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SENSITIVE COMPARTMENTED INFORMATION (SCI)
APPEALS OF ACCESS DECISIONS  UNDER DIRECTOR OF CENTRAL INTELLIGENCE
DIRECTIVE NO. 6/4 (DCID 6/4)

Sheldon I. Cohen[i]

What Is SCI? 

There are only three classification levels of national security information - Confidential, Secret and Top Secret.  They define information the disclosure of which could reasonably be expected to cause "damage," "serious damage" or "exceptionally grave damage"  to the national security.  No other terms may be used to identify classified national security information.[ii]  Certain information, however, is deemed so sensitive that greater investigative standards and controls are placed on the "access" to such information.  Among such information is that dealing with intelligence sources, methods or activities, known as Sensitive Compartmented Information (SCI).  Access to SCI is governed by standards established by the Director of Central Intelligence (the DCI).  

The authority of the DCI to protect “intelligence sources and methods from unauthorized disclosure” derives from the National Security Act of 1947 [iii] . It  further derives from Executive Order 12333 which requires the DCI to protect intelligence sources and methods, and to issue appropriate directives to implement the Executive Order.[iv]  This authority has resulted in the issuance of  Director of Central Intelligence Directive No. 6/4 (DCID 6/4), Personnel Security Standards Governing Eligibility for Access to Sensitive Compartmented Information.[v]    DCID 6/4 defines Sensitive Compartmented Information as “classified information concerning or derived from intelligence sources, methods, or analytical processes requiring handling exclusively within formal access control systems established by the Director of Central Intelligence.”[vi]  Neither the National Security Act of 1947 , Executive Order 12333 nor any other statute, Executive Order or regulation has defined what is a “source” or a “method.”  As a result, these authorities have been used to classify not only closely held information, but also newspaper articles, public broadcasts and other information in the public domain.  Although this practice of classifying public information  has frequently been  criticized,[vii]  the right of the CIA to classify such information has been upheld by the Supreme Court.[viii]          

Eligibility for Access to SCI 

The criteria for approving an individual for access to SCI are the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, issued by the National Security Policy Board[ix].  These criteria are incorporated in DCID 6/4 as Annex C.  In general, the person allowed access must be: “stable, trustworthy, reliable, of excellent character, judgment and discretion and of unquestioned loyalty to the United States.”[x]  All exceptions to these standards must be “common sense determinations” that the risk to the national security “is manageable” in the specific case for which the exception is granted.[xi]  In deciding whether to grant access, all doubts must be resolved in favor of protecting classified information.  The ultimate conclusion in every case must be that the granting of access is “clearly consistent with the interest of national security,” using “an overall common sense determination based on all available information.”[xii] 

An investigation of an individual being considered for SCI access must conform to the Uniform Investigative Standards for Single Scope Background Investigations (SSBI) established by the Security Policy Board.  These Standards have been incorporated into DCID 6/4 as Annex A.  "Quality Control Guidelines", which are  broad directions to investigators  conducting the SSBI, are included in DCID 6/4 as Annex B.  The CIA uses Standard Form 86, Questionnaire for National security Positions (sometimes called a  Personal Security Questionnaire or PSQ)  as the basis for beginning all investigations.  If an individual is considered ineligible for access to SCI, that alone will not, necessarily deny the person  access to other classified information.  Conversely, an individual authorized access to SCI under an exception to  DCID 6/4, will not, solely for that reason, be considered eligible for access to other classified  information. 

To be granted access to SCI, both the individual being considered and his immediate family must be  U.S. Citizens.  An exception may be made if a family member is not a citizen only if there are “compelling reasons”, and it is determined that the security risk is negligible.[xiii]  Even if the applicant is a U.S. citizen, if the person has lived outside the United States for a substantial period of his or her life which would prevent a complete investigation, the granting of access may be precluded.  Except in extremely rare situations a comprehensive background investigation will be conducted before access to SCI is granted.[xiv]  

Appeal Procedures 

Executive Order 12968 guarantees the right to appeal a decision denying access to classified information, including SCI (except for  Special Access Program information.) 

The procedures for appealing a denial or revocation of  SCI access are found in  DCID 6/4,  Annex D. They are applicable government-wide, to every government agency or organization dealing with SCI.[xv]  Everyone who has been considered for either initial or continued access to SCI, including government employees, military members, contractor employees and applicants for government or contractor employment may use those procedures .[xvi] 

The right to appeal does not begin until there has been a final decision denying or revoking access.[xvii]  DCID 6/4 provides that the Senior Official of each Intelligence Community organization (the SOIC) or his designee, may designate an individual to be the Determining Authority to decide cases regarding access to SCI.[xviii] 

Under the appeals procedures of Annex D to DCID 6/4, an individual is to be given a comprehensive, written explanation of the basis for the denial of access in as much detail as the national security permits.  Classified information may not be disclosed. The person has opportunity to appeal to a three member appeal panel and to appear personally at some point in the process.   

In the past, to avoid giving an  individual notice of a problem, or an opportunity to appeal, some government security officers have advised the contractor or sponsoring organization to simply withdraw the individual’s  nomination for SCI access. Thus, the individual  never knew that access would not be approved.  Even if the individual knew, he or she could not protest because there was no longer a “need” for access.  Although that practice is no longer permissible under Executive Order 12968, and DCID 6/4,  it is reported that some contractors and agencies are still following the former practice. 

While access can no longer be summarily revoked,  it can be suspended indefinitely.  Since a person can appeal only  a final decision, and there are no time limits on reaching a final decision, one whose access is suspended will simply be assigned other duties, or if there are no other duties available, place on indefinite unpaid administrative leave. The appeal begins after a final decision on access is made. Any access decision will be stayed pending the outcome of the appeal.  Thus, any uncertainty regarding a person’s qualifications is resolved by preventing access unless and until an appeal establishes that an improper denial decision was made.  

Appeals at the CIA 

Procedures for appeal at the CIA  are provided  in CIA Administrative Regulation, AR-10-16.[xix]  There are separate procedures for CIA employees and for applicants and contractor employees.  CIA employees have greater rights and, in general, are given a higher degree of scrutiny. Although Executive Order 12968 and DCID 6/4 require only that an agency, if asked, provide an individual with the investigative file on which the denial was based, the CIA does provide to CIA employees the investigative file at the same time it provides the written explanation.  An applicant for employment or a contractor employee, however, must still request the file, and in that case, the CIA will only provide a redacted summary of what the file contains.  Among other information, the summary memorandum will not disclose the name of the deciding official even though  Executive Order 12968 requires its disclosure. It will not provide any documents associated with a polygraph to anyone, on the premise that such disclosure would compromise the polygraph procedures[xx].

Appeals by CIA employees goes to a higher-level panel than that provided to applicants and contractor’s employees on the theory that employees already have access to secure information and, therefore, closer scrutiny must be given in determining whether their access and security clearance should be revoked.  CIA employees are entitled to a “personal appearance” before a member of the Security staff who is generally a GS-12 to GS-14 level employee.   At this “personal appearance” the employee may be accompanied by legal counsel, may make an oral presentation and may submit any documentary evidence. The employee may not present any other person to offer testimony.   

The recommendations of the Security staff member, based on the personal appearance, are reviewed by the Associate Deputy Director for Administration/Security.  If the decision of the Associate Deputy Direct is adverse to the employee, there is a final level of appeal is to an Appeal Panel comprised of the CIA Executive Director who chairs the Panel, the Associate Deputy Director for Operations for Counterintelligence, and the head of the employee's career service or office.  The decision of the Appeal Panel is final and not appealable. 

For applicants for CIA employment and contractors’ employees and applicants, the personal appearance is before a lower level senior Security Staff officer who was not involved in the original revocation decision.  The appeal of any further decision is  to a lower level Appeal Panel.  The chair of that Appeal Panel, for contractors’ employees and applicants, is the Director of Security.  The Chair of the Appeal Panel for agency applicants is a senior staff member of the Security Office.  The other two panel members are a representative of either the Counterintelligence or Human Resources staffs, and the Chief of the Agency office sponsoring the access application. 

                                                NOTES


[i]  The author is in the private practice of law in Arlington, Virginia. He is the author of Security Clearances and the Protection of National Security Information: Law and Procedures, 335 pp., published by the Defense Personnel Security Research Center, Technical Report 00-4, November, 2000. He may be contacted at www.sheldoncohen.com.

[ii].  Executive Order 12958, § 1.3, Apr. 20, 1995.

[iii].  c. 343, Title I, §102, 69 Stat. 497, Apr 4. 1947.

[iv].  Executive Order 12333, §§ 1.3, 3.1.(1981).  This superseded an earlier Executive Order, 12036 (Jan. 24, 1978).

[v].  The latest version of DCID 6/4 was issued July 2, 1998.

[vi].  DCID 6/4, § 1.h.

[vii].  E.g., Report of the Commission on Protecting and Reducing Government Secrecy, p.  23, (Government Printing Office, 1997).

[viii]United States v. Sims, 471 U.S. 159 (1985).

[ix].  32 C.F.R. Part 147.

[x].  DCID 6/4, § 5.d.

[xi]. DCID 6/4, § 6.

[xii]. DCID 6/4, § 10.

[xiii]. DCID 6/4, § 6.c.

[xiv]. DCID 6/4, § 8.

[xv]. The Intelligence Community, established by Executive Order 12333, § 3.4, presently consists of fifteen organizations: Central Intelligence Agency, Defense Intelligence Agency, National Security Agency, National Reconnaissance Office, National Imagery and Mapping Agency, Army, Navy, Air Force and Marine Corps Intelligence Agencies, Department of State, Bureau of Intelligence and Research,  Department of Energy, Treasury Department, Office of Intelligence Support,  Federal Bureau of Investigation, Coast Guard and Department of Homeland Security.  For a more detailed description of the Intelligence Community.  See, the Intelligence Community web site:  www.intelligence.gov.

[xvi]. DCID 6/4, Annex D, § 2.

[xvii]. Ibid.

[xviii]. Id., § 3.

[xix]. CIA Regulation AR 10-16, “Appeal of Personnel Security Decisions” is not generally made available, but will be provided , if requested, to an individual appealing a security decision or their counsel.

[xx].  AR 10-16, § e(2)(a).  

 Copyright © Sheldon I. Cohen

 

 

 
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