Taming Swamp Critters with Security Clearances
At long last President Trump finally discovered, thanks to Senator Rand Paul, the most potent weapon against large numbers of "swamp creatures" a.k.a., the abusive senior leaders of critical sections of the Federal bureaucracy. Trying to fire a senior civil servant not appointed by the president is almost impossible and it often is a double-edged sword when successful because nothing stops them from publicly stirring up trouble after the fact.
However, if the security clearance rules are used properly, they can become the president's greatest clean-up weapon against the "swamp." Clearances are a true leash that can keep otherwise disruptive executive bureaucrats to heel.
For the Trump Administration to effectively use security clearances as a means of preventing corrupt swamp creatures from abusing the system for their own ends, President Trump must not abuse this tool, either. Otherwise, pathetic and impotent threats from Congress will become real threats.
To prevent such an occurrence, it is vital that both the Trump Administration and his voting supporters understand: 1) how security clearances work; 2) the myths commonly believed; and 3) why the senior civil service fears the loss of clearances.
For instance, not one article in the media that I found researching this article accurately explains clearances and or how clearances relate to Obama officials. That’s not surprising given the lack of expertise of the media on most subjects most of the time. This lack has provoked colorful comments based on inaccurate assumptions from the media articles and commentators.
The biggest myth is the public perception derived from these press reports that a security clearance is a get-access-to-all-secrets-free card, and that the government foolishly forgot to turn off the Obama officials' clearances once they left office. In reality, a security clearance has two components and the clearance only gives a person access to classified information when both components are activated.
The term describing the first clearance component is 'eligibility' and the term describing the second component is 'access'. In government rules, terms are critical to understanding a system and the media misuses the terms like "access" so badly that it cannot be known if the Obama officials still receive classified information based on the news accounts alone.
The eligibility component is when the government conducts a background investigation and evaluates a person's fitness to be entrusted with government secrets. If the person passes, the person is granted eligibility, meaning the government says the person is trustworthy to qualify to see classified materials -- but the person still cannot see or handle the secrets yet because the person has not yet been given the second component of clearances: access.
Access is when the government activates a person's clearance to actually view or handle classified material. The access is granted by the leader of the organization the person is assigned to, and the access is based largely on three criteria: mission, government position, and need to know. These criteria determine the limits of what a person can see.
A personal example: as an Army security officer for a military police unit, I had to grant Top Secret access to military police officers who would guard Guantanamo Bay prisoners in the court room as classified material is read out. My clearance access was higher than the guards' access, but I did not need to know what was said in the courtrooms to complete my mission or duty position, so I was never granted access to the Top Secret court proceedings. So, even if a person has the highest eligibility and access granted, that person will still only see snippets of the classified world based on access criteria (with a few exceptions).
In the Department of Defense, only the President, Secretary of Defense, the Joint Chiefs of Staff, and perhaps a dozen or so others have access to every military secret. So, despite common perception, it is in fact very difficult to see classified material, even in the highest echelons of the bureaucracy. Which leads to the situation of President Obama's former officials.
It is a fact of life that no system will ever apply the rules equally to everyone, because the politically connected make the rules and there are few examples of rule makers emphatically following their own rules. If the rules were followed properly, then Mr. Brennan and company should have been “debriefed” when they left their government positions -- which is a fancy term of having their access portion of the clearance shut off. This would mean they should not have access to any classified material any longer.
The eligibility component of their clearance would still be valid for two more years and this is, I suspect, what they mean when the media are talking about Brennan's security clearance. The reason the government allows people to keep their clearance eligibility for two years is that many advisors, technical experts, and contractors are people who left federal service and usually get private security related jobs within two years. It saves the government a lot of money because they don't have to pay for a new security background investigation.
If the rules were followed, then Mr. Brennan still has eligibility, not access as the news media often imply or state. If not, then Mr. Brennan has violated the rules and should lose his access anyway. Taking the eligibility component away from Obama's officials will put them in de-facto exile in DC because they can no longer freely lobby or use their former connections, a real hit to their pocket book. And yes, it does in fact impact senior leaders as much as mid-level ones.
This takes us to the final point of why clearances are the most powerful tool President Trump has against corrupt bureaucrats, and this can be made most clearly with an example. If Rod Rosenstein is found in contempt of Congress, President Trump could immediately suspend Mr. Rosenstein's access based on derogatory personal conduct as stated in the Executive Order's criteria. This means that Rosenstein's clearance is not removed, just the access, so Rosenstein still has no permanent blemish on his record.
However, because his access is suspended, he can no longer perform his duties; he can't even get into most of the FBI building. He is now in administrative limbo because he is not fired but he can't do his job either. The president can then require Mr. Rosenstein to demonstrate he is trustworthy to get his access back, usually through an adjudicative investigation. If Rosenstein resigns out of frustration before the final determination, he risks a negative determination and could get his clearance suspended, which could endanger his pension. This is the key part, since security clearances are an administrative privilege and not a legal right. In other words, Mr. Rosenstein is guilty until proven innocent. Mr. Rosenstein has to convince the president, not a judge, not the attorney general, not the inspector general, but President Trump that he is trustworthy, since Trump is the ultimate grantor and remover of US Government security clearances.
Some people will complain that the president cannot dismiss people because they disagree with the president or politically attack him. In fact, as stated in the original Executive Order 10450 that is the basis for all follow on Executive Orders, one keeps a clearance by being considered trustworthy and aiding the interests of the government. If that person actively undermines the president's ability to effectively govern, then the president can no longer trust them, therefore the clearance can be removed. The system is designed to protect the state, not the individuals in this case, and the functioning of the government trumps the individual (so to speak).
Suspending civil servants' access without terminating eligibility can cripple any government executives because their only legal recourse is to appeal to the leader who removed it. Since this is so high up in the government, the leader is the president himself. If President Trump truly believes that a Deep State is hindering him, then suspend their access to see if they conform. If they do not, then terminate their eligibility by formally submitting a determination to remove access due to derogatory conduct.
If that happens, these civil servants will never be contractors or CEOs or lobbyists for anything that has federal government security requirements. Seeing the red letters of "derogatory information found" in the database during the background check kills any hope of that. Nothing like endangering pensions and future lucrative private sector job offerings to get corrupt politicized bureaucrats to come to heel. Now you know the secret weakness of senior residents of the swamp, hopefully Trump's staff are learning this on their own as well.
Aaron Hirschi served in the US Army and formerly worked in the Pentagon, and now works in a non-descript Federal building somewhere in Washington DC.