The topic of national security clearances has been in the news lately; however, confusion persists about what a national security clearance is and when (typically) it can be revoked.
National security clearances became the focus of attention when, on August 15, 2018, President Trump announced that he was revoking the security clearance of the former CIA director, John Brennan. Press Secretary Sarah Huckabee Sanders justified the decision as a response to Brennan’s “increasingly frenzied commentary” and argued that his behavior was inconsistent with access to the U.S.’s “most closely held secrets.” At first glance, revoking Brennan’s security clearance may seem inconsequential and understandable. Because Mr. Brennan is no longer the head of the CIA and he openly criticized the president, barring his access to information may seem justified. However, this decision is both unusual and potentially problematic due to the implications of a security clearance and why it is needed.
The U.S. State Department grants access to classified information to government employees whose background and character demonstrate loyalty to the U.S. as well as reliability and good judgment. These clearances are available to private citizens (mostly contractors) as well as Cabinet members. An executive order by President Clinton clarified that former federal employees could also retain access to classified information for the purpose of protecting national security. Allowing former Cabinet officials access to classified information maintains continuity between administrations and gives them the ability to consult with and advise their successors. These clearances are a vital asset, especially since national security issues may span more than one administration. In other words, a security clearance doesn’t only benefit its holder, but also government employees who might turn to that person for advice.
Two former CIA directors, David Petraeus and John Deutch, have had their security clearances revoked — Petraeus for sharing classified information with his lover, and Deutch for storing national security information on an unsecured home computer. Arguably, both men mishandled information in ways that undermined national security. However, Brennan has not been accused of any such misstep. Instead, President Trump revoked his clearance because of Brennan’s personal criticisms. This action raises an important constitutional question: does the scope of executive power under Article II eclipse a citizen’s right to free speech under the First Amendment? Perhaps, more importantly, this decision may erode trust between the executive branch and the intelligence community, and it may contribute to the degradation or politicization of any information that intelligence officers are willing and able to provide in the future.
Kathleen Davies is a staff writer for GetLegal.com. She is a graduate of the University of Michigan Law School and has practiced law and taught legal writing and advocacy.