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.
At a time when universities are already facing intense pressure to re-envision their role in the S&T ecosystem, we encourage NSF to ensure that the ambitious research acceleration remains compatible with their expertise.
FAS CEO Daniel Correa recently spoke with Adam Marblestone and Sam Rodriques, former FAS fellows who developed the idea for FROs and advocated for their use in a 2020 policy memo.
In a year when management issues like human capital, IT modernization, and improper payments have received greater attention from the public, examining this PMA tells us a lot about where the Administration’s policy is going to be focused through its last three years.
Congress must enact a Digital Public Infrastructure Act, a recognition that the government’s most fundamental responsibility in the digital era is to provide a solid, trustworthy foundation upon which people, businesses, and communities can build.