- 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
- 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
- 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
- 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
- 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
- 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
- * 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
- * 7 Id. at 5.5(c). 8 Id. at 5.5(e)(1). 9 Id. at 5.5(b).