Security Clearances for “Meritorious” Former Criminals

In a well-intentioned but clumsy legislative maneuver known as the Smith Amendment, Congress in 2000 generally prohibited the Department of Defense from granting security clearances to individuals who had been convicted of a crime and sentenced to prison for more than a year.

“Because of the severity of the Amendment, many long-time, faithful employees of the government lost their clearances and their jobs for minor offenses occurring long ago,” notes attorney Sheldon Cohen in a new analysis (pdf) of the Smith Amendment.

The measure was modified somewhat in 2004 and both the original and the modified version allowed exceptions for “meritorious” cases. But both failed to articulate what constitutes a “meritorious” case that would justify an exception to the rule.

“There is nothing in the legislative history to indicate what standard Congress intended to be applied for granting waivers,” observed Cohen, a specialist in security clearance policy.

Cohen describes the evolution of the Smith Amendment, its ambiguities and the problems it has created. He concludes with a proposed set of principles for evaluating whether a particular individual qualifies for a meritorious exception to the Smith Amendment rule.

See “Smith Amendment Update” by Sheldon I. Cohen, December 2006.

Former national security advisor Sandy Berger is prohibited from handling classified material for at least three years as a result of his illicit removal of records from the National Archives in 2003, to which he pleaded guilty last year. Some startling new details of that case were presented in a declassified National Archives Inspector General report, obtained under the Freedom of Information Act by the Associated Press. See “How an Ex-Aide to President Clinton Stashed Classified Documents” by Josh Gerstein, New York Sun, December 21.

The National Security Council (NSC) Policy Coordinating Committee (PCC) on Records Access and Information Security Policy this week approved a “program of instruction” (pdf) to help promote reciprocity among agencies in granting security clearances.