An inspector general warned the Justice Department of gaps in its security clearance appeals process

The Justice Department’s inspector general on Tuesday warned that it and its component agencies are out of compliance with federal whistleblower protection policies geared toward federal workers with security clearances.

The 2014 Intelligence Authorization Act included new protections for potential whistleblowers in federal law enforcement and the intelligence community, requiring agencies to allow federal employees whose security clearance has been suspended for at least one year pending an investigation to challenge that suspension, provided it is because of alleged whistleblower retaliation. It also requires agencies’ security clearance review process to provide an avenue for those who have alleged retaliation to “maintain their government employment status” during the review process.

The Office of the Director of National Intelligence in 2022 issued Security Executive Agent Directive 9 (SEAD 9), requiring agencies to implement the new whistleblower protection provisions.

But the Justice Department has yet to act on that requirement. Its departmentwide policy governing security clearance suspensions only allows for employees to contest their clearance being suspended or revoked, including for allegations of retaliation, at the very end of the process.

“In one matter, the OIG initiated a [whistleblower] reprisal investigation, consistent with [the 2014 law], after the employee had been suspended without pay for over one year, notwithstanding the absence of a suspension appeal policy in [the department’s security policy] for employees claiming retaliation,” wrote Justice Department Inspector General Michael Horowitz. “In that case, the employee was suspended without pay for approximately 15 months before the FBI issued a decision revoking his security clearance and it then took another four months for the FBI to provide the employee with the information that the FBI used to support its revocation decision.”

Though the inspector general noted that its use of this example does not constitute a “declaration of merit,” the office said that the alleged whistleblower is still waiting for the FBI’s formal reconsideration, and has been suspended without pay for more than two years.

Horowitz said the department’s policy is problematic because the security clearance review process could easily be weaponized to retaliate against whistleblowers. Though remaining in a suspended-without-pay status technically maintains one’s employment status, it is not feasible for most federal workers to go without pay for more than a year.

“As a practical matter . . .the ability of an employee who has been indefinitely suspended without pay to retain their employment status can be rendered meaningless when that suspension lasts for a substantial period of time,” he wrote. “Moreover, [the current policy] creates the risk that the security process could be misused, as part of an inappropriate effort to encourage an employee to resign, by having an employee’s clearance suspended knowing the employee will be placed on leave without pay and that the suspension may not be resolved for a lengthy period of time.”

Horowitz recommended that the Justice Department and its component agencies revise their security clearance review policies to ensure that there is a process for employees to file retaliation claims with the inspector general’s office once their review or suspension lasts longer than one year, that employees are notified in writing of this right and that employees who have alleged retaliation in connection with a clearance suspension or revocation may, “to the extent practicable,” retain their government employment status during the investigation.

The department concurred with those recommendations, and both it and the component agencies said they are working or planning to revise their respective policies to conform with the new requirements.