Rep. Waxman explains Rove's Nondisclosure Agreement

[BurtWorm]

PDF is available here.


REP. HENRY A. WAXMAN RANKING MINORITY MEMBER
COMMITTEE ON GOVERNMENT REFORM
U.S. HOUSE OF REPRESENTATIVES
JULY 15, 2005

Fact Sheet

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.”9
There is no evidence that the White House complied with these requirements.

ENDNOTES
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).

[merwin]

1. Where can I find this fact sheet?

[BurtWorm]

2. Follow the link

http://democrats.reform.house.gov/Documents/20050715140232-17725.pdf

[writes2000]

3. BRILLIANT! Game, Set & Match. Rove should lose his job.

[katty]

23. bush will slap Rover and (only) revoke his security

clearance..heh, heh, heh,ok america, happy now?!! i can't function w/out karl.

[flyingfysh]

31. followed by Bush very soon after

[msongs]

4. let's see THIs on the front page of our newspapers eh? but

I won't hold my breath waiting.

Msongs
www.msongs.com/political-shirts.htm

[Synnical]

5. " . . . sanctions for violations are not optional."

Thank you Rep. Waxman! And thanks for posting this.

:kick:

[berni_mccoy]

6. HOT DAMN!

This PIG IS ROASTED!!!!

Excellent!!!!!!!!!!!!!!!!!!!!!!!!!!

:woohoo:

[Just Me]

7. The RW spin machine cannot spin Rove out of this.

They should be ashamed of themselves for even jumping at his defense! The MoFo threatened the security of this nation!!!

Every single one of those pricks who are on the media, LYING about the circumstances should be pulled in by the prosecutor and required to submit sworn affidavits!!! Then, let's see how many of these pathological sickos keep spewing LIE after LIE after LIE!!!

I am sick of these people believing it's okay to repeatedly and persistently defraud the American people. The RW pricks are the absolute moral scum at the bottom of this country's barrel!!! :grr:

[FreedomAngel82]

25. I agree

If this was a democratic administration they would've spent thousands of dollars on this investigation and got his butt long ago, but because he's a republican he's above the law. :eyes:

[FormerRepublican]

8. This is an excellent explanation!

As I've been saying for a while, even with what little we know about what Rove has done, he DID leak classified information and MUST be held accountable if we are serious about national security in a time of war.

We should email this to major news outlets.

[Quixote1818]

9. Big Kick!!! Nominated!

I like this part:

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

[displacedtexan]

10. That's the same doc you sign to work on a campaign.

I signed that same (virtually the same) doc when I joined the Kerry campaign in August, 2003.

Non-disclosure means NON-DISCLOSURE. Period.

No exceptions.

In fact, there are legal repercussions if you breach your contract with a campaign, regardless of your status (volunteer or paid worker).

Rove knew exactly what he was doing.

I'm sure he's lectured many a campaign staffer on non-disclosure in the past!

The rule of law's gone AWOL!

[FreedomAngel82]

26. With the rule

it only applies to us little people. :eyes:

[jurassicpork]

43. Very true, Delilah

There's very little wiggle room if any but it's extremely entertaining to see Fetus Man mightily struggling to get some for his corpulent frame by trying to make this hilarious distinction: "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."

Now, this seems to raise the ridiculous possibility that somehow Robert Novak, trusted Republican assclown that is he, was someone able to get ahold of the same Top Secret information to which people of Karl Rove's pay grade was also privy, which instead negates this "defense" of his and Luskin's since Rove should've known (and damned well did) that Novak wouldn't be privy to this kind of information and wouldn't, or SHOULDN'T, have freely divulged Ms. Wilson's name under the misperception that he did. This kind of "I didn't inhale" defense simply won't hold up in whatever grand jury testimony Rove will give.

Fortunately, the wheels of justice don't depend on publicity and, in fact, they seem to turn more efficiently in its absence. I'm completely convinced that this investigation will reach a somewhat satisfactory conclusion regardless of the air time or ink spent on it.

JP
http://jurassicpork.blogspot.com

[Quixote1818]

11. kick

[mondo joe]

12. Too bad the stupid fucking MSM can't come up with this on their own.

But that would require actual work.

[Quixote1818]

16. You know what is really sad

I just e-mailed this to 100 media outlets because I don't have any faith that they will ever find this or even attempt to find this.

[mondo joe]

17. Waxman should have included PENIS in the topic. That would have

gotten their attention.

[katty]

24. This should be FRONT PAGE-but it won't, Harry Potter book

hysteria will get front and center.

[Cha]

28. Thank you!

I hope that once they have it they will put it to good use.

[Just Me]

38. I did that, too.

I quit them and invested in US. Ever since I invested in US, something hopeful kept happening in spite of the corporacrats' arrogance.

I write to the "little" publications,...and talk to the common folks every single day.

Look, those who THINK they are so powerful just AIN'T without the rest of us.

[enough]

13. Amazing.

The Rule of Law issues are really proliferating here.

Thanks to Waxman and thanks for posting.

[Lindsay]

14. Thanks, BurtWorm, for posting this.

And thanks, Mr. Waxman, for writing it. (What a gem this man is!)

I do wonder what "appropriate sanctions" are, and even more, who's supposed to enforce them.

[Quixote1818]

15. Someone needs to send this over to FR. Rush has them thinking

this is all over. :rofl:

[evil eggplant]

18. doesn't apply to rove, sorry...

When you're above the LAW an NDA isn't worth the paper it's written on.

If a man keeping his word meant anything to bush, rove would be out of a job. If they weren't above the law, bush would be in prison for lying to congress about IRAQ, Cheney would have been in prison long ago for Halliburton. DeLay would have been in prison for any one of a number of offenses, and rove would be in prison on general principles, for being a heartless, calculating vindictive rat bastard.

I'm sorry for being negative. I really am. Maybe I'm just getting tired of the years of denial and bullshit from these guys. They have never paid for any of the ruthless things they did.

Smirky, arrogant. bastards do whatever they hell they want to.

If bush can get away with lying us into Iraq, then getting around an NDA shouldn't be such a big deal.

[CorwinB]

19. I may be dense...

...but how on earth did KKKarl pass through the mandatory criminal background check ? :)

[Gman]

20. This means nothing when you have a rogue, revolutionary government

in place in the White House. They overthrew the US government in 2000 with impunity. That is the grandest of all crimes in this country. Why would we think they would follow laws and/or directives like this. This directive was obviously meant to keep Clinton appointees in check as it was revised by Bush in March, 2003. Bush has no intention of taking prompt action much less any action.

[usregimechange]

21. Kick to the media

[CarbonDate]

22. This is really basic stuff.

Anybody who's ever held a security clearance knows that Rove's "defense" is pure hogwash. Of course, Rove should never have known Plame's identity in the first place. "Need to know" is one of the requirements for disclosing classified information. In fact, it's considered the most important requirement. If someone doesn't need to know, then that person shouldn't know. So another, perhaps even more relevant question is:

Who the fuck told Rove about Plame's identity? That person is also in violation of his or her NDA.

[FreedomAngel82]

27. I agree

Rove was just a political advisor back then. Bush promoted him a few days after the last "election". Why would he need promoting if he was just an advisor? Someone had to be more up to get Rove the information.
Remember Cheney was going to the CIA a lot too.

[kurtyboy]

40. This goes way past "Need to Know"

Sources, Methods, and NOC status are among the most highly guarded secrets in the whole government. This stuff is Sensitive Compartmented Information (SCI) requiring a Special Background Investigation (SBI) before one can even be considered for access to the Special Access Program (SAP). Access to some of these SAPs may be limited to a few dozen people in the whole country--like knowing NOC identities, for example.

Even then, before one gets their "numbers" (the programs are numbered, often with the numbers themselves being classified), they are evaluated as to the importance of having the information against their ability to do the job.

In short, they cannot gain access with a mere need-to-know basis, they instead require what is called a MUST-KNOW urgency. That is, they cannot perform their duties in any way without the information. Compartments are created to allow only the absolute minimal number of people access to this data which, if improperly disseminated, will cause "Grave damage to the national security of the United States." (The other advantage of compartmentalization is that if a leak occurs, there are only a few people who could have leaked--the evidence trail narrows quickly)

Once such access is granted to an individual, they have a responsibility to:

-NEVER discuss it with anyone without the same program clearance (Even if they have a Top Secret clearance, they must have the program numbers).

-NEVER discuss it AT ALL in anything but a secure environment--a space that has been swept for bugs and is unoccupied by uncleared personnel (such as janitorial staff). Generally speaking, these spaces--Secure Classified Information Facilities (SCIF)--prohibit recording or transmission devices of any kind: Cell-phones, floppy disks, camcorders, pagers must be checked at the door--often even including notetaking equipment like a pen and paper.

-NEVER discuss it over an unsecure telephone line. Only encrypted lines, with the particular crypto-key for the SAP, may be used.

-NEVER key the information into a computer that has not been authorized for it. These computers are prohibited from posessing modems, never have any conenction to the WWW, and have removable hard drives that must be stored in a safe when not in use. In the case of very sensitive information (the identity of a NOC, for example), the safes may have not one, but two sophisticated combination locks, so that no individual acting alone can access the information.

Whoever leaked Plame's name knew all of this--the indoctrination for the clearance is pretty thorough--and these people should fry on the nearest suitable barbeque. Too many of our patriots have risked too much to let this stand.

Just saying.

[sundancekid]

53. way to top off the story! KUDOS. I see the thumbprint of Sleeza Lice

all over this too ... the connect-the-dots game (some call this cover-up an actual conspiracy, oh my!) will ultimately HAVE TO include:

1. the chimpster his own self
2. the former NSC head, Sleeza Lice
3. top bushevik, the rovester kkarl
4. always-looking-for-a-fight one mr. bolton (Powell has those files)
5. fukka-you dick
6. scooter libby (and mary matlin iraq group too)
7. current NSC - hadley and co.

[HuskiesHowls]

29. I'm really skeptical that anything will come of this,

this is just one more thing that nothing will happen about. * says he stands by his friends, and of course, we all know that if you're his friend, you can do NOTHING wrong!!!!

[Democracy White]

30. Tell me, please I hope, does this mean the end

of the Bush regime?

Dee

[wookie294]

32. Yes, Rove CONFIRMED Plame's name to Novak

So, why is the media saying Rove "learned" of Plame's identity through Novak? The headline should be "Rove illegally confirms identity of undercover CIA operative to Novak," and not "Rove learned of Plame's name from Novak."

The MSM is blatantly protecting Bush/Rove in the way they write their stories.

[ClintonTyree]

33. According to the ongoing investigation.............

which by the way has suddenly sprouted numerous leaks all in one day, :eyes: KKKarl is the victim here! He tried to warn these reporters that they shoulldn't go too deeply into the Wilson/Niger story. St. Karl was trying to help, out of the goodness of his heart. How could anyone think St. Karl would do anything like this just to settle a grudge? What will the Orphans at the home where St. Karl volunteers as a mentor think? He's all they have! :cry:

Stop it, all of you. KKKarl Rove is a saint I tell you. :cry: He's a victim of vicious Liberals who want nothing more than power, while KKKarl has nothing but the good of the country and the American people in his blessed heart!

Ohhh my god. :puke: That was sickening, you have no idea how nauseous I am from typing those words.

THIS is what the Slugs would have us believe though. Karl is the poor victim. Yeah, and monkeys are going to fly out of my butt any second now. Isn't it strange that this whirlwind of new information comes out in one day, when there had been no information about this for months? And golly gee....it's all supposed to make poor KKKarl look like a saint. Isn't that odd? :eyes:

The stench of the bush misinformation machine is over-powering. This has the smell and consistency of a Rove rat-fucking operation all over it.

[savemefromdumbya]

34. Thank God for Henry Waxman!

Also for People like Congressman John Conyers, Sen Barb Boxer, Sen Chuck Schumer etc. We do have SOME spine in the Dems!

However, everyone is missing a prime point here. It is Bush and Cheney who fought their campaign on strong security in 2004 after their 9/11, strong hawk stuff, yet manage to allow their aides to leave our country's security vulnerable. Not only that, imagine you are a CIA officer on the ground and someone's cover is blown the implications are immense. Not only for this country but for our allies!
Put that in your pipe and smoke it Bush!!!!!

[TechBear_Seattle]

35. The feces has hit the air movement device

It will be interesting to see who gets splattered and where things stick.

[Mr_Jefferson_24]

36. John Dean offers...

...enlightening commentary concerning applicable US code.

http://www.commondreams.org/views05/0715-01.htm

[AAARRRGGGHHH]

37. Just wrote my thank you letter

did you?

[jermckeen]

39. Cover-up in progress

If it walks like a coverup and looks like a coverup and quacks like a cover up....welll can you guess what it is? Maybe ANOTHER coverup! The question is...will the media ignore the blogosphere once again? Will the Rove "misbehavior" go the way of the Downingstreet Memo, the reasons for going to war in Iraq, Bush's "honorable and dedicated National Guard service", the "Mission Accomplished", the "we have a plan for the peace in Iraq", the disastrous trade deficit with China, the out of control national deficit, the social security "crises" that will be "solved" by privatization, the two stolen national elections, and on, and on, and on, and on.
So what that American lives may be at stake in the outing of a covert CIA agent...that has never concerned this White House before....

[batsauce]

41. So Waxman is guilty of felony?

It appears that Waxman is also confirming the identity of this CIA agent.

If I read Congressman Waxman correctly, it does not matter if the material has already been made public, only that it is classifed.

If Congressman Waxman has signed non-disclosure agreements, that would make him guilty of the same felony that KKKrove is.

[kurtyboy]

42. Nice try, batsauce

It is very unlikely that Rep Waxman ever did sign an NDA for the program clearance that would allow him to actually know a CIA operative's name. Almost no congress-critters ever have such access, if any do. The only way to get that level of access is through an extensive background investigation coupled with a "MUST-KNOW" urgency, or else by being a senior White House official with the authorization of the President.

Waxman is safe, and you're missing the boat on this one. ON the other hand, someone working with the POTUS or VPOTUS is very much in legal jeopardy.

[batsauce]

47. Great.

I didn't realize that Congressman Waxman was not subject to non-disclosure agreements of the Sort Rove was.

I take it that everyone who is in the POTUS or VPOTUS is subject to them, and even at this point, if they bring up Valerie Plames identity they are subject to felony prosecution.

There is a possibility of incriminating a lot POTUS and VPOTUS based on this.

[mondo joe]

49. What do you mean "everyone who is in the POTUS"?

[batsauce]

52. A reference to earlier post

He said:

"Waxman is safe, and you're missing the boat on this one. ON the other hand, someone working with the POTUS or VPOTUS is very much in legal jeopardy."

I think that includes anyone on any talkshow or in any bar reveals Valerie Plame's status. That is, if they work in the office of the President (OTUS) or VicePresident (OTUS)

[displacedtexan]

44. Sorry, but your argument defies logic.

Not to be rude, but...

Rove is obviously guilty of some rather despicable acts, yet you don't want anyone to talk about his involvement because they don't have the necessary clearance to do so?

How are things on Planet OH RIGHT SURE?

Just asking.

[batsauce]

50. I don't think you quite understand

Or maybe I misunderstand Congressman Waxman's statement
(or as another poster pointed out, Congressman Waxman is not subject to this particular non-disclosure agreement)

Here is the part that threw me:

"“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. "

If I read this correctly, if someone signs the non-disclousure agreement, they can not reveal the classified information, at any time. (Even right now.)Even if the revelation is not based on classified documents. For instance, if I had signed such an agreement, I would be guilty of felony for revealing her information in this forum. My revelation of classifed information is not based on the classifed documents themselves, but on what reporters have reported.

But I think my question as already been answered.
Congressman Waxman is not subject to the nondisclosure agreement in question.



I am curious of what particular part of what I said defies logic.
Would you be so kind as to point it out more carefully, for those not gifted with your sort of brillance? I would like to point to out
that you have posed what is known as "the strawman argument". Which is to to say, you have put words in my mouth, and then made your argument based on those very words.

I think Mr. Spock would be very disappointed in you right now.

(By the way, Of course criminals should be prosecuted, and we can't be silent about this thing. Waxman shouldn't be silent. But he does need to very careful about what arguments he throws out. If they are partially flawed, there is the risk of them being rejected completely. It has happened before.)

[mondo joe]

48. Where did you get it does not matter if the material is already public?

Or that Plame's identity is at this time classified?

[batsauce]

54. That is what Rove is saying...

he said he did not access classfied information, that he knew Plame was working at the CIA because a reporter told him. He would have had to access classifed data to be aware of her secret status.

I do not believe that Plames status has not officially changed. She is still doing exactly what she was doing when she was outed.

So if you hold this sort of ND agreement, the legal thing would be to not talk about Plame at all, since at this point you are probably aware of her secret status.

[batsauce]

55. Not that you can rely on what Rove says

But in a court of law, you have to prove his guilt.

Even if you already know he is guilty in fact.

I'm not sure how exactly you would prove how he knew Plames status unless there is some record still existing showing him accessing her file before he spoke to the 2nd reporter.

[Babel_17]

45. Here's a link to the .pdf that works

http://democrats.reform.house.gov/Documents/20050714122956-30175.pdf

[immoderate]

46. Good stuff. Thanks, Burt

--IMM

[Toots]

51. And the rubber meets the road

Not sure if this is law or policy but either way Rove broke the agreement and has admitted it through his lawyer.

[Justice]

56. This information is incredibly important.

It highlights the fact that the MSM is focusing on one statute, one set of obligations, which allows republicans to focus on one statute - one set of obligations. If I see Victoria Toensig on one more show talking about how Rove didn't violate the one statute....

As John Dean has reported in many venues, on TV and on findlaw.com, there are many many statutes that Rove and others have potentially violated. I suspect Fitzgerald has a list that is a page long.

What we need to be doing is re-framing the discussion to move away from just whether or not Rove violated one statute which has very high standards to meet and educate people that there are MANY statutes and obligations at issue.