Court Says Review of Security Clearance Dispute is “Prohibited”

A government agency’s decision to revoke an employee’s security clearance cannot be reviewed by a federal court even if the decision is based on ethnic discrimination or religious prejudice or other unconstitutional grounds, a court said last week.

Judge James C. Cacheris of the Eastern District of Virginia dismissed a lawsuit brought by Mahmoud M. Hegab, a budget analyst at the National Geospatial-Intelligence Agency (NGA).  Mr. Hegab alleged that his security clearance had been revoked by NGA “based solely on [his] wife’s religion, Islam, her constitutionally protected speech, and her association with, and employment by, an Islamic faith-based organization.”  (“Clearance Lost Due to Anti-Islamic Prejudice, Lawsuit Says,” Secrecy News, October 6, 2011.)

The NGA disputed the claim and moved to dismiss the lawsuit.  Mr. Hegab, represented by attorney Sheldon I. Cohen, responded in opposition on December 14.

But in his January 19 opinion, Judge Cacheris said that it didn’t matter even if the plaintiff’s allegations were true, because the court lacked the authority to review the underlying bases of the dispute.

“A determination of whether Hegab’s security clearance was revoked due to legitimate national security concerns or, as Hegab alleges, constitutionally impermissible bases would necessarily require a review of the merits of NGA’s decision. Absent clear congressional directive, which Hegab fails to identify, such a review is flatly prohibited by Egan and Fourth Circuit precedent,” Judge Cacheris wrote.

“Egan” here refers to the 1988 U.S. Supreme Court decision in the case of Department of the Navy v. Egan, which has often been invoked in support of broad and unreviewable executive branch authority in national security policy.  A critique of Egan and its subsequent application was presented by constitutional scholar Louis Fisher, then of the Law Library of Congress, in “Judicial Interpretations of Egan,” November 13, 2009.