Yesterday the White House announced it was considering revoking the security clearances of several Obama and Bush Administration officials. It came after days of Sen. Paul Rand sounding the alarm that former executive branch staffers, particularly former CIA Director John Brennan, were monetizing their security clearances for personal gain as pundits, authors and vocal critics of the policies of the Trump Administration.
The first and obvious question many asked is whether or not the president has the authority to revoke the security clearances of former government officials – that answer is yes.
The question that quickly follows is – wait, wouldn’t Brennan and other officials have some sort of ‘due process’ rights to prove their own cases and retain their security clearances?
Security Clearance Holders Don’t have the same first amendment rights
Over the years, the government has established robust employment laws protecting individuals from retaliatory employment actions. But as a number of security clearance holders have discovered over the years, when it comes to positions of public trust and national security, the government will place its own needs and security above any rights of the applicant.
“The legal landscape here is unusual in that the First Amendment constitutional right to freedom of speech likely does not apply in security clearance cases (although this area has yet to be fully litigated),” noted Sean Bigley, national security attorney and founding partner of Bigley Ranish. “Fundamentally, freedom of speech is a qualified right; just as one cannot yell “fire” in a crowded building, one cannot expect the government to enter into a fiduciary relationship with someone whose expressions the government finds concerning.”
In other words, the government has established that no one has a ‘right’ to a security clearance. A security clearance denial is based on one of thirteen adjudicative criteria, but the government has wide berth in representing its own interests when it comes to who it grants a security clearance to, and who it denies. In fact, constitutional due process rights don’t apply to anyone denied access to classified information. Those denied a security clearance are offered administrative due process, which varies between executive agency. That means the rights afforded to someone denied a clearance through the CIA differ from what you’ll see if your clearance is denied by the Department of Defense. It also means the government’s posture is ‘deny first, appeal later.’ Your due process affords you the chance to reinstate your security clearance eligibility. You don’t get to keep access while the government builds its case against you. In general, a clearance holder accused of violating one of the 13 adjudicative criteria will receive a statement of reasons for security clearance denial, escorted off the premises, removed from access, and left to build his or her case.
Due process (or lack thereof) aside, when it comes to the White House clearance policy, President Trump is the executive agent and the supreme authority on granting or denying any security clearance. Policy would generally govern that a security clearance be denied through the executive offices in question (the CIA or FBI). But the president is also free to unilaterally grant or deny eligibility to anyone he likes.
“The president is “the government” when it comes to making security clearance determinations, as the granting, denial, or revocation of a security clearance falls squarely within the president’s commander-in-chief powers per the Supreme Court’s ruling in a 1988 case called the Department of Navy v. Egan,” according to Bigley.
Could a Tweet Cost a Clearance?
In 2016, the government released Security Executive Agent Directive (SEAD) 5. It granted the government the authority to use social media in the course of vetting individuals for national security positions. For the first time, it became possible for an individual to lose their security clearance for an idiotic Facebook post or a treasonous tweet. In reality, we have yet to see a security clearance denial grounded in social media posts appearing in the annals of security clearance case history. But that doesn’t mean the background investigation process isn’t using social media as it confirms an individual’s trustworthiness and honesty. (It’s hard to argue you haven’t used drugs in five years if your Facebook photos show otherwise).
Some have argued Brennan’s tweets calling the president a traitor or worse constitute hostile speech directed toward the current administration. There is a great deal of room for interpretation within the adjudicative guidelines, but just as Brennan’s accusations of treason against President Trump fell short under the scrutiny of constitutional lawyers, you’d have a similarly tough case arguing a tweet accusing the president of treason would cost the average clearance holder his or her clearance.
Allegiance to the United States is an adjudicative criteria that exists but has virtually never been used in a security clearance denial. It’s defined as:
involvement in, support of, training to commit, or advocacy of any act of
sabotage, espionage, treason, terrorism, or sedition against the United States of
America
To prove an individual’s statements constitute sabotage or sedition is a tough hurdle. When that individual is a former government official with current access to classified information, that hurdle drops a few pegs, but it’s not a concern for the average security clearance holder or applicant.
Based on statements from Brennan thus far, it seems unlikely he would need or want to retain his clearance eligibility if it is denied. Regardless, whether it’s Brennan or Joe Security Clearance Holder, if an executive branch of the government, or the President, in particular, determine you should no longer retain your security clearance – you won’t.
