Revamped Security Clearance Process Could Provide Leverage Over Those Who Punish Whistleblowers

The security clearance backlog is finally shrinking. New tools and new efforts to shore up the beleaguered system have resulted in a dramatic decline in pending investigations. This offers both the Trump administration and Congress a special opportunity to protect embattled national security whistleblowers and other federal truth-tellers.

Although the expanded access system, which encompasses credentialing, suitability and security clearance investigations, has not yet reached the timelines originally mandated by Congress for initiating, investigating and adjudicating new cases, it is clear that far more cases are being successfully closed than they were just a year ago. And this is happening even while the system is contending with a greater number of new employees. That’s the good news.

With more changes in the works as part of the Trump administration’s Trusted Workforce 2.0 initiative, it is time to make good on executive and congressional promises by ensuring that those seeking to renew their clearances are not in fact hands-on denizens of the bog itself. The national security circle of trust needs to be staffed by those focused on the national, instead of their personal, interest.

The Intelligence Community authorization bills (H.R. 3494 and S. 1589) – and their codification of the recently reorganized security clearance process – offers the possibility of desperately needed enhancements of whistleblower protections. The top Democrat on the Senate Intelligence Community, Sen. Mark Warner, recently praised the long-stalled legislation as “revamping our outdated security clearance process.”

What’s missing should be a slam dunk for good government — protecting whistleblowers by making that process truly state of the art. Specifically needed are statutory provisions to require integration of whistleblower protection into Security Executive Agent Directive 3 (SEAD 3) and SEAD 4. SEAD 3 establishes reporting requirements for employees working in sensitive positions; SEAD 4 allows for the analysis of conduct to determine whether the person ought to remain within the federal circle of trust.

One of the leftover presidential requirements of the Obama years remains unacted upon: integrated rules providing the means to investigate and analyze alleged reprisal through the process of granting eligibility for access to classified information. Failing to adhere to the Obama mandate, which was established in 2012, Intelligence Community officials were pressured for the required rules by Sen. Charles Grassley (R-Iowa) in 2017. But, the rules are still inoperative seven years later.

Now that the security clearance backlog has been pruned significantly, periodic renewal of those clearances should include an obligation to self-report if the clearance holder has either been alleged or substantiated as engaging in whistleblower reprisals. At minimum, the period covered ought to cover the time of their original clearance, with the self-reporting to include the final disposition of their colleagues’ disclosures. This requirement needs to be added to SEAD 3. Upon establishing the self-reporting as a reprisor requirement, the National Counterintelligence and Security Center then needs to provide mitigating conditions under SEAD 4’s adjudicative Guideline E, Personal Conduct. This would separate legitimate whistleblowers from leakers; lawful sources to the Senate and House intelligence committees, or indeed Senator Grassley, are not to be conflated with leakers endangering the national interest.

Any affirmation that one is an alleged or substantiated reprisor should then require reporting by security officers and inspectors general (IGs) to the Intelligence Community IG, who then ought to be required to report the same, via his/her unclassified semi-annual report to the Director of National Intelligence, to the House and Senate committees responsible for oversight, such as those of armed services, intelligence, and government oversight. Failure to respond truthfully would result in a notice of intent to revoke the clearance.

Such a move is absolutely essential in the midst of the continued failing of whistleblower protection programs across an executive branch, be it a Democratic or Republican administration. U.S. law mandates that supervisors in federal agencies, as a condition of employment, support and protect whistleblowers in their organizations. The time has come to forge that requirement into the regulations governing the Intelligence Community.

In the meantime, unpunished “prohibited personnel practices”—reprisals against national security whistleblowers—continue to soar. Truth-tellers who have faithfully gone to agency IGs too often find that their supposedly protected disclosures serve as a bureaucratic feast to which they are not only not invited, but too often are viewed as targets for being the main course of bureaucrats’ intent on maintaining status quo and protecting their private turf in public agencies or the Congress.

As co-author Dan Meyer has said in a recent letter to the office of Special Counsel Henry Kerner in defense of Department of Energy whistleblower Joe Carson:

It is time to stop mouthing hypocrisy within the Executive branch. Either we have a whistleblower program or we don’t; we either encourage whistleblowing or we shut the meat grinder down. When agency supervisors ignore whistleblowing, they are … creating a significant change in the working conditions of the affected employee, due to its chilling effect on concerned colleagues.

Dan’s observations follow serving as the first and former head of the Intelligence Community Inspector General’s Whistleblowing & Source Protection (ICWS&P), the program set up by Director of National Intelligence James Clapper and his Inspector General, Chuck McCullough, in the wake of the Snowden incident. It is also worth remembering that security clearances will, by Oct. 1 be conducted by a new agency, the Defense Counterintelligence and Security Agency. DoD whistleblowers following in the tracks of legendary pioneers like A. Ernest Fitzgerald and Air Force Col. John Boyd know that, when it comes to truth telling, the official Pentagon response is too often avoidance.

Alleged or substantiated reprisors should stand shoulder to shoulder with other applicants or renewers who alleged to have triggered Guideline E, Personal Conduct; Guideline H, Drug Use; Guideline J: Psychological Condition; Guideline K, Mishandling Sensitive Information; and Guideline M, Misuse of Information Systems. Reprisors are adverse to following rules. For over three decades, that profile of rule-breakers has indicated a threat to national security.

It is time for the president and Congress to act to make Trusted Workforce 2.0 more than a mere slogan, especially for those whose professional experience makes verify a necessary corollary to trust. The “harmonization” of the ad hoc Intelligence Community whistleblower processes and procedures is essential if we want to truly include the truth tellers in the national security circle of trust. It is those who tell truth to power who will be the first to identity the domestic enemies within our own executive branch and Congress who will sell out the republic to the foreign enemies working so craftily to undermine the world’s oldest democracy.

Mr. Meyer’s views are his own, and not those of Director of National Intelligence Dan Coats or his Inspector General Michael Atkinson.

Photo by Alex Wong/Getty Images

 

About the Author(s)

Martin Edwin Andersen

1st national security whistleblower to receive the U.S. Office of Special Counsel's "Public Servant Award," author of "Dossier Secreto: Argentina's Desaparecidos and the Myth of the 'Dirty War,' and "Peoples of the Earth; Ethnonationalism, Democracy and the Indigenous Challenge in 'Latin' America." Follow him on Twitter (@InsightCaptain).

Daniel Meyer

Managing Partner of Tully Rinckey PLLC’s Washington, D.C. office, served as the Executive Director for Intelligence Community Whistleblowing & Source Protection, served the U.S. Department of Defense Inspector General first as Director of Civilian Reprisal Investigations and then as Director of Whistleblowing and Transparency.