Budget Non-Disclosure Agreements

**Cliff** · 04-11-2009

Sorry if this is a repeat, tried to find any posts about this but couldn't find any.

Saw in recent coverage of Sec Gates budget press releases that the JCS and some other OSD folks had to sign non-disclosure agreements. Article:

http://www.cnn.com/2009/POLITICS/02/...ref=rss_latest

Guess I missed this covereage before...

Has anyone seen any feedback from the JCS folks on these NDAs? Anyone know if they cover testimony/answering questions for Congress?

It seems like while on the one hand this is a good thing (keeps DOD going in the same direction, somewhat reduces the politics involved), on the other hand it seems like it stifles the debate and doesn't allow the chiefs to fulfill their role to provide military advice.

What's the right balance between informing the public, Congress, and keeping the internal debate within DOD/the Administration?

The conflict between Congressional oversight and the ability to set policy is a tough one to resolve it seems.

-C

**Schmedlap** · 04-12-2009

Originally Posted by Cliff

It seems like while on the one hand this is a good thing (keeps DOD going in the same direction, somewhat reduces the politics involved), on the other hand it seems like it stifles the debate and doesn't allow the chiefs to fulfill their role to provide military advice.

Given that much of the information is classified anyway, I don't see what the issue is. Also, I may have misread it or simply misunderstood, but how does this interfere with the chiefs providing advise? Aren't they a part of the decision-making?

Originally Posted by Cliff

What's the right balance between informing the public, Congress, and keeping the internal debate within DOD/the Administration?

This is a measure to protect our national security from those who threaten it which, unfortunately in this case, includes Congress. The re-election interests of Congressmen trumps their allegiance to the national interest. It's not a pleasant reality, but ignoring it won't mitigate the threat. In any case, the balance of informing the public and Congress about classified information should be weighed very heavily toward not informing.

Originally Posted by Cliff

The conflict between Congressional oversight and the ability to set policy is a tough one to resolve it seems.

I would characterize it as a conflict between unethical behavior and difficult decisions, where the former exacerbates the latter.

**Umar Al-Mokhtār** · 04-12-2009

While the service POMs are being formulated the information is kept "secret" in order to free the programmers and decision makers from outside interference/influence, that includes outside influence from senior leaders within the service. The data is not necessarily "secret" in the traditional sense: Such material would cause "grave damage" to national security if publicly available. Some people during the programming phase of the budget formulation (where programs can be cut or decremented to use as offsets) have no qualms about tattling to the Hill. Which brings undesirable attention to the PPBE process.

The NDAs are no doubt being put in place so people keep their mouths shut outside of class. It doesn't stifle debate nor restrict the chief's role to provide military advice. It's to prevent the debate from showing up in the Post or some Congressman's daily brief sheet. This type of “gag order” can actually assist in the debate since folks can readily talk with the assurance they will not be quoted outside the forum. It's also the reason the DAWG is always conducted on a non-attributable basis.

**Ken White** · 04-12-2009

keep ALL the services from running to their pet Congress critter -- or one they know will object (i.e. several over the F22, a few over the EFV and several over the FCS and VA over anything to do with Carriers...) -- or the media to make a case for their pet rock in order to skew the debate. Long overdue fix IMO.

**Entropy** · 04-12-2009

Well, count me as skeptical that anyone, besides the public, will be kept in the dark through these NDA's. After all, the threat of prosecution and jail time doesn't seem to prevent disclosure of classified intelligence information to the press (which has had the effect inside the intelligence community of more stovepiping, not less), so I highly doubt Congress will not receive inside information from the executive's deliberations.

**Ken White** · 04-12-2009

I missed 'em. Post facto, of course there'll be tons of discussion -- and Congressional pushback. The object was to delay that until everyone has signed on the dotted line. So the issue was not and is not either the Public or Congress knowing 'inside' information -- but rather when they know it. Later rather than early enough to affect the arguments.

Think of Eisenhower's dictum in his meetings -- "Silence is not an acceptable form of non-concurrence." Gates is surely aware of that and just as surely enforces it most of the time. However, he might have ignored it for these budget talks in the building and he can thus say to Congressman Phugabosky (GS, EW) "Well, when that issue was raised, ADM Steampowered did not object. I have the Transcript here..." or "I don't know, Senator GEN Throwntrack is here, you might ask him of his response when that issue was raised back in April..."

He flanked 'em -- and good for him for doing so.

As for this:

After all, the threat of prosecution and jail time doesn't seem to prevent disclosure of classified intelligence information to the press (which has had the effect inside the intelligence community of more stovepiping, not less).

I totally agree that has been the effect -- it is ALWAYS the Intel community's response to their own transgressions. I'll also point out tha most of those leaks are made in an effort to skew decisions and policies. The question is, since the Intel community itself is largely responsible for most of those leaks -- even drops some of them -- what have they done about putting anyone in jail?

**Entropy** · 04-12-2009

Ken,

What I meant to say was that I don't think it's likely the NDA's kept information from Congress or even industry, though it did keep it from the general public. I fully admit that may simply be cynicism on my part.

As for intelligence, my personal opinion is that most leaks don't come from the rank-and-file of the intelligence community. "Senior admistration/intelligence official" is often the source for these articles which indicates to me the most likely leakers are political appointees and the upper echelons of the IC. Again, that's purely speculation on my part. What I do know is that the stovepiping does not seem to have done much to prevent leaks on those politically sensitive topics that have extra restrictions. Even when political appointees are caught in gross violation of the law little is done to them - just ask Sandy Berger or Richard Armitage.

**Cliff** · 04-13-2009

Originally Posted by Entropy

Ken,

What I meant to say was that I don't think it's likely the NDA's kept information from Congress or even industry, though it did keep it from the general public. I fully admit that may simply be cynicism on my part.

This is exactly it... a lot of folks know what the programming folks were doing... the public doesn't, only the result.

Reference the other post about Sec Gates' saying all the JCS and CoComs agreed with terminating the F-22 vs. the public testimony from Adm Mullen and Gen Schwartz... They are in direct conflict. So did the JCS really agree with the decisions as claimed, or were they ordered to? The NDA (in theory) prevents us from knowing.

I guess I was asking if anyone knows if the NDA will apply to Congressional inquiries... because it seems likely that there will be some Congressional questions on just what the JCS recommended the programs be...

I agree that keeping the debate internal is better than using the media/congress to get what you want.

-C

**Ken White** · 04-13-2009

LINK.

This is exactly it... a lot of folks know what the programming folks were doing... the public doesn't, only the result.

So far. The truth almost always comes out eventually. The problem is that in this era of instant gratification everyone wants what they want when they want it. Some things you just have to wait for -- and the usually reasonable performance of the US Governmental process is one that you'll always have to wait for, it's slow. By design...

In any event, it'll come trickling out, there will indeed be Hearings as pet Oxen are being gored and Rice Bowls broken (A good thing IMO) so Congroids will have to grandstand, pundit military wannabes will predict doom -- and in the end all will be known and it'll probably work out for the best as it most always does.

I agree that keeping the debate internal is better than using the media/congress to get what you want.

So do I, which was my point; thus I'm not sure I understand the upset of you two Blue Suited Gentlemen???

Unless it's possibly the facts that a Service is having obvious identity problems (as all of them have periodically), Gates fired some folks -- and he may have possibly outflanked Congress and some rice bowl salesmen. Like the guys said, time to move on...

**John T. Fishel** · 04-13-2009

in a different position from other members of the Administration (and other service members). While they are bound to give the Adminsitration's position on an issue to Congress in a formal hearing they are also required by law to give their personal professional judgment - when asked for it in a hearing - even if it contradicts the Administration position. This, BTW, is what got GEN Shinseki in trouble with Rumsfeld even though the SECDEF could not fire him for it.

Cheers

JohnT

**J Wolfsberger** · 04-13-2009

Cliff, I think you read more into it than is actually there. My experience with NDAs has been in the private sector, and I've both signed and initiated a number of them. They are signed between two parties to establish some degree of legal protection for proprietary information the two parties want to exchange. Sometimes one of the parties is a government entity, but I've never heard of an NDA between two government entities. And I'm dumbfounded at the idea of an NDA between a manager/executive and a subordinate.

The article states:

"Pentagon spokesman Geoff Morrell told reporters Wednesday that those involved in formulating the budget for fiscal year 2010 have been required to sign a nondisclosure form ...

"...Morrell commented on a questioner's remark that there are 'criminal penalties' if the 'information is secret and therefore classified.'

" 'Classified information with potential criminal consequences gets leaked all the time. This is to reinforce the message that indeed this is classified material...' "

I think these were merely forms to remind people of the responsibility not to disclose classified information to anyone without a need to know and proper clearance. It may also have been used as a tool to make clear that attempting to play the standard beltway game of leaks to bring outside pressure to bear was not going to be tolerated.