The U.S. Court of Appeals for the Fourth Circuit recently disposed of the case of Mahmoud Hegab, a Virginia man who sued the National Geospatial-Intelligence Agency (NGA) and its Director for revoking his top secret security clearance.
Hegab alleged the NGA revoked his clearance after he married Bushra Nusairat, a graduate of the Islamic Saudi Academy, and thus violated his First Amendment rights of freedom of religion, expression, and association.
The result at this stage of the case was, well, uneventful.
The courts dismissed the case on procedural grounds rather than on substance: They determined it was not suitable for substantive review because the court lacked jurisdiction over a security clearance determination.
In early 2011, Hegab was placed on unpaid administrative leave and informed of the preliminary decision to revoke his clearance. He then requested and received his file on the NGA’s decision. The file presented over 14 reasons why the NGA had concerns for his clearance, among them that:
- he still possessed an Egyptian passport and it would require contact with foreign national government officials for Hegab to renounce his Egyptian citizenship and turn in his passport, which would increase the potential that he would be monitored by foreign intelligence services;
- he was 80 percent certain his wife held dual citizenship with Jordan;
- he reported continuing contact with multiple foreign nationals, some of whom reside outside of the U.S.;
- he resided in Egypt as recently as 2007;
- his spouse graduated “from the Islamic Saudi Academy, whose curriculum, syllabus, and materials are influenced, funded, and controlled by the Saudi government”;
- “[i]nformation available through open sources identifies [Hegab’s] spouse as being or having been actively involved with one or more organizations which consist of groups who are organized largely around their non-United States origin and/or their advocacy of or involvement in foreign political issues”; and
- his wife attended George Mason University, where she studied “Global Affairs, International Development, Diplomacy and Global Governance, Islamic Studies.”
The NGA maintains the decision to revoke was based on the totality of these and other circumstances, of which his wife’s associations was one; however, it was not solely determinative.
Hegab then filed a complaint in federal court alleging his constitutional rights had been violated by such a determination. Just last week, the Court of Appeals announced it would affirm the district court’s dismissal of the suit.
The suit was dismissed for the courts’ lack of subject matter jurisdiction over it. In other words, the court declined to interfere with the NGA’s conclusion to revoke because the decision to grant a security clearance is a “highly discretionary act of the Executive branch”, and such decisions are generally not subject to judicial review.
The court explained:
“’It is not reasonably possible for an outside nonexpert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction with confidence.’ Rather, the agency head charged with the protection of classified information “‘should have the final say in deciding whether to repose his trust in an employee who has access to such information.’”
In the end, the decision boils down to a separation of powers issue. The court recognizes the executive branch is most qualified to make these determinations, and the judiciary refuses to supplant that branch’s expertise with its own assessment.
Read the 4th Circuit’s full opinion.
