Congress is just one step away from sending important bipartisan legislation to the President that will drive immediate action and mandate regular reporting addressing the backlog of background investigations and the progress on important security clearance reform initiatives. H.R. 3210, Securely Expediting Clearances Through Reporting Transparency Act of 2018 or the SECRET Act is one step closer to becoming law.
On March 15, 2018, the Senate passed (with changes), by unanimous consent, the SECRET ACT. It must go back to the House to approve the Senate changes. The initial bill was introduced in July 2017 to ensure that the Director of the National Background Investigations Bureau (NBIB) submits a report on the backlog of personnel security clearance investigations and the average length of time it took to complete initial and periodic investigations. However, the recent Senate version of the bill has been expanded to focus on several critical background investigation and security clearance program reform initiatives.
The Senate bill requires five separate reports that will provide details on the background investigations backlog: the process for conducting and adjudicating security clearance investigations for personnel of the Executive Office of the President; a report on the costs associated with bifurcating the background investigation systems; reports on continuous evaluation, reciprocity, and timeliness measures; and a review and update on position designation guidance.
secret act mandates Report on backlog and processing times
Specifically, the SECRET ACT requires the NBIB Director, within 90 days of enactment, and quarterly thereafter for five years, to submit a report to Congress on the backlog of personnel security clearance investigations at the Bureau for the most recent full calendar quarter, which shall include:
- the size of the backlog of personnel security investigations
- the number of interim clearances granted
- the number of initial and periodic reinvestigations for federal and contractor employees
- the number of initial investigations for employees of, and employees of contractors of, the Department of Defense
- the number of periodic reinvestigations for employees of and employees of contractors of the Department of Defense
- the number of employees of the Bureau conducting background investigations
- the number of contractor employees of the Bureau conducting background investigations
- the average length of time, for each sensitivity level, for the Bureau to carry out an initial investigation and a periodic reinvestigation
- a discussion of the factors contributing to the average length of time to carry out an initial investigation and a periodic reinvestigation.
In addition, the NBIB Director will provide a backlog mitigation plan that will include:
- identifying the cause of the backlog and recommendation to remedy
- steps being taken to reduce the backlog
- process reforms to improve efficiencies in, and the quality of, background investigations
- a projection of when the backlog will be sufficiently reduced to meet required timeliness standards
- and a description of improvements in the information and data security of NBIB
Report on the Security Clearance investigations on Personnel of the Executive Office of the President
The second report requires the Director of the Office of Administration of the Executive Office of the President, in coordination with the Office of the Director of National Intelligence (ODNI) and the Director of the Office of Personnel Management (OPM), to submit a report within 90 days of the enactment of SECRET ACT to Congress explaining the process for conducting and adjudicating security clearance investigations for personnel of the Executive Office of the President, including personnel of the White House Office.
Report on Duplicative Costs
The third report requirement is on the costs associated with bifurcation of the background investigation systems. The SECRET ACT requires the Director of the Office of Personnel Management, in consultation with the other members of the Suitability and Security Clearance Performance Accountability Council established under Executive Order 13467 and the Under Secretary of Defense for Intelligence, to submit a report on cost redundancies to Congress within 120 days of the enactment of SECRET ACT. This report would detail the costs for maintaining the comprehensive background investigations capability within OPM (under the control or direction of the NBIB) and a background investigations capability for Department of Defense personnel (under the control or direction of the Department of Defense) for implementation of the plan referenced in section 925 of the National Defense Authorization Act for Fiscal Year 2018—as compared to the cost of sustaining a single Government-wide background investigations enterprise.
Report on Continuous Evaluation and Reciprocity
The fourth report is to provide information on continuous evaluation, reciprocity, and timeliness measures. Specifically, the SECRET ACT requires within 120 days after the enactment, the ODNI will submit to Congress reports that provide:
- the status of implementing continuous evaluation Government-wide, including the number of agencies with continuous evaluation programs and;
- how many of those programs are currently conducting automated records checks of the required data sources as identified by the ODNI; and
- a discussion of the barriers for agencies to implement continuous evaluation programs, including any requirement under a statute, regulation, Executive Order, or other administrative requirement;
- a detailed explanation of efforts by agencies to meet requirements for reciprocal recognition to access classified information, including
- the range of the length of time for agencies to grant reciprocal recognition to access classified information;
- additional requirements for reinvestigations or readjudications, by agency; and
- any other barriers to the timely granting of reciprocity, by agency, including any requirement under a statute, regulation, Executive Order, or other administrative requirement; and
- a review of whether the schedule for processing security clearances under section 3001 of the Intelligence Reform and Terrorism Prevention Act of 2004 should be modified.
Review and Update on the Position Designation Guidance
The final report required by the SECRET ACT mandates, not later than 180 days after enactment, a review and update of position designation guidance be conducted by the ODNI and the Director of OPM, and make recommendations to Congress and the President as appropriate to issue guidance to agencies in determining:
- position sensitivity designation; and
- the appropriate background investigation to initiate for each position designation
Reviews and revisions of position designations:
- Not less frequently than every 4 years, the President, acting through relevant agencies (as determined by the President) and in accordance with the guidance described in paragraph (1), shall review and, if necessary, revise the position designation of positions within agencies.
Reports to Congress:
- Not later than 30 days after completing a review, the President shall submit to the appropriate congressional committees a report on:
- any issues identified in the review; and
- the number of position designations revised as a result of the review.
Secret Act provides critical insight into reform progress
The bipartisan SECRET ACT legislation, once enacted, will drive critically needed action, and mandate regular reporting on the performance, direction, and program initiatives being taken to enhance personnel security programs important to supporting our national security. With the background investigation backlog at 710,000 cases; investigations taking three times longer to complete than in 2014; investigative costs up more than 40% since 2014; continuous evaluation implementation 7 years behind schedule; and the government moving towards a decentralized background investigation process that will increase cost and impact reciprocity; Congress and the American people deserve regular and routine reporting on the actions being taken to strengthen, reduce cost, and add efficiency to these important national security programs.