Who Gets Access? The Flap Over White House Security Clearances – Analysis

By George W. Croner*

(FPRI) — Earlier this week, The New York Times reported that a “whistle-blower” working inside the White House’s Personnel Security Office had met privately with staff from the House Oversight and Reform Committee and revealed that 25 individuals, including two current senior White House officials, had been granted security clearances after their applications had been denied by career security evaluators.^[1]

Like virtually every issue in the nation’s politically polarized capital, partisans on both sides took widely divergent views of the seriousness of the whistle-blower’s allegations. This is not the first alarm sounded about security clearance practices in the Trump Administration, and as one whose writing and research on the Foreign Intelligence Surveillance Act (FISA) constantly reinforces the fragility and vulnerability of intelligence sources and methods, it is, if true, soberingly disquieting news.

The recent controversy called to my mind the sleight of hand used in the late 1940s with Venona-derived intelligence information when senior military officials harbored serious concerns over the security reliability of President Truman’s “poker” cabinet and other staff in the Truman White House. Venona was the highly classified codebreaking effort directed against Soviet communications and cipher systems during and after World War II, and the extent of its success was one of the nation’s most assiduously protected secrets.

Concerned that sending intelligence product to the White House and identifying its source as Venona decryptions posed an unacceptable risk of compromise, the military, at the direction of Chief of Staff Omar Bradley, deliberately withheld or misattributed the source of intelligence contained in reports derived from Venona. While historians still argue over whether President Truman, himself, was specifically aware that Venona was the source of certain intelligence he received, the efforts made to shield Venona’s identity from White House staff have been recounted in multiple publications describing the Venona program. As it turns out, institutional distrust of political appointees by those charged with protecting the nation’s secrets is hardly a new phenomenon.

An immediate question for many who have serious concerns about security clearance practices in the White House is what, if anything, can Congress do? The prevailing law, the current split in legislative control of the House and the Senate, and the workplace of those involved suggests that the answer is: not very much.

Virtually all classified national security information emanates from the federal government’s executive branch and is classified by an “original classification authority,” who is an executive branch officer. The current classification standards are found in Executive Order (E.O.) 13526 titled “Classified National Security Information,” which was implemented by President Obama in 2009. Section 4.1 of E.O. 13526 sets forth the basic requirements controlling access to classified information: “(a) A person may have access to classified information provided that: (1) a favorable determination of eligibility for access has been made by an agency head or the agency head’s designee; (2) the person has signed an approved nondisclosure agreement; and (3) the person has a need-to-know the information.”^[2]

Today, security clearances for access to classified national security information in the executive branch are handled by an extensive network of security professionals working to apply standards established through a number of Executive Orders and department-level regulations in each of the multiple agencies that handle classified information.^[3] No effort will be made here to dissect the individual practices applied by these multiple executive agencies; however, certain general criteria are applicable. Executive Order 12968, for example, addresses “Access to Classified Information” and, among other things, provides that:

The national interest requires that certain information be maintained in confidence through a system of classification in order to protect our citizens, our democratic institutions, and our participation within the community of nations. The unauthorized disclosure of information classified in the national interest can cause irreparable damage to the national security and loss of human life.

Security policies designed to protect classified information must ensure consistent, cost effective, and efficient protection of our Nation’s classified information, while providing fair and equitable treatment to those Americans upon whom we rely to guard our national security.^[4]

E.O. 12968 then promulgates general principles purporting to establish standards governing the granting of a security clearance:

(a) No employee shall be granted access to classified information unless that employee has been determined to be eligible in accordance with this order and to possess a need-to-know.

(b) Agency heads shall be responsible for establishing and maintaining an effective program to ensure that access to classified information by each employee is clearly consistent with the interests of the national security.

(c) Employees shall not be granted access to classified information unless they:

(1) have been determined to be eligible for access under section 3.1 of this order by agency heads or designated officials based upon a favorable adjudication of an appropriate investigation of the employee’s background;

            (2) have a demonstrated need-to-know; and

            (3) have signed an approved nondisclosure agreement.

(d) All employees shall be subject to investigation by an appropriate government authority prior to being granted access to classified information and at any time during the period of access to ascertain whether they continue to meet the requirements for access.

Yet another Executive Order (No. 13467), issued in July 2008, provides for “an efficient, practical, reciprocal, and aligned system for investigating and determining suitability for Government employment, contractor employee fitness, and eligibility for access to classified information.” E.O. 13467 states:

Executive branch policies and procedures relating to suitability, contractor employee fitness, eligibility to hold a sensitive position, access to federally controlled facilities and information systems, and eligibility for access to classified information shall be aligned using consistent standards to the extent possible, provide for reciprocal recognition, and shall ensure cost-effective, timely, and efficient protection of the national interest, while providing fair treatment to those upon whom the Federal Government relies to conduct our Nation’s business and protect national security.

E.O. 13467 also amended E.O. 12968 to specifically require “Continuous Evaluation” of those eligible for, or currently having access to, classified information. “Continuous evaluation” requires “reviewing the background of an individual who has been determined to be eligible for access to classified information . . . at any time during the period of eligibility to determine whether that individual continues to meet the requirements for eligibility for access to classified information.”^[5]

Collectively, these provisions present the appearance of a coherent process for administering security clearances, but, since the standards are administered by federal officials who apply those standards using individualized experience and judgment, actual practices can sometimes produce questionable outcomes—especially in the spotlight that invariably accompanies any suggested impropriety at the very pinnacle of the executive branch.

In a memorandum (“Memorandum”) prepared for members of the Democratic Party-controlled House Committee on Oversight and Reform, committee staff members recount just such purported security clearance improprieties based on their March 23, 2019 interview with Tricia Newbold, who is described as a “current White House employee” who “came forward as a whistleblower at great personal risk to expose grave and continuing failures of the White House security clearance system, including the security clearance adjudications of senior White House officials.”^[6]

According to Ms. Newbold, as recounted by committee staffers, officials within the White House have overturned at least 25 security clearance adjudicated denials and granted clearances to individuals working throughout different components of the Executive Office of the President. Ms. Newbold characterizes these individuals as having a wide range of serious disqualifying issues involving foreign influence, conflicts of interest, disqualifying personal conduct, financial problems, drug use, and criminal conduct. Elaborating, Newbold expresses the concern that many security clearance denials were routinely overruled without following the proper protocols to document why senior officials disagreed with the assessments made by experienced clearance adjudicators and without memorializing the risks associated with reversing the denials.

None of the individuals purporting to have received security clearances after initial adjudicated denials is identified in the committee Memorandum, although two are described generically as “Senior White House Officials.”

In its “Conclusion,” the Memorandum offers Ms. Newbold’s explanation that her motive in coming to Congress is “because she believes it is her duty, and because the widespread problems with the White House security clearance system cannot be addressed without independent, outside oversight.” The Memorandum closes with this quote attributed to Newbold:

I came forward today because I just—I do not see a way forward positively in our office without coming to an external entity, and that’s because I have raised my concerns throughout the EOP to career staffers as well as political staffers. And I want it known that this is a systematic, it’s an office issue, and we’re not a a political office, but these decisions were being continuously overrode.^[7]

What Newbold describes, if true, presents serious concerns posing potentially serious danger to national security and intelligence sources and methods. But her apparent expectation that “Congress must intervene immediately to investigate and reform the White House security clearance process in order to address the national security risks she has been witnessing over the past two years,” as described in the Memorandum, misperceives the level of congressional authority in an area where separation of powers considerations produce considerable friction. 

Congressional actions directed towards asserting control over executive branch security clearance issues is problematic given existing Supreme Court precedent, which has held executive authority in this area to flow from the president’s Article II role as Commander-in-Chief. In a 1988 decision, the Court stated, “[The president’s] authority to classify and control access to information bearing on national security . . . flows primarily from this Constitutional [the role of Commander-in-Chief] investment of power in the President and exists quite apart from any explicit congressional grant.”^[8] While this broad interpretation of executive authority has been tempered somewhat by the Court’s suggestion that “Congress could certainly [provide] that the Executive Branch adopt new [classification procedures] or [establish] its own procedures – subject only to whatever limitations the Executive Privilege may be held to impose on such congressional ordering,”^[9] it is difficult to conjure an area where the limitations on congressional action are more restrained by that “Executive Privilege” than in matters affecting the Executive Office of the President.

Given this judicial history, and taking the language in the Egan decision (footnoted below) as representing something of a judicial imprimatur on the exercise of executive authority in the area of access to national security information, presidents have acted to preserve their prerogatives. In 2004, for example, President George W. Bush issued a signing statement objecting to parts of the Intelligence Reform and Terrorism Prevention Act that, in his view, “purport[ed] to regulate access to classified national security information.”^[10] If anyone doubts the current administration’s view on presidential authority in this area of access to classified information, President Trump attached his version of a signing statement in objecting to a provision in the Consolidated Appropriations Act of 2017, P.L. 115-31 (2017), that requires 30 days’ advance congressional notification prior to establishing a new “Special Access Program.” In his statement, President Trump wrote:

The President’s authority to classify and control access to information bearing on the national security flows from the Constitution and does not depend upon a legislative grant of authority. Although I expect to be able to provide the advance notice contemplated by § 8009 [i.e., the Special Access Program provision] in most situations as a matter of comity, situations may arise in which I must act promptly while protecting certain extraordinarily sensitive national security information. In these situations, I will treat these sections in a manner consistent with my constitutional authorities, including as Commander in Chief.^[11]

Despite these presidential assertions of authority emanating from different chief executives, Congress has not abandoned the field to the president. For example, in 1994, Congress directed the president to establish procedures governing the access to classified material so that generally no person can gain such access without having undergone a background check.^[12] That same year, Congress also directed the president, in formulating classification procedures, to adhere to certain minimum standards of due process with regard to access to classified information.^[13] These standards include the establishment of uniform procedures for, inter alia, background checks, denial of access to classified information, and notice of such denial.

But, these largely prophylactic legislative ventures into the area of national security classification and access are not particularly invasive of executive prerogatives and, in fact, mirror the type of “consistent, cost effective, and efficient protection of our Nation’s classified information” already mandated by E.O. 12968. It is a far different matter to suggest that Congress has the authority to dictate standards and/or procedures for adjudicating the issuance of security clearances that will control access to classified information by those who serve as the president’s closest advisors in the Executive Office of the President. Such an effort is not only politically inconceivable in the current Congress where the chambers are controlled by different parties, but it also would almost inevitably trigger a constitutional confrontation where, as the law currently stands, the president is holding the best cards.

Realistically speaking, no such constitutional face-off should be necessary. Existing Executive Orders and implementing directives establish a coherent system for the fair and prudent adjudication of security clearances for access to classified national security information. While the Executive Office of the President may be textually exempted from the coverage of some (but not all) of these governing directives, compliance with their guiding principles would preclude the outcomes that Tricia Newbold insists have become “systematic” in this administration. Should there be a problem with security clearance adjudications in this White House, the easiest solution is for the president to direct that security clearance adjudications in the Executive Office of the President adhere to the same standards and procedures applied, at the president’s direction, to all other elements of the executive branch. If there are those in the president’s preferred inner circle whose background checks and clearance adjudications fail to survive such scrutiny, their advice and assistance to the president must necessarily be rendered without having access to classified national security information. But, if this president fails to recognize that such an approach best serves the nation’s interests, then the solution is more likely found at the polls than in the Congress.

Until then, however, there is every reason to expect Democrats to continue flogging this issue as another example of an administration that is tone deaf on protecting national security information and intelligence sources and methods.

*About the author: George W. Croner, a Senior Fellow at FPRI, previously served as principal litigation counsel in the Office of General Counsel at the National Security Agency. He is also a retired director and shareholder of the law firm of Kohn, Swift & Graf, P.C., where he remains Of Counsel, and is a member of the Association of Former Intelligence Officers.

Source: This article was published by FPRI

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^[1] Nicholas Fandos and Maggie Haberman, Whistle-Blower Tells Congress of Irregularities in White House Clearances, The New York Times, April 1, 2019.

^[2] This last requirement; i.e., a “need to know,” is often overlooked. Holding the requisite clearance and executing the proper NDA (nondisclosure agreement) does not afford access to classified information without the requisite “need to know.” As defined in E.O. 13526,  “Need-to-know’’ means “a determination within the executive branch in accordance with directives issued pursuant to this order that a prospective recipient requires access to specific classified information in order to perform or assist in a lawful and authorized governmental function.”

^[3] E.O. 13526 also authorizes the creation of “Special Access Programs” for classified information requiring specialized handling. “Special Access Programs” can only be established by the Secretaries of State, Defense, Energy, and Homeland Security, the Attorney General, or the Director of National Intelligence. A Special Access Program is “a program for a specific class of classified information that imposes safeguarding and access requirements that exceed those normally required for information at the same classification level.”

^[4] Executive Order 12968 “Access to Classified Information,” August 7, 1995.

^[5] Executive Order 13467, ¶3(b)(i), June 30, 2008.

^[6] Committee on Oversight and Reform, House of Representatives (116th Cong.), Summary of Interview with White House Whistleblower on Security Clearances, at 1 (April 1, 2019).

^[7] Id. at 10.

^[8] Department of Navy v. Egan, 484 U.S. 518, 527 (1988). Correspondingly, courts have been habitually wary of second guessing executive branch authority in areas of national security. See, e.g., Haig v. Agee, 453 U.S. 280, 291 (1980) (“Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention.”).

^[9] Environmental Protection Agency v. Mink, 410 U.S. 73, 83 (1973).

^[10] Statement on Signing the Intelligence Reform and Terrorism Prevention Act of 2004, 2004 PUB. PAPERS 3118, 3119 (Dec. 17, 2004). President Bush used similar language to object to other provisions regarding congressional notification. See, e.g., 2002 Pub. Papers 46, 47-48 (Jan. 10, 2002); id.at 1870 (Oct. 23, 2002); 2003 Pub. Papers 1217 (Sep. 30, 2003); id. at 1603 (Nov. 22, 2003); 2004 Pub. Papers 1494 (Aug. 5, 2004); 2005 Pub. Papers 1794 (Nov. 30, 2005; id. at 1901 (Dec. 5, 2005); 2006 Pub. Papers 1152, 1153 (June 15, 2006); id. at 1733 (Sep. 29, 2006).

^[11] Statement by President Donald J. Trump on Signing H.R. 244 into Law (May 5, 2017), https://www.whitehouse.gov/ the-press-office/2017/05/05/statement-president-donald-j-trump-signing-hr-244-law.

^[12] Counterintelligence and Security Enhancement Act of 1994, Title VIII of P.L. 103-359 (codified at 50 U.S.C. §§3161-64 (2017)). Correspondingly, and consistent with its recognition of the unique fragility of signals intelligence activities, Congress also has required specific regulations regarding personnel security procedures for employees of the National Security Agency, P.L. 88-290, 78 Stat. 168 (1964)(codified at 50 U.S.C. §§831 – 835 (2017)). For other specific legislation affecting signals intelligence activities, see, e.g., 18 U.S.C. § 798 (Disclosure of Classified Information) and 50 U.S.C. § 3605 (Disclosure of [National Security] Agency’s Organization, Function, Activities or Personnel).

^[13] See, e.g., 50 U.S.C. §3161(a) (2017), which, as reflected in the preceding footnote, was originally passed by Congress in 1994 as part of P.L. 103-359.