[Editors’ note: This essay is one in a series—the Good Governance Papers—organized by Just Security. In these essays, leading experts explore actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For more information, you can read the Introduction by the series’ editors.]
Controlling licenses to access classified information – the work of the security clearance system – is an enormously important government responsibility. As executive order 12356 (as amended) states, compromises of the nation’s secrets can cause “exceptionally grave damage to the national security.” Of course, protecting secrets is not the only interest implicated by the security clearance system. Others include public confidence in a classification system that stands in inherent tension with the transparency vital to informed self-government in a republic, and also respecting constitutional values and rights, including due process in the administration of the system and freedom of conscience.
All of these interests are imperiled by the norm-shredding politicization the system has suffered in recent years. This essay overviews the pattern of politicization, and then identifies actionable, commonsense reforms to prevent its recurrence. Finally, this essay makes clear that new rules and processes could be put in place rapidly via executive order or more enduringly by statute – and explains why, contrary to common assumptions, there is a strong case for congressional constitutional power to regulate the system.
I. The Two Sides of Presidential Politicization
Cases of blatant politicization of the security system are rare, historically speaking. But in recent years politically-motivated clearance actions by the President and his advisors have undermined the entire system.
Injection of the politics or other selfish personal preferences of the President and other senior government officials into clearance decisions is entirely inappropriate. National security is the sole legitimate reason for classified information and clearances to exist. But the political fortunes of politicians, even the President, are not a matter of national security. Furthermore, consideration of political factors in security clearance decisions inevitably reduces the relative weight given to information protection considerations, and undermines public and public servant confidence by signaling that partisan or other personal interests of top officials are corrupting the government’s work on behalf of the nation’s security. Politicization of security clearances also impinges on the constitutional rights of clearance holders to participate in public affairs and to have their cases handled fairly and only with regard to legitimate government interests.
All of these harms have been evident in two high profile security clearance scandals: the revocation of former CIA Director John Brennan’s clearance, and the grant of a clearance to presidential son-in-law and White House staffer Jared Kushner.
Political Clearance Revocation: L’Affaire Brennan
As a matter of tradition, former intelligence agency directors and a limited number of other senior retired officials have kept their clearances as private citizens, based on the same requirement that had to be met while they were in government service, i.e., a “need to know” classified information. Here, the need relates to the institutional memory and insight regarding highly secretive intelligence agencies and operations, valuable resources that they often make available to current officials.
“ The issue here is, is it a good idea to allow the president of the United States to take from an American something he or she would otherwise have, and to do it because the president disagrees with their political speech?….You just can’t let that stand.”
– Michael V. Hayden (Gen., USAF, ret.) former Principal Deputy Director of National Intelligence, CIA Director, and NSA Director
For national security professionals, a security clearance is analogous to a law license: a credential that enables particular professional work. Like a law license, a clearance is a privilege, not a right. But applicants and holders are entitled to have that privilege only granted or revoked based on objective standards. Here, those standards relate to ability to protect sensitive information: character, mental health, criminal record, loyalty to the United States, and vulnerability to coercion by foreign intelligence services or other bad actors. To paraphrase Madison in The Federalist Papers, because humans are not angels, without rules and limits power tends to be abused. Without objective criteria, certification of ability to work in national security, as with any other privilege,, foreseeably would become weaponized to intimidate, punish, or silence critics of the powerful as they exercise their First Amendment free expression rights.
Unfortunately, weaponization is precisely what happened when President Trump took the unprecedented step on Aug. 15, 2018, of announcing revocation of the clearance of former CIA Director John Brennan, a critic of the President and a former career intelligence officer who had served at high levels in both Democratic and Republican Administrations.
The Trump Administration was not forthcoming about how this profoundly unusual decision was made. The President’s statement cited only his authority over clearances, and Brennan’s “erratic conduct and behavior” – Trump’s characterization of Brennan’s pointed criticism of the President on the basis of character, loyalty to the United States, his campaign’s ties to Russian intelligence, and other suitability-for-office matters. Trump’s statement concluded with mention of eight other former government officials who Trump regarded as political enemies and in the statement named as under consideration for Brennan’s fate.
All of this was norm-abandoning and utterly irregular. The usual security clearance review process for current holders was not, to the best of anyone’s knowledge, in any way involved in the Brennan matter or the threats to the other eight individuals. There was no allegation of leaks, foreign loyalties, unsustainable debts, or other common bases for security clearance denials, suspensions, or revocations. This suggests very clearly that the Brennan revocation was done to punish First Amendment-protected criticism of a government official, and the other eight were threatened to intimidate them into silence.
The implications of the President’s norm-shredding decisions of August 2018 are dire. This precedent could be applied at the whim of an administration against other critics holding clearances. Its shadow falls long and deep over other clearance holders and their ability to continue their careers in national security, chilling their free expression. A president is always leading, always modeling behaviors for subordinates, and therefore Trump’s weaponization of clearances will inevitably tend to inspire lower level actors to similar abuse of power. (Indeed, there is considerable other evidence that Trump Administration officials abuse their public offices to punish critics of Trump).
Political Clearance Grant: L’Affaire Kushner
Jared Kushner, the president’s son-in-law, sought a security clearance on the basis of a White House job as the president’s senior advisor. As a political appointee given foreign relations-related responsibilities by the President, Kushner was required to apply for a security clearance and be processed according to the same standards that apply to career employees of the US government. It is common to place a higher priority or expedite processing of clearances for senior officials and advisors, but it would be highly irregular to modify clearance standards or waive them for the benefit of any applicant or his/her sponsor. This is especially true for close associates and/or family members of the president.
As has been reported, however, Kushner’s application – like those of an apparently unprecedented number of other White House officials — was approved under highly irregular circumstances, ones that reasonably support an inference of inappropriate personal or political motive at the White House. Kushner’s clearance reportedly was granted despite rejection of his application by two career experts after significant foreign influence concerns were raised by the FBI background check. Even after the White House muscled through Kushner’s clearance, CIA reportedly still refused to allow Kushner access to code-word SCI information.
Based on what we know, at least three profoundly inappropriate things happened here.
1) A political appointee who evidently did not meet the standards required to obtain a security clearance was granted one over the objections of security professionals who made the determination that he was unqualified to receive it.
2) The clearance was, reportedly, ultimately approved by their supervisor in the White House, a political appointee without proper training in protecting sensitive information. When individuals who lack professional expertise are empowered to approve clearances, they can apply lowered standards and grant clearances to individuals who would not have received them if procedures were followed without political intervention. This, in turn, can result in increased risk of leaks and lapses in protecting secrets.
3) Disregarding for political purposes a determination that a clearance applicant or holder could be influenced by a foreign power sets a bad precedent that could be applied in other cases, up and down the federal bureaucracy and in all branches of government, with terrible implications for national security. Taking into account historical cases and precedents, there is arguably no other criteria that is more determinative of an individual’s fitness to hold a clearance than his/her vulnerability to being manipulated, compromised, and/or influenced by a foreign power.
II. What Must be Done
We believe that several reforms are imperative to restore and reinforce norms of an apolitical security clearance process, and reduce the risk we will ever see a repeat of l’affaire Brennan or l’affaire Kushner. These changes could be implemented via executive order, statute, or both, as discussed in Part III below.
First, to prevent recurrence of politicization and protect the First Amendment rights of Americans, a new rule should provide that:
Access to classified information shall not be denied, delayed, suspended, or revoked on the basis of First Amendment-protected speech, association, assembly, or petition, to include criticism of the government, political figures, or parties, where such exercise of First Amendment rights does not clearly suggest loyalty to a foreign power, serious mental illness, or intent to engage in or incite violence or other violations of the law.
Congress could also create criminal or civil penalties to buttress enforcement and judicial review, and add additional procedural checks proposed in proposed bipartisan legislation.
Second, the rules should ensure that clearances are not granted as political favors or where individuals have disqualifying questions or vulnerabilities in their backgrounds. Specifically, the new framework for clearances should state expressly that although it is within the discretion of security professionals to raise the priority of processing a given clearance in a timely manner for example as new senior officials are appointed, no exceptions or waivers of the objective criteria and standards that must be met by all applicants for obtaining a clearance may be granted.
III. How and Constitutionally Why the President and Congress Can Together Fix the System
The President – either the incumbent or his challenger – could quickly mandate via executive order the norm restorations and reforms we recommend. The current rules regarding clearances have at their apex a body of executive orders, and a new one could drive change rapidly.
The ease with which a President can turn the ship of state via executive order, however, comes with administrative impermanence. An executive order can be withdrawn or waived by the President as quickly as it was issued, including orally and in secret. A President who preferred a politicized process could remove guardrails based only in executive authority, or even issue a new classified executive order formalizing availability of clearances as one of the presidential spoils of office, a President’s personal favor, and a weapon in partisan warfare.
For reform to be more enduring, the executive order we recommend ought to be codified in statute.
Congress has powerful constitutional authorities regarding national security. Despite widespread assumptions and standard Executive Branch assertions to the contrary, this authority reasonably extends to the regulation of access to classified information. The Raise and Support Armies, Provide and Maintain a Navy, “make Rules for the Government and Regulation of the land and naval Forces,” militia, Common Defence, and Necessary & Proper clauses of Art. I, sec. 8 of the Constitution, and the Appropriations Clause of Art. I, sec. 9, provide Congress authority to create, structure, and fund the national security apparatus, and to govern its personnel and activities. Additionally, Congress has comprehensive oversight powers regarding the federal government, and the power and responsibility to legislate to protect the constitutional rights of Americans.
Of course, government agencies and adherents of an expansive understanding of the President’s powers as Chief Executive and Commander in Chief under Article II of the Constitution could be expected to object. They could be expected to decry any limitation of the President’s constitutional powers by a mere statute as unconstitutional, and cite expansive language in Supreme Court cases and Justice Department memoranda about presidential authority. They may also emphasize that the gloss of constitutional history to date has not reflected intrusive statutory regulation of access to classified information.
These are not unreasonable arguments, but they fall far short of an argument that Congress cannot act here to enact the limited and eminently reasonable guardrails we suggest.
On the contrary, as the Supreme Court has emphasized repeatedly, the Constitution provides for shared power over national security. Congress writes the rules, and the President in that context generally must use her executive powers in accordance with them. Statutes are Congress’s constitutional acts, so the statute-versus-Constitution distinction is a distorted framing. Where the Supreme Court has confronted what separation of powers doctrine frames as “Youngstown category 3” situations – the President is acting contrary to the express or implied will of Congress – precedent weighs overwhelmingly in the direction of Congress’s powers to write the rules regarding national security. The Supreme Court during the Founding Era struck down a presidential wartime use of force order to the Navy (Little v. Barreme (1804)), during the Korean War invalidated President Truman’s seizure of steel mills for national defense purposes (Youngstown Sheet & Tube v. Sawyer (1952)), and during the war on terror vitiated President George W. Bush’s order to the military regarding enemy combatants (Hamdan v. Rumsfeld (2006)) – all as violations of statute. In the one case in which the Supreme Court has in the realm of foreign affairs invalidated a statute as a violation of the President’s Article II powers – Zivitofsky v. Kerry (2015) – the Court limited its holding to the single issue of diplomatic recognition, while taking pains to decry over-reliance by executive power theorists on the oft-cited but overbroad and unnecessary verbiage about presidential powers in U.S. v. Curtiss-Wright (1936).
Equally problematic is the over-reliance on Department of the Navy v. Egan (1988) by defenders of the idea that the President has exclusive powers over classified information. In this case, the Supreme Court held that a general administrative law statute governing federal personnel actions did not apply to a very specific matter, the merits of security clearance decisions. There was no statute in Egan that clearly governed security clearances, the President plainly has authority regarding classified information as Commander in Chief, and so the Court in Egan upheld executive discretion. But the Court closed its constitutional analysis with a clear caveat: judicial deference to executive authority regarding national security generally operates “unless Congress specifically has provided otherwise.”
It is time for Congress to provide otherwise: to write some minimally intrusive but important guardrails regarding clearances to prevent recurrence of recent abuses of national security authority for political or personal purposes, protect the free speech rights of Americans, and improve efficiency. That Congress has not exercised its powers to do so to date does not mean it cannot do so now. The Foreign Intelligence Surveillance Act (FISA) of 1978 and the covert action statute provide powerful precedents for Congress. Both laws are responses to abuses of authority that ended longstanding exclusive administrative control of a national security matter by enacting statutes that are now part of the gloss of history on constitutional separation of powers. Note too that Congress has, in fact, legislated many times regarding classified information from the early Cold War to present day: Congress via statute has strictly controlled nuclear weapons-related information, written rules for handling classified information in federal courts (via CIPA and FISA), allowed judges to direct publication of improperly classified information (via FOIA), called for faster and better clearance decisions, instructed agencies to revisit clearance decisions in certain cases, and required reports on the system. Legislating the limited protections we advocate would merely extend a body of statutes bearing on classified information, in proper exercise of Congress’s constitutional authority.
Finally, even if a court were to hold that the President has some exclusive authority over classified information, it is reasonable to think that Congress could impose penalties for abuse of that power. The analogy is the pardon power: a generally absolute presidential power that nonetheless would be unlawfully used if the chief executive issued a pardon after taking a bribe. Congress is, in short, far from disabled from acting to prevent repeat of the norm violations and abuses of authority of recent years.
The starting point for effectively managing security clearances, protecting state secrets, and ultimately, defending US national security is a recognition that the individual gives up certain freedoms in exchange for the privilege of holding a clearance. Every clearance holder has obligations and requirements that must be met in order to be granted access to classified information. For its part, the government also has a responsibility to make decisions with only legitimate motivations, and especially protecting national security and protecting free speech and other individual rights. When clearance holders meet the objective, non-partisan standards for being entrusted with a clearance, they should not work and live under the threat that the government will revoke their clearance in order to silence, intimidate or punish them for exercising their constitutional rights. Likewise, unqualified individuals should never be granted security clearances for political or personal reasons, especially by individuals who are unqualified to make such a judgment. Even if such cases are rare, stunningly inappropriate cases of politicization are now before the public. These massive norm violations compromise the integrity of the security clearance system, and put at risk national security.
Ideally, the statute and/or executive order on clearances we recommend would also address the back end of the security clearance regime, pre-publication review of public writings and remarks by current and former clearance holders, discussed by our colleagues Jack Goldsmith and Oona Hathaway in Good Governance Paper No. 5. The system is due – indeed overdue – for front-to-back update.