Wednesday, July 25, 2018

Trump and His Critics' Security Clearances: A Primer

Say what you will about the Trump Presidency (and I have said quite a bit), he is certainly creating lots of opportunity for my friends to learn about national security topics.  Thanks to White House Press Secretary Sarah Huckabee Sander's announcement that President Trump is considering revoking the security clearances of former Intelligence Community leaders who have been sharply critical of him, I have an opportunity to focus on security clearances.

Given that they play such an important role in protecting our national security clearances, one odd fact is that our entire system of security clearances is largely the creation of Executive Orders, and not statutes.  The basic set-up of our systems is as follows:  in order to have access to protected information, you need to have both (1) the appropriate level of clearance (Confidential, Secret, Top Secret or Top Secret/Special Compartmentalized Information), and (2) a need to know the information (idle curiosity isn't enough).  For certain highly sensitive information, you must also be "read on" to a Special Access Program", which has a sharply limited set of people who can have access.  Getting a clearance is a ling and expensive process that usually involves an extensive field investigation where agents knock on the doors of your neighbors.

In the usual case, when you leave government service you lose the clearance.  I lost my clearance when I left my job as Air Force General Counsel,  and my current clearances are the result of my service on the Aerospace Corporation Board of Trustees and my representation of a Guantanamo detainee (ironically, only the most loyal Americans are allowed to represent detainees).  There is one exception to this rule--senior leaders in the Intelligence Community agencies are usually allowed to keep the clearance so that their successors can ask them questions about activities during their tenure.

Because the President created the entire system, his authority in this area is plenary, and the courts have largely held that they will not, and cannot, review substantive decisions about who has a clearance.  Instead, the only authority that courts have over security clearances is to review claims of procedural due process.  The key cases are Department of the Navy v. Egan (holding that courts do not have the authority to review the substance of security clearance decisions) and Webster v. Doe  (holding that courts do have authority to review procedural due process claims).  The Webster decision also seems to keep open the possibility that it would entertain other constitutional claims as well.

So what does this mean?  I think that if the President revokes the security clearances without due process, this would be subject to a procedural due process challenge.  Even if due process is provided, I also think that if the justification is that the IC leaders are saying bad things about Trump, there may also be a viable First Amendment challenge (but this is still a bit unclear).  If instead, Trump were simply to announce that former IC leaders would no longer be allowed to keep their security clearances, I think that this decision would stand given the President's plenary power over security clearances.  This, however, would be bad for national security--the current CIA Director would not be able to talk to her predecessors even in a crisis. My prediction is that Trump's pettiness will be more important than what is best for national security and this will be the option he will choose.

(A practice point here:  in predicting Trump's future behavior, focus on what best advances his pettiness)

If you want to learn more, check out this LawFare post.

8 comments:

  1. I think your due process challenges are accurate. I also agree that if action were taken on a classification of security clearance holders it would stand a better chance of surviving judicial scrutiny.

    I may be mistaken but I thought I had read that other members of past administrations had retained their clearances after leaving their positions. Names that come to mind are Huma Abedin, Hillary Clinton, Cheryl Mills, Susan Rice and others. The reason I think I recall this is during the period when Clinton and her advisers, including David Kendall, her attorney, were reviewing her emails to determine which were work related it became obvious pretty quickly that a number of the emails contained classified information. In order to review these emails, an individual would have had to have a clearance. However, there was never a comment about review of the classified emails by people who did not have a clearance, such as Kendall.

    This led me to believe at the time that these folks must have retained their security clearances and that Kendall had a clearance, possibly for a different purpose.

    You cite one exception, the senior IC leadership. How about senior military, former members of Congress, leadership in other departments such as State, DOJ, DHS, etc. Seems like a lot of these folks immediately find employment in various places where a security clearance is required. Do they retain their clearances or are they given an expedited review and processing.

    My son is an engineer who requires a TS/SCI clearance, eventually. He is being told that right now the process takes about three years. In the interim he is working on projects that require lower or no level of security clearance.

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  2. Benny, at the cabinet level, keeping clearances for some period of time has been a common practice (and for good reasons). For IC positions and military operational , there is likely a justification for keeping clearances even below the cabinet positions. In my experience, however, for most federal employees (including senior political positions), this is not the case. there was discussion of keeping my clearance active when I left government service, but in the end the decision was made not to do so. my sense is that in the past, keeping clearances alive was more common, but starting in the Obama Administration (as applied to those leaving the Obama Administration) there was a more rigorous process of deciding whether it made sense to keep clearances alive (at least within DoD).

    On a related topic--your son's experience shows that the current security clearance process to broken. I am actually working with a CEO-level working group that is working with ODNI to improve the process so that it can take weeks and not years.

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    1. The information I have is that the focus on anti-terrorism has sucked up all of the traditional investigative review resources. Everyone has to be cleared for everything now. That has extended the application/review period quite a bit. Overclassification is another part of the problem. Also people needing Secret are now asking for TS because Secret is taking so long. That causes further bogging down of the system. When TS/SCI folks need to be renewed they sometimes lose their clearances and projects get delayed/put on hold because the managers can't get their clearances renewed on time. It is a mess.

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    2. One problem is that mandatory renewal background checks take up 75% or more of the resources, and they don't accomplish much. A new concept known as "continuous monitoring" offers a better approach and will free up resourcews for those seeking background checks for the first time (where the background check really is useful).

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  3. Try to talk to some of the national labs about the problems they are having with clearances. They lose a lot of good applicants because they can't get clearances for them for several years while they would have to have them on the payroll doing non-security types of jobs.

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  4. Interesting , but it seems that we have here , sort of contradiction in terms . For , first you have defined the clearances as based upon access ( emphasizing : access ) to classified information , and then , you have described one exception ( relevant to the subject of the post ) where senior leaders are allowed to keep clearance so " that their successors can ask them questions about activities during their tenure " .But , they are questioned , they don't get access by it . They only reveal , what they already know or new , and to current officials , that have clearance anyway . So , by that , no access at first place , to current and new let alone information , is obtained . So , the president , denies them , what they don't have anyway : which is access to information , current one .

    Concerning Free speech issue . It looks then , like a kind of retaliation . Although not while functioning or on duty . Yet , if proven , that denied clearance ( if relevant to call it so ) due to it ( retaliation ) it may constitute sort of illicit or illegitimate coercion . For such official , may prefer ( or not , doesn't matter , for the conduct itself may be illegitimate ) not to criticize Trump , but to maintain his informal statute as a sort of informal adviser .


    Thanks

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  5. Just correction to my comment above :

    Should be : but to maintain his formal status , and not : " statute " of course .

    Thanks

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  6. Here's some pretty good information on this topic area: https://www.washingtonpost.com/outlook/five-myths/five-myths-about-security-clearances/2018/07/27/46f065a6-90e7-11e8-bcd5-9d911c784c38_story.html?utm_term=.d562119680b2

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