Protection of Classified Information by Congress: Practices and Proposals

Protection of Classified Information
by Congress: Practices and Proposals
Frederick M. Kaiser
Specialist in American National Government
Government and Finance Division
The protection of classified national security and other controlled information is
of concern not only to the executive branch — which determines what information is to
be safeguarded, for the most part1 — but also to Congress, which uses the information
to fulfill its constitutional responsibilities. It has established mechanisms to safeguard
controlled information in its custody, although these arrangements have varied over time
between the two chambers and among panels in each. Both chambers, for instance, have
created offices of security to consolidate relevant responsibilities, although these were
established two decades apart. Other differences exist at the committee level. Proposals
for change, some of which are controversial, usually seek to set uniform standards or
heighten requirements for access. This report will be updated as conditions require.
Current Practices and Procedures
Congress relies on a variety of mechanisms and instruments to protect classified
information in its custody. These include House and Senate offices responsible for setting
and implementing standards for handling classified information; detailed committee rules
for controlling access to such information; a secrecy oath for all Members and employees
of the House and of some committees; security clearances and nondisclosure agreements
for staff; and formal procedures for investigations of suspected security violations. Public

1 Classification of national security information is governed for the most part by executive orders
E.O. 12958, issued by President William J. Clinton in 1995, and E.O. 13292, amending it, issued
by President George W. Bush in 2003. Related information — such as atomic energy “Restricted
Data” (42 U.S.C. 2162-2168) and “intelligence sources and methods” (50 U.S.C. 403(d)(3)) —
is specified in statute and subsequent rules issued, respectively, by the Department of Energy and
Director of National Intelligence. Other controlled information — such as “sensitive security”
and “sensitive but unclassified” information — is determined largely by executive directives.
See CRS Report RL33494, Security Classified and Controlled Information: History, Status, and
Emerging Issues, by Harold C. Relyea; and CRS Report RS21900, Protection of Classified
Information: The Legal Framework, by Jennifer K. Elsea.

law, House and Senate rules, and committee rules, as well as custom and practice,
constitute the bases for these requirements.2
Chamber Offices of Security and Security Manuals
The chambers have approached their security program differently, although each now
has an office of security. The Senate established an Office of Senate Security over two
decades ago, in 1987, as the result of a bipartisan effort over two Congresses. It is
charged with consolidating information and personnel security.3 Located in the Office of
the Secretary of the Senate, the Security Office sets and implements uniform standards
for handling and safeguarding classified and other sensitive information in the Senate’s
possession. The Security Office’s standards, procedures, and requirements — detailed
in its Senate Security Manual, initially issued in 1988 — “are binding upon all employees
of the Senate.”4 These cover committee and Member office staff and officers of the
Senate as well as consultants and contract personnel. The regulations extend to a wide
range of matters on safeguarding classified information: physical security requirements;
procedures for storing materials; mechanisms for protecting communications equipment;
security clearances and nondisclosure agreements for all Senate staff needing access; and
follow-up investigations of suspected security violations by employees.
The House put its own security office in place, under the jurisdiction of the Sergeant
at Arms, in 2005, following approval of the chamber’s Committee on House
Administration.5 The new office, similar to the Senate predecessor, is charged with
developing an Operations Security Program for the House. Its responsibilities and
jurisdiction encompass processing security clearances for staff, handling and storing
classified information, managing a counterintelligence program for the House, and
coordinating security breach investigations. In the past, the House had relied on

2 See Herrick S. Fox, “Staffers Find Getting Security Clearances Is Long and Often a Revealing
Process,” Roll Call, October 30, 2000, pp. 24-25; Frederick M. Kaiser, “Congressional Rules and
Conflict Resolution: Access to Information in the House Select Committee on Intelligence,”
Congress and the Presidency, vol. 15 (1988), pp. 49-73; U.S. Commission on Protecting and
Reducing Government Secrecy, Secrecy: Report of the Commission (1997); House Committee
on Government Operations, Subcommittee on Legislation and National Security, Congress andthnd
the Administration’s Secrecy Pledges, Hearings, 100 Cong., 2 sess. (1988); House Permanent
Select Committee on Intelligence, United States Counterintelligence and Security Concerns —thst

1986, 100 Cong., 1 sess., H.Rept. 100-5 (1987), pp. 3-4; Joint Committee on the Organizationrdst

of Congress, Committee Structure, Hearings, 103 Cong., 1 sess. (1993), pp. 64-79, 312-316,

406-417, and 832-841; and Senate Select Committee on Intelligence, Meeting the Espionagethnd

Challenge, S.Rept. 99-522, 99 Cong., 2 sess. (1986), pp. 90-95.
3 Congressional Record, vol. 133, July 1, 1987, pp. 18506-18507. The resolution creating the
new office (S.Res. 243, 100th Cong.) was introduced and approved on the same day.
4 U.S. Senate, Office of Senate Security, Security Manual (revised, 1998), preface.
5 The two relevant letters — one requesting an Operations Security Program under the direction
of the House Sergeant at Arms and the other granting approval — are, respectively, to the
Chairman of the House Committee on House Administration, from the House Sergeant at Arms,
February 25, 2003; and to the House Sergeant at Arms, from the Chairman of the House
Committee on House Administration, March 28, 2003.

individual committee and Member offices to set requirements following chamber and
committee rules, guidelines in internal office procedural manuals, and custom.
Security Clearances and Nondisclosure Agreements for Staff
Security clearances and written nondisclosure agreements can be required for
congressional staff but have been handled differently by each chamber.6 The Senate
Office of Security mandates such requirements for all Senate employees needing access
to classified information.7 No comparable across-the-board requirements for security
clearances or secrecy agreements yet exist for all House employees. But these could be
applied by the new office of security, when it becomes fully operational.
Secrecy Oath for Members and Staff
The House and Senate differ with regard to secrecy oaths for Members and
Beginning with the 104 Congress, the House adopted a secrecy oath for all Members,
officers, and employees of the chamber. Before any such person may have access to
classified information, he or she must “solemnly swear (or affirm) that I will not disclose
any classified information received in the course of my service with the House of
Representatives, except as authorized by the House of Representatives or in accordance
with its Rules” (House Rule XXIII, cl. 13, 110th Cong.).
Previously, a similar oath was required for only Members and staff of the Housend
Permanent Select Committee on Intelligence; its requirement had been added in the 102
Congress as part of the Select Committee’s internal rules, following abortive attempts to8
establish it in public law. It is still in effect for Members and staff: “I do solemnly swear
(or affirm) that I will not disclose or cause to be disclosed any classified information in
the course of my service on the [Committee], except when authorized to do so by the
Committee or the Houses of Representatives” (Committee Rule 14(d), 110th Cong.).
Other adoptions have occurred under committee rules. The House Committee on
Homeland Security, for instance, requires an oath from each Member, officer, and
employee of the committee, or a non-Member seeking access, similar to one developed
by the House Intelligence Committee. Each must affirm that “I will not disclose any
classified information received in the course of my service on the Committee on
Homeland Security, except as authorized by the Committee or the House of
Representatives or in accordance with the Rules of such Committee or the Rules of the
House” (Committee Rule XIV(E), 110th Cong.). Neither the full Senate nor any Senate
panel apparently imposes a similar obligation on its Members or employees.

6 The congressional support agencies — i.e., Congressional Budget Office, Congressional
Research Service (as well as the Library of Congress), and Government Accountability Office
— have separate personnel security systems and policies. Nonetheless, each requires security
clearances for its staff to gain access to classified information.
7 Executive Order 12968, “Access to Classified Information,” issued by President William
Clinton, on August 2, 1995, Federal Register, August 7, 1995, vol. 60, pp. 240, 245-250, and


8 U.S. Congress, Committee of Conference, Intelligence Authorization Act, Fiscal Year 1992,

102nd Cong., 1st sess., H.Rept. 102-327 (Washington: GPO, 1991), pp. 35-36.

Investigation of Security Breaches
The Senate Office of Security and the House counterpart are charged with
investigating or coordinating investigations of suspected security violations by employees.
In addition, investigations by the House and Senate Ethics Committees of suspected
breaches of security are authorized by each chamber’s rules, directly and indirectly. The
Senate Ethics Committee, for instance, has the broad duty to “receive complaints and
investigate allegations of improper conduct which may reflect upon the Senate, violations
of law, violations of the Senate Code of Official Conduct, and violations of rules and
regulations of the Senate” (S.Res. 338, 88th Cong.). The panel is also directed “to
investigate any unauthorized disclosure of intelligence information [from the Senate
Intelligence Committee] by a Member, officer or employee of the Senate” (S.Res. 400,

94th Congress). The House, in creating its Permanent Select Committee on Intelligence,

issued similar instructions. H.Res. 658 (95th Cong.) ordered the Committee on Standards
of Official Conduct to “investigate any unauthorized disclosure of intelligence or
intelligence-related information [from the House Intelligence Committee] by a Member,
officer, or employee of the House....”
Sharing Information with Non-Committee Members
Procedures controlling access to classified information held by committees exist
throughout Congress. These committee and chamber rules set conditions for sharing such
information with other panels and Members, determining who is eligible for access to a
committee’s classified holdings directly, or who can be given relevant information.
The most exacting requirements along all of these lines have been developed by the
House Permanent Select Committee on Intelligence; the rules are based on its 1977th
establishing authority (H.Res. 658, 95 Cong.) and reinforced by intelligence oversight
provisions in public law, such as the 1991 Intelligence Authorization Act (P.L. 102-88;
105 Stat. 441). The panel’s controls apply to committee Members sharing classified
information outside the committee itself9 as well as to non-committee Representatives
seeking access to the panel’s holdings. In this case, the requester must go through a
multi-stage process (Committee Rule 10, 110th Cong.). Thus, it is possible for a non-
member to be denied attendance at its executive sessions or access to its classified
holdings. When the House Intelligence Committee releases classified information to
another panel or non-member, moreover, the recipient must comply with the same rules
and procedures that govern the intelligence committee’s control and disclosure
requirements. By comparison, rules of the House Armed Services Committee
(Committee Rule 20, 110th Cong.) “ensure access to information by any member of the
Committee or any other Member, Delegate, or Resident Commissioner of the House of
Representatives .... who has requested the opportunity to review such material.”
Proposals for Change
A variety of proposals, coming from congressional bodies, government commissions,
and other groups, have called for changes in the current procedures for handling and

9 For a description of the strictures governing communications outside the House Intelligence
Committee, see interview with Representative Jane Harman, “House Committee to Probe Ruin
of CIA Tapes,” Morning Edition, National Public Radio, January 16, 2008.

safeguarding classified information in the custody of Congress. These plans, some of
which might be controversial or costly, focus on setting uniform standards for
congressional offices and employees and heightening the access eligibility requirements.
Mandate That Members of Congress Hold Security Clearances to Be
Eligible for Access to Classified Information. This would mark a significant
departure from the past. Members of Congress (as with the President and Vice President,
Justices of the Supreme Court, or other federal court judges) have never been required to
hold security clearances. Most of the proposals along this line appeared in the late 1980s.
A recent one, however, was introduced in 2006 by Representative Steve Buyer;
747 (109 Cong.) would have required a security clearance for Members serving on the
House Permanent Select Committee on Intelligence and on the Subcommittee on Defense
of the House Appropriations Committee. The resolution does not specify which entity
(legislative or executive branch) would conduct the background investigation or which
officer (in Congress or in the executive) would adjudicate the clearances.
The broad mandate for such clearances could be applied to four different groups: (1)
all Senators and Representatives, thus, in effect, becoming a condition for serving in
Congress; (2) only Members seeking access to classified information, including those on
panels receiving it; (3) only Members on committees which receive classified
information; or (4) only those seeking access to classified information held by panels
where they are not members.
Under a security clearance requirement, background investigations might be
conducted by an executive branch agency, such as the Office of Personnel Management
or Federal Bureau of Investigation; by a legislative branch entity, such as the House or
Senate Office of Security, or the Government Accountability Office; or possibly by a
private investigative firm under contract. Possible adjudicators — that is, the officials
who would judge, based on the background investigation, whether applicants would be
“trustworthy” and, therefore, eligible for access to classified information — could extend
to the majority or minority leaders, a special panel in each chamber, a chamber officer,
or even an executive branch officer, if Congress so directed.
The main goals behind this proposed change are to tighten and make uniform
standards governing eligibility for access for Members. Proponents maintain that it would
help safeguard classified information by ensuring access only by Members deemed
“trustworthy” and, thereby, limit the possibility of leaks and inadvertent disclosures. In
addition, the clearance process itself might make recipients more conscious of and
conscientious about the need to safeguard this information as well as the significance
attached to it. As a corollary, supporters might argue that mandating a clearance to serve
on a panel possessing classified information could increase its members’ appreciation of
the information’s importance and its protection’s priority. This, in turn, might help the
committee members gain the access to information that the executive is otherwise
reluctant to share and improve comity between the branches.
Opponents, by contrast, contend that security clearance requirements would
compromise the independence of the legislature if an executive branch agency conducted
the background investigation; had access to the information it generated; or adjudicated
the clearance. Even if the process was fully under legislative control, concerns might
arise over: its fairness, impartiality, objectivity, and correctness (if determined by an

inexperienced person); the effects of a negative judgement on a Member, both inside and
outside Congress; and the availability of information gathered in the investigation, which
may not be accurate or substantiated, to other Members or to another body (such as the
chamber’s ethics committee or Justice Department), if it is seen as incriminating in
matters of ethics or criminality. Opponents might contend, moreover, that adding this
new criterion could have an adverse impact on individual Members and the full legislature
in other ways. Opponents also maintain that it might impose an unnecessary,
unprecedented, and unique (among elected federal officials and court judges) demand on
legislators; create two classes of legislators, those with or without a clearance; affect
current requirements for non-Member access to holdings of committees whose own
members might need clearances; possibly jeopardize participation by Members without
clearances in floor or committee proceedings (even secret sessions); and retard the
legislative process, while investigations, adjudications, and appeals are conducted.
Direct Senators or Senate Employees to Take or Sign a Secrecy Oath
to Be Eligible for Access. This proposal would require a secrecy oath for Senators
and staffers, similar to the current requirement for their House counterparts. An earlier
attempt to mandate such an oath for all Members and employees of both chambers of
Congress seeking access to classified information occurred in 1993; but it was
unsuccessful. If approved, it would have prohibited intelligence entities from providing
classified information to Members of Congress and their staff, as well as officers and
employees of the executive branch, unless the recipients had signed a nondisclosure
agreement — pledging that he or she “will not willfully directly or indirectly disclose to
any unauthorized person any classified information” — and the oath had been published10
in the Congressional Record.
Direct All Cleared Staff — or Just Those Cleared for the Highest Levels
— to File Financial Disclosure Statements Annually. This demand might make
it easier to detect and investigate possible misconduct instigated for financial reasons.
And many staff with clearances may already file financial disclosure statements because
of their employment rank or salary level; consequently, few new costs would be added.
Nonetheless, objections might arise because the proposal would impose yet another
burden on staff and result in additional record-keeping and costs. This requirement’s
effectiveness in preventing leaks or espionage might also be questioned by opponents.
Require Polygraph Examinations and/or Drug Tests for Staff to Be
Eligible for Access to Classified Information. Under such proposals, tests could
be imposed as a condition of employment for personnel in offices holding classified
information, only on staff seeking access to such information, or for both employment and11
access. Objections have been expressed to such tests, however, because of their cost and
questionable reliability.

10 Congressional Record, daily ed., vol. 139, August 4, 1993, pp. H5770-H5773; November 18,

1993, p. H10157.

11 In the 105th Congress, the House approved a rule directing “the Speaker, in consultation with
the Minority Leader, shall develop through an appropriate entity of the House a system for drug
testing in the House ... (which) may provide for the testing of a Member, Delegate, Resident
Commissioner, officer, or employee of the House....”