Unions call homeland security directive unconstitutional

By Chris Strohm

November 29, 2004

Two of the largest federal unions are threatening to sue the Homeland Security Department over a directive that prohibits employees and contractors from disclosing sensitive but unclassified information.

The American Federation of Government Employees and the National Treasury Employees Union say the directive, and an accompanying nondisclosure agreement, are "clearly illegal" and violate the First and Fourth Amendments.

DHS issued the directive last May to restrict the dissemination of a broad range of material designated as sensitive but unclassified. The department also has required employees and contractors hired since May to sign a nondisclosure agreement stating they will not disclose certain information without proper authorization, including material labeled as sensitive but unclassified.

The unions sent letters on Nov. 23 to DHS Secretary Tom Ridge and General Counsel Joe Whitley demanding that the department immediately withdraw the directive and stop making workers sign the nondisclosure agreement. The unions said they "will have no choice but to pursue appropriate legal action" if the department does not take the requested steps.

"While our members fully appreciate the need to safeguard classified and other highly sensitive information against unauthorized disclosure, the directive and nondisclosure agreement impose restrictions and conditions on DHS employees that go well beyond this legitimate purpose," the unions said in their letter to Whitley.

The unions also object to a provision in the nondisclosure agreement that allows the government "to conduct inspections, at any time or place, for the purpose of ensuring compliance" with the agreement.

"Individuals cannot constitutionally be required, as a condition of government employment, to consent to warrantless searches of their residences, cars or other areas of government property where they have an expectation of privacy," the letter states. "Instead, they have a right under the Fourth Amendment to insist that any search be made pursuant to a valid warrant, unless one of the narrow exceptions applies, and they cannot be penalized for exercising that right."

DHS spokeswoman Valerie Smith said the department did not have any comment Monday regarding the union letter because it was still under review. She said that only employees and contractors hired since May are required to sign the nondisclosure agreement. Additionally, the agreement primarily is being signed by employees in the department's Washington headquarters, she said, and has "not been routinely enforced" at field operations.

The directive, however, says that it is applicable to "all DHS headquarters, components, organizational elements, contractors, consultants, and others" who have access to the protected information.

Smith said DHS has a duty to protect sensitive information, and the nondisclosure agreement reminds employees that the information they work with is "inherently sensitive at times."

"We have a national security mission," she said. "We determined that it was important to educate employees about their obligation to protect sensitive but unclassified information."

The unions said the directive and nondisclosure agreement "subject employees to the threat of punishment for expressing themselves in a broad range of matters of public concern, in circumstances in which DHS lacks a justification adequate to meet the standards imposed by the First Amendment."

"Further," the letter continued, "the directive violates public policy and our national interest by providing a ready device for officials to suppress and cover up evidence of their own misconduct or malfeasance, by stamping documents 'for official use only.' "

The letter added: "The possibilities for abuse inherent in a regime that authorizes unlimited searches and provides supervisors unbridled discretion to censor employee speech by simply stamping documents 'for official use only' are obvious."

The directive, however, states that the designation of information as "for official use only" is not "a vehicle for concealing government negligence, ineptitude, illegalities, or other disreputable circumstances embarrassing to a government agency."

And the nondisclosure agreement does not bar disclosures that are essential for reporting a substantial violation of law to Congress, authorized officials of an executive agency, or the Justice Department.


By Chris Strohm

November 29, 2004

http://www.govexec.com/defense/2004/11/unions-call-homeland-security-directive-unconstitutional/18099/