Move to Depoliticize Security Clearances Could Face Resistance

Responding to reports that President Trump overruled intelligence agency recommendations on security clearances, two senators on Thursday introduced a bill that would “protect the integrity” of the process against politicization.

Observers predicted it would heighten long-standing tensions over the prerogatives of the executive branch and Congress.

The Integrity in Security Clearance Determinations Act, unveiled in draft by Sens. Mark Warner, D-Va., and Susan Collins, R-Maine, came just days after House members demanded documents from the White House along with a Justice Department response to reports that Trump advisers Jared Kushner and Ivanka Trump were given clearances even though their background checks had raised concerns and intelligence officials had recommended against it. President Trump has denied interfering with security clearance determinations, though he did revoke the clearance of former CIA Director John Brennan, a frequent critic.

“Americans should be able to have confidence that the security clearance process is being used only to protect our nation’s greatest secrets,” Warner said. “Our bipartisan bill will make clear that security clearances are not to be used as a tool to punish political opponents or reward family members, but to ensure personnel are thoroughly vetted to the highest standards.”

Collins added that the “bill would make the current system more fair and transparent by ensuring that decisions to grant, deny, or revoke clearances are based solely on established adjudicative guidelines.”

Specifically, the bill would seek to assure fair and transparent determinations on clearances by requiring that decisions to grant, deny, or revoke clearances be based on “published criteria,” the senators said. “It explicitly prohibits the executive branch from revoking security clearances based on the exercise of constitutional rights, such as the right to freely express political views, or for purposes of political retaliation. It also bans agencies from using security clearances to punish whistleblowers or discriminate on the basis of sex, gender, religion, age, handicap, or national origin.”

It comes after the administration reorganized the security clearance background check process to move supervision from the Office of Personnel Management to the Defense Department. And last year Congress passed the SECRET Act requiring more frequent reporting to Congress.

The bill was welcomed by whistleblower advocates. “A retaliatory security clearance revocation can be a whistleblower’s professional death sentence,” Irvin McCullough, a national security investigator for the nonprofit Government Accountability Project, told Government Executive.

“By reaffirming this practice’s illegality, Vice Chairman Warner and Senator Collins are sending a clear message to agency heads: don’t retaliate against whistleblowers.”

But in perhaps a sign of coming resistance, the authority of the president and presidential appointees in security clearance decisions was stressed in a Friday Wall Street Journal op-ed by pundit and former CIA case officer Reuel Marc Gerecht. “Security-clearance decisions and procedures within an administration are inevitably subjective and sometimes maddeningly arbitrary,” he wrote.

“Ask anyone who has been denied a clearance. There is no appeals process. There are, however, limits to administrative power. If this weren’t the case, unelected bureaucrats could give orders to presidential appointees—the director of the Central Intelligence Agency, the secretary of State, the secretary of Defense—about the creation and dispensation of their own classified material. These senior officials can classify or declassify their own material since they are assumed to carry the president’s blessing and therefore his executive power.”

Kel McClanahan, a specialist in the area as executive director of National Security Counselors who consulted with the senators on the bill, foresees “a massive fight, and all sorts of veto threats, if it does pass,” he told Government Executive.

Citing past litigation over clearance denials and a murky 1988 Supreme Court case Department of the Navy v. Egan, he points to a long-standing clash between a Congress reluctant to interfere in security clearances decisions by civil service authorities and the president’s authority as commander in chief under Article 2 of the Constitution.

“The security clearance regime finds itself at the intersection of a perfect storm,” he wrote last year. “The consequences of allowing the executive branch to have unchallenged authority in this field are finally being seen by non-specialists, and the public and Congress are taking notice.”

Correction: Irvin McCullough is a national security investigator for the nonprofit Government Accountability Project, not the Government Accountability Office as originally stated.