Carol Thompson, a partner OF THE FEDERAL PRACTICE GROUP, speaks with Courthousenews.com about the White House security clearance procedure
Posted By smay || 23-Jan-2019
WASHINGTON (CN) – A House of Representatives committee on Wednesday demanded that the White House release information about its security clearance process, launching a Democratic-led investigation into potential breaches of national security.
“The nation’s most highly guarded secrets were provided to officials who should not have had access to them,” Maryland Democratic Representative Elijah Cummings, chairman of the House Committee on Oversight and Reform, said in a letter to the White House.
The committee also demanded details about the clearance of former National Security Adviser Michael Flynn, who pleaded guilty to lying to the FBI about his communications with Russia, and current National Security Advisor Michael Bolton.
One goal of the investigation, Cummings wrote, is to determine why the White House transition team for President Donald Trump “appeared to disregard established security procedures.”
In addition, the committee seeks information about the security clearance of former White House staff secretary Rob Porter, who resigned amid allegations of domestic abuse.
Congress passed a law last year requiring the White House to report on its security clearance process and protocols, but Cummings said the administration has failed to do so.
In addition to its lack of reporting on security clearance held and maintained by top officials, Cummings also claims the Trump administration failed to report on rejected applications for the access to sensitive information by a top deputy to Flynn, National Security Council Senior Director Robin Townley.
“The investigation also will seek to determine why the White House is currently defying federal law by failing to provide to Congress information about its security clearance process,” Cummings wrote.
Danel A. Dufresne, senior counsel for the law firm Tully Rinckey, said in an interview Wednesday, “This is a very niche area of law.”
“A pre-written, specific protocol is required to take place when granting or revoking security clearance,” he said.
For federal employees to obtain a high-level security clearance, most background investigations employ the “whole person concept,” according to Dufresne. This method of background checks, conducted either by the FBI or the National Background Investigations Bureau, may overlook some issues if the candidate for clearance has a clean background overall, he said.
“This is a challenging area of the law because it can be subjective,” Dufresne said. “The underlying presumption with the ‘whole person concept’ is that no one has the ultimate right to receive federal security clearance.”
He said it is the responsibility of those who have a high-level security clearance to self-report if an issue of interest, such as growing susceptibility to foreign influences or even a DUI citation, emerges.
Carol Thompson, who specializes in military and security clearance law as a partner with The Federal Practice Group, said in an interview that “security clearance process is broken across the federal government.”
She pointed to the discrepancies in background requirements between different agencies and, in some cases, internal investigations, and a severe backlog in background checks as reasons for the deficiency.
“Consolidating security clearance investigations into one agency may help to outline specific requirements, but it may not alleviate the backlog,” Thompson said.
This backlog, she said, can cause applicants to be granted interim security clearance, meaning a full investigation into the person’s background has not yet been completed. Those with interim clearance can maintain a position in the government and access top secret documents, even if the employee is ultimately not granted permanent clearance.
For Cummings, the access of confidential information by those with interim clearance is unacceptable, he said in Wednesday’s letter.