On August 15, White House Press Secretary Sarah Sanders announced President Trump’s intent to revoke the security clearance of former CIA Director John Brennan, citing “a series of unfounded and outrageous allegations—wild outbursts on the internet and television—about [the President’s] Administration.”
As a former head of the CIA, Brennan retained a clearance largely as a courtesy to current leaders so that he could be read into ongoing classified issues to provide his expertise on an as-needed basis. This clearance retention is a part of an informal standard, allowing many senior-level intelligence officials to retain their clearances after government service, subject to periodic renewal.
The revocation of Mr. Brennan’s individual clearance, though conspicuous and newsworthy, isn’t immediately detrimental to Mr. Brennan or to the public. In fact, it isn’t even clear if the former director has actually lost it yet. Rather, what’s more concerning is what the loss represents: the escalating weaponization of security clearances as a form of reprisal.
Whistleblowers have felt this weaponization for years—many have lost clearances because of retaliatory investigations initiated under false pretenses by their supervisors after speaking out against waste, fraud, or abuse. To make matters worse, others who would have come forward with additional life-saving disclosures remain silent observers of abuse for fear of losing their livelihoods.
The Law of Revoking Clearances
The president’s Article II authority as commander in chief is widely cited as affording the executive branch discretion over access to classified information as a means to ensure national security. The 1988 case Department of Navy v. Egan is often interpreted as reinforcing this discretion because it ruled that the Merit Systems Protection Board, an independent agency, cannot review the reasons behind an executive branch action revoking or denying a clearance. The Supreme Court noted that “unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.”
A 1995 executive order signed by former President Clinton is still in effect today and provides the standard administrative process through which individuals seek relief after either losing or being denied a clearance. Through that order, those who have their clearances suspended or revoked are entitled to a written explanation and an opportunity to appeal the decision to a board set up by the head of the agency they work for.
However, although the order provides some review process, it is not without flaws. First, it includes a national security exception that allows an agency to sidestep the process entirely where the agency head believes that it cannot be undertaken without “damaging the national security interests of the United States by revealing classified information.” Second, executive orders are not the same as statutory law. They are written by a president and can easily be revoked by subsequent sitting presidents. In other words, if President Trump saw fit, he could terminate this appeal procedure at any time.
In 1997, then-Senator Patrick Moynihan (D-NY) led a congressional commission that ultimately recommended that Congress enact statutory law on classification and clearances to provide greater transparency into clearance denial or revocation but Congress never followed their recommendation, relying instead on the 1995 executive order.
Outside of the executive order, there are certain protections for government employees and some contractors who have their clearances revoked in retaliation for blowing the whistle: the National Security Act, as amended, and Presidential Policy Directive 19. However, the burden is on the whistleblower to demonstrate that their clearance was revoked in an act of reprisal, and was thus wrongful. Also, even if an agency inspector general investigating the case substantiates the claim of retaliation, the final decision of whether to follow the inspector general’s recommendation is always left to the agency head. Because there is really no enforcement mechanism, agencies frequently exploit a loophole by claiming that the clearance revocation was actually the result of some other, usually minor, infraction dredged up to present a false narrative that the revocation was unrelated to the whistleblower’s disclosure—claims the whistleblower can’t challenge.
Retaliatory Clearance Revocation and Whistleblowers
Losing a security clearance is a big deal, personally and professionally. Those who have clearances revoked are essentially forced out of their specialized career field and likely have to either seek an entirely different line of work or have to take a major cut in pay to work on unclassified issues. While John Brennan presumably is at the end of his career, this fate wreaks havoc on mid-career professionals who require clearances to perform their jobs.
The broad discretion of the executive branch to revoke clearances means that whistleblowers are frequently exposed to retaliatory investigations by their employers under the guise of protecting our national security. A few examples demonstrate how the Project On Government Oversight has seen retaliation play out in the past:
Lt. Col. Jason Amerine
Lt. Col. Jason Amerine is a highly-decorated war hero who had his security clearance stripped as a part of a retaliatory investigation for making protected disclosures to Congress. Amerine earned a Bronze Star with a “V” device and a Purple Heart for his service fighting the Taliban in Afghanistan. His experiences show the lengths to which those in power will go in their attempts to silence and shame whistleblowers into submission.
Amerine was placed under retaliatory investigation after he spoke with certain Members of Congress to blow the whistle on dangerous interagency fighting about hostage recovery. The Army claimed that he improperly disclosed classified information, but it was actually just reeling from embarrassment at his disclosure and were trying to attack his credibility.
As a result of the investigation, Amerine lost his security clearance, was stripped of his duties, temporarily had his pay suspended, and was treated as a criminal by the Army.
To make matters worse, the Defense Department Inspector General did not substantiate Amerine’s retaliation claim, allegedly to avoid political controversy.
Fortunately, the Army eventually dropped the investigation likely due to the high-profile nature of Amerine’s career and significant intervention by civil society groups like POGO, and Congress. In the end, they awarded him the Legion of Merit for his service in a private ceremony. Had Amerine not been such a high-profile whistleblower, it is likely that the Army would have succeeded in silencing him.
Mike Helms was a civilian intelligence specialist deployed with the Army to Iraq in 2004. The Humvee that Helms rode in was destroyed when a roadside bomb exploded in its path. Helms was knocked unconscious and suffered severe brain trauma and shrapnel wounds, and later suffered post-traumatic stress disorder. Despite a Defense Department policy affording deployed civilians the same access to medical treatment as members of the military, he was denied access to care at every turn. When it came time for Helms to fly home, for example, he had to buy his own commercial plane ticket. Further, he was denied admission to Walter Reed Army Medical Center, as well as other services provided to military members who are wounded in the line of duty, including emergency lodging, medical treatment, and financial support.
Helms suffered for years waiting for the care he was owed. Eventually, he made a series of disclosures to a House Armed Services subcommittee and to the press about his experiences, to point out the devastating problem that deployed civilians were not being provided medical and other care.
Shortly thereafter, his supervisors revoked his security clearance, claiming that Helms had placed improper software on a work server that he created. As Helms puts it, he lost his clearance because he allegedly had a non-genuine copy of Windows software stored on the server.
The Defense Department Inspector General eventually substantiated a finding that Helms’s employers revoked his clearance in retaliation for his whistleblowing. However, Helms was never made whole and is still facing significant hardships as a result of the retaliation.
Franz Gayl is a retired Marine Corps major and current civilian employee who blew the whistle on the Pentagon’s undue delay in delivering vital Mine Resistant Ambush Protected (MRAP) vehicles to U.S. troops in Afghanistan and Iraq.
Former Defense Secretary Robert Gates eventually credited Gayl with saving thousands of lives by drawing expedited attention to the issue, but Gayl’s good intentions didn’t stop his superiors from retaliating against him.
Franz endured a suspension of his security clearance, a retaliatory and unfounded criminal investigation, placement on administrative leave, denial of bonuses, harassment, and personal abuse for seven years before he was finally vindicated through the Office of Special Counsel’s mediation program.
Over four million individuals currently hold United States security clearances, and the pool is incredibly broad in terms of its work. Its numbers include members of the military, medical staff, scientists, and engineers, to name a few. The public relies on these clearance-holders to blow the whistle when they witness things like major threats to health and human safety, gross mismanagement, or waste of taxpayer’s money. When whistleblowers can’t come forward, we are all left in harm’s way, as whatever went undisclosed will go uncorrected.
Revoking security clearances as a punishment is dangerous: Those who already have clearances will think twice before making disclosures to their agency’s inspector general, to the head of the agency, or even to Congress for fear of losing their careers. At the same time, qualified candidates may choose to take a different career path entirely lest they be put in such a position in the future. As a result, we will have fewer people in government who are willing to speak out when government abuses public trust. Weaponization normalizes retaliatory behavior and sends the message that political speech, policy dissent, or exposure of government abuse is not respected or allowed in this country—a disturbing message considering that these are some of the very principles on which our country was founded.
Looking to the Three Branches
There are really no clear answers on how to solve these problems, and important questions of constitutionality rightfully enter the conversation when someone starts talking about putting limitations on the President’s authorities. But that doesn’t mean that the major loopholes in the regulations controlling security clearance revocation should go totally unchecked.
To start, the executive branch should strengthen existing retaliation protections and should shift the burden of proof off of whistleblowers. They should also commit to ending the practice of revoking security clearances for those who express policy dissent rather than representing a true threat to national security.
Second, Congress should investigate and hold hearings on the practice of revoking, denying, or suspending security clearances under the guise of a threat to national security. It should also consider adding teeth to the recommendations of inspectors general when they substantiate agency reprisal against whistleblowers.
Finally, when interpreting the executive power to revoke security clearances, the courts should offer guidance on the effect on civil liberties and whistleblowers in their interpretation of the law.
It’s imperative that President Trump and agency leaders understand the potentially catastrophic impact of a seemingly minor action. By revoking Brennan’s clearance, he is essentially endorsing the weaponization of security clearances at the very highest level of government. The implications of this endorsement for whistleblowers—and all of us—could be severe.