April 19, 2006 – 9:50 p.m.
Security guards at the Department of Homeland Security were forced last month to sign agreements not to disclose information the agency deems sensitive — an attempt, according to several current guards, to silence them after recent high-profile revelations of security breaches at DHS.
The guards, employed by Wackenhut Services Inc., were told to sign pledges, called “non-disclosure agreements,” on March 10, the day after former guard Derrick Daniels appeared on NBC Nightly News alleging security lapses at the agency’s Nebraska Ave. complex headquarters in Washington, D.C.
The timing raises questions about whether DHS and Wackenhut misused the agreements and ignored whistleblower protections in an effort to prevent the guards from disclosing additional information about security lapses at DHS headquarters.
According to one guard, Wackenhut supervisors threatened to fire employees who did not sign the non-disclosure agreements. Wackenhut recently lost out on bidding for a new security contract at DHS to Virginia-based Paragon Systems LLC. Nevertheless, Wackenhut guards will continue to provide security at DHS headquarters for the next few months, according to a department spokesman.
A DHS management directive requires contractors to execute non-disclosure agreements if employees have access to “sensitive but unclassified” information. But guards said they had not been asked to sign any non-disclosure agreement while working at DHS until the airing of the NBC segment. Instead, they contend that Wackenhut required the guards to sign the forms last month to intimidate them and keep them from talking to media outlets.
“It was supposed to be to keep the guards from talking to the press,” said one current guard, speaking on condition of anonymity for fear of losing employment at DHS. “The purpose was, from that point on, there would be no guard who would give access to the media or have an interview of any kind.”
Another guard, also speaking on condition of anonymity, said Wackenhut had coerced employees to sign the agreement.
“They kind of put us between a rock and a hard place,” the guard said, adding that Wackenhut supervisors had in effect told guards to “sign this, or we’re going to do something detrimental to your job.”
The DHS non-disclosure agreement DHS non-disclosure agreement (pdf) bars anyone who signs it from disclosing three classifications of information: “protected critical infrastructure information,” “sensitive security information” and other “sensitive but unclassified” information.
That last category is defined in the agreement as “an over-arching term that covers any information . . . which the loss of, misuse of, or unauthorized access to or modification of could adversely affect the national interest or the conduct of Federal programs” or the privacy of certain individuals.
A DHS directive from January 2005 required contractors to execute non-disclosure agreements if employees have access to such “sensitive but unclassified” information.
The directive also states that information should not be characterized as sensitive but unclassified “in order to conceal government negligence, ineptitude, illegalities, or other disreputable circumstances embarrassing to a government agency.”
The directive further says DHS employees who pledge non-disclosure must “participate in formal classroom or computer-based training sessions presented to communicate the requirements for safeguarding [official-use-only material] and other sensitive but unclassified information.” In a widely distributed memo announcing the directive, DHS undersecretary for Management
But guards at the DHS headquarters said they had not been instructed on how to handle sensitive information and were largely unaware of what information — if any — constituted sensitive but unclassified material.
Without proper training a guard who signed a non-disclosure agreement might be reluctant to disclose any kind of security lapses if it is not clear what types of sensitive information are to be kept confidential.
A lack of training and preparation was also cited earlier by guards as the reason for other recent revelations about DHS headquarters. An Associated Press report published last month described the mishandling of an anthrax threat at the headquarters, as well as accounts of under-guarded building entrances and malfunctioning detection equipment.
A Government Accountability Office report released Monday noted that DHS has no policies allowing officials to declare information sensitive but unclassified. Nor does DHS yet have a formal definition of information it considers “for official use only,” terminology that encompasses much of what it labels sensitive but unclassified.
DHS policy on sensitive information has been muddled by numerous policy changes throughout its existence, with Hale’s memo representing its most recent statement on the issue. In 2004, it mandated the signing of non-disclosure agreements from all of its employees, but retracted the requirement a few weeks later. Contract employees still are required to sign non-disclosure forms if they have access to sensitive but unclassified information.
The Homeland Security Act of 2004 (
“Right now, confusion prevails, and that’s probably not the optimal situation,” Steven Aftergood, a government secrecy expert at the Federation of American Scientists said. “Unless there is external pressure, either from the employees themselves or from Congress, it will be hard to resist the pressure to shut down unsupervised communications with the press or the public.”
DHS spokesman Russ Knocke would not offer any specifics about DHS’ policy on non-disclosure agreements or sensitive but unclassified information. Instead, he said many DHS employees — contract or otherwise — must sign the non-disclosure agreements.
“I think that non-disclosure statements are a common part of government, and that’s for very obvious reasons,” Knocke said in a phone interview. “I would not read into the timing associated with non-disclosure agreements being put for security officers who were with a contractor that’s transitioning out of security for DHS.”
He said DHS requested that Wackenhut have employees sign non-disclosure agreements on March 1, 2006. He contends that the security guards were not under DHS’s purview until that time.
That’s roughly one year after DHS officially took over control of the Nebraska Ave. complex from the U.S. Navy, which had signed a contract with Wackenhut to provide security in 2002. DHS had been using the Navy contract until they signed a bridge contract March 1.
“We took control of the Wackenhut contract [on March 1, 2006], which then allowed the department to implement the requirements,” Knocke said.
That timeline, however, does not mesh with Wackenhut’s description of events. According to the company, DHS has had control of the security contract for more than a year.
“When DHS took over the contract April 1, 2005, we had a year remaining on that contract,” Bud Blount, a Wackenhut spokesman said. “While [the General Services Administration] entered into the contract, DHS assumed responsibility for it.”
Guards said that Wackenhut — not DHS — asked for the non-disclosure agreements to be signed and that there had been no mention of signing such an agreement when the Wackenhut guards worked at DHS headquarters under the Navy contract.
The Service Employees International Union (SEIU), which has decried Wackenhut’s performance at DHS’s Nebraska Ave. complex, criticized the company for asking guards to sign the non-disclosure agreements without training them in handling sensitive information.
According to SEIU spokeswoman Gina Bowers, the guards’ allegations about the non-disclosure agreements could amount to a violation of the law.
Bowers pointed to the management directive on sensitive but unclassified information, which requires training for employees handling sensitive information.
One section of the non-disclosure agreement stipulates that guards have been briefed on any laws, regulations or directives referenced in the agreement’s requirements.
“If they were coerced into signing these official government documents, and Wackenhut gave them to DHS, then Wackenhut was submitting false documents to the federal government,” Bowers said, explaining that employees had signed on to the document despite having not been fully briefed on sensitive but unclassified information.
Tom Devine, legal director of the Government Accountability Project, a nonprofit whistleblower advocacy group unrelated to the Government Accountability Office, also suggested the accusations put Wackenhut, as well as DHS, on shaky legal ground.
Neither Wackenhut nor DHS acted properly in requiring completion of the non-disclosure agreements, he said.
“A cornerstone of whistleblower law is that termination shortly after public dissent is viewed as retaliatory, per se, and it’s the most common way to prove a reprisal case under corporate free speech laws, and the same principle applies to gagging after a public breakdown,” Devine said. “The clear link is that the contractor doesn’t want the public to know any more about what it can’t defend in its performance. That’s almost kindergarten law by analogy.”
Wackenhut came out swinging last Wednesday, claiming in a press release that a “massive” campaign by the SEIU to recruit guards had sparked criticisms of the company, first published last month in the Associated Press report.
Wackenhut also suggested that it had completely fulfilled its end of the bargain in the original Navy contract, which it now says was ill-suited for DHS's needs.
Knocke said the new contract with Paragon Systems would have stronger oversight, and that contract language, rather than Wackenhut’s performance, had played a large role in problems at the headquarters. But he didn’t give Wackenhut a ringing endorsement, either.
“Wackenhut had an opportunity to rebid,” he said. “They did not succeed in that rebid process.”
Two Senate Democrats,
“Perhaps one day DHS will demonstrate it has the ability to secure its own building without having to resort to outside contractors,” Dorgan said. “In the mean time, jettisoning a contractor clearly not up to the job seems like a pretty good idea.”
Wackenhut spokesman Blount maintains his company has done its best under trying circumstances.
“Sorting through this damn thing is not easy for anybody, and we’ve acted in good faith, we’ve acted in compliance with the terms of conditions of our contract,” Blount said. “We re-competed a new contract, and we were prepared to meet the new terms and conditions, and we were not selected.”
Patrick Yoest can be reached at pyoest@cq.com.