Security Clearance Tyranny

Let’s review three data points on security clearances. They’ll show that our system of security clearances are increasingly becoming an arbitrary system of control that does more to foster cowed national security employees than to foster actual national security.

We’ve already discussed one of these data points: James Clapper’s decision to add an as-yet undefined question to Intelligence Community polygraphs probing unauthorized (but not authorized) disclosure of classified information.

First, those agencies within the IC that have mandatory lie detector tests will add an unspecified question about “unauthorized disclosure of classified information.”

(1) mandating that a question related to unauthorized disclosure of classified information be added to the counterintelligence polygraph used by all intelligence agencies that administer the examination (CIA, DIA, DOE, FBI, NGA, NRO, and NSA).

Not only does this cover just some who might have access to classified information, leaving some agencies, contractors, Congressional employees, and White House employees, not to mention our international intelligence partners, in the clear. But it also brackets off the “authorized” disclosure of classified information.

It’s a bad decision because it doesn’t end the asymmetrical abuse of classified information and it’s a bad decision because polygraphs are unreliable.

But it’s also unreliable because at least one of the IC agencies involved slated for this new question–the National Reconnaissance Office–has already been conducting fishing expeditions during polygraphs to find sensitive information.

The National Reconnaissance Office is so intent on extracting confessions of personal or illicit behavior that officials have admonished polygraphers who refused to go after them and rewarded those who did, sometimes with cash bonuses, a McClatchy investigation found.

The disclosures include a wide range of behavior and private thoughts such as drug use, child abuse, suicide attempts, depression and sexual deviancy. The agency, which oversees the nation’s spy satellites, records the sessions that were required for security clearances and stores them in a database.

As McClatchy reports, the NRO pursued such confessions–which are outside the scope of what they’re supposed to ask–even after they were warned to stop.

What’s particularly troubling is that the NRO is not using this information–or not in the most obvious way, by prosecuting those who reveal past crimes. In one case, for example, the NRO did no more than report past child molestation after discovering it in a polygraph.

In one case, a contractor who was a former Escondido, Calif., substitute teacher admitted to molesting a third-grade student in 2005 during outside tutoring sessions paid for by the girl’s immigrant parents. In a 2010 polygraph session, the man said that if he were asked, “ ‘Have you ever molested a 9-year-old?’ I’d have to say yes.”

The Escondido Police Department and school district where he’d been employed weren’t notified of the incident. After being contacted by McClatchy, the school district called the Escondido Police Department to file a report.When National Reconnaissance Office polygraphers asked supervisors in a meeting last summer why people weren’t being arrested on the spot after such confessions, they were told that the allegations were referred to the appropriate authorities, Phillips and Hinshaw said.

Call me crazy, but this sounds more like the collection of potential blackmail material than an effort to ensure NRO employees aren’t spies.

And the DC District Court just further limited the already narrow means by which people can claim government employees abused the security clearance system. It involves a Civil Rights suit by a black Muslim convert who works for the FBI, Wilfred Rattigan. Two years after Rattigan got transferred to serve as FBI’s Legat in Riyadh in 1999, he sued his supervisors for discrimination. In response, he argues, his supervisors submitted a bunch of security concerns to the Security Division, which were later deemed not serious (so he retained his clearance). Rattigan says his supervisors submitted those concerns as retaliation for his EEO complaint.

Rattigan originally won a $300,000 judgment at the District level, but the government appealed the decision, saying the courts couldn’t review security clearance decisions. Originally, the Circuit upheld the District decision, ruling that Navy v. Egan (the case the executive branch always uses to claim unlimited powers with regards to secrecy issues) only protected those actually making decisions on clearances, not employees who might report bogus concerns to retaliate against employees. But after reconsideration, the Circuit now says employees can only sue for reporting knowingly false charges.

The three data points–particularly the NRO probing for confessions–all suggest the system of security clearances is increasingly becoming an area where the Executive Branch has fairly unlimited authority to retaliate against cleared employees regardless of any real underlying violation.

All in the guise that this system makes us safer!

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

4 replies
  1. earlofhuntingdon says:

    The work of EW, Dana Priest and others makes clear that a security clearance is a ticket required for transport to work as a federal employment (although job categories still exist that permit employment without it). It’s also the ticket for travel required for most outsourced government, military and intelligence contractors. Incomes for those with clearances are higher, and the differential increases the higher the level of “clearance”.

    Oddly, a security clearance obtained while working for the government – a public service with proscribed rules of conduct – usually remains unaffected if one moves to the private sector. That is despite the fact that the clearance holder’s personal and employment law-driven loyalties have shifted to an exclusively for-profit organization whose purposes diverge sometimes dramatically from the government’s.

    The laundry list of behaviors that can threaten a clearance with review, downgrading or loss seems to be expanding. Bad debts, bad marriages, uninhibited behavior, indiscreet exchanges on the internet, are only among the most popular. Many of them have only the most tangential connection with job performance or legitimate risk to the government.

    The BushCheney administration, for example, was often accused of abusing security clearance suspensions and reviews as weapons to police political non-conformity and to threaten whistleblowers. Mr. Obama, in turn, has adopted many of its predecessor’s worst excesses.

    The “safe harbor” of behavior consistent with getting and keeping a clearance is constricting. It is becoming a separator between “us” and “them”, between insiders and the connected, and the hoi poloi against whom the law is actually enforced. The expansion of security clearances and the greater limits on behavior it encourages act as a kind of prior restraint. It affects far more people than those who actually have clearances. It affects those who want them. It affects their current and potential friends, family, acquaintances and associations, especially as “predictions” from software manipulated pattern data become more common substitute for real behavior.

    The consequences are insidious. They threaten civic society, tolerance, respect and community. One can almost see the beginning of the Clearance Youth program.

  2. LM Lewis says:

    The use of security clearances as a means to silence dissent has been around a long time. At the tail end of the Clinton administration, there was a massive push to increase the number of civilian, non-intelligence positions required to have security clearances. It was telling that, after receiving clearances, officials told me they rarely needed them. The Bush administration further expanded the number of clearances and implemented an appeal process for security clearance denials at my agency that made a mockery of due process. But, the new developments emptywheel describes, combining intrusive questioning with massive databases (and near-universal surveillance) create a level of intimidation that far exceeds anything that existed previously. The impacts, as you (EoH) aptly described, will be broad and deep. The future could well include an electronic equivalent of the yellow badge.

  3. earlofhuntingdon says:

    Among the fixes we need are fewer outsourced jobs and fewer security clearances, and legislation that imposes standards for obtaining, reviewing and losing them. That would include a formal appeals process removed from the government’s whim.

    Anyone moving from government to the private sector should automatically lose at least one level of clearance. That’s not a function of personal behavior. It is a function of the inherent, unwaivable conflict in having changed sides.

    It is a consequence of switching one’s loyalties, one’s career, income and status from being dependent on successfully promoting the interests of the current people’s government to the private sector, where one’s future is dependent on harvesting for the exclusive use of a for-profit company as many taxpayer-funded government resources as possible in the shortest amount of time.

  4. Kathleen says:

    Stephen Green’s now 8 year old article about individuals who had questionable security clearances in the past and ended up in the Bush administration pushing for the invasion of Iraq
    http://www.counterpunch.org/2004/02/28/neo-cons-israel-and-the-bush-administration/
    “Dr. Stephen Bryen and Colleagues

    In April of 1979, Deputy Assistant Attorney General Robert Keuch recommended in writing that Bryen, then a staff member of the Senate Foreign Relations Committee, undergo a grand jury hearing to establish the basis for a prosecution for espionage. John Davitt, then Chief of the Justice Department’s Internal Security Division, concurred.

    The evidence was strong. Bryen had been overheard in the Madison Hotel Coffee Shop, offering classified documents to an official of the Israeli Embassy in the presence of the director of AIPAC, the American-Israel Public Affairs Committee. It was later determined that the Embassy official was Zvi Rafiah, the Mossad station chief in Washington. Bryen refused to be poly-graphed by the FBI on the purpose and details of the meeting; whereas the person who’d witnessed it agreed to be poly-graphed and passed the test.”

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