.D.C. 1988).” Panel Memorandum at 1. Question (0 asks

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Access to Classified Information

The congressional enactments identified by the panel are 5 U.S.C. §7211 and 

the provision of the Treasury, Postal Service and General Government Appropriations Act, 1997, Pub. L. No. 104-208, 110 Stat. 3009-314 (1996), relating to 

classified information nondisclosure agreements, a version of which has been enacted annually since 1987. Section 7211, entitled Employees’ right to petition Congress, provides (in its entirety) that “ [t]he right of employees, individually or 

collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof, may 

not be interfered with or denied.”

The current version of the nondisclosure agreements appropriations provision 

provides (in pertinent part) that:

No funds appropriated in this or any other Act for fiscal year 1997 

may be used to implement or enforce the agreements in Standard 

Forms 312 and 4355 of the Government or any other nondisclosure 

policy, form, or agreement if such policy, form, or agreement does 

not contain the following provisions: “ These restrictions are consistent with and do not supersede, conflict with, or otherwise alter 

the employee obligations, rights, or liabilities created by . . . section 7211 of title 5, United States Code (governing disclosures to 

Congress). . . .”

Treasury, Postal Service and General Government Appropriations Act, 1997, 

§ 625, 110 Stat. at 3009-359.3

a. Effect o f Congressional Enactments

The longstanding position of the executive branch concerning the relationship 

between, on the one hand, these congressional enactments and, on the other hand, 

Executive Order 12356 and the classified information nondisclosure agreements 

is set forth in the brief that the Acting Solicitor General submitted to the Supreme 

Court in 1989 in the litigation cited in question (c).4 See Brief for the Appellees,

“ [w]hether the annual provision of the Treasury, Postal Service and General Government Appropriations Act (for 

FY97, see Section 625) authorizes disclosure [of] another agency’s classified information to a member of Congress 

notwithstanding Sections 4.1(d) of Executive order 12356 and 4.2(b) of Executive Order 12958." Id. at 2.

3 We have not included in the quotation the provision's listing of the Whistleblower Protection Act because of 

our conclusion in section 2 of this opinion that the Whistleblower Protection Act is inapplicable in this situation.

4 The litigation concerned the then-applicable appropriations provision addressed to the classified information nondisclosure agreements. As with the current version, the appropriations provision at issue in the litigation contained 

language implicitly referring to the right of government employees to petition Congress that is the subject o f 5 

U.S.C. §7211:

No funds appropriated . . . may be used to implement or enforce the agreements in Standard Forms 189 

or 4193 of the Government or any other nondisclosure policy, form or agreement if such policy, form 

or agreement . . . (3) directly or indirectly obstructs, by requirement of prior written authorization, limitaContinued

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Opinions of the Office o f Legal Counsel in Volume 20

American Foreign Serv. Ass’n v. Garfinkel, 488 U.S. 923 (1988) (No. 87-2127) 

(“ AFSE Brief” ).5 We view that brief as the controlling statement of the views 

of the Department of Justice (“ Department” ) on the issues presented by the panel’s questions (c) and (f). Accordingly, we will cite to that brief in this opinion 

in the same manner as we would cite an opinion of this Office.

The Department’s AFSE Brief stated our view that a congressional enactment 

would be unconstitutional if it were interpreted “ to divest the President of his 

control over national security information in the Executive Branch by vesting 

lower-ranking personnel in that Branch with a ‘right’ to furnish such information 

to a Member of Congress without receiving official authorization to do so.” AFSE

Brief at 48; see also id. at 16-17. This position is based on the following separation of powers rationale:

[T]he President’s roles as Commander in Chief, head of the Executive Branch, and sole organ of the Nation in its external relations 

require that he have ultimate and unimpeded authority over the collection, retention and dissemination of intelligence and other national security information in the Executive Branch. There is no 

exception to this principle for those disseminations that would be 

made to Congress or its Members. In that context, as in all others, 

the decision whether to grant access to the information must be 

made by someone who is acting in an official capacity on behalf 

of the President and who is ultimately responsible, perhaps through 

intermediaries, to the President. The Constitution does not permit 

Congress to circumvent these orderly procedures and chain of command— and to erect an obstacle to the President’s exercise of all 

executive powers relating to the Nation’s security— by vesting 

lower-level employees in the Executive Branch with a supposed 

“ right” to disclose national security information to Members of

tion o f authorized disclosure, or otherwise, the right of any individual to petition or communicate with 

Members o f Congress in a secure manner as provided by the rules and procedures of the Congress .... 

Treasury, Postal Service and General Appropriations Act, 1988, Pub. L. No. 100-202, §630, 101 Stat. 1329-391, 

1329-432 (1987). The difference between the current and form er provisions is that the reference to section 7211 

in the current version is explicit while the reference in the former version is implicit. We do not believe that this 

difference is meaningful for current purposes.

5 The district court had held section 630 to be unconstitutional, concluding that it “ impennissibl[y] restricted] 

the President’s power to fulfill obligations imposed upon him by his express constitutional powers and the role 

of the Executive in foreign relations.” National Fed’n o f Fed. Employees v. United Stales, 688 F. Supp. 671, 685 

(D.D.C. 1988). O n appeal, the Supreme Court concluded that the case had become partially moot and therefore 

vacated the district court judgment and remanded the case to the district court for further proceedings on the nonmoot aspects o f the case, including the dispute over subsection (3) of section 630. See American Foreign Serv.

Ass’n v. Garfinkel, 490 U.S. 153, 160-61 (1989). In doing so, the Court “ emphasize[d] that the District Court 

should not pronounce upon the relative constitutional authority of Congress and the Executive Branch unless it finds 

it imperative to do so.” Id. at 161. On remand, the district court dismissed the amended complaint on statutory 

construction grounds, avoiding the constitutional issues. See American Foreign Serv. Ass’n v. Garfinkel, 732 F. Supp.

13 (D.D.C. 1990).

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Access to Classified Information

Congress (or anyone else) without the authorization of Executive 

Branch personnel who derive their authority from the President.

Id. at 42.

In light of this constitutional position, the Department did not interpret the congressional enactments.at issue in the AFSE litigation as vesting in executive branch 

employees a right to provide classified information to Members of Congress without official authorization. See id. (appropriations provision does not confer such 

a right); id. at 50 n.43 (5 U.S.C. §7211 “ does not confer a right to furnish national 

security information to Congress.” ). Based on the same separation of powers analysis, we do not give such an interpretation to the currently applicable provisions. 

Accordingly, we conclude that the classified information nondisclosure agreements 

may validly be applied to a disclosure to a Member of Congress and that section 

625 of the Treasury, Postal Service and General Government Appropriations Act 

does not authorize any disclosure to a Member of Congress that is not permitted 

under Executive Order 12356.6

b. Interpretation o f Executive Order 12356

We turn now to question (e), which concerns the interpretation of Executive 

Order 12356. We stress that this question also implicates issues of policy, practice 

and precedent with respect to which the panel may wish to consult others in the 

executive branch.

Question (e) asks “ [wjhether Executive Order 12356 can be read to permit a 

cleared employee of the Executive Branch to disclose classified information to 

a cleared member of Congress based on the employee’s determination of the member’s need to know.” Panel Memorandum at 2. The Department’s brief in the 

AFSE litigation summarizes the executive branch framework— consisting of Executive Order 12356 and related directives and nondisclosure agreements — for 

the protection of classified information. See generally, AFSE Brief at 2-7. The 

first pertinent part of that framework is Executive Order 12356’s two-part requirement of trustworthiness and “ need to know” :

Executive Order No. 12,356 provides that access must be limited 

as a general matter to those individuals who have been determined 

to be trustworthy, and that access to any particular item of information may be granted only where it “ is essential to the accomplish6 The panel's question (0 also refers to the currently applicable classified information executive order. Executive 

Order 12958, 3 C.F.R. 333 (1996), but our discussion will refer only to Executive Order 12356, because that was 

the order applicable at the time of Mr. Nuccio’s disclosure to a Member of Congress. In any event, we do not 

find the differences in wording between the two executive orders to be relevant for purposes of the questions posed 

by the panel.

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Opinions of the Office o f Legal Counsel in Volume 20

ment of lawful and authorized Government purposes” (§4.1(a)) —

i.e., where the individual has a “ need to know” that information.

AFSE Brief at 3. The brief notes that in addition to the provisions of Executive 

Order 12356, reference should be made to the requirement imposed by the Director of Central Intelligence, on the basis of his statutory authority to protect intelligence sources and methods, that all individuals with access to SCI and other 

Central Intelligence Agency information sign nondisclosure agreements (see id.

at 4-6) and to the govemmentwide requirement, based on National Security Decision Directive 84, Safeguarding National Security Information (issued by President 

Reagan on Mar. 11, 1983), that all individuals with access to classified information 

(at any level) sign nondisclosure agreements (see id. at 6-7). We would add to 

this listing the relevant directives issued by the Director of Central Intelligence. 

See, e.g., Director of Central Intelligence Directives 1/7, Security Controls on the

Dissemination o f Intelligence Information (1987), and 1/19, Security Policy for

Sensitive Compartmented Information (1995).

Members of Congress, as constitutionally elected officers, do not receive security clearances as such, but are instead presumed to be trustworthy. See Information Security Oversight Office, Classified Information Nondisclosure Agreement

(Standard Form 312) Briefing Booklet (“ ISOO Briefing Booklet” ) at 66. “ Members of Congress are not exempt, however, from fulfilling the ‘need-to-know’ requirement.” Id. Thus, the issue presented by question (e) is whether, under the 

existing executive branch rules and practices, individual employees are free to 

make a disclosure to Members of Congress based on their own determination on 

the need-to-know question.

The answer to that question is most assuredly “ no.” The Department’s brief 

in the AFSE litigation stated that it would be unconstitutional for Congress to 

“ removfe] decisionmaking about congressional access [to classified information] 

from the usual channels in the Executive Branch and allow[ ] lower-ranking employees to decide for themselves whether to divulge such information to Congress 

or its Members.” AFSE Brief at 41-42. In making this statement, the Department 

was obviously indicating that the existing regime under Executive Order 12356 

did not afford individual employees such discretion. With respect to “ disseminations that would be made to Congress or its Members . . ., the decision whether 

to grant access to the information must be made by someone who is acting in 

an official capacity on behalf of the President and who is ultimately responsible, 

perhaps through intermediaries, to the President.” Id. at 42. “ Both the Executive 

Branch and Congress have recognized that [disclosure of classified information] 

must be conducted through the secure channels established by the Branches working in cooperation.” Id. at 45.

Thus, the longstanding practice under Executive Order 12356 (and its successor) 

has been that the “ need to know” determination for disclosures of classified infor406
Access to Classified Information

mation to Congress is made through established decisionmaking channels at each 

agency. We believe that it would be antithetical to the existing system for an 

agency to permit individual employees to decide unilaterally to disclose classified 

information to a Member of Congress— and we are unaware of any agency that 

does so.7 In this regard, we suggest that the panel may wish to review what 

procedures were in place at the Department of State for such decisions at the 

time of Mr. Nuccio’s disclosure of classified information to a Member of Congress.

2. W histleblower Protection A ct

The panel’s question (b) asks whether denial or revocation of a SCI security 

clearance is a “ personnel action” within the meaning of the Whistleblower Protection Act (“ WPA” ), 5 U.S.C. §2302. See Panel Memorandum at 1. A recent 

decision of the United States Court of Appeals for the Federal Circuit has settled 

this question. See M cCabe v. Department of the Air Force, No. 94-3463, 1995 

WL 469464 (Fed. Cir. 1995). Affirming a decision of the Merit Systems Protection 

Board, the Federal Circuit held in McCabe that the revocation of a security clearance is not a personnel action within the meaning of the WPA. The court’s reasoning was as follows:

Under Egan v. Department o f Navy, 484 U.S. 518, 98 L. Ed. 2d 

918, 108 S. Ct. 818 (1988), an agency’s decision to grant or deny 

a security clearance is not judicially reviewable, except to the extent 

that an agency must follow any applicable procedures. “ It should 

be obvious that no one has a ‘right’ to a security clearance. The 

grant of a clearance requires an affirmative act of discretion on the 

part of the granting official.” Egan, 484 U.S. at 528. Given the 

high degree of discretion involved in matters of national security, 

we are convinced that Congress did not intend that agency decisions 

regarding security clearance status be encompassed within the definition of “ personnel action” under the WPA.

Id. at **2. We believe that the Federal Circuit’s decision was clearly a correct 

application of the Supreme Court’s decision in Egan. 8

7 We do not doubt that some agencies may have in place procedures whereby very senior officials are vested 

with this authority. However, we understand question (e) to be inquiring about procedures with respect to the broad 

category of “ cleared employees,” not this much narrower categoiy o f very senior officials.

8 In addition, even if revocation of a security clearance were to be viewed as a personnel action under the WPA, 

revoking a security clearance because of an unauthorized disclosure of classified information would not be a “ prohibited personnel action" under the WPA. The W PA's prohibition against taking a personnel action because of a disclosure by an employee contains an express exception for disclosure o f classified information. See 5 U.S.C. 

§ 2302(bX8)(A); see also ISOO Briefing Booklet at 72 ( “ The [classified information nondisclosure form] does not

Continued

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Mr. Nuccio’s attorney argues that “ Congress expressed its intent that the definition of ‘prohibited personnel practices’ would include ‘any personnel action 

against an employee who discloses information to Congress.’” Nuccio Statement 

at 7, quoting 5 U.S.C. § 2302(b). The Department rejected this argument in the 

AFSE litigation. After citing the express exception for disclosure of classified information contained in subsection 2302(b)(8)(A), see supra note 8, the Department 

noted that:

by not including the exception for classified information in subsection 2302(b)(8)(B), which provides for disclosures to Inspectors 

General or the Office of Special Counsel of the Merit Systems Protection Board, Congress evidenced an intent to limit disclosures of 

classified information to particular Executive Branch officials with 

a designated need-to-know. Although Congress also stated in the 

whistleblower statute that “ [tjhis subsection shall not be construed 

to authorize the withholding of information from the Congress or 

the taking of any personnel action against an employee who discloses information to the Congress” (5 U.S.C. § 2302(b)), that provision does not confer an affirmative right to make such disclosures.

AFSE Brief at 50 n.43.

3. Executive O rder 12674

The panel’s question (a), see Panel Memorandum at 1, seeks our views on an 

argument that Mr. Nuccio’s attorney makes in a footnote:

Mr. Nuccio was acting consistently with the directives of the Office 

of the President as expressed and documented in Executive Order 

No. 123674 [sic], which require every federal employee to “ disclose waste, fraud, abuse and corruption to appropriate officials 

[sic].” While the term “ appropriate officials” is undefined in the 

Executive Order, there is no suggestion therein that it does not include members of Congress, and in particular members of oversight 

committees with direct interest in such abuse and corruption.

Nuccio Statement at 6 n.6.

The reference here is to section 101(k) of Executive Order 12674, Principles

o f Ethical Conduct fo r Government Officers and Employees, 3 C.F.R. 215, 215 

(1990) as amended by Executive Order 12731, 3 C.F.R. 306, 307 (1991), which

conflict with the ‘whistleblower’ statute (5 U.S.C. §2302). The statute does not protect employees who disclose 

classified information without authority.").

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Access to Classified Information

provides that “ [e]mployees shall disclose waste, fraud, abuse, and corruption to 

appropriate authorities.” 9 Mr. Nuccio’s attorney correctly states that the term 

“ appropriate authorities” is not defined in Executive Order 12674. We do not 

question that in certain circumstances that term could include a member of a congressional oversight committee. However, we believe— for the reasons set forth 

in the prior sections of this opinion— that the question of who is an “ appropriate 

authority” to receive classified information is governed by Executive Order 12356 

and the related directives and practices. Put another way, there should be no conflict in these circumstances between the ethical conduct executive order and the 

classified information executive order. The latter executive order should control 

because it more directly and specifically addresses the subject at issue, the disclosure of classified information.

CHRISTOPHER H. SCHROEDER 

Acting Assistant Attorney General

Office o f Legal Counsel

9 Mr. Nuccio’s attorney employs the term ‘ ‘appropriate officials,’* but we will refer to the term actually used 

in the executive order 44appropriate authorities/'