Transforming Security Clearance Policy

By February 8, 2021

The traditional system for granting or denying security clearances for access to classified information is undergoing a significant overhaul as it transitions into what is called Trusted Workforce 2.0.

Among other changes, Trusted Workforce 2.0 will ultimately phase out the painstaking periodic reinvestigations of cleared personnel in favor of “continuous evaluation” or “continuous vetting.” This relies mainly on regular, automated record checks of law enforcement and other records to identify problematic behavior that requires attention and mitigation.

The transition is well underway.

“Executive branch agencies have enrolled more than two million individuals, nearly half the total cleared population, in continuous vetting capabilities,” according to the final Trump Administration quarterly report on clearance reform issues. See Security Clearance, Suitability/Fitness, and Credentialing Reform, ODNI, DoD, and OMB, January 2021.

On January 13, 2021 ODNI and the Office of Personnel Management issued a Federal Personnel Vetting Core Doctrine for public comment. It is intended “to guide transformative efforts to reform the U.S. Government personnel security vetting processes [in order] to promote mobility, improve efficiencies and move towards an enhanced risk management approach.”

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Meanwhile, the procedures for challenging the denial or revocation of a security clearance could be enhanced through an initiative taken late in the Trump Administration by then-Undersecretary of Defense Ezra A. Cohen.

His January 14, 2021 memorandum would bring all Department of Defense civilian, military and contractor clearance disputes under the umbrella of the Defense Office of Hearings and Appeals (DOHA), providing increased due process to those who are denied a clearance. Unlike current practice, the DOHA due process rights would also extend to contested DoD intelligence clearances for access to sensitive compartmented information.

The move was hailed by attorney Mark S. Zaid, who said it will help thousands of people.

“I cannot speak highly enough of what was accomplished,” he said on Twitter. “DOHA is [the] gold standard of clearance due process. Their hearing process features experienced administrative judges, lawyers on both sides, witnesses, cross-examination, access to evidence, submission of exhibits, and opening and closing statements; all aimed at getting to truth,” said Mr. Zaid, who also represents Mr. Cohen on other matters.

Last year, DOHA conducted 3,248 legal reviews of security clearance cases, said DOHA director Peregrine Russell-Hunter at a recent meeting of the NISPPAC industrial security advisory group. The new DoD policy, which would add to DOHA’s workload, is to take effect by September 2022 unless it is rescinded or modified by the Biden Administration.

Ezra Cohen, a figure of some controversy who was brought into the Trump National Security Council by disgraced national security advisor Michael Flynn, was appointed by President Trump on December 22, 2020 to serve as the new Chair of the Public Interest Declassification Board. The Board advises the White House on classification and declassification policies.

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The number of people holding security clearances making them eligible for access to classified information in Fiscal Year 2019 was 4,243,937, according to the latest annual report to Congress on the subject from the Office of the Director of National Intelligence (ODNI).

The 2019 figure represents a 4.2 percent increase over the previous year. The total number of clearances is about the same as it was a decade ago, but well below the reported peak of 5.1 million cleared persons in FY 2013.

The number of security clearance approvals in 2019 — including both new clearances and renewals — increased by a solid 44 percent over the year before. About two-thirds of the cleared personnel were actually granted access to classified information, while the rest remained eligible for possible future access.

See Fiscal Year 2019 Annual Report on Security Clearance Determinations, ODNI, April 2020, released last month under the Freedom of Information Act.

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While disclosing the number of clearances, ODNI redacted other information in the report such as the composition of the cleared workforce (government employees vs contractors), the distribution of clearance levels, and the percentage number of denials and revocations of clearances.

According to the January 26, 2021 transmittal letter (appended to the report), the redacted information was withheld pursuant to the statute “which protects information pertaining to intelligence sources and methods.”

This makes no sense, and it could simply be a mistake. The report is not primarily about the intelligence community. It profiles the entire government and contractor clearance system, including cleared non-intelligence agency personnel. Intelligence sources and methods are not implicated in the government-wide data summaries that were redacted. (The report does contain some IC-specific data that were likewise redacted, though this is also not “source or method” information.)

Alternatively, this might be a case where the FOIA exemption for intelligence sources and methods is being expanded and exploited beyond its legitimate boundaries. That is a longstanding and recurring form of abuse, and fixing it is something that remains to be accomplished.

The Moynihan Commission described the issue in its 1997 report (Chapter 1, p. 8, emphasis added):

“One persistent problem in this context has been the intermingling of secrecy used to protect carefully defined national interests with secrecy used primarily to enhance such political or bureaucratic power. This creates the potential that some officials, welcoming insulation from outside scrutiny, will seek means to develop and maintain secrecy beyond what is authorized in a statute or regulation. (An example is when sources and methods protection under the National Security Act is used to deny access to information that does not reveal a particular intelligence source or method.)”

Further (Chapter 2, p. 23):

“[N]either the National Security Act nor any of the relevant executive orders has defined what constitutes a ‘source’ or a ‘method,’ and the use of these provisions has been the subject of frequent criticism. Protection of sources and methods has been used to justify the classification of a range of information sometimes only indirectly related to a specific source or method.”

The problem described by the Moynihan Commission is neatly demonstrated by the ODNI redaction of the security clearance report. This and similar actions could help draw new attention to the need to clearly define and limit the meaning of “intelligence sources and methods.”

We appealed the partial denial and asked ODNI to reconsider the redactions.

Categories: Security Clearances