Access Denied

he denial or revocation of a security clearance is serious business. Losing access can easily stunt one's prospects for promotion, or worse. In fiscal year 1995, the Defense Department denied Confidential, Secret or Top Secret clearances to 657 military, civilian and contractor employees, according to a January 1996 report to Congress. Another 9,591 had their clearances revoked or suspended. Roughly 30 percent of the civilian employees whose clearance was denied or revoked are no longer working at the Defense Department.

Government employees can appeal a decision to revoke or reject an application for clearance, although the Defense Department report suggests the odds of winning aren't very good. In fiscal 1995, 135 denials were appealed, yet only 20 employees succeeded in getting clearance. Of 228 revocations appealed, just 47 were restored.

Executive order 12968 improved the process for appealing clearance denials and revocations, but it didn't go nearly as far as some wanted. Federal labor unions and legal experts complain that private sector workers still have more substantial appeal rights, which were unaffected by the executive order. Under the order, government employees are provided a written explanation for the denial or revocation. They can obtain documents relating to their case, are informed of their right to be represented by counsel, and are provided an opportunity "to appear personally . . . at some point in the process before an adjudicative or other authority." Employees of government contractors, however, have a right to a trial-like hearing, which gives them the opportunity to cross-examine witnesses.

As the executive order was being drafted, the American Federation of Government Employees and the American Bar Association both complained to the administration about the disparity. The ABA claimed the right to counsel at a personal appearance is a "hollow one" unless evidence could be presented and witnesses challenged. But the administration elected not to go that far. "We're still concerned that [government] employees did not get all the rights they should get," says Sheldon Cohen, a member of the ABA's panel on administrative law and regulatory practice.

Cost and time were the two main reasons for not giving government employees the same appeal rights as contractors, says Peter Nelson, a personnel security specialist at the Pentagon. In its 1994 report, the Joint Security Commission said extending "such a broad hearing right to civilian employees could well result in a great many trial-type hearings in cases involving only undisputed facts." The commission also noted that government employees are less likely than contractor personnel "to lose their jobs, or to incur serious damage to their careers, if a clearance is denied or revoked."

The bottom line, says Nelson, is that the administration sought to make the appeal process better without bogging down an already overburdened system. "Federal employees now have all the rights they need to appeal a denial or revocation," he says.

The debate over appeal rights evoked strong responses from some elements of the national security community. In written comments to the Joint Security Commission's report, the Army, Navy and Air Force all disagreed with a recommendation to allow government employees to appear before an adjudicative authority; the Army called such a prospect a "logistical and financial nightmare."

The most remarkable response came from the National Reconnaissance Office, which operates the nation's constellation of spy satellites. While acknowledging the importance of due process, the NRO said the need to protect national security outweighs certain considerations, like permitting personal appearances.

"The physical presence of the individual at the hearing introduces certain subjective factors which cannot easily be evaluated," the NRO said. "For instance, the individual's personal powers of persuasion, debating skills, physical appearance, level of intelligence and other similar factors, although irrelevant, could not be excluded from the appeals decision process."

"In other words," argues Steven Aftergood, a senior research analyst at the Federation of American Scientists, "the basic procedural safeguards of American jurisprudence cannot be tolerated."