In January 2021, then Acting Undersecretary of Defense for Intelligence and Security Ezra A. Cohen issued a ground memo that called for the Department of Defense to reform the security clearance program and to enhance individual due process whilst increasing transparency. The traditional system for maintaining eligibility access to classified information is now undergoing a significant overhaul as it transitions into what is called Trusted Workforce 2.0.
In addition, the memo called for bringing all Department of Defense civilian, military, and contractor clearance disputes under the umbrella of the Defense Office of Hearings and Appeals (DOHA). This reform was meant to provide greater transparency to the security clearance system and substantive due process, especially for civilian and military personnel.
“In order to simplify, centralize, and unify the established administrative processes for unfavorable security clearance eligibility determinations for DoD civilians, military members, and contractor employees, including contractor employee unfavorable SCI determinations, all hearings, appeals, and final denials and revocations of security clearance eligibility will be performed by DOHA with established administrative due process procedures,” the memo stated.
“Additionally, it complements Security Executive Agent Directive 4 which establishes the single, common adjudicative criteria for all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position,” the memo added, further noting, “Nothing in this memorandum diminishes or otherwise affects a Component Head’s authority to deny or suspend access to classified information or Special Access Programs, including SCI, at any time, should the agency determine that initial or continued access of a covered individual is inconsistent with protecting the national security.”
It has been seen by many to be compromise nothing, yet would ensure everyone has equal footing within the system. It has been promoted in a non-partisan manner by both Republicans and Democrats alike and was actually ordered over a decade ago by Secretary of Defense Robert Gates.
Not Quite There
A concern among some supporters of the reform is that some of the “prime movers” have been able to ignore that order and have obstructed this reform process for years. Though the DoD General Counsel could have certified that the reforms were ready to be implemented at any time, it never happened. Instead, some experts on the matter have suggested that the promised substantive reform that was set in motion eighteen months ago has been completely undermined and now actually risks disappearing.
“If the policy were implemented by Sept 30th that would be wonderful,” suggested Mark S. Zaid, a Washington, D.C.-based attorney who specializes in matters related to security clearance.
“Sure, there are still areas that need to be strengthened but this would be an incredible and much-needed start of a long-time effort to substantively reform the system,” Zaid told ClearanceJobs.
“Sadly, we don’t believe the reforms will be implemented though. DoD, through Undersecretary of Intelligence and Security Ron Moultrie, is likely to fold the Cohen Memo into the Trusted Workforce 2.0 efforts. That will effectively kill the Cohen reform,” he continued.
Where Trusted Workforce Fits In
Trusted Workforce 2.0 started in 2018 and will continue to at least 2023 – but it has absolutely nothing to do with substantive due process, said Zaid.
“It deals with efficiency efforts, which are also needed,” Zaid explained. But Zaid expressed fears the needed due process changes will get lost in the bureaucracy rather than moving forward as intended – and as could have been done when ordered by Gates in 2011.
The September 30 deadline for the Cohen memo came and went, without clear direction on the process for consolidating civilian and military due process under DOHA. Asked to comment, DoD assured the review process would move forward, without confirming that the consolidation under DOHA would occur.
“The Department is committed to the continual improvement of our vetting procedures to protect our national security while providing for a fair review process for denials or revocations of eligibility for access to classified information,” said Sue Gough, Pentagon spokesperson.
“The Office of the Under Secretary of Defense for Intelligence and Security will continue to lead such efforts, in close coordination with all stakeholders, while continuing to collaborate across the Defense Security Enterprise to assess the policies, resources, and procedural implications associated with the consolidation of the administrative processes for unfavorable security clearance eligibility determinations for DoD personnel and contractor employees, as required by the memorandum.”
