A Security Clearance Nightmare

As President, Donald Trump obviously has the right to hire and fire his top advisors as he sees fit. However, when the President indicates he may fire someone because they are not doing what he likes, such as when Jeff Session recused himself from the Russia investigation, there are frightening national security implications. We need people in the intelligence services who can give frank assessments of situations, even assessments that are not to their superiors’ liking.

As scary as the prospect of a president firing intelligence professionals for failing to do their personal bidding is, there is a subtler, and perhaps more frightening, way for the country’s chief executive to pressure career intelligence and other government officials into doing what he or she wants. It’s widely known that to work for the intelligence services you must first have a security clearance. What is less known is that the decision to deny someone a security clearance or to revoke someone’s security clearance is not judicially reviewable. Even many people working for the CIA or National Security Agency or other intelligence agencies have no idea how precarious their position is. If their clearance is revoked, there is almost nothing they can do to dispute it. And, without a clearance, they will no longer have a job. Making matters worse for those in the Intelligence Community, their skills often may not be easily transferable to positions outside of the Intelligence Community, so finding suitable employment can be difficult, if not impossible.

Many of the cases contesting a security clearance revocation are brought by individuals who say their clearance was revoked due to retaliation or discrimination. However, the courts say they are unable to review these decisions because of their lack of expertise in national security decisions and the Executive Branch’s broad authority in matters of national security. But courts decide retaliation and discrimination claims every day — these are not battlefield decisions. These cases may not even involve classified information and, even if they do, we have mechanisms for courts to deal with that challenge. 

Additionally, personnel in the intelligence community do not have the whistleblower protections that are available for other parts of the government. The Whistleblower Protection Act specifically excludes members of the Intelligence Community and the Intelligence Community Whistleblower Protection Act (“ICWPA”) only outline procedures by which whistleblowers can report to Congress a matter of “urgent concern” and only after first bringing the complaint to the agency head through proper agency channels. The ICWPA also states that actions taken pursuant to it are not subject to judicial review. The other initiatives taken to protect whistleblowers with access to classified information, Presidential Policy Directive 19 and Title VI of the Intelligence Authorization Act similarly lack an enforcement mechanism with Title VI specifically leaving enforcement to the President. Cases, like Franz Gayl’s, show how important the protection of whistleblowers is. Gayl was able to save lives by alerting Congress and the public to the necessity of obtaining Mine Resistant Ambush Protected Vehicles. He lost his job, but had recourse to the Merit Protection Review Board (“MSPB”). The MPRB found, “there are reasonable grounds on which to believe that Mr. Gayl’s indefinite suspension is a result of protected activity and is therefore prohibited.” He was reinstated and able to return to work. Those who work for the national security agencies are not so lucky.

One worries when the government can work completely in the dark without outside, independent oversight. For when they do, abuses happen. Abuses that harm a well-functioning democracy.

After 9/11, Muslims who had worked for the government for decades had their security clearances revoked (see here and here), experts in aviation and physics, and had no recourse to the courts. One said poignantly as he boarded a plane to leave the United States, “I feel very sad that the American people have lost a good bit of their Constitution. John Adams said that once you lose your right and liberties, it’s very hard to get them back.” Maybe there were valid reasons for their security clearance revocations, but wouldn’t it be better to know for sure?

We want diverse people working for the Intelligence Community, people who understand different regions of the world with language capabilities and a variety of local, regional, and global perspectives. We need to protect their ability to offer up those perspectives honestly and in good faith to enhance our national security without fear of retribution if their analysis disagrees with a White House agenda or if they happen to have the same ethnic/religious background as some of the very groups the Intelligence Community is working to counter.

When administrations change, everyone accepts that the high-level political appointment positions will change. Trump fired 46 U.S. Attorneys. While alarming that it happened so badly and abruptly, in and of itself, these positions are political appointments and we accept that. However, career intelligence officers should still have their jobs. We still want people working in our government who are career officers and may have different opinions.

But think of the frightening element of what I have just told you, if your clearance is revoked or denied even the reason for the revocation or denial can be classified and therefore you will never even be told why you no longer have a job. You can suspect that someone did not like your viewpoints or your religion or skin color, but you have absolutely no way to contest and prove it. You do not have your day in court and an administration can get away with punishing professionals for doing their jobs correctly. There needs to be judicial review of security clearance decisions to ensure that people are not losing their jobs because of their political viewpoints or because of discrimination against minority groups. This isn’t just about workplace fairness, it’s about our national well-being.

Image: Alex Wong/Getty Images

 

About the Author(s)

Heidi Gilchrist

Assistant Professor of Legal Writing at Brooklyn Law School