Protection of Classified Information by
Congress: Practices and Proposals
Frederick M. Kaiser
Specialist in American National Government
January 27, 2010
Congressional Research Service
7-5700
www.crs.gov
RS20748
CRS Report for Congress
P
repared for Members and Committees of Congress
Protection of Classified Information by Congress: Practices and Proposals
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 part—but also to Congress, which uses the information to fulfill its constitutional
responsibilities, particularly overseeing the executive as well as legislating public policy. 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. Classification of national security information is governed for
the most part by executive order as well as public law. For coverage of this issue, see CRS Report
RL33494, Security Classified and Controlled Information: History, Status, and Emerging
Management Issues, by Kevin R. Kosar, and CRS Report RS21900, The Protection of Classified
Information: The Legal Framework, by Jennifer K. Elsea, for more information.
This report will be updated as conditions require.
Congressional Research Service
Protection of Classified Information by Congress: Practices and Proposals
Contents
Current Practices and Procedures ................................................................................................ 1
Chamber Offices of Security and Security Manuals ............................................................... 1
Senate ............................................................................................................................. 1
House ............................................................................................................................. 2
Security Clearances and Nondisclosure Agreements for Staff ................................................ 2
Secrecy Oath for Members and Staff ..................................................................................... 2
Investigation of Security Breaches ........................................................................................ 3
Sharing Information with Non-Committee Members ............................................................. 3
Proposals for Change .................................................................................................................. 4
Mandate That Members of Congress Hold Security Clearances to Be Eligible for
Access to Classified Information ........................................................................................ 4
Direct Senators or Senate Employees to Take or Sign a Secrecy Oath to Be Eligible
for Access .......................................................................................................................... 6
Direct All Cleared Staff—or Just Those Cleared for the Highest Levels—to File
Financial Disclosure Statements Annually .......................................................................... 6
Require Polygraph Examinations and/or Drug Tests for Staff to Be Eligible for
Access to Classified Information ........................................................................................ 6
Contacts
Author Contact Information ........................................................................................................ 7
Congressional Research Service
Protection of Classified Information by Congress: Practices and Proposals
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 of its
committees; security clearances and nondisclosure agreements 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 (including informal arrangements), constitute the
bases for these requirements.1
Chamber Offices of Security and Security Manuals
The chambers have approached their security program differently, although each now has an
office of security.
Senate
The Senate established an Office of Senate Security in 1987, as the result of a bipartisan effort
over two Congresses. It is charged with consolidating information and personnel security.2
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.”3 These cover committee and Member office staff and officers of the Senate as well as
consultants and contract personnel—but not Members themselves. 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
1 For background, 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
and the Administration’s Secrecy Pledges, Hearings, 100th Cong., 2nd sess. (1988); House Permanent Select Committee
on Intelligence, United States Counterintelligence and Security Concerns—1986, 100th Cong., 1st sess., H. Rept. 100-5
(1987), pp. 3-4; Joint Committee on the Organization of Congress, Committee Structure, Hearings, 103rd Cong., 1st
sess. (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. (1986), pp. 90-95. A number of CRS reports deal with
aspects of this area: CRS Report R40136, Congress as a Consumer of Intelligence Information, by Alfred Cumming;
CRS Report R40691, Sensitive Covert Action Notifications: Oversight Options for Congress, by Alfred Cumming; CRS
Report R40698, “Gang of Four” Congressional Intelligence Notifications, by Alfred Cumming; CRS Report RL32525,
Congressional Oversight of Intelligence: Current Structure and Alternatives, by Frederick M. Kaiser; CRS Report
R40602, The Department of Homeland Security Intelligence Enterprise: Operational Overview and Oversight
Challenges for Congress, by Mark A. Randol; and CRS Report RL33616, Homeland Security Intelligence:
Perceptions, Statutory Definitions, and Approaches, by Mark A. Randol.
2 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.
3 U.S. Senate, Office of Senate Security, Security Manual (revised, 2007), preface.
Congressional Research Service
1
Protection of Classified Information by Congress: Practices and Proposals
clearances and nondisclosure agreements for all Senate staff needing access; and follow-up
investigations of suspected security violations by employees.
House
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.4 The 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. Unlike its Senate counterpart, however,
the House Office of Security has not issued a security manual. Prior to the House Office of
Security, the chamber had relied on 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.5 The Senate Office of Security mandates such
requirements for all Senate employees needing access to classified information.6 No comparable
across-the-board rules and regulations for security clearances or secrecy agreements yet exist for
all House employees, although individual offices require these.7 These could be applied by the
office of security in the future, if the House agrees.
Secrecy Oath for Members and Staff
The House and Senate differ with regard to secrecy oaths for Members and staff. Beginning with
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.8
4 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.
5 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.
6 Senate Office of Senate Security, Security Manual, pp. 8 and 10.
7 See, for example, U.S. House Permanent Select Committee on Intelligence, Rules of Procedure, 111th Cong, (2009),
Rules 12(b) and 14(c).
8 House Rule XXIII, cl. 13, 111th Congress.
Congressional Research Service
2
Protection of Classified Information by Congress: Practices and Proposals
Previously, a similar oath was required for only Members and staff of the House Permanent
Select Committee on Intelligence; its 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.9 It
is still in effect for select committee 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 House Permanent Select Committee on
Intelligence, except when authorized to do so by the Committee or the House of
Representatives.10
Other adoptions have occurred under committee rules. The House Committee on Homeland
Security, for instance, requires an oath from each Committee Member or staff seeking access,
modeled after the one developed by the House Intelligence Committee.11 Neither the full Senate
nor any Senate panel apparently imposes a similar obligation on its Members or employees.
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.12 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.”13 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.”14 The House, in
creating its Permanent Select Committee on Intelligence, issued similar instructions. H.Res. 658
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 .... ”15
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
9 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.
10 House Intelligence Committee, Rules, Rule 14(d).
11 U.S. House Committee on Homeland Security, Committee Rules, 111th Congress (adopted February 4, 2009), Rule
XV(E).
12 For House staff, see citations in note 4, above. For Senate staff, see Senate Office of Senate Security, Security
Manual, pp. 10-11, which spells out the investigative procedures and penalties for violations.
13 S.Res. 388, 88th Congress.
14 S.Res. 400, 94th Congress.
15 H.Res. 658, 95th Congress.
Congressional Research Service
3
Protection of Classified Information by Congress: Practices and Proposals
holdings directly or its executive session hearings, who can be given relevant information, and, if
so, to what extent and in what form.16
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 1977 establishing
authority and reinforced by intelligence oversight provisions in public law, such as the 1991
Intelligence Authorization.17 The panel’s controls apply to select committee Members sharing
classified information outside the committee itself as well as to non-committee Representatives
seeking access to the panel’s holdings.18 In the latter case, the requester must go through a multi-
stage process to obtain access.19 Consequently, it is possible for a non-committee Member to be:
denied attendance at its executive sessions or access to its classified holdings; given only a
briefing on it; granted partial access; or allowed full access. 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.20 By comparison, rules of the House Armed
Services Committee are to “ensure access to information [classified at Secret or higher] 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.”21
Proposals for Change
A variety of proposals—coming from congressional bodies, government commissions, and other
groups—have called for changes in the 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.
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
16 For examples of this in the intelligence area, see the following CRS reports: CRS Report R40136, Congress as a
Consumer of Intelligence Information, by Alfred Cumming; CRS Report R40691, Sensitive Covert Action
Notifications: Oversight Options for Congress, by Alfred Cumming; CRS Report R40698, “Gang of Four”
Congressional Intelligence Notifications, by Alfred Cumming; CRS Report RL32525, Congressional Oversight of
Intelligence: Current Structure and Alternatives, by Frederick M. Kaiser; CRS Report R40602, The Department of
Homeland Security Intelligence Enterprise: Operational Overview and Oversight Challenges for Congress, by Mark A.
Randol; and CRS Report RL33616, Homeland Security Intelligence: Perceptions, Statutory Definitions, and
Approaches, by Mark A. Randol.
17 H.Res. 658, 95th Congress; and P.L. 102-88, 105 Stat. 441. For background, see Kaiser, “Congressional Rules and
Conflict Resolution.”
18 Intelligence Committee, Rules, Rules 13(b) and 14(f).
19 Ibid., Rule 14(f).
20 Ibid., Rule 14(f)(4)(B).
21 U.S. House Committee on Armed Services, Rules of the Committee, 111th Congress, Rule 20(b).
Congressional Research Service
4
Protection of Classified Information by Congress: Practices and Proposals
the late 1980s, following charges and countercharges between the executive and legislative
branches over unauthorized disclosure of classified information. A more recent bill, introduced in
2006, 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.22 The resolution, however, did not specify which entity (in the
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
judgment 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-
22 H.Res. 747, 109th Congress.
Congressional Research Service
5
Protection of Classified Information by Congress: Practices and Proposals
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.23 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.24
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, drug or polygraph 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. Objections have been expressed to such tests,
especially as a pre-condition of employment, however, because of their cost and questioned
reliability and validity.25
23 Congressional Record, daily ed., vol. 139, Aug. 4, 1993, pp. H5770-H5773; and Nov. 18, 1993, p. H10157.
24 Ibid.
25 For background on polygraph testing, see CRS Memorandum, Polygraph Examinations of Federal Employees and
Applicants, by Frederick M. Kaiser.
Congressional Research Service
6
Protection of Classified Information by Congress: Practices and Proposals
Author Contact Information
Frederick M. Kaiser
Specialist in American National Government
fkaiser@crs.loc.gov, 7-8682
Congressional Research Service
7