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Renewed Focus on Legality of Polygraph Exams

The legality and usefulness of polygraph examinations in security clearance investigations again is in focus after a recent McClatchy news article revealing alleged polygraph-test abuses at the Department of Defense’s National Reconnaissance Office (NRO).

Posted by The Editors on Jul 12, 2012 at 11:10AM | Comments (0)

Job-Seekers Advised to Avoid WikiLeaks

There is discussion that individuals seeking Federal jobs that require obtaining a security clearance ought to resist the temptation to access and read classified U.S. diplomatic cables disseminated by WikiLeaks.

Posted by The Editors on Dec 14, 2010 at 11:30AM | Comments (0)

Senate Bill Protects Whistleblower Clearances

S. 372, the Whistleblower Protection Enhancement Act of 2009, passed the U.S. Senate on December 10. The bill calls for the establishment of procedures to ensure that government whistleblowers can challenge any adverse action taken with regard to their security clearances. A Board is established to review and rectify such instances of retribution.

For details, click the link above and search the text of the bill for “clearance.”

Posted by The Editors on Dec 13, 2010 at 01:38PM | Comments (0)

Feds Invoke National Security in Denying Review

In an article in today’s Washington Post, we learn about a Defense Intelligence Agency officer who was denied any administrative review after his security clearance was revoked. The DIA said any such review would require disclosing information which would endanger national security.

More government agencies are invoking such reasoning to deny due process in adverse actions involving security clearances. Persons affected are left with little recourse because federal courts have ruled security clearance cases non-justicible because they are deemed the purview of the Executive branch. One recent widely-reported case involved a former Department of Energy employee which we posted about here.

Posted by The Editors on Nov 28, 2010 at 09:33PM | Comments (0)

Access for Some but not Others

An emerging trend by U.S. Government agencies and attorneys is to deny persons subject to security clearance denials or revocations information pertaining to those decisions. In administrative and court proceedings, government officials and attorneys move to withhold information on national security grounds.

However, when it suits the government’s interest, the government petitions courts to appoint defense attorneys with proper security clearance to read classified information the government plans to use in prosecutions. One recent example is the case of a man arrested on terrorism charges in suburban Washington, DC, as reported in the Wall Street Journal on October 28.

There appear to be two standards – one for criminal proceedings, in which greater access is allowed, and another for merely administrative actions. What permits the government to give access to information in some cases while denying it in others is unclear and seemingly ripe for legal review.

Posted by The Editors on Nov 02, 2010 at 06:06AM | Comments (0)

Ex-DOE Employee Loses Clearance Appeal

A Federal appeals court has ruled against an Egyptian-American whose security clearance had been revoked by the Department of Energy.

The court said the government has sole discretion over issuing security clearances and that the court was at liberty to intervene. Click here to access the court’s 38-page ruling. last reported on this case here.

Posted by The Editors on Jan 12, 2010 at 09:33PM | Comments (0)

Company Heads Must Have Security Clearance

A January 4 article posted to Satellite Today informs that the senior-most management official of any company wishing to hold a facility clearance license must himself or herself hold a U.S. security clearance. And one company, EMS, recently had to reorganize its leadership to comply.

A facility clearance license apparently allows a company to store and handle classified materials onsite and manage employees who hold security clearances. It may even be required for a company to secure classified government work. Read more about facility clearances here.

Posted by The Editors on Jan 05, 2010 at 08:52AM | Comments (0)

Obama Nixes Indefinite Classification

In announcing a series of measures this week to ease declassification of secret government information, President Obama opined that “no information may remain classified indefinitely.”

The statement may have implications for people who are denied information about a security clearance application or revocation citing “national security” grounds.

Posted by The Editors on Jan 01, 2010 at 12:30PM | Comments (0)

Handling of Unclassified Information

Secrecy News reported today that the White House is expected to soon release policy clarifications relating to the marking and handling of unclassified information.

The government often stamps information “LES” (Law Enforcement Sensitive), “SBU” (Sensitive But Unclassified), “FOUO” (For Official Use Only), “CUI” (Controlled Unclassified Information), or other designations leaving it unclear exactly how such information is to be handled. The confusion has caused otherwise well-intentioned federal employees some trouble, such as in an incident we reported in 2006.

Posted by The Editors on Dec 14, 2009 at 12:01PM | Comments (0)

Opposition Mounts to Pivotal Legal Ruling

Last month, we reported on a Law Library of Congress legal brief critical of Navy v. Egan, a 1988 Supreme Court ruling that limited judicial review of federal security clearance determinations.

Now, a third-year Duke law student has written a law review article also critical of the case. If the link to the article does not work, go to Duke’s website and search at the top right for “security clearance.” The first hit that results should be the article.

Posted by The Editors on Dec 08, 2009 at 10:38AM | Comments (0)

Lawyer Urges Challenging Clearance Revocations

In this blog posting, a Maryland attorney insists that any government revocation of a security clearance can be challenged and appeals to affected individuals to seek legal representation.

The power vested in those making security clearance decisions is tremendous, and all too often the power is exercised for the wrong reasons, and having little to do with the established criteria governing these decisions.

Posted by The Editors on Dec 07, 2009 at 11:43PM | Comments (0)

Senate Bill Proposes New Reporting, Oversight Requirements

Two U.S. Senators reportedly have introduced a bill, the Security Clearance Modernization and Reporting Act of 2009. The Senators are chairman and ranking member of the Homeland Security and Government Affairs subcommittee on Government Management.

Posted by The Editors on Dec 07, 2009 at 11:23PM | Comments (0)

Federal Court Upholds Job Loss Due to Clearance Revocation

A Federal Circuit Court of Appeals has upheld an administrative ruling approving the separation from work of a woman whose security clearance had been revoked.

In this case, the woman argued that the government took too long to impose an adverse action and that, by reassigning her to a non-sensitive position for almost a year, could not then fire her. The Federal Circuit ruled against her on both counts.

Said a reporter:

This case once again underscores the near futility of challenging adverse actions that are keyed to revocation of a clearance. You lose your required security clearance and you put your job in serious jeopardy.

Posted by The Editors on Dec 07, 2009 at 11:11PM | Comments (0)

Law Scholar Challenges Key Clearance Case

Navy v. Egan is a 1988 U.S. Supreme Court case that has been used to severely limit the ability of courts to intervene in executive branch authority to distinguish national security information and access to it (in other words, to issue security clearances). However, according to Secrecy News_, an employee of the Law Library of Congress has released a reportegan.html saying that the executive branch’s interpretation of Egan goes too far.

Posted by The Editors on Nov 22, 2009 at 11:55PM | Comments (0)

Expunging Criminal Records to Ease Clearance Apps

Some arrests or criminal convictions can sink plans to acquire a security clearance. Job and security clearance applications often ask for disclosures about arrests or convictions.

According to a November 11 article in the Wall Street Journal, amidst the difficult job market, more job-seekers are trying to expunge arrest and conviction records and more states are passing laws to help them do so. Also, more law practices are helping clients in this area, often for as little as $1,000.

Posted by The Editors on Nov 11, 2009 at 10:08AM | Comments (1)

Court Rules on Background Checks But Applicability to Security Clearances Unclear

A federal appeals court has ruled against the use of background checks in the hiring of specific scientists at NASA, but the blog Secrecy News warns that the court’s decision is not relevant to security clearances. The court’s decision is particularly notable because courts have long tended not to interfere in the government’s authority to conduct background investigations.

Posted by The Editors on Nov 09, 2009 at 10:21PM | Comments (0)

Man Takes Clearance Revocation to Appeals Court

An Egyptian-American whose security clearance was revoked tried this week to persuade an appeals court to order the Department of Energy (DOE) to grant him a hearing where he might learn the reasons for the revocation. DOE refuses a hearing citing “national security.”

His lawyer argues that a DOE official cannot himself determine what matter is reviewable or not and that, when the government says “national security,” we should not have to “take [its] word on it.”

The Government argues the Courts have no say in the matter.

We last reported on this story here.

Posted by The Editors on Oct 30, 2009 at 07:49PM | Comments (0)

Group Petitions Court About Revoked Clearance

The Anti-Defamation League (ADL) has submitted an amicus brief to a federal court arguing that David Tenenbaum, whose case involving the Department of Defense (DoD) we first wrote about here, should be allowed to challenge in court the revocation of his security clearance.

The ADL cites a DoD report that found that Tenenbaum was subject to religious-based discrimination during a security clearance investigation. A lower court, however, upheld the government’s motion to disallow the case because “state secrets” were involved and could be compromised in any court proceeding.

Posted by The Editors on Oct 23, 2009 at 09:13AM | Comments (0)

Failed Challenge to Security Clearance Revocation

A Federal appeals court reportedly has ruled against a Secret Service agent who sued after her security clearance was revoked.

The court sided with the district court which dismissed the case because the Secret Service’s decision was “committed to agency discretion.” This is another example of federal courts yielding to Executive branch discretion in security clearance matters.

Posted by The Editors on Aug 30, 2009 at 11:41PM | Comments (0)

Fed Court Orders DOJ to Grant Clearance

In an apparently unprecedented decision, a prominent Federal court judge has ordered the Justice Department to grant a security clearance to a defendant’s lawyer, according to a McClatchy news article on August 27.

Posted by The Editors on Aug 30, 2009 at 09:55PM | Comments (0)

Contractor Who Didn't Disclose Relationships Charged With Making False Statements

A contractor who supervised the construction of the U.S. Embassy in China has been charged with making false statements regarding his failure to disclose relationships with Chinese women during the project, according to a July 24 report in the Orlando Sentinel.

Authorities say the contractor was required to disclose the relationships as a condition of his security clearance.

Posted by The Editors on Jul 29, 2009 at 03:37AM | Comments (0)

Congressional Leaks Said to Go Unpunished

Citing the recent apparent (and probably inadvertent) disclosure of classified information during a congressional hearing, a blogger laments what he says is a double-standard in punishing those who leak such information.

Posted by The Editors on Feb 23, 2009 at 06:49PM | Comments (0)

Stimulus Bill Said to Contain Clearance Provisions

The Washington Post recently railed against sections of the Stimulus bill under consideration in Congress that would extend protections to whistleblowers at Intelligence Community agencies and provide for federal judicial review of executive branch decisions to revoke a security clearance.

The paper argued that such measures would infringe upon executive branch authority over security clearance determinations and sensitive intelligence matters.

Posted by The Editors on Feb 15, 2009 at 09:09PM | Comments (0)

Security Clearances Could Become Less Important for Locals

If a recently-introduced bill in the U.S. House of Representatives is passed, state and local law enforcement officials and first-responders could find that having a security clearance is less important for their jobs.

The bill reportedly would require the Department of Homeland Security to release declassified versions of threat bulletins to state and local officials without such clearances.

Posted by The Editors on Feb 15, 2009 at 08:59PM | Comments (0)

New Hill Bill Pushes Clearance Accountability

U.S. Representative Anna Eshoo of California has introduced the Security Clearance Oversight and Accountability Act, H.R. 638, January 22, 2009.

Posted by The Editors on Feb 06, 2009 at 02:26PM | Comments (0)

ODNI Encourages Analytical Outreach

In July, the Office of the Director for National Intelligence (ODNI) issued an important directive. The directive said that all Intelligence Community analysts “should leverage outside expertise as part of their work” to “explore ideas and alternative perspectives, gain new insights, generate new knowledge, or obtain new information.”

The directive is important because security officials and security clearance adjudicators have previously been known to suspend or revoke clearances of analysts who interacted with some outside, non-governmental groups such as those identified in the directive. In their defense, clearance-holders accused of wrong-doing because of such activity may now draw upon the authority allowed under this new directive.

Posted by The Editors on Nov 13, 2008 at 10:44PM | Comments (0)

Federal Judge Cuts Short Lawsuit Protesting Clearance Revocation

A federal judge in Pennsylvania has dismissed the most significant parts of a lawsuit brought against the U.S. Government for revoking the security clearance of a veteran Department of Energy employee.

Judge McVeery of the U.S. District Court of Western PA said that the case would have required him to second-guess the government’s decision to revoke the clearance. Instead, he said he would take “under advisement” the argument that the government violated procedures for the revocation of a clearance. last reported on the case here. The latest developments were reported in the press here. The judge’s ruling (pdf) makes for very interesting reading and is replete with references to case law governing the handling of security clearances.

Posted by The Editors on Nov 05, 2008 at 09:51AM | Comments (0)

USG Eases Requirements for Some Clearances

The Director for National Intelligence (DNI) has approved issuing the most sensitive, SCI clearances to US citizens some of whose immediate family members may be foreign nationals. The goal is to attract and recruit into intelligence and other positions within government persons with critical language abilities.

Posted by The Editors on Oct 28, 2008 at 03:17PM | Comments (0)

USG Defends Clearance Revocation

The U.S. Government has defended in federal court its decision last June to revoke the security clearance of a veteran Department of Energy employee who says he was discriminated against because of his objection to U.S. policies.

Egyptian-born scientist Abdel Moniem Ali El-Ganayni says he was targeted because he has criticized the Iraq war and FBI efforts to recruit Muslim informants in U.S. mosques.

The Government says El-Ganayni had contact with person(s) hostile to U.S. interests and engaged in “unusual” conduct that showed he was not “honest, reliable, or trustworthy,” and that his lawsuit is an effort to draw public attention to the security clearance review process.

The Government argued in court that the judge does not have the jurisdiction to second-guess security clearance decisions. last reported on this story here. The latest news on the recent court action was also available here.

Posted by The Editors on Sep 28, 2008 at 06:44PM | Comments (0)

Hill Bill Creates Security Clearance Ombudsman

The appointment by the Office of the Director of National Intelligence (DNI) of an ombudsman to handle and report on complaints involving security clearance investigations is one improvement included in H.R. 5959, the Intelligence Authorization Act of 2009, passed by the U.S. House of Representatives on July 16.

The bill now awaits passage of and reconciliation with its Senate companion, S. 2996.

Though creation of an ombudsman is an important positive development, the House bill would limit his or her jurisdiction only to matters involving applications for new clearances, and not include reinvestigations or readjudications of existing clearances or adverse actions taken against holders of current clearances. Additional procedural protections are needed for these individuals as well.

Posted by The Editors on Jul 27, 2008 at 05:40PM | Comments (0)

Executive Order Designates Officials to Manage Clearance Reforms

The White House has issued a new Executive Order putting into place new officials and entities to better manage security clearance reform.

Posted by The Editors on Jul 01, 2008 at 01:57PM | Comments (0)

DoD Inspector Challenges Clearance Revocation

A Department of Defense (DoD) employee whose security clearance was revoked while in process of being upgraded challenged the decision in federal court and won at least a temporary reprieve.

Posted by The Editors on Jun 14, 2008 at 11:04PM | Comments (0)

Another House Panel Seeks Answers on Clearances

Further demonstrating the increased interest in Congress about problems affecting the security clearance process, yet another House panel, an Intelligence subcommittee, on February 27, held a hearing on the issue. Read the chairwoman’s opening statement here. No other documents pertaining to the hearing were found on the committee’s website.

Read media coverage of the hearing here.

Posted by The Editors on Apr 11, 2008 at 12:51PM | Comments (0)

Financial Distress and Military Clearances

On April 1, a House Judiciary subcommittee discussed the problem of members of the U.S. armed forces losing their security clearances due to financial distress, often the result of popular, high interest, payday loans. A video webcast and copies of testimony are available on the subcommittee’s website.

Posted by The Editors on Apr 11, 2008 at 12:38PM | Comments (0)

Industry Official Testifies on Clearance Reform

On April 9, an industry representative testified before a House subcommittee about security clearance reform efforts. He said an industry group called the Security Clearance Reform Coalition has 17 specific recommendations to improve security clearance processing. Find a summary of his remarks here. Full copies of witness testimony can be found on the subcommittee’s website.

Posted by The Editors on Apr 11, 2008 at 12:24PM | Comments (0)

House Hearing on DoD Clearance Processing

On February 13, the House of Representatives Armed Services Committee’s Subcommittee on Readiness held a hearing on Department of Defense (DoD) security clearance processing. Testifying were officials from DoD, the Government Accountability Office, the Office of Personnel Management, and Lockheed Martin Corporation. An audio transcript of the hearing is available on the committee’s website.

Posted by The Editors on Feb 23, 2008 at 04:12PM | Comments (0)

News Article Identifies Clearance Wait Times

A February 19 article in the Washington Post addressing progress in speeding processing for new and renewed security clearances identifies how long it’s currently taking to complete some investigations.

Most clearances currently require 118 days, but according to a 2004 law passed by Congress, must require as few as 74 days by 2009.

Defense contractors wait, on average, 151 days for a new security clearance and 274 days for renewal of a top-secret clearance.

Posted by The Editors on Feb 23, 2008 at 03:52PM | Comments (0)

Clearance Protections for Whistle-Blowers Advance; Courts Would be Given Role in Clearance Decisions

The U.S. Senate has approved the Federal Employees Protection of Disclosures Act, legislation protecting the security clearance of Federal employees who reveal government waste, fraud, and abuse.

Posted by The Editors on Jan 29, 2008 at 04:40PM | Comments (0)

Fed Court Upholds Clearance Suspension

A Federal appellate court has upheld an administrative judge’s determination that an employee whose security clearance was suspended was legally removed from his job. The court found that the government had provided minimum due process in notifying the employee in writing of its reasons for suspending his clearance. Notably, the court determined that the employee’s oral reply and submission of documents constituted a sufficent response as allowed under law.

Posted by The Editors on Jan 21, 2008 at 06:30PM | Comments (0)

Federal Court Nixes NASA Background Checks

In a followup to a story we first noted here last November, a Federal appeals court has intervened to stop NASA contractor background investigations it ruled were too intrusive. The court ruled the government “seeks highly personal information using an open-ended questioning technique, including asking for ‘any adverse information’….”

Posted by The Editors on Jan 15, 2008 at 09:09PM | Comments (0)

GAO: Approach Clearance Reform More Broadly

A closer look at the Government Accountability Office’s (GAO) latest report on security clearance reform is especially notable for recommending ways to quantify reforms beyond simply measuring wait-times for clearance approvals. GAO says that greater confidence in the “quality” of the clearance process is necessary, in part to “achieve fuller reciprocity” – that is, mutual acceptance of clearances across federal agencies. This is welcome news to those who support a more accountable and transparent security clearance process.

Posted by The Editors on Dec 24, 2007 at 12:33PM | Comments (0)

Offshore Companies' Clearance Woes

Small offshore companies are discouraged from or unable to compete for federal contractors because they often lack or are ineligible for the require security clearances, according to a report by Offshoring Times. As a result, larger companies, such as IBM, EDS, and CSC, remain dominant.

Posted by The Editors on Dec 20, 2007 at 04:19PM | Comments (0)

Be Mindful of "Derivative Classification"

A note written by a self-professed former Department of Justice (DOJ) attorney which recently appeared on a blog wisely reminds readers that when taking notes on a classified document, those notes become and ought to be treated as classified. (“OLC,” a reference in the note, probably refers to the DOJ or White House Office of Legislative Counsel.)

Posted by The Editors on Dec 20, 2007 at 03:50PM | Comments (0)

Whistleblower Bill Extends Protections for Cleared Feds

The U.S. Senate has passed S. 274, the Federal Employee Protection of Disclosure Act, which first reported on here in July.

Posted by The Editors on Dec 20, 2007 at 01:00PM | Comments (0)

Judge Orders Defense Counsel Receive Clearances

According to a story in the Washington Post, a federal judge has ordered that the federal government issue security clearances to defense counsel for a Muslim accused of activities in support of terrorism, a rare judicial intervention into a domain usually left by the courts to executive-branch discretion.

Posted by The Editors on Dec 17, 2007 at 07:42PM | Comments (0)

Court Intervenes in Personnel Investigation Matter

A Federal appeals court reportedly has agreed to hear a case brought against the Government by 28 NASA scientists who claim that new background investigations are intrusive invasions of privacy.

‘This court has recognized the right to informational privacy,’ three circuit court judges wrote in granting the injunction. ‘To justify actions infringing upon the right, the government must show that its use of the information would advance a legitimate state interest and that its actions are narrowly tailored to meet that interest.’

The court said it issued in the injuction in part because the scientists were scheduled to lose their jobs before their case could be tried.

The court’s unusual intervention in a security clearance matter was further illustrated by its observation that:

…the [Government’s] need for the information is questionable in general, ‘given the absence of any apparent relationship between its collection and the production of reliable identification cards for these employees.’

Posted by The Editors on Nov 02, 2007 at 11:00AM | Comments (0)

Metrics on Clearance Processing Released

The minutes of the May meeting of the National Industrial Security Program Policy Advisory Committee in Washington reveal useful metrics of progress made in security clearance processing. The minutes also restate mandated federal guidelines for clearance processing times.

Other sections of the minutes address reciprocity issues affecting a cleared employees ability to efficiently move across agencies.

Posted by The Editors on Oct 25, 2007 at 12:30PM | Comments (0)

New Law Protects Cleared Military Personnel from Debt

The Military Lending Act, which reportedly took effect October 1, protects military personnel who hold security clearances from losing those clearances as a result of taking on debt from high-interest loans. The law limits interest charged on such loans. first noted last June that military personnel who had accumulated too much debt were losing their clearances. Under Adjudication Guidelines, security clearance-granting authorities may question whether persons with unreasonable amounts of debt are more susceptible to bribes and more likely to compromise classified information, and may deny clearance.

Posted by The Editors on Oct 24, 2007 at 11:06PM | Comments (0)

Court Weighs in on Clearance Revocation, Job Dismissal

The Federal Circuit Court of Appeals reportedly has upheld a decision by the Merit Systems Protection Board (MSPB) to allow the dismissal of a Department of Homeland Security employee whose security clearance had been revoked. The court’s decision is insightful with regard to policies and procedures involved in the revocation of a security clearance.

The court’s decision is accessible here.

(Hat tip to

Posted by The Editors on Sep 03, 2007 at 10:42PM | Comments (0)

WH Tweaks Rules on Clearances for Gays

Members of both parties in Congress are voicing concern over a rule change, imposed by the White House, which may make it more difficult for gays to acquire federal security clearances. Whereas the old rules said sexual orientation “may not be used as a basis” for denying security clearance, the new rules say clearance cannot be denied “solely on the basis of sexual orientation.” House Oversight and Government Reform Committee Chairman Henry Waxman (D-CA) said the change amounts to “covert war” against gays, while two Republican members have requested briefings on the matter.

Read more here or here.

Posted by The Editors on Jul 18, 2007 at 11:23AM | Comments (0)

Senate Cmte Opposes DoD Clearance Relief

The Senate Select Committee on Intelligence has announced its opposition to repealing a law prohibiting the Department of Defense from issuing security clearances to former convicts who have served a year or more in jail, individuals who are mentally incompetent, are drug addicts, or have been dishonorably discharged from the military. We first reported the issue here, upon introduction of a House bill seeking the repeal.

The controversy was reported, July 10, in The Hill, where statements by various Senators suggested interest in intervening in security clearance issues.

(Hat tip to Secrecy News)

Posted by The Editors on Jul 11, 2007 at 02:34PM | Comments (0)

WH Clearance Renewed Despite Breach

Critics of the Bush White House say a senior aide should not have had his security clearance renewed while suspected of having leaked classified information.

A more detailed account of alleged careless White House security procedures can be found here, as well as in a letter from Rep. Henry Waxman, Chairman of the Oversight and Government Reform Committee of the U.S. House of Representatives.

Posted by The Editors on Jul 01, 2007 at 09:02PM | Comments (0)

Bill Seeks to Broaden DoD Clearance Authority

H.R. 2615
, a bill introduced by U.S. Representative Elijah Cummings (D-MD) seeks to revoke U.S. law prohibiting the Department of Defense from granting or renewing the security clearance of any individual who: 1) has been found guilt of a crime and served more than one year in prison, 2) unlawfully uses a controlled substance, 3) suffers from mental incompetence, or 4) was dishonorably discharged from the U.S. military. The existing law allows for a waiver based upon mitigating circumstances.

The Hill, a newspaper covering Congress, reported on the bill here.

Posted by The Editors on Jun 13, 2007 at 09:40AM | Comments (2)

Protection Sought for IC Whistle-Blowers

Two former Federal Bureau of Investigation employees appealed to Congress not to exclude employees of Intelligence Community (IC) agencies from new protections for Federal whistle-blowers.

National security whistle-blowers often find themselves sidelined, without a security clearance and without a job, the American Civil Liberties Union said in a report.

Posted by The Editors on May 16, 2007 at 12:43AM | Comments (0)

Veto Looms for Legislation Protecting Cleared Personnel at Security Agencies

Margins of support in the U.S. Congress for legislation recently approved by the House that would better protect the security clearances of some Intelligence Community employees who disclose wrong-doing reportedly may be sufficent to override a threatened White House veto.’s latest Posting on the issue appeared here.

Posted by The Editors on Apr 08, 2007 at 12:14PM | Comments (0)

OMB Opposes Bill Protecting Clearances

The U.S. Office of Management and Budget (OMB) has announced its opposition to H.R. 985, a bill introduced in the U.S. House of Representatives that would protect some federal “whistleblowers” from adverse security clearance action for disclosing classified information. first reported on H.R. 985 here. OMB says the measure would compromise national security, violate the Constitution, and prove burdensome and unnecessary, generating additional “frivolous complaints and wasted resources.”

The advocacy group Concerned Foreign Service Officers supports
the bill. (For a more detailed explanation of the group’s position, visit this section of their website.)

Posted by The Editors on Mar 14, 2007 at 03:11PM | Comments (2)

Fed Court Sides With Suspended DOJ Employee

The Federal Circuit Court of Appeals has ruled that the Department of Justice Office of Professional Responsibility (DOJ/OPR) failed to give an 18-year Drug Enforcement Agency employee sufficient explanation of its decision to suspend his security clearance and place him on indefinite suspension pending the outcome of an investigation into alleged wrong-doing. By not providing adequate information, the Court ruled DOJ had denied the employee due process. The employee may now be entitled to reinstatement and two years back-pay.

Read a news account of the case here.

Read the Court’s ruling here.

Posted by The Editors on Mar 07, 2007 at 03:16PM | Comments (0)

House Panel Clears Measure Protecting Whistleblowers

The U.S. House of Representatives Oversight and Government Reform Committee has approved for consideration on the House floor the Whistleblower Enhancement Protection Act, H.R. 985. The measure:

  • Extends to certain government employees and contractors, including intelligence personnel, protections against reprisal for disclosures of government waste, fraud, and abuse;
  • Requires the Government Accountability Office investigate and produce a report of security clearance revocations linked to such disclosures;
  • Imposes limits on government agencies’ abilities to invoke the “state-secrets privilege” when denying employees reinstatement of work, clearance, or pay.

Government Executive reported on the legislation here.

Posted by The Editors on Feb 16, 2007 at 09:38AM | Comments (0)

Hill Bill Requires DHS to Report on Clearances for State/Local Officials

H.R. 130, dubbed "The Smarter Funding for All of America’s Homeland Security Act of 2007, introduced by Congressman Rodney Frelinghuysen (R-NJ), imposes on the Secretary of the Department of Homeland Security (DHS) several reporting requirements related to the issuance of security clearances to state and local homeland security officials. The initiative is likely the result of complaints of impediments to cooperation with DHS.

Posted by The Editors on Feb 06, 2007 at 11:42AM | Comments (0)

Hill Bill Calls on DHS to Expedite Clearances

Sections of H.R. 1, a bill on Capitol Hill to implement recommendations of the National Commission on Terrorist Attacks Upon the United States (a.k.a. “the 9/11 Commission”), mandate that the Department of Homeland Security (DHS) provide for expedited security clearance processing for certain agents of DHS sub-entities, Customs and Border Patrol (CBP), Immigration and Customs Enforcement (ICE), and detailees to a new Information Sharing Fellowship Program.

Posted by The Editors on Jan 10, 2007 at 04:27PM | Comments (0)

Legal Training in Handling Clearance Cases

The District of Columbia Bar Continuing Legal Education sponsors training on security clearance cases and how to defend against security clearance denials and revocations. The course is intended for both lawyers and persons holding clearances who want to better understand problems surrounding clearances. The next class will be held January 18, 2007.

Posted by The Editors on Jan 07, 2007 at 01:05AM | Comments (0)

Court: Certain Probationers Have Rights

Some government agencies use probationary periods, during which employees have limited if any administrative rights, to suspend or revoke clearances. However, two recent federal court cases have yielded decisions permitting some probationary employees certain rights.

According to a report issued by the United States Merit Systems Protection Board, the two cases:

…provide that some individuals who have traditionally been thought of as probationers with limited rights may actually be entitled to the same rights afforded to employees with finalized appointments. [emphasis added]

Posted by The Editors on Jan 03, 2007 at 09:12AM | Comments (0)

New DHS Personnel Database Accessible to Clearance Adjudicators

Providing an illuminating example of the breadth and depth of information accessible to security clearance adjudicators, a new DHS database created to better manage personnel actions will be accessible to adjudicators upon request.

The MaxHR ePerformance Management System will…be used to set and communicate performance expectations; monitor performance and provide feedback; develop performance goals; complete the appraisal process; address poor performance and reward good performance; and produce performance-related reports…

…all or a portion of the records or information contained in this system may be disclosed outside DHS as a routine use as follows…

…To a Federal, state, tribal, local or foreign government agency
or professional licensing authority in response to its request, in
connection with…the issuance of a security clearance, the reporting of an investigation of an employee…

Read more in today’s Federal Register

Posted by The Editors on Oct 28, 2006 at 10:25AM | Comments (0)

US Appeals Court Hears Case Involving Clearance Revocation

David Hall, a former US Army whistleblower, who had his security clearance revoked after revealing Army environmental abuses, has asked a federal appeals court to reinstate a judgment against the Army in a harassment claim, according to a report by Salt Lake City’s KUTV. The case could have implications for federal court intervention in security clearance matters.

…[federal court] judges questioned whether they had the authority to examine the Army’s decision to revoke Hall’s security clearance. They said court precedents prohibit judges from examining security-clearance decisions.

[However, Hall’s attorney] argued that evidence showed that the decision to revoke Hall’s security clearance was discriminatory and that courts have a long history of dealing with discrimination claims:

“We’re not suggesting … that you decide whether clearance should be issued or not. There is a right to be free of discrimination. You have to determine where that line is drawn. You can’t say anything an agency does in the name of security clearance is immune from review.”

Posted by The Editors on Sep 28, 2006 at 11:58AM | Comments (0)

DHS Aims to Shield Investigative Files From Public

The Department of Homeland Security (DHS) Privacy Office will soon keep secret more of its files on personnel security clearance and other investigations, according to a recent report.

In a recent proposed rule published in the Federal Register, DHS stated that it is seeking to exempt parts of its Office of Security File System from the [1974 Privacy Act]. The file system will be used beginning Oct. 12 and will contain documentation of background reviews for clearances and espionage investigations…

Other federal agencies reportedly already enjoy the partial exemptions from privacy laws that DHS seeks.

Posted by The Editors on Sep 21, 2006 at 09:36AM | Comments (0)

DoD Posts Revised Adjudicative Guidelines

In late August, the Federal Register published slightly revised Department of Defense (DoD) Adjudicative Guidelines for determining eligibility for access to classified information. DoD claims the new rules will:

…streamline personnel security
clearance procedures and make the process more efficient within the
Department of Defense. This will simplify security processing and allow
the deserving public to obtain a security clearance in a more efficient

(Hat-tip to Washington attorney Mark Zaid)

Posted by The Editors on Aug 31, 2006 at 03:46PM | Comments (0)

House Says Clearance Reforms Moving Too Slowly

In its Initial Assessment on the Implementation of the Intelligence Reform and Terrorism Prevention Act of 2004, the Subcommittee on Oversight of the House Permanent Select Committee on Intelligence reviews initial reforms in security clearance processing and finds fault, on several counts, in the efforts of the Director of National Intelligence (DNI). The July 2006 Subcommittee report, relevant portions of which begin on page 30, also identifies key reforms mandated in legislation and Executive Orders.

Posted by The Editors on Aug 23, 2006 at 11:38PM | Comments (0)

New Pentagon Proposal May Threaten Clearance Processing

The Baltimore Business Journal reports (registration required) on a new Pentagon proposal that may slow issuing security clearances.

Two years ago, the chief executive of the super-secretive National Security Agency was downright chatty when addressing business groups across Maryland about the need to dramatically reduce the time it takes to issue security clearances for defense contractors.

Lt. Gen. Michael V. Hayden’s candor underscored the pressing need to have cleared professionals in the private sector available to handle a fast-growing workload. At that time, Hayden, now General Hayden, director of the CIA, was blunt about the pressing need to clean out the bottleneck in the security clearance process…

Posted by The Editors on Aug 21, 2006 at 04:16PM | Comments (0)

Overview of Clearance Process Problems, Reforms

Published in The Government Contractor_, two Washington, DC, attorneys at Fried, Frank, Harris, Shriver & Jacobson LLP completed an exceptionally well-researched and detailed overviewmccullough.pdf (pdf) of problems in the security clearance process and assess progress toward reform. Their May 2006 paper is a must-read for anyone needing to get up-to-speed on the issue.

Posted by The Editors on Aug 11, 2006 at 12:41AM | Comments (0)

Dept of State Extends Student Clearances

In February 2005, the U.S. Department of State announced improvements to the Visa Mantis program, which pre-clears foreign students for travel to U.S. educational institutions. According to a report in Chemical & Engineering News, students may now be pre-cleared for the duration of their studies

Posted by The Editors on Aug 10, 2006 at 03:26PM | Comments (0)

Changes Forthcoming in Clearance Reciprocity

July 17, 2006: According to the Secrecy Project of the Federation of American Scientists (FAS), “reciprocity” refers to “the acceptance by one agency of a security clearance granted by another agency, and vice versa”. Read more from FAS on this here.

The White House has issued a Checklist of Permitted Exceptions to Reciprocity.

The Strategy Page opines that denying reciprocity may enhance national security by allowing more detailed investigations that may identify persons of risk.

Posted by The Editors on Jul 28, 2006 at 10:22PM | Comments (0)

Congress Acts to Protect Whistleblowers But Excludes Cleared Personnel

June 26, 2006: The United States Senate has voted
overwhelmingly to provide additional protections for government whistleblowers but exempted employees of intelligence agencies. See also a report by UPI. (Editor’s Note: If this link does not function, try adding an equals sign to its end.)

Our Links page has more information on organizations and activities to protect government whistleblowers.

Posted by The Editors on Jul 27, 2006 at 09:47PM | Comments (0)

Report: CIA Further Restricts Contractors' Free Speech

April 2006: According to an article
in Government Executive magazine, the Central Intelligence Agency (CIA) has placed new restrictions on cleared contractors’ ability to publish books, articles, and opinion pieces. Cleared personnel sign oaths to abide by such limits, but critics argue that the new CIA measures are politically motivated and aim to prevent public criticism of the Bush Administration.

Do you think you’ve been unfairly sensored as a cleared professional either inside or outside government? Tell us, below, the circumstances and the resolution, and which government agency was involved.

Do you believe that the CIA’s new requirements violate standards across the Intelligence Community and are overreaching? Share your opinions by commenting below.

Posted by The Editors on Jul 27, 2006 at 04:58PM | Comments (0)

Sexual Preference Factored Into Security Clearance Determinations

March 2006: Fox News and the Associated Press reported
that the White House has rewritten regulations making it easier to deny a security clearance based upon sexual orientation.

Do you know of cases where such considerations affected a clearance decision? Apparently, there is precedent. Are such considerations justified? Share your perspectives below.

Posted by The Editors on Jul 27, 2006 at 02:46PM | Comments (0)

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