The Case for Legislative Security Clearance Reform

One thing everyone can agree on is that President Donald Trump is a master at exposing the cracks in our political and legal landscape, whether he intends to or not. He refuses to be bound by custom, no matter how deep-rooted, and this tendency has never been clearer than in the realm of security clearances, where he is just now starting to grasp the extent of his virtually unchallenged authority. The unilateral decision to revoke former CIA Director John Brennan’s security clearance was the President flexing and testing a new tool he had just discovered, and it will only get worse from here. And that is solely because Congress has let it get to this point, and it now falls to Congress to step up and fix it. In this article, I will endeavor to describe why legislative reform of the clearance regime is both necessary and constitutional, and then to show why now is the time for Congress to take action.

The Current System Fosters Arbitrary Action and Chills Personnel

The President’s actions, while extreme, are but the latest instance of someone in the Executive Branch deciding to revoke a person’s security clearance and then arguing that there was nothing anyone could do about it. The difference is simply one of magnitude and, for lack of a better term, chutzpah. Prior to now, intelligence agencies at least went through the motions when denying or revoking clearances, and for the most part the decisions were undoubtedly sound (but those aren’t the decisions with which we need to be concerned). However, because of a consistent legal position that has been taken by all administrations, regardless of party, the Executive Branch always maintained that its decisions about security clearances were unreviewable by courts—and that Congress more generally has no authority to make any laws pertaining to such matters. Such a belief has a corrosive effect over time, creating a kind of “historical gloss” from which some might infer conclusions about what the constitutional rules actually are. If you are consistently told that you have the final authority over something, that there are no rules except those you impose upon yourself, and that your decision cannot be reviewed, your standards will become increasingly arbitrary over time. Again, this is not to say that all or even most of these decisions were arbitrary, but that’s not the point. The point is, a lot of them are, and now that that is being made obvious to everyone, it has created a significant chilling effect in the Intelligence Community, where employees are now doubly concerned about the cost of stepping out of line.

I will make a distinction here that will become critical later. When I say that there are no rules except those you impose upon yourself, that’s only partially true, depending on your perspective. It’s more accurate to say that there are no enforceable rules except those the Executive Branch imposes upon itself. Executive Orders 12968 and 13467 (and their predecessor Orders) set forth the bare minimum of due process that someone denied a security clearance is entitled to. Such a person has the right to a written notice of the reasons for the decision (generally called a Statement of Reasons), the right to appeal the decision to a higher authority in the same agency, and the right to a personal appearance to argue their case orally. Various policy documents established by the Director of National Intelligence (DNI) add flourishes here and there, most notably by establishing a list of 13 Adjudicative Guidelines that the reasons have to fall within (such as Foreign Influence, Personal Conduct, Financial Considerations, and Criminal Conduct). However, the problem is that if an agency disobeys E.O. 12968 or the Adjudicative Guidelines, it is virtually impossible to force it to comply, because there is no right to go to court. What reforms do occur over time only occur through the actions of the Executive Branch choosing to self-impose a new restriction on its behavior, which it can just as easily un-impose. To be fair, there has been progress. Agencies used to be able to deny a security clearance to a person based on sexual orientation, now it only matters if you are keeping it a secret (and can therefore be blackmailed). Agencies used to be able to revoke the clearance of a whistleblower because the Whistleblower Protection Act doesn’t apply to the Intelligence Community, now that is prohibited, at least on paper (enforceability is still a problem). However, they still operate in a legal Wild West, where precedent doesn’t really exist, one person can receive a clearance despite risk factors that caused another person’s clearance to be revoked, and the house always wins. And the reason for that is the persistent mischaracterization of a Supreme Court case called Egan.

Egan Doesn’t Mean What Many Think It Means

In 1988, the Supreme Court held in Department of the Navy v. Egan that the Merit Systems Protection Board (MSPB), created by the Civil Service Reform Act (CSRA), did not have jurisdiction to review the merits of a decision to deny a security clearance. Specifically, it held that the MSPB could determine “whether in fact clearance was denied, and whether transfer to a nonsensitive position was feasible,” but that “[n]othing in the [CSRA], however, directs or empowers the Board to go further.” In other words, if an employee is fired because of a clearance revocation, the MSPB can only ask if the clearance was revoked, period. However, whether or not the clearance decision itself was proper is beyond the Board’s authority.

However, in an unfortunate turn of phrase, the Court stated that the President’s “authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy … [to have] access to such information flows primarily from [a] constitutional investment of power in the President and exists quite apart from any explicit congressional grant.” Since that holding, the Executive Branch’s representation of this holding has become unrecognizable from the original intent of the Court. In Egan, the Court held that Congress did not intend for the MSPB to review these cases as part of the statutorily created appeals process. However, as a later district court held in 2002 in Stillman v. DOD, “The government’s attempt to read into Egan’s discussion of Article II a blanket ban on judicial review of challenges to access decisions places more weight on that discussion than it can bear.”

Egan itself actually addressed this issue in an oblique manner that has been misquoted by Executive Branch lawyers, legislators, and scholars ever since: “[U]nless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.” In other words, Congress can enact a law that allows it a role in the adjudication of security clearances. However, every time that Congress even considers legislating in this area, the Executive argues that Egan describes “the Executive’s constitutional authority under Article II to control access to national security information [and] … the President’s constitutionally based privilege to withhold national security information.” This argument is quite frankly wrong, but in part because the Executive keeps making it, legislators keep accepting it. If there is one lesson that Members of Congress must learn before they can effectively reform the security clearance process, it is this one: Egan does not mean what you think it means.

Congress Only Fights in Specific Circumstances, and Those Circumstances Are Here

We are now at a rare juxtaposition in history. Congress does occasionally choose to legislate in this area, but because of all of the repeated invocations of Egan, it does so only when at least one (and generally both) of two factors are in play. First, there must be a public outcry or other significant public benefit to make it worth the fight, generally because of some extravagant abuse of Executive authority. The Freedom of Information Act, allowing a federal judge to order an agency to release classified information, for example, came out of the turmoil following the public revelations in the 1970s about CIA and FBI abuses, not to mention Watergate. The Foreign Intelligence Surveillance Act (FISA), tracing a similar course, also gives judges power over classified information about secret searches. The Classified Information Procedures Act (CIPA) allows a federal judge to compel the government to either release classified information to a criminal defendant or dismiss the case in certain circumstances, which was passed in response to a problem facing prosecutors in espionage cases. While all three of these statutes predated Egan, the same arguments about Article II authority were made at the time, but the public interest made it worth Congress’ while.

Second, Congress needs to feel reassured that such a statute will be supported by the courts if passed. No Member of Congress wants to write a bill, fight over it, pass it, and then have it declared unconstitutional. FISA and CIPA had clear constitutional authority behind them. FISA balanced the government’s need for secrecy with the Fourth Amendment protection against unlawful search and seizure, while CIPA balanced the need for secrecy with a criminal defendant’s Sixth Amendment right to confront the evidence against himself.

Looking at the current situation, the parallels are obvious. Agencies have denied or revoked clearances arbitrarily for decades, sometimes flagrantly sidestepping the due process requirements of E.O. 12,968 by calling it a “security certification,” a “suitability determination,” or some similar term instead of a clearance without any discernable difference. However, they’ve always done it to low-level employees whom the public (and Congress) have no particular reason to trust, and they at least pretend to make it about security concerns. President Trump, on the other hand, is leaning into it. He either directly or indirectly gave security clearances to numerous people with a dazzling array of security risk factors which would have doomed the clearance prospects of others less well-connected, and then he visibly and publicly revoked the clearance of a former CIA Director who was critical of him without any due process and warned others that they could be next. As with so many other things, the President did openly what others always did quietly.

However, even the President’s abuses by themselves might not be enough to convince Congress to act in the absence of the second factor, but that is why I referred to our rare juxtaposition in history. In recent years Congress has slowly become more emboldened in this area. In 2008, Congress ordered the establishment of a Joint Security and Suitability Reform Team over the Executive Branch’s objections about Egan, and the Intelligence Community grumblingly complied. In 2010, Congress required the DNI to issue a rule regarding attempts by the Government Accountability Office (GAO) to audit intelligence agencies, and the DNI grumblingly complied (although the final rule basically memorialized the Executive Branch’s argument that GAO lacked any authority because of Egan, so it was a Pyrrhic victory). Just last week, the John McCain National Defense Authorization Act was signed, including provisions requiring the reinvestigation or readjudication of the clearances of a variety of types of employees (Sec. 542) and, more interestingly in light of recent developments, requiring the DNI to study the feasibility of permitting “an individual who has been granted a national security clearance to maintain eligibility for access to classified information, networks, and facilities after the individual has separated from service to the Federal Government or transferred to a position that no longer requires access to classified information” (Sec. 943). Rather than veto this bill as a violation of his Article II powers to unilaterally decide who to investigate, when to investigate them, and when to revoke their clearances, President Trump signed it into law. Moreover, the President’s signing statement objecting to numerous provisions on constitutional grounds noticeably failed to mention either of these provisions.

However, the mere failure of the Executive Branch to challenge these congressional actions are not the only legal support for legislation in this area. In July, the D.C. Circuit decided the case of Palmieri v. United States, which on its face should have been a perfect opportunity for the Executive Branch to make some positive case law about the breadth of Egan. Palmieri at its core was a straight up challenge to a security clearance revocation with very few complicating factors, and to its credit, the government leaned heavily on its interpretation of Egan. However, even though the court ended up ruling in the government’s favor, the judges noticeably sidestepped every chance to expand the scope of Egan, and Judge Katsas in fact issued a concurring opinion pointedly rejecting the government’s suggestion that Egan’s application to the case was a foregone conclusion. This apparently innocuous decision is in fact quite significant. The government made the argument to the court that it always makes to Congress, saying that its view of Egan is well-settled law. The court instead refused to accept that proposition and its decision may, in essence, be taken to reject such a view. Judge Katsas’ concurrence and the Stillman opinion should be read by any Member of Congress who is being told what Egan does or doesn’t say.

The security clearance regime finds itself at the intersection of a perfect storm. The consequences of allowing the Executive Branch to have unchallenged authority in this field are finally being seen by non-specialists, and the public and Congress are taking notice. Now is the time for Congress to act. To Congress, I say this: Hold hearings in which the substance of the process is discussed instead of just the logistics. Call witnesses who are security officials, not agency heads, and more importantly, call witnesses who are the boots on the ground, like lawyers or retired Administrative Judges. Have all sides represented at the table, ask the hard questions, and don’t stop if someone cries out “But Egan!” And when you legislate, make it simple. Trust the system that is in place for all the other government employment disputes. You do not need to create a new system just for clearances; you only need to make clear that adverse clearance decisions are subject to the same rules as other adverse employment decisions. It will be difficult to finalize the details, and the Executive Branch will fight tooth and nail, but now you can see the cost of doing nothing, and it cannot be unseen.

Image: Win McNamee/Getty Images

 

About the Author(s)

Kel McClanahan

Executive Director of National Security Counselors, a Washington-area non-profit public interest law firm which specializes in national security law and information and privacy law, through which he often represents Intelligence Community employees and contractors. Follow him on Twitter (@NatlSecCnslrs).