Former CIA Director John Brennan said He is considering taking Legal Action to try to Prevent President from Stripping other Current and Former Officials' Security Clearances. Brennan said He's been contacted by a Number of Lawyers about the possibility of an Injunction in the wake of Trump's move to Revoke His Clearance and threaten Nine others who have been Critical of the President or are Connected to the Russia Probe.
"If my clearances and my reputation as I'm being pulled through the mud now, if that's the price we're going to pay to prevent Donald Trump from doing this against other people, to me it's a small price to pay," Brennan said. "So I am going to do whatever I can personally to try to prevent these abuses in the future. And if it means going to court, I will do that."
Brennan, who served in President Obama's Administration, said that while he'll Fight on behalf of his former CIA Colleagues, it's also up to Congress to put aside Politics and step in. "This is the time that your country is going to rely on you, not to do what is best for your party but what is best for the country," he said.
An Executive Order signed in 1995 by President Bill Clinton lays out the Process for Approving Security Clearances and describes a Detailed Revocation and Appeal Procedure. Former Obama-era CIA Director Leon Panetta, who also Served as Defense Secretary, said that Trump must Abide by the Executive Order unless he decides to Change or Cancel it. He said Trump's Decision to Revoke Brennan's Clearance raises Questions about whether he followed Due Process.
Brennan's Legal Warning came as other Officials joined the growing Chorus of Critics, now more than 75 Intelligence Officials, denouncing Trump's Security Clearance Threats, saying they have a Right to Express their Views on National Security Issues without Fear of Punishment.
Retired Navy Adm. Mike Mullen, former Chairman of the Joint Chiefs of Staff under George W. Bush and Obama, likened it to President Richard Nixon's Use of a Political Enemies List.
The Process is Governed by Two Executive Orders, Executive Order 12968
and Executive Order 10865
, establish the initial Framework for Security Clearance Investigations and Revocations.
A Security Clearance may be Revoked at any time. But there are 13 Guidelines that are common to All Agencies of the Federal Government that are used to determine Eligibility for a Clearance and to Determine if an Existing Clearance ought to be Revoked. There is also an Appeals Process which varies with the Employment Status of the Individual.
The Adjudication Process is the careful weighing of a Number of Variables known as the Whole-Person Concept. All Available, Reliable Information about the Person, Past and Present, Favorable and Unfavorable, is considered in reaching a Clearance Determination.
Each Guideline is comprised of Three Parts:
1) The Concern is a simple Statement that sets forth the Concerns the Security Community has about each Adjudicative Guideline.
2) The Potentially Disqualifying Conditions are Conditions that, if present in the Applicant’s Life, may potentially Disqualify Him or Her for Eligibility or Access.
3) The Mitigating Factors are used by Adjudicators to Balance against the Potentially Disqualifying Conditions. The Mitigating Factors consist of Conditions that, if Present in the Applicant’s Life, may Cancel or Lessen the Severity of the Potentially Disqualifying Conditions.The Adjudicative Criteria
:Guideline A: Allegiance to the United States
- Belonging to a Terror Group, Advocating the Unconstitutional Overthrow of the Government, Associating or Sympathizing with Terrorists, Terror Groups, or those seeking the Overthrow of the Government.Guideline B: Foreign Influence
- Association with Foreign Citizens, Business Interest in Foreign Countries, potential that the Individual could be Coerced for some reason by a Foreign Government.Guideline C: Foreign Preference
- Dual Citizenship, Service in a Foreign Military, accepting Benefits such as Scholarships or Retirement Benefits from a Foreign Country.Guideline D: Sexual Behavior
- Criminal Sexual Behavior, Sex Addiction, Sexual Behavior that suggests a “lack of discretion or judgment”.Guideline E: Personal Conduct
- Refusing to Cooperate with the clearance Investigation, Refusing to Complete Requested Paperwork, Refusing Testing. Associating with known Criminals, Adverse Reports from Past Employers, Neighbors, or Friends. Providing False Information or Concealing Information from Investigators.Guideline F: Financial Considerations
- Pattern of not meeting Financial Obligations. White collar Crime. Unexplained Wealth.Guideline G: Alcohol Consumption
- Alcohol-related Incidents at Work or away from Work. Medical Diagnosis of Alcohol Abuse or Dependence. Continued Alcohol Use after a Rehab Program.Guideline H: Drug Involvement
- Use of Illegal Drugs. Drug-related Incidents at Work or away from Work. Medical Diagnosis of Drug Abuse or Dependence. Continued Drug Use after a Rehab Program.Guideline I: Emotional, Mental, and Personality Disorders
- “A condition or treatment that may indicate a defect in judgment, reliability, or stability.” Failure to follow Prescribed Treatments, including taking Prescription Medications. “A pattern of high-risk, irresponsible, aggressive, anti-social or emotionally unstable behavior.”Guideline J: Criminal Conduct
- Allegations or Admissions of Criminal Conduct with or without Charges being Pressed. Conviction for a serious Crime or Multiple Lesser Crimes.Guideline K: Security Violations
- “Unauthorized disclosure of classified information.” Deliberate Security Violations. Multiple Violations. Negligence.Guideline L: Outside Activities
- “Any service, whether compensated, volunteer, or employment with a foreign country, any foreign national, a representative of any foreign interest and any foreign, domestic, or international organization or person engaged in analysis, discussion, or publication of material on intelligence, defense, foreign affairs, or protected technology.”Guideline M: Misuse of Information Technology Systems
- Illegal or Unauthorized Access to a Computer system. Unauthorized Actions to Alter, Restrict or Deny Access to Systems. Unauthorized Removal of Software or Hardware from systems, or Adding Unauthorized Software or Hardware to systems.Notification and Response
First, there is typically some Type of Incident that gains the Attention of the Security Management Officer. The Security Manager Inputs the Information into a Program called JPAS, the Joint Personnel Adjudication System. Once it is Reviewed they have 15 days to make an Initial Determination to suspend Clearance Eligibility or not.
If its Determines that the Clearance Eligibility should be Suspended they are required to Notify the Individual in Writing that their Eligibility is Suspended and include a brief Statement of the Reason(s) for the Suspension of Eligibility. This Letter is called a Letter of Intent (LOI) and includes Information about an Individual's Right to an Attorney, Right to Request and Review certain Documents considered in making the Unfavorable Determination, Right to Respond, and Suggestions for doing so. Accompanying the Letter of Intent, a Written Statement of Reasons (SOR) must provide a Comprehensive and Detailed Explanation for the Basis of the Unfavorable Security Eligibility Determination. The Individual must Notify the Adjudication Facility in Writing within 10 Calendar Days of Receipt of the LOI and SOR whether He or She intends to Reply to the LOI and SOR. If the Election to Reply is made, the Individual has 30 days to Submit a Written Response and a 30 day Extension may be Granted.
The Entire Process of Granting, Denying, or Revoking someone’s Security Clearance is derived from the President’s Article II Authority as Commander in Chief. The President is the ultimate Classifier of Information and, at least in Theory, the Ultimate Decider on who is Granted Access to Classified Information.
The President could Claim the Inherent Constitutional Authority to Revoke the Clearance Eligibility of each of the Individuals Without any Due Process. But there is No Precedent for such an Action, as No former President has ever Personally Intervened in the Clearance Revocation or Approval of an Individual. That has never happened before because Past Presidents, whatever their Flaws or Scandals, knew there were certain Institutional Norms and Customs that a President simply should Not Disturb.
Trump, though, is not burdened with an Affinity for Respecting Institutional Norms. He already bulldozed those Norms when it came to Hiring his Daughter and Son-in-Law, Refusing to Place his Assets in a Blind Trust, and Refusing to Disclose his Tax Returns.
Now that the President has taken this Unprecedented Exercise of his Authority, it is anyone’s guess how the Courts would construe the Issue. It would set up a serious Clash of Constitutional Questions between the Inherent Authority of the President regarding Classified Information, the Procedural Due-Process Rights of Clearance Holders under the Fifth Amendment, and the Extent to which the Judiciary is even Permitted to Rule on the Matter. As the President would say, we’ll just have to Wait and See.
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