Gary Johnson, the Libertarian Party candidate for president, likes marijuana taffy. Who am I to judge? Taffy is delicious! The pressing prospect of a potential president partaking in primo pot pops is problematic (probably), and raises the question of how that might affect or otherwise influence security clearance policy in the United States. After all, testing positive for marijuana is a pretty good way to lose your clearance. It doesn’t matter what state you’re in; drug possession still violates federal law, and you are required to list your drug use on the SF-86—even if you are using in a state where it’s legal.
So how much do the president’s words and behaviors affect such things? What standards would President Johnson set, and would they be felt throughout the community of cleared workers?
THERE’S CLASSIFIED AND CLASSIFIED
The president’s words do not exist in a vacuum, and even—perhaps especially—in the murky world of secrets and classification policy, an offhand remark or poorly chosen phase can have ramifications. Consider President Obama and his response to the Hillary Clinton server scandal, in which sensitive material was copied onto a private, homebrew email system. The FBI mounted a long investigation of potential wrongdoing, and in the end pointed to poor judgment on the part of Clinton, but declined to indict anyone. When the president appeared on Fox News earlier this year, he addressed the scandal and explained that the classified material transmitted on Clinton’s server wasn’t quite as bad as it all seemed.
“What I also know, because I handle a lot of classified information, is that there are—there’s classified, and then there’s classified,” he said. “There’s stuff that is really top-secret, top-secret, and there’s stuff that is being presented to the president or the secretary of state, that you might not want on the transom, or going out over the wire, but is basically stuff that you could get in open-source.”
Regardless of how one feels about the Clinton investigation and her guilt or innocence in the matter, the implications of the president’s response are significant. He is saying: 1. Material is improperly classified all the time. (Which is true.) 2. When material is improperly classified, it’s not a big deal to play fast and loose with the information in question. 3. If you’re caught doing so, you won’t be prosecuted. As Edward Snowden tersely responded, “If only I had known.” Considering the Obama administration’s apocalyptic reaction to the initial WikiLeaks release, and the hard line taken on whistleblowers thereafter, poorer words were never chosen. Also troubling is that nobody in his or her right mind believes that someone who’s not Hillary Clinton would have been able to walk away from this unscathed. Ask Edward Lin. (What is it with Edwards?) But since the president’s words are policy, enterprising attorneys are doing their part to make sure his words are considered when asking the courts or Freedom of Information Act officers to release the “classified” information that’s not “classified.” (Parse how you will.)
CHANGES IN ATTITUDES
How does this relate to Gary Johnson’s very open and honest public statements on his own drug use and his opposition to the drug war? It’s reasonable to argue that under President Johnson’s administration, anyone losing a clearance due to a drug violation would have a new arrow in the legal defense quiver. How far would that go? Until federal law changes, about as far as the “classified, and then there’s classified” citations in FOIA requests (i.e., not far).
And what about the president? Would a president actively and openly violating federal law somehow lose his or her clearance or access to sensitive material? Nope! The bulk of the classification mechanism of the federal government flows directly from the president’s pen. Executive Order 13526 lays out the who’s, how’s, when’s, and what’s of classification policy. Classification is a big pyramid, and the president is at the top. It’s a case where Richard Nixon’s famous statement on presidential authority is apt and accurate: “If the president does it, that means it’s not illegal.”
So what of the future? Let’s face it: attitudes toward drug use are changing. Half of the states in the union have passed at least some form of marijuana decriminalization. It’s outright legal in four states plus the District of Columbia. The green genie is out of the bottle, and the federal government is all but certain to fold on the issue sooner or later. But the clearance world is slow to adapt to such changes—really slow. Consider that until 1995, sexual orientation alone could be used as a basis for denying someone a clearance. In other words, eighteen months after “Don’t ask, don’t tell” was federal policy, clearance forms were still asking. If for no other reason, expect a long wait until marijuana is treated like tobacco or alcohol.
In the meantime, stick with the banana taffy.