Wednesday, July 25, 2018
Trump and His Critics' Security Clearances: A Primer
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.