Secrecy News

Security Clearances and Presidential Authority

Revoking security clearances for access to classified information in order to punish critics, as the White House proposed to do yesterday, is probably within the President’s authority. But it shouldn’t be. And there is, in principle, a way to prevent it.

“Not only is the President looking to take away [former CIA director John] Brennan’s security clearance, he’s also looking into the clearances of Comey, Clapper, Hayden, Rice, and McCabe,” said White House press secretary Sarah Sanders. “The President is exploring the mechanisms to remove security clearance because they’ve politicized and, in some cases, monetized their public service and security clearances.” (Comey and McCabe, it turns out, no longer hold security clearances.)

“Making baseless accusations of improper contact with Russia or being influenced by Russia against the President is extremely inappropriate,” she said. “And the fact that people with security clearances are making these baseless charges provides inappropriate legitimacy to accusations with zero evidence.”

In fact, making baseless accusations (let alone well-founded accusations) is not normally grounds for denial or revocation of a security clearance.

But in the wake of a 1988 Supreme Court case known as Navy v. Egan, it is often presumed that the President can grant, deny or revoke a security clearance for any reason or for no reason at all.

Yet that is not exactly correct, as Louis Fisher explained in a 2009 paper for the Law Library of Congress.

While the Court in Egan affirmed deference to the executive branch in matters of national security, even there such deference was not absolute and it was explicitly constrained by the possibility of legislative action (“unless Congress specifically has provided otherwise”).

“Nothing in Egan recognizes a plenary or exclusive power on the part of the President over classified information,” Fisher concluded. See Judicial Interpretations of Egan by Louis Fisher, The Law Library of Congress, November 13, 2009.

It follows that if Congress disapproved of the use of the security clearance system to regulate or suppress critical commentary, then it — or perhaps a new Congress — could effectively prohibit such use.

2 thoughts on “Security Clearances and Presidential Authority

  1. I can’t believe that Egan stands for the proposition that the President can revoke security clearances for absolutely any reason. If it meant that, then the President could revoke security clearances for Jews. Or for blacks. Or for women. Or for Democrats. This is the sort of idea that shouldn’t be thought to be part of our Constitution unless and until the Supreme Court explicitly rules that it is so, because it is so far out of kilter with principles we follow all the time in the law. And it shouldn’t take Congressional action to make this point; the Constitution already does that.

    Whether that would help Clapper et al. is another matter, of course, since no doubt Trump will assert some other ground for his actions. What I’m not sure of is whether the President needs to have some kind of national security rationale, however thin, and, if so, whether any of the claims the White House has made so far would actually amount to a national security rationale.

  2. All of these assertions about individuals’ rights incorrectly fashion the proprietary interest of the security clearance. That is; who does the clearance belong to?

    (1) Does it belong to the head of an Agency who granted the clearance?

    (2) Does it belong to the executive authority or commander-in-chief authority of the Head-of-Government?

    (3) Does it belong to an Agency’s classified position(s); and thereby is only indirectly and temporarily granted to an employee during the Agency’s need for the position to be so classified; and only while an individual occupies the Agencies’ classified position?

    I think it is a combination of 2 and 3. The Agency; under the executive authority of the Head-of-Government/Commander-in-Chief; owns all of its positions. It is solely responsible for classifying them (in both senses of that term). The agency solely defines as position as requiring an engineer, psychologist, or brick-layer. The Agency is furthermore solely responsible for determining whether a position is: a Public Trust position, at the Securities & Exchange Commission; or, a National Security position, at the National Security Agency.

    The job’s title; its level or grade; and its required access to classified information (as necessary for the job to be performed), belong entirely to the Agency; deriving its entire authority from the executive authority of the Head-of-Government/Commander-in-Chief; “owns” all of the executive branch’s positions.

    That executive authority grants and withdraws security clearances from positions with an unlimited freedom and latitude that is inherent in the authority to create, modify or abolish the positions in the executive branch; along with their functional specifications.

    As an example. Until the end of the Cold War the US Army had nuclear weapons in its inventory of weapons. It could be argued therefore that it had a need for individuals who held the national security clearance classification entitled, Critical Nuclear Weapons Design Information (CNWDI).

    At some time after the end of the Cold War, Army retired its nuclear weapons, its short range missiles; and its intermediate range missiles (long range missiles have always belonged to the Air Force and Navy). Therefore, the executive branch could cancel such clearances; for the simple functional reason that it had no further use for them. The clearances were only temporarily held by individuals employed by the Army. And when the Army had no further need for the clearances, they were abolished. And no right in the clearances existed in any of the Army’s employees.

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