from the FAS Project on Government Secrecy
Volume 2014, Issue No. 24
March 24, 2014
Secrecy News Blog: http://blogs.fas.org/secrecy/
- SECURITY-CLEARED POPULATION RISES TO 5.1 MILLION
- DID CIA VIOLATE THE CONSTITUTION'S SPEECH OR DEBATE CLAUSE?
SECURITY-CLEARED POPULATION RISES TO 5.1 MILLION
The number of Americans who have been investigated and deemed eligible for access to classified information rose last year to a total of 5,150,379 as of October 2013. It was the fourth consecutive year of growth in the security-cleared population.
The new total includes civilian and military government employees (3.7 million) and contractor personnel (1 million), as well as indeterminate others (0.4 million). It represents an increase of 4.7% from the previous year's total of 4.9 million. Of the 5.1 million persons who were found eligible for access to classified information, 60% had access in fact.
An Office of Management and Budget review said that the continuing growth of the security clearance system is problematic both for financial and security reasons.
"[The] growth in the number of clearance-holders increases costs and exposes classified national security information, often at very sensitive levels, to an increasingly large population," said the OMB review, which was released last week.
Accordingly, the OMB review recommended that the government "reduce [the] total population of 5.1M Secret and TS/SCI clearance holders to minimize risk of access to sensitive information and reduce cost."
The number of security clearances is supposed to be reported to Congress each year by the Office of the Director of National Intelligence. But ODNI said it has not yet filed its 2013 report. However, the data were provided in the OMB review.
"Since 9/11, the number of clearances annual approved by DoD [the Department of Defense] has tripled, and continues to grow," according to an independent review of the Washington Navy Yard Shooting in September 2013 that was also released last week.
"This growth magnifies the challenge of investigating clearance seekers, judging their applications, and periodically reviewing them after they are approved."
"The continuing expansion of the cleared population has created a culture in which once-rare security clearances are now too often granted by default." (Actually, security clearances have not been "rare" for quite a few decades.)
The independent review proposed that "DoD should seek to make a 10 percent cut in the number of positions that require access to material classified as Secret."
"As soon as this reduction is attained, a follow-on review should determine whether further reductions can be realized."
The independent review also identified "a growing culture of over-classification" as a related issue that "merit[s] additional focused study." See "Security From Within: Independent Review of the Washington Navy Yard Shooting," Department of Defense, November 2013 (released March 18, 2014).
Another review conducted by the Under Secretary of Defense for Intelligence concurred that there are too many people with security clearances. But it said that reducing the cleared population will not necessarily improve quality control or significantly reduce the burden on background investigators and adjudicators, because they are also responsible for a large number of "suitability" investigations in addition to security clearance investigations.
"The workload challenge will not be eliminated by reducing the number of security clearances because of the pending impacts of the alignment of suitability and security investigations and reinvestigations required by Executive Order 13467 and the 2012 Revised Federal Investigative Standards."
"The net effect of the new standards will be to increase the Department's investigative and adjudicative workload, regardless of the number of security clearances." See "Internal Review of the Washington Navy Yard Shooting," Report to the Secrecy of Defense, November 20, 2013:
Last week, the Department of Defense issued updated policy on the "DoD Personnel Security Program (PSP)," DoD Instruction 5200.02, March 21, 2014.
Among other things, the updated policy dictates that "All personnel in national security positions shall be subject to continuous evaluation," referring to a process of collecting, reporting and evaluating security-relevant information about cleared individuals on an ongoing basis.
But this policy is aspirational rather than descriptive of current practice, which is limited to small-scale pilot projects to develop such a capacity. Full implementation of the "continuous evaluation" process is at least several years away, according to last week's OMB report.
Secretary of Defense Chuck Hagel said last week that "We will consider reducing the number of personnel holding Secret security clearances by at least 10 percent, a recommendation in line with the October 2013 guidance from the Director of National Intelligence."
Reducing the number of "personnel" that hold security clearances is a slightly different objective than reducing the number of "positions" that require access to classified information, as recommended by the Independent Review. It is not clear if the Secretary intended to make such a distinction.
In response to a request from Secrecy News, ODNI public affairs refused to provide a copy of the October 2013 DNI guidance.
DID CIA VIOLATE THE CONSTITUTION'S SPEECH OR DEBATE CLAUSE?
The Central Intelligence Agency may have violated the Speech or Debate clause of the U.S. Constitution by performing an unauthorized search of Senate Intelligence Committee computers, according to an analysis by the Congressional Research Service.
The Speech or Debate clause (in Article I, Section 6, Clause 1 of the Constitution) generally immunizes members of Congress from liability for actions performed in the course of their legislative duties.
But it also provides privileged protection for congressional documents against compulsory or involuntary disclosure. CIA may have unconstitutionally violated that privilege.
As detailed by Sen. Dianne Feinstein in a March 11 floor statement, the CIA carried out a search of Committee computers without notice or consent in an attempt to determine whether or how the Committee had obtained unauthorized access to a particular record concerning the CIA's post-9/11 prisoner interrogation program.
"The search involved not only a search of documents provided by the committee to the CIA but also a search of the stand-alone and walled-off committee network drive containing the committee's own internal work product and communications," Sen. Feinstein said. The search took place in a CIA-leased facility where Committee staff were working.
"According to [CIA Director] Brennan, the computer search was conducted in response to indications that some members of the committee staff might already have had access to the internal Panetta review [a CIA document which CIA had not intended to release to the Committee]. The CIA did not ask the committee or its staff if the committee had access to the internal Panetta review or how we obtained it."
"Instead, the CIA just went and searched the committee's computers," Sen. Feinstein said.
Through the Speech or Debate clause, the Constitution "has imposed [limitations] on executive branch attempts to interfere with legislative activities, including Congress's authority to conduct oversight and investigations," the new CRS analysis explained.
The Speech or Debate clause has been interpreted variously by two appellate courts, with different implications for the current circumstance, CRS said. The CIA search of Senate Intelligence Committee computers "could arguably be viewed as violating the non-disclosure privilege recognized by the court in Rayburn," CRS said, referring to a 2007 DC Circuit case involving an FBI search of the House office of Rep. William Jefferson.
However, under a different reading of the Speech or Debate clause from a Ninth Circuit opinion in a case called US v. Renzi, the potential CIA violation "is less clear," the CRS memorandum cautioned.
See "Who's Overseeing Whom? The CIA, SSCI and the Speech or Debate Clause," CRS Legal Sidebar, March 13, 2014:
In any event, the possible violation by the CIA of the non-disclosure privilege provided by the Speech or Debate clause is not legally actionable at this time, CRS said. Rather, it "would only come into play in the event of a subsequent legal proceeding."
On Friday, CIA Director John Brennan sent an email message to CIA employees containing what was understood to be a conciliatory signal towards Congress. "It is appropriate for the Intelligence Committees in the Senate and the House to carry out their oversight responsibilities thoroughly and comprehensively, and CIA needs to do all it can to assist the Committees in that regard," Director Brennan wrote.
"Regarding the SSCI's RDI [rendition, detention and interrogation] report, I want to assure you that the entire CIA leadership team is committed to addressing any outstanding questions or requests from SSCI members so that the Committee can complete its work and finalize the report as soon as possible."
"I expect the Committee will submit at least some portion of the report to the CIA folassification review, and, if that happens, CIA will carry out the review expeditiously," he wrote in the March 21 email message (published by Politico).
Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
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