Order Code RS20748
Updated April 5, 2006
CRS Report for Congress
Received through the CRS Web
Protection of Classified Information
by Congress: Practices and Proposals
Frederick M. Kaiser
Specialist in American National Government
Government and Finance Division
Summary
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 vary over time
between the two chambers and among panels in each. Both chambers, for instance, have
created offices of security to consolidate relevant responsibilities, but 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
1 Classification of national security information is governed for the most part by executive orders
E.O. 12958, issued by President William 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.
CRS Report RL31845, “Sensitive But Unclassified” and Other Federal Controls on Scientific
and Technological Information, by Genevieve J. Knezo; CRS Report RS21900, The Protection
of Classified Information: The Legal Framework, by Nathan Brooks; and CRS Report 97-771,
Security Classification Policy and Procedure: E.O. 12958, as Amended, by Harold C. Relyea.
Congressional Research Service ˜ The Library of Congress

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for staff; and formal procedures for investigations of suspected security violations. Public
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 a security office. The Senate established an Office of Senate Security nearly 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, issued initially in 1988 — “are binding upon all employees
of the Senate.”4 They 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. 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
individual committee and Member offices to set requirements following chamber and
committee rules, guidelines in internal office procedural manuals, and custom.
2 See Herrick S. Fox, “Staffers Find Getting Security Clearances Is Long and Often a Revealing
Process,” Roll Call, Oct. 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 (Spring 1988), pp. 49-73; U.S. Commission on Protecting
and Reducing Government Secrecy, Secrecy: Report of the Commission (Washington: GPO,
1997); House Committee on Government Operations, Subcommittee on Legislation and National
Security, Congress and the Administration’s Secrecy Pledges, Hearings, 100th Cong., 2nd sess.
(Washington: GPO, 1988); House Permanent Select Committee on Intelligence, United States
Counterintelligence and Security Concerns — 1986, 100th Cong., 1st sess., H.Rept. 100-5
(Washington: GPO, 1987), pp. 3-4; Joint Committee on the Organization of Congress, Committee
Structure, Hearings, 103rd Cong., 1st sess. (Washington: GPO, 1993), pp. 64-79, 312-316, 406-
417, and 832-841; and Senate Select Committee on Intelligence, Meeting the Espionage
Challenge, S.Rept. 99-522, 99th Cong., 2nd sess. (Washington: GPO, 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 (Washington: OSS, 1998), preface.

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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.5 The Senate
Office of Security mandates such requirements for all Senate employees needing access
to classified information.6 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 staff. At
the beginning of the 104th 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, 108th Congress). Previously, a similar oath was
required only for members and staff of the House Permanent Select Committee on
Intelligence; this requirement had been added in the 102nd Congress as part of the Select
Committee’s internal rules, following abortive attempts to establish it in public law.7
Other adoptions have occurred under committee rules. The House Select Committee
on Homeland Security (Rules of Procedure, Rule 7(f), 108th Congress), for instance,
required an oath from each Member, officer, and employee of the committee, or a non-
Member seeking access; each affirmed that “I will not disclose any classified information
received in the course of my service on the Select 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.” Neither the full Senate nor
any panel, including the Select Committee on Intelligence, apparently imposes a similar
obligation on its Members or employees.
Investigations 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
5 The three congressional support agencies (i.e., Congressional Budget Office, Congressional
Research Service, and Government Accountability Office) have separate personnel security
systems and policies; but each requires security clearances for its staff to gain access.
6 Executive Order 12968, “Access to Classified Information,” issued by President William
Clinton, on Aug. 2, 1995, Federal Register, Aug. 7, 1995, vol. 60, pp. 240, 245-250, and 254.
7 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.

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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 Congress). 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 Congress) 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 ....”
Access for Non-Committee Members
Procedures controlling access to classified information held by committees exist
throughout Congress. These set conditions for viewing classified information and
determine whether legislators who are not on a panel are eligible for access to its
classified holdings and attend closed hearings or executive sessions. Other rules govern
staff access and the sharing of classified information with other panels in the chamber.
The most exacting requirements along these lines have been developed by the House
Permanent Select Committee on Intelligence; these rules are based on its 1977
establishing authority (H.Res. 658, 95th Congress) and reinforced by intelligence oversight
provisions in public law, such as the 1991 Intelligence Authorization Act (P.L. 102-88;
105 Stat. 441). Representatives who are not members of the Intelligence Committee go
through a multi-stage process (Committee Rule 10, 108th Congress). Thus, it is possible
for a non-member to be denied attendance at its executive sessions or access to its
classified holdings. By comparison, the rules of the House Armed Services Committee
(Rule 21, 108th Congress) “ensure access to [its classified] information by any member
of the committee or any other Member of the House of Representatives who has requested
an opportunity to review such material.”
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.
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
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.8
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,
8 See citations to the House and Senate Select Committees on Intelligence, House Subcommittee
on Legislation and National Security, and Joint Committee on the Organization of Congress.

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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; H.Res.
747 (109th Cong.) would require 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 are
“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 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. It might impose an unnecessary, unprecedented, and unique (among

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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 if held in executive or secret session); and retard the legislative
process, while the investigations, adjudications, and appeals are conducted.
Direct Senators or Senate Employees to Take or Sign a Secrecy Oath
to Be Eligible for Access to Classified Information. 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 was unsuccessful.9 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 published 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 and
access.10 Objections have been expressed to such tests, however, because of their cost and
questionable reliability.
9 The initial version, part of the FY1994 Intelligence Authorization Act, applied only to
Representatives but was later extended to Senators along with officers or employees of the
executive branch, including the President, Vice President, cabinet secretaries, and the heads of
all intelligence agencies, as well as all employees with security clearances. The provision was
dropped in conference. Congressional Record, daily ed., vol. 139, Aug. 4, 1993, pp. H5770-
H5773, and Nov. 18, 1993, p. H10157.
10 In the 105th Congress, the House approved a rule change to allow for drug testing for Members
and staff (as a condition of employment), 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. The system may provide for the testing of a Member, Delegate, Resident
Commissioner, officer, or employee of the House....” CRS Report RS20689, Drug Testing in the
House of Representatives: Background, Legislation and Policy, by Lorraine Tong (archived,
available from author).

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