Congress wants greater authority over the security clearance process. This desire has been around for decades but has intensified in the aftermath of security clearances stripped from former intelligence officials who have been critical of the President, and more recently, by renewed objections to the security clearance granted to the President’s son-in-law, Jared Kushner . This raises three questions: 1. Can Congress actually wrest clearance authority from the executive branch? 2. What policy reforms could Congress realistically implement? and 3. Where is Congress powerless?
The security clearance and classification process of the United States derives almost entirely from executive orders, with the president drawing ultimate power in these matters from Article II of the U.S. Constitution under his authority as commander-in-chief. Moreover, the court’s opinion in Department of the Navy v. Egan, a case that went before the Supreme Court in 1988, has been used as a bludgeon to beat back any outside attempts to limit the president’s power in matters of clearance authority. The case concerned an attempt by the Merit Systems Protection Board to review the merits of a denied security clearance. The president’s power, according to the Court, “exists quite apart from any explicit congressional grant.”
WHAT CONGRESS CAN DO
For the most part, Congress has limited its current actions to demanding records from the White House. With respect, for example, to questionable clearances granted to the president’s family, Congress needs to find out what happened so that it can craft possible legislation that might limit “clearance by association.” At the very least, the legislative branch seeks to remain in the loop during presidential transitions. Rep. Elijah Cummings, the chair of the House Committee on Oversight and Government Reform, has been particularly aggressive in seeking information as to why John Brennan, the former director of the CIA, had his clearance revoked, and why the president’s son-in-law received a Top Secret clearance. Senator Elizabeth Warren has introduced legislation requiring that transition teams release the names of people seeking clearances during a presidential transition, and later, release the names of those who actually received one.
On May 22, 2018, Congress passed and the president signed into law the Securely Expediting Clearances Through Reporting Transparency Act of 2018, or “the SECRET Act.” The idea was to compel the executive branch to inform Congress of its processes for granting security clearances to White House officials; and to report the status of clearance reciprocity, continuous evaluations, and the clearance backlog. The White House has yet to fully comply, and the next step is for Congress to begin issuing subpoenas.
Ultimately, though, the only material thing that Congress is now doing is demanding information that will help it provide oversight. That is entirely within Congressional authority; there is very little that bars Congress from conducting oversight of the executive branch for the purposes of writing legislation. In the works, however, are attempts to more thoroughly reform the clearance system. Congress is looking at ways to legislate appeal rights for denied clearances, and to make rules that “box the executive in” regarding the steps necessary to issue or revoke a security clearance. To some extent, legislators are even considering memorializing executive orders concerning clearances into statute, so that the president cannot simply change things with the stroke of a pen. But there is one thing it does not—cannot—do.
WHAT congress CAN’T DO with security clearances
The one thing Congress cannot do is tell the executive branch who does and does not get a clearance. According to Kel McClanahan, who teaches national security law at the American University Washington College of Law, regulating the processes of issuing or denying those clearances are entirely within Congressional authority. “The commander-in-chief authority will only come into play for making decisions about the ultimate clearance,” says McClanahan, who is also the executive director of National Security Counselors, a public interest law firm. “There are people who say that Congress cannot even do process, but that’s arguable. They definitely can’t tell the executive who to give a clearance to.”
Congress, historically, has not shied away from making its mark in areas surrounding the clearance process and American secrecy policy. “Every time Congress puts on their big boy pants and says, ‘You know what? We’re going to pass this because there is shared authority here and you do not have solo control over this stuff’… you never hear from the executive again!” Occupants of the White House shy away from forcing fights in the courts versus Congress because they (i.e. presidents) might lose. The collapse of Egan as a defense would be huge because it is an impediment to Congress legislating comprehensive security clearance reform and prevents judges from doing things like second guessing classification decisions.
Notable examples where Congress has exerted its influence on secrecy policy include the Foreign Intelligence Surveillance Act, which sets procedures for surveillance; and the Classified Information Procedures Act, which protects classified information in legal settings. The concepts of “Restricted Data” and “Formerly Restricted Data”–both used by the Department of Energy for sensitive information—were born not by executive order, as are classifications of National Security Information (e.g. Top Secret). Rather, RD and FRD “classifications” are entirely the result of the Atomic Energy Act. “That is an instance where Congress said this information shall be withheld on national security grounds, and did not give the executive any leeway,” says McClanahan. “It’s called classification, but strictly speaking, it is not, because it is statutory. From a practical standpoint, you face the same problems if you leak restricted data as you do if you leak Secret information.”
As to what happens next with respect to Congressional oversight of clearance policy, a lot depends on how aggressive the House is in its efforts. (It’s safe to say that the White House will be aggressive in kind.) House subpoenas for ever more information are likely to be hurled like javelins down Pennsylvania Avenue, though one can expect the Republican Senate to impede legislation that will frustrate the White House, especially as the president faces down the conclusion of the special counsel’s investigation. In short, a lot will happen, and not much. Clearance and classification reform is a slow game indeed, and not for the faint hearted.