President Trump threatened to revoke the security clearances of several former senior government officials, like the former CIA director, John Brennan, former FBI director, James Comey, and former CIA director, Michael Hayden. This has lead people to ask, “Can he do that?”
You might not be too concerned about whether James Comey loses his security clearance, but for the millions of people who currently hold one, including military personnel, federal civilians, and contractors, or for those whose hiring was contingent upon receiving one, the loss or denial of a security clearance can mean the loss of your job and possibly your entire career. Granting of security clearances is discretionary, which means that no one is entitled to a clearance, and the government can revoke your clearance at any time and for any reason.
Security clearances are given based on the individual’s personal and professional history, their loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment. Additional factors include freedom from conflicting allegiances and potential for coercion, and a willingness and ability to abide by regulations governing the use, handling, and protection of classified information. Some of these requirements can be quite subjective and the determination of who should be eligible to access classified information is a discretionary security decision made by trained adjudicative personnel.
Receiving or maintaining your security clearance can be jeopardized for a number of reasons, some that might seem minor or trivial. For instance, the agency you work for who gave you the clearance can revoke it because of current or past drug use, including the use of legally prescribed drugs. Other reasons to deny or revoke a security clearance include if you: have incurred massive financial debt, have a drinking problem, have family overseas, were convicted of a misdemeanor, have too many traffic tickets, or if you have a gambling problem.
If your security clearance is denied or revoked you have minimal recourse. One reason is because courts are reluctant to examine decisions about an individual’s fitness for a security clearance after an agency has made its determination. In Department of Navy v. Egan, the Supreme Court ruled that Congress did not provide for judicial review of the substantive merits of a security clearance determination, meaning courts cannot interfere with who gets a clearance and who doesn’t. However, in Webster v. Doe, the Court did rule that under the 5th Amendment, procedural due process must be afforded. Which is why there is a process to deny or revoke a clearance.
The standard process to deny or revoke a clearance usually commences with you receiving a Statement of Reasons memo that details the allegations for why the agency is denying or revoking your clearance. You are then provided with an opportunity to respond to the allegations and will have appeal rights. This is the standard process for denying or revoking a security clearance and the one most people will go through. There are some other exceptions, including a national security exception that allows an agency to get around the procedural due process requirements in denying or revoking a clearance.
While it may seem that agencies have a lot of power and leeway in revoking clearances, they still must follow procedural due process requirements and cannot deny or revoke your clearance for reasons that might be unconstitutional. Therefore, having an attorney to assist you in your case can help you through a complicated process where you have a limited opportunity to make your strongest case for why you should have a security clearance.