As the so-called Secrecy Czar in the George W. Bush administration, I have been a long-time critic of how federal government officials abuse the ability to restrict government information and who can access it. Yet, in a professional career dealing with government secrets dating back to the administration of Richard Nixon, I have never witnessed the personal security clearance process personally weaponized by a president to the extent as it has been in the past several weeks simply to attack perceived partisan enemies. As a result, the security of the American people has been needlessly and recklessly weakened.
The ability to restrict access to information that, if subject to unauthorized disclosure, could result in damage to the national security is a critical tool in protecting our nation and its citizens from harm by foreign actors. Most federal government information that falls into this category is regarded as classified national security information. The rules governing the designation of classified national security information and who can access it are set forth in two executive orders (Executive Order 12968, Access to Classified Information and Executive Order 13526, Classified National Security Information).
That this critical national security tool is set forth in executive orders is a reflection of the president’s Article II section 2 constitutional authority as “Commander in Chief of the Army and Navy of the United States” and his responsibility for foreign policy. While the governing executive orders make it clear that no one has a “right” to a security clearance, even the Supreme Court in the landmark decision Department of the Navy v. Egan has taken note that the process for granting authorization to access classified national security information includes due process provisions in the event of a denial. These include the receipt of notice as to the reasons for the proposed denial, an opportunity to inspect all relevant evidence, a right to respond, a written decision, and an opportunity to appeal.
For the security clearance process to remain an effective tool in keeping our nation and its citizens safe, it must be implemented in a fair and consistent manner. Should individuals who do not meet the adjudication standards for security clearances be granted access, information that can harm our nation can end up in the hands of adversaries. Likewise, should individuals who otherwise meet the standards be summarily denied or stripped of their security clearance in defiance of longstanding processes, the resulting uncertainty that spreads throughout the system can severely impact the effectiveness of our military, intelligence and diplomatic capabilities to deter or otherwise respond to our nation’s adversaries. We are currently witnessing this very uncertainty take hold in our national security capabilities because of numerous personal security clearances recently suspended or revoked, apparently at the specific direction of the president. These actions appear not to be taken in the interest of national security but rather, in the president’s own framing, to punish the affected individuals. Arbitrarily suspending or revoking security clearances from federal employees will only serve to embolden our nation’s adversaries and make Americans less secure.
How to Reform the System
For the sake of the safety of the American people, it is imperative for Congress to step forward as a co-equal branch to the Executive and ensure that the critical national security tools governing access to classified national security information cannot be used to “punish” individuals for purely partisan purposes.
The Egan Court’s decision is often used to assert unchecked presidential authority over classified information. However, at its core, the Egan decision was primarily an interpretation of congressional statutory intent arising out of a dispute between two executive branch entities. While the decision was in consonance with the traditional deference the courts have extended to the Executive in military and national security affairs, the Court appeared to leave open the role of Congress in establishing processes and setting standards for access to classified information. As noted by constitutional law scholar Louis Fisher in a legal analysis written for the Law Library of Congress, the Egan Court appeared to deliberately limit its deference to the Executive by explicitly stating, “unless Congress specifically has provided otherwise.”
The ability of Congress to insert itself in matters of classification is not without precedent. Pre-Egan, Congress very much involved itself in classification matters with passage of the Atomic Energy Act of 1954. Post-Egan, Congress passed the President John F. Kennedy Assassination Records Collection Act of 1992, which included the establishment of the Assassination Records Review Board (ARRB) to consider and render decisions when a U.S. government agency sought to postpone the disclosure of classified or otherwise sensitive assassination records. Finally, in 1994, Congress created the Commission on Protecting and Reducing Government Secrecy (also called the “Moynihan Commission,” after its chairman, Senator Daniel Patrick Moynihan). The very first recommendation of this bipartisan panel was for Congress to enact a statute “to improve the functioning of the secrecy system and implementation of established rules.”
It’s incumbent upon Congress to step up to its role in this matter as envisioned by Senator Moynihan over 30 years ago. Protecting our nation from actual and potential adversaries is not a partisan issue. In an increasingly dangerous world, critical national security tools such as personal security clearances and safeguarding classified national security information must be free of partisan considerations.