The Pentagon has concluded that agencies responsible for conducting security clearance investigations cannot also serve as the hearing authorities reviewing clearance denials and revocations. It’s a legal determination that has effectively dismantled the Defense Counterintelligence and Security Agency’s personal appearance program and could reshape how due process is administered across the Department of Defense.
A May 11 legal opinion by T. Elliot Gaiser, assistant attorney general, found that DCSA and other intelligence organizations that conduct supplemental clearance investigations are “investigating entities” under Executive Order 12968. Because the executive order requires individuals facing clearance denial or revocation to appear before an authority other than the investigating entity, Gaiser concluded those organizations are prohibited from conducting the review hearings themselves.
That legal analysis laid the groundwork for a subsequent memorandum from Department of War General Counsel Earl Matthews, which rescinded DCSA’s hearing authority, suspended its personal appearance program, and declared prior decisions issued through the process void.
The result is a significant reversal in the Department’s recent security clearance due process reforms.
DCSA Can Investigate, But It Can’t Hear the Appeal
The issue comes down to one sentence in Executive Order 12968. Individuals denied a clearance or facing revocation must generally be given “an opportunity to appear personally” and present evidence before an adjudicative authority “other than the investigating entity.”
DCSA was designated in 2019 in an amendment to Executive Order 13467 as the primary federal entity for conducting background investigations across the government. That role, according to the legal opinion, makes DCSA an investigating entity, and therefore bars it from conducting the personal appearance hearings required after a clearance denial or revocation.
But Gaiser’s opinion goes further. The same restriction also applies to Department intelligence components that conduct supplemental investigations of their own personnel.
In other words, the issue is not just DCSA. It is any entity that helped build the investigative record being reviewed.
That distinction matters. Some intelligence components retain authority to conduct supplemental background investigations under existing executive orders or pre-2019 designations. But Gaiser concluded that authority does not carry with it the ability to conduct the required review hearing.
The opinion rejects the idea that the executive order’s reference to “the investigating entity” applies only to a single agency. Multiple organizations can be investigating entities if they participate in the clearance investigation. And if they do, they cannot sit in judgment of their own work.
The Point Is Independence
The opinion makes clear the underlying principle: applicants should receive a fresh review from an authority separate from the organization that investigated them.
Gaiser writes that one reason investigating entities may be prohibited from conducting review hearings is to provide the applicant an adjudicator capable of taking “a fresh view of the evidence.” If the purpose is to provide “fair and equitable treatment,” the opinion states, it makes sense that an entity involved in the investigation should not be tasked with reviewing its own work on appeal.
That is the heart of the issue, and the reason the Matthews memorandum is more than an administrative reshuffling.
Security clearance decisions have always involved a tension between national security discretion and individual due process rights–but with heavy emphasis on national security discretion. This is not a system where the scales are balanced. Uncle Sam has the Trump card. The government retains broad authority to deny or suspend access to classified information when national security requires it. That’s all the more reason for when the government establishes procedures for review, those procedures must mean something.
For clearance holders, that means the appeal cannot simply be a second look by the same organization that developed the case.
Prior DCSA Hearing Decisions Declared Void
The Matthews memorandum does not simply suspend DCSA’s personal appearance program going forward. It states that any decision issued by DCSA based on the record of its own personal appearance hearing is void.
That is the most consequential piece of the memo.
DCSA must now stop all personal appearance hearing functions and refer cases to the Defense Office of Hearings and Appeals. DCSA’s Office of General Counsel personnel are also directed to cease participation in those hearing functions.
The General Counsel, DCSA, must identify cases already decided through the process and refer them to DOHA for further review.
For cases resolved in the individual’s favor, DOHA will review whether legal or other errors may have impaired national security. If DOHA determines there is a reasonable likelihood national security was impaired, it may convene a new hearing based on the original Statement of Reasons.
For cases resolved against the individual, DOHA will review whether the individual was denied due process. If a denial of due process is found, DOHA will identify an appropriate remedy and notify the affected individual.
That creates the possibility that individuals who already received adverse decisions through the DCSA personal appearance process may now get another review.
More Than a Technical Defect
The Matthews memorandum also points to specific implementation failures in DCSA’s personal appearance program. Those include concerns about use of the standard Statement of Reasons template, the right to counsel, the ability to present witness testimony, timely access to the evidence underlying the government’s decision, and whether post-SOR determinations were issued by properly appointed officers.
Those findings add weight to the legal concern. But they are not the foundation of the decision.
The foundation is simpler: DCSA was legally disqualified from conducting the hearings because DCSA conducts investigations.
That matters for the broader security clearance reform conversation. Recent due process reforms were intended to expand hearing rights and bring more consistency to the process for contractors, military personnel, and civilian employees. But this opinion makes clear that efficiency and consistency cannot come at the expense of independence.
Back to DOHA
For years, DOHA has been the best-known forum for contractor security clearance hearings. It has also become the logical destination for cases requiring an independent review process.
Under the Matthews memorandum, DCSA must refer all personal appearance cases to DOHA for further processing.
That move reinforces DOHA’s role as the Department’s independent hearing authority, and may signal a broader recalibration of how the Department handles clearance appeals for government employees, service members, and intelligence personnel.
The decision also underscores a point clearance attorneys have raised repeatedly: process matters. The right to present evidence, call witnesses, consult counsel, and appear before an independent authority is not just paperwork. It is the mechanism that gives the clearance appeals process legitimacy.
What Clearance Holders Should Know
For clearance holders and applicants, the immediate takeaway is that DCSA personal appearance hearings are suspended, and affected cases are headed to DOHA.
For individuals who received an adverse decision through the DCSA process, the memo creates the possibility of further review if DOHA determines due process was denied.
For agencies, the message is broader. Components that conduct investigations — including supplemental investigations — cannot also conduct the review hearings required under Executive Order 12968.
That could affect more than DCSA. It may require intelligence components and other Department organizations to examine whether their clearance review processes maintain sufficient separation between investigation and adjudicative review. The government still has the authority to deny, revoke, or suspend access to classified information when national security requires it. Nothing in the Matthews memorandum changes that.
But the decision is a reminder that the security clearance process is not just about speed, modernization, or administrative efficiency. It is also about trust in the fairness of the system.
