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SECURITY CLEARANCES AND THE PROTECTION OF NATIONAL SECURITY INFORMATION
LAW AND PROCEDURES

Defense Personnel Security Research Center, Technical Report 00-4, November 2000 (139 pp and App A-J)

This book gathers and analyzes the law and procedure pertaining to national security clearances and the protection of national security information.  It is  written for lawyers practicing in this area of the law, for security officers and security managers of corporate government contractors dealing with classified information, and for government employees and contractor employees whose livelihood depends on obtaining or keeping a security clearance.  This field involves virtually everyone working for or doing business with the Department of Defense, the Department of Energy  and the various Federal Government agencies dealing with intelligence gathering or law enforcement. 

        The book is not about espionage and the laws dealing with espionage that is an area of criminal law beyond this book’s intended scope.  Any deliberate intent to disclose national security information to unauthorized recipients, particularly to foreign recipients, is a matter for criminal investigation and prosecution by the Federal Bureau of Investigation and the Department of Justice.  Nor is this book about intelligence gathering or the use of intelligence information that  is within the province of the Central Intelligence Agency, the National Security Agency, the National Imagery and Mapping Agency, the Defense Intelligence Agency and numerous other departmental  intelligence agencies.  Rather, this book is about the protection of national security information to prevent such information from being compromised, and the granting of clearances and access to that information, both to companies and to individuals.  The book concerns the processes and procedures used by the government to prevent the unauthorized disclosure of the nation's security information.

        The agencies principally concerned with personnel security investigations are the Defense Security Service (formerly the Defense Investigative Service), the Office of Personnel Management, the FBI and the CIA for  Sensitive Compartmented Information. Final clearance adjudications are principally the responsibility of the Defense Office of Hearings and Appeals for employees of government contractors,  the Department of Energy for its employees and the employees of its government contractors, and for other government employees ,  the individual agencies’ Adjudication Facilities and Personnel Security Appeals Boards.

        The need for protecting the nation’s secrets has been recognized from the earliest days of established government. In the United States the authority to do so  has historically been based on the inherent war powers of the President under the U.S. Constitution.  Besides those general powers, Congress, by statue, has vested in  the President specific powers and means for protecting national secrets, most particularly since the end of World War II.  Those statutes  include the National Security Act of 1947 that established the Central Intelligence Agency, and the National Security Agency Act of 1959 that established NSA.  More recently enacted was the National Imagery and Mapping Agency Act of 1996, creating NIMA from a number of offices scattered throughout the government.  That Act recognized and formalized the existence of the National Reconnaissance Office, which, until then, had been so secret that its very name could not be mentioned.

        Presidents,  through their Constitutional powers and the powers delegated by Congress, issued public Executive Orders and secret Directives, creating agencies and programs. The  the very existence of some of these programs is treated as a national secret.  Systems for protecting secret information and for determining who will have access to that information have also been established by Executive decree.  Yet even in the protection of the national security, probably the most important of the President’s responsibilities, his power is not plenary.  It is balanced with the other Constitutional imperatives of due process and equal protection for the citizens of this country.  In that balance, however, the greater the need for secrecy and the more important the secret, the less weight is put on the  individual’s constitutional rights.  Even in this critical area,  the President’s discretionary powers are not unfettered.   He could not, for example, deny employment in a secret project simply because of a citizen’s  race.  This country is, hopefully, long past the days when it interned its citizens simply because of their national origin, as was done to the Japanese-American “Nesei” in 1941.  Although no one has a constitutional right to see classified information, if the government’s reasons for denying access to classified information were shown to conflict with fundamental constitutional protections, the courts today would not refuse to consider and balance the conflicting constitutional interests.

        One not familiar with the law of classified information  might think that information might simply be classified “Secret” or “Not Secret”;  or even “Confidential,” “Secret” and “Top Secret.”   The system is far more complex. Information is categorized by its type, sensitivity, use and  origin.  The right of an individual to see or use, i.e., to “access” a particular type or level of classified information always depends on his need to see the particular information. It also depends on his having been investigated and determined to be trustworthy and reliable.  The degree of trustworthiness and reliability to which the person is held will increase, as will the intensity of their background  investigation, as the sensitivity of the information to be available to them increases.

        The type of due process afforded an individual whose clearance is threatened, depends not only on the nature of and degree of sensitivity of the information, but also,  by whom that person  is employed. Contrary to common expectation, an employee of the United States Government  who would seemingly be considered more reliable because of the historical development of the law, has far fewer due process rights than his industrial counterpart.

        National security law is many-faceted and somewhat arcane. Terms like "clearance" and "access" may, at first blush, seem the same.  Nevertheless, they are significantly different and that difference significantly affects an individual's or company's ability to deal with classified information.  Personnel clearances and facility clearances are interrelated.  Not infrequently, the mishandling of national security information will jeopardize both a company’s right to hold classified information and an individual’s security clearance.  Someone not regularly involved in these issues might be bewildered when faced with a potential loss of a "clearance" or loss of "access." That  loss could  permanently deprive a  person from working in the only field they know, or  a company of a key employee or contract on which it’s very survival depends. At such times assistance should be sought from those people knowledgeable about the law and procedure concerned with protecting national security information.  It is to those people to  whom this book is directed.

        The book is available for  purchase from the  Defense Technical Information Center, Springfield, VA.  It is also available on CD for $49.00 plus $5.00 for shipping and handling from Sheldon I Cohen & Assoc., 2009 N. 14th St., Suite 708,  Arlington, VA 22201.  It may be found online at http://stinet.dtic.mil/str/tr4_fields.html.  Search under Accession Number ADA388100.

Sheldon I. Cohen

 

 

 
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