Whistleblower Advocates to Congress: Overturn Navy v. Egan

Dear Chairman Jordan, Chairman Comer, Ranking Member Nadler, and Ranking Member Raskin:

We, the undersigned whistleblower advocacy organizations, write to urge you to pass legislation this Congress to overturn Department of the Navy v. Egan¹ and to explicitly authorize judicial review of agency security clearance decisions. Since this 1988 Supreme Court decision, administrations of both parties have erroneously cited Egan to argue in favor of largely unchecked executive branch authority over security clearance decisions, and some federal courts have misinterpreted the holding and scope of Egan, with deleterious consequences.

The uncertainty within federal law allows agencies to weaponize the security clearance adjudication process in retaliation for whistleblowing and other protected activity. Whistleblowers have experienced this weaponization for years, been subjected to increased harassment, and lost their security clearances after speaking out against government waste, fraud, abuse of power, and other corruption.² Losing a security clearance may end a whistleblower’s career by pushing them out of their specialized field or by severely limiting the types of work they are allowed to do.

We are concerned about agencies using access to security clearances as a partisan political tool or as a means of otherwise harassing or retaliating against clearance holders because of their personal background or for exercising their First Amendment rights. Such retaliation has chilling consequences on policy dissent, freedom of expression and association, and exposure of government wrongdoing — many of the very principles on which this country was founded.

While the National Security Act of 1947 and Executive Orders 12968 and 13467 establish guidelines to determine eligibility for a security clearance, they provide only minimal due process rights for employees whose clearances are denied, suspended, or revoked.³ And when agencies violate these guidelines or where there is clear bias, discrimination, or retaliation in the adjudication process, employees are largely left defenseless without a right to go to court. Congress must act to end the corrupt abuse of security clearance access, and to clarify that security clearance decisions are subject to judicial review.

The Supreme Court decided Egan based purely on statutory grounds, despite commenting on the president’s authority under Article II. The court held, after reviewing statutory language and legislative history, that there was inadequate evidence to show that Congress, at that time, intended to authorize the Merit Systems Protection Board (MSPB) to review the merits of agency decisions concerning security clearances. Nevertheless, Egan’s discussion of the president’s Article II powers is often cited to argue that the president has exclusive power to control access to national security information.⁴ This misinterpretation not only denies clearance holders their day in court but also empowers executive branch officials to deny members of Congress access to classified information, curtailing Congress’s ability to exercise its own Article I powers.⁵

While the executive branch indeed has a “compelling interest” to protect government secrets, nowhere in Egan did the court hold that the executive branch has unchecked power over classified information.⁶ Rather, in addition to the president’s Article II authority, Egan explicitly recognizes Congress’s constitutional authority under Article I to legislate and further define national policy regarding classified information. Underscoring the fact that control of classified information does not rest solely in the executive branch, the Court held that courts will be reluctant to interfere with the president’s authority over national security matters “unless Congress specifically has provided otherwise.”⁷

Fourth Circuit Judge Michael Luttig asserted that whether Congress authorized the MSPB to review security clearance decisions under 5 U.S.C. § 7513 was “the only question” before the Court in Egan.⁸ A subsequent district court held that “[t]he government’s attempt to read into Egan’s discussion of Article II a blanket ban on judicial review of challenges to access decisions places more weight on that discussion than it can bear.”⁹ Other courts have also rejected such a blanket ban, allowing for a role for judicial review of security clearance decisions under certain circumstances.¹⁰ Finally, a recent DC Circuit case asserts that “whether a plaintiff can seek to undo the denial or revocation of a security clearance, based on non-frivolous constitutional challenges to investigatory or even adjudicatory processes” has not been determined.¹¹

A just and accountable system of handling classified information requires a careful balancing of executive and legislative authorities, while also upholding transparency and protecting due process and constitutional rights. Corruption of the clearance process undermines these rights and betrays the public trust in the government’s handling of national security matters. Access to classified information should not be denied in retaliation for blowing the whistle or otherwise exercising constitutional freedoms, especially where evidence does not clearly show disloyalty or a threat to national security. Denying or revoking security clearances in retaliation for whistleblowing, policy dissent, or other protected activity only discourages future whistleblowers from speaking out and helps ensure that government abuse of power goes unaddressed.

It is time for Congress to establish minimally restrictive but important guardrails to protect the rights of all federal employees by authorizing judicial review when access to classified information is unfairly abridged, and to ensure those employees have a fair opportunity to be made whole. We urge you to reform the government’s abuse of the security clearance adjudication process, and our organizations look forward to working with you and your committees during the 118th Congress on this very important issue.

Sincerely,

Asian American Federal Employees for Non-Discrimination
Empower Oversight
Government Accountability Project
Project On Government Oversight
Public Employees for Environmental Responsibility (PEER)
Whistleblowers of America