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.

3 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.

  3. This article fails to point out that former agency heads, like current agency heads, must continue to act in a capacity consistent with the responsibilities/requirements of their office, and that failure to do is, in fact, grounds for losing a security clearance. The fact that such measures had not been taken to revoke clearances of prior officials ignores the extraordinary circumstance that arose under the Trump administration with respect to top intelligence officials who served in the Obama administration: the fact that they were willing to go under contract with media at all so soon after leaving their posts. (This, too, is unprecedented in the history of NSA/CIA leadership!)

    The role of CIA or NSA head, current or former, carries a tremendous amount of weight. So it follows that if such individuals are hired as cable news network commentators, just about anything they say on the subject of pending, past or current investigation — especially an investigation into possible collusion with foreign adversaries! — will impart unparalleled gravitas in the vein of whatever innuendo or speculation their views on a given individual or subject holds.

    While critics characterized the Trump administration’s actions on First Amendment grounds, the ethics of casting aspersions — if not a presumption of criminality as former CIA head John Brennan flat-out stated in his assertion of presidential “treason” — is also a valid consideration.

    When you have former agency heads actively promoting a presumption of illegality (“guilt”) in an investigation that is ongoing and/or for which they have no current or active insight or knowledge, it is at best a misuse of their authority and stature as recent intelligence agency heads.

    At some point I predict this issue is going to have to be dealt with at the Supreme Court level because there is a whole different set of public ramifications when high-level former officials — who still hold valid security clearances — make use of their stature as top intelligence officials — to influence public perception of an active investigation.

    To offer an opinion to the news media on a periodic, non-financially-benefiting basis is one thing. To go under contract to provide running cable news commentary that fails to affirm core principals of due process implies the wholesale guilt of no less than the president of the United States. Such behavior not only crosses ethical lines, it undermines public confidence in the institutions of our government — which, ironically, is the same concern we had for Russian interference in the 2016 election!

    The media may not want Americans to ask non-sanctioned questions, but we must ask whether the Russia-Trump collusion conspiracy began and ended with the Trump campaign. Given the over-active involvement of former Obama admin FBI and Intelligence Community officials in perpetuating a “guilt narrative” — before the president even assumed office a presumption of collusion was the basis for gaining FISA Court warrants! — the case can be made that a rush-to-judgment created a de facto conspiracy to undermine the Office of the Presidency — when, at best, “non-political” agency heads have a responsibility to take seriously but also to remain circumspect about until such time as the Special Counsel’s investigation concludes!

    Much of the media fails to appreciate that the legitimacy of Mueller’s final report, should it contradict a presumption of collusion that was established very early on in the president’s term thanks to a constant stream of high-level innuendo and media-led speculation, is ultimately at stake here. Should Mueller’s final report fail to affirm prevailing media-driven “public opinion” — which, in turn, has been directly influenced by James Clapper and John Brennan ~2 years of media appearances — we will likely witness a public backlash, if not widespread protests in the streets, on the assumption that Mueller’s investigation did not get at the “truth” because the Trump administration somehow successfully interfered and/or because Congress has allowed too much of that investigation to remain classified (redacted)!

    Either way this stacks up for the Trump administration, the danger in allowing the media-circuit situation we had with the likes of Clapper and Brennan is that the public will refuse to accept the outcome of the Special Counsel investigation should it fall short of confirming the public’s worst fears about this president. I predict Mueller will be in an incredibly tough spot if he does his best and most thorough job yet is confronted by a cynical public that has bought into Trump-Russia conspiracy in large part because former Obama admin officials have been all-too willing to “go there” without using their newfound bully pulpits to stress the paramount American value of due process. Whether Brennan and Clapper had a “right” to go under contract with media outlets as commentators is beside the point. Reserving judgment pending the conclusion of the Special Counsel investigation is the ethical path. Undermining both the president and, potentially, the legitimacy of Mueller’s final report is what the former NSA and CIA heads essentially did.

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