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DUE PROCESS IN SECURITY
CLEARANCE DETERMINATIONS



JOINT HEARING

BEFORE THE

SUBCOMMITTEE ON
CIVIL AND CONSTITUTIONAL RIGHTS

OF THE

COMMITTEE ON THE JUDICIAKY

AND THE

SUBCOMMITTEE ON THE CIVIL SERVICE

OF THE

COMMITTEE ON POST OFFICE AND CIVIL

SERVICE
HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRD CONGRESS
FIRST SESSION




Q

diciary S^~

56 lO

Office /nd Civil Servih^J

03-9 W




Printed for the use of the Committee on the Judiciary and the
Committee on Post Office and Civil Service



79-687 CC



U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1994



For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-046194-4



V4



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DUE PROCESS IN SECURITY
CLEARANCE DETERMINATIONS



JOINT HEARING

BEFORE THE

SUBCOMMITTEE ON
CIVIL AND CONSTITUTIONAL RIGHTS

OF THE

COMMITTEE ON THE JUDICIARY

AND THE

SUBCOMMITTEE ON THE CIVIL SERVICE

OF THE

COMMITTEE ON POST OFFICE AND CIVIL

SERVICE
HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRD CONGRESS

FIRST SESSION




Office «nd Civil Servi:i£ }

03-9







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Printed for the use of the Committee on the Judiciary and the
Committee on Post Office and Civil Service



79-687 CC



U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1994



For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office. Washington. DC 20402
ISBN 0-16-046194-4



COMMITTEE ON THE JUDICIARY



JACK BROOKS,
DON EDWARDS, California
JOHN CONYERS, Jr., Michigan
ROMANO L. MAZZOLI, Kentucky
WILLIAM J. HUGHES, New Jersey
MIKE SYNAR, Oklahoma
PATRICIA SCHROEDER, Colorado
DAN GLICKMAN, Kansas
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JOHN BRYANT, Texas
GEORGE E. SANGMEISTER, Illinois
CRAIG A. WASHINGTON, Texas
JACK REED, Rhode Island
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
DAVID MANN, Ohio
MELVIN L. WATT, North Carolina
XAVIER BECERRA, California



Texas, Chairman

HAMILTON FISH, Jr., New York
CARLOS J. MOORHEAD, California
HENRY J. HYDE, Illinois
F. JAMES SENSENBRENNER, Jr.,

Wisconsin
BILL MCCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
STEVEN SCHIFF, New Mexico
JIM RAMSTAD, Minnesota
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia



JONATHAN R. YaROWSKY, General Counsel

ROUKRT H. BRINK, Deputy General Counsel

ALAN F. COFFEY, JR., Minority Chief Counsel



Subcommittee on Civil and Constitutional Rights

DON EDWARDS, California, Chairman

PATRICIA SCHROEDER, Colorado HENRY J. HYDE, Illinois

BARNEY FRANK, Massachusetts HOWARD COBLE, North Carolina

CRAIG A. WASHINGTON, Texas CHARLES T CANADY, Florida
JERROLD NADLER, New York






CATHERINE LEROY, Counsel
JAMES X. DEMI'SEY, Assistant Counsel

Ivy Davis- Fox, Assistant Counsel

VIRGINIA E. Sl-OAN, Assistant Counsel

Katiiryn HaZEEM, Minority Counsel



(II)



COMMITTEE ON POST OFFICE AND CIVIL SERVICE
WILLIAM L. CLAY, Missouri, Chairman



JOHN T. MYERS, Indiana
BENJAMIN A. GILMAN, New York
DON YOUNG, Alaska
DAN BURTON, Indiana
CONSTANCE A. MORELLA, Maryland
THOMAS J. RIDGE, Pennsylvania
THOMAS E. PETRI, Wisconsin
SHERWOOD L. BOEHLERT, New York
JIM SAXTON, New Jersey



PATRICIA SCHROEDER, Colorado

FRANK McCLOSKEY, Indiana

GARY L. ACKERMAN, New York

THOMAS C. SAWYER, Ohio

PAUL E. KANJORSKI, Pennsylvania

ELEANOR HOLMES NORTON, District of

Columbia
BARBARA-ROSE COLLINS, Michigan
LESLIE L. BYRNE, Virginia
MELVIN L. WATT, North Carolina
ALBERT RUSSELL WYNN, Maryland
GREG LAUGHLIN, Texas
SANFORD D. BISHOP, Jr., Ceorgia
SHERROD BROWN, Ohio
ALCEE L. HASTINGS, Florida

GAIL E. WKISS, Staff Director

ROBERT E. LockhaRT, General Counsel

Doris Moore-Glenn, Deputy Staff Director

JOSEPH A. FISHER, Minority Staff Director



Subcommittee on the Civil Service

FRANK McCLOSKEY, Indiana, Chairman

PATRICIA SCHROEDER, Colorado DAN BURTON, Indiana

PAUL E. KANJORSKI, Pennsylvania CONSTANCE A. MORELLA, Maryland

DEBORAH KENDALL, Subcommittee Staff Director



(III)



CONTENTS



HEARING DATE



Page

May 5, 1993 1

OPENING STATEMENT

Edwards, Hon. Don, a Representative in Congress from the State of Califor-
nia, and chairman, Subcommittee on Civil and Constitutional Rights 1

WITNESSES

Anderson, Maynard C, Assistant Deputy Under Secretary of Defense for

Security Policy, Department of Defense 54

Bowers, Joshua F., staff attorney, National Federation of Federal Employees . 74
Gilman, Maureen, legislative director, National Treasury Employees Union .... 71
Heivilin, Donna M., director, Defense Management and NASA Issues, Na-
tional Security and International Affairs Division, U.S. General Accounting
Office, accompanied by Victor Zangla, Assistant Director, Defense Manage-
ment Issues, and Irving T. Boker, evaluator in charge 3

Melrose, Joseph H., Jr., vice president, American Foreign Service Association 78
Moten, Beth, legislative director, American Federation of Government Em-
ployees, AFL-CIO 67

Pollari, Ray W., Acting Assistant Secretary of Defense (Counterintelligence

and Security Countermeasures), Department of Defense 34

Quainton, Anthony C.E., Assistant Secretary for Diplomatic Security, U.S.

Department of State 31

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Anderson, Maynard C, Assistant Deputy Under Secretary of Defense for

Security Policy, Department of Defense: Prepared statement 56

Bowers, Joshua F., staff attorney, National Federation of Federal Employees:

Department of Defense and Office of Personnel Management forms 82

Prepared statement 76

Burton, Hon. Dan, a Representative in Congress from the State of Indiana:

Prepared statement 30

Heivilin, Donna M., director, Defense Management and NASA Issues, Na-
tional Security and International Affairs Division, U.S. General Accounting

Office: Prepared statement and GAO reports 10

Hyde, Hon. Henry J., a Representative in Congress from the State of Illinois:

Opening statement 2

McCloskey, Hon. Frank, a Representative in Congress from the State of
Indiana, and chairman, Subcommittee on the Civil Service: Opening state-
ment 4

Melrose, Joseph H., Jr., vice president, American Foreign Service Association:

Department of State release form 117

Prepared statement 79

Pollari, Ray W., Acting Assistant Secretary of Defense (Counterintelligence
and Security Countermeasures), Department of Defense:

Annex B to the Director of Central Intelligence Directive 1/14 35

Prepared statement 42

Single scope background investigations fact sheet 38

Quainton, Anthony C.E., Assistant Secretary for Diplomatic Security, U.S.

Department of State: Prepared statement 32

(V)



VI

Page

Sturdivant, John N., national president, American Federation of Government
Employees, AFL-CIO: Prepared statement 69

Tobias, Robert M., national president, National Treasury Employees Union-
Prepared statement 72

APPENDIX
Material submitted for the hearing 123



DUE PROCESS IN SECURITY CLEARANCE
DETERMINATIONS



WEDNESDAY, MAY 5, 1993

House of Representatives, Subcommittee on Civil
and Constitutional Rights, Committee on the Ju-
diciary, and Subcommittee on the Civil Service,
Committee on Post Office and Civil Service,

Washington, DC.
The subcommittees met, pursuant to notice, at 10 a.m., in room
2226, Rayburn House Office Building, Hon. Don Edwards (chair-
man of the Subcommittee on Civil and Constitutional Rights) pre-
siding.

Present from the Subcommittee on Civil and Constitutional
Rights: Representatives Don Edwards, and Howard Coble.

Also present from the Subcommittee on Civil and Constitutional
Rights: James X. Dempsey, assistant counsel; Jancelyn Pegues,
clerk; and Kathryn Hazeem, minority counsel.

Present from the Subcommittee on the Civil Service: Representa-
tive Frank McCloskey (chairman).

Also present from the Subcommittee on the Civil Service: Debo-
rah Kendall, staff director; Wendy Lowengrub, deputy staff direc-
tor; and Nathan Zietlow, counsel.

OPENING STATEMENT OF CHAIRMAN EDWARDS

Mr. Edwards. The subcommittees will come to order. Today the
subcommittees will consider the standards and procedures used by
the Government in granting, denying, and revoking security clear-
ances. This hearing is being held jointly with the distinguished
Subcommittee on Civil Service. Our two committees held 5 days of
joint hearings on this subject in the 101st Congress. It was a very
fruitful collaboration. I am happy to see the subcommittees are
working together again.

We have three goals in this hearing. Number one, receive an up-
date on the GAO's work in this area; two, find out what changes
have been made in the security clearance system since our last
hearing; and what changes are pending; and three, lay the ground-
work for pursuing the issue in the new administration.

Security clearances are held by approximately 3 million employ-
ees of Government agencies and contractors. The existing security
clearance system is a product of the cold war. It has evolved over
time to the point that it is fraught with complexity and inconsist-
encies.

For example, contractor employees facing denial or revocation of
security clearances are entitled to a hearing on disputed issues

(1)



while Government employees are not provided a hearing, except in
the Department of Energy, which gives hearings both to the con-
tractor personnel and Government employees. In addition to the
basic classifications of confidential, secret and top secret, the Gov-
ernment has created another category of information known as sen-
sitive compartmented information or SCI.

The criteria for access to top secret and SCI are nearly identical
and the same background investigation is used for both; but the
two systems are usually administered separately, except in the
Army which provides the same due process for top secret and SCI.
Except in the Army, a person denied an SCI clearance is entitled
only to the most minimal procedural rights. For example, an indi-
vidual will be notified of the revocation or denial of an SCI clear-
ance only after the decision has been made. Moreover, a person
may never be told about the reasons for the denial of the clearance.
DOD will provide reasons if requested while the CIA will not. In
no event can the person get a hearing.

As if this were not complicated enough, the Government has cre-
ated another category of information: special access programs for
which there is no due process, not even after the fact, even after
notice that the clearance has been denied.

The question before us today is not why we need a system to pro-
tect classified information; I think that that is clear. The question
is why we need to have such a complicated system, so many incon-
sistent and sometimes Kafkaesque procedures.

Due process is not a luxury nor does it conflict with security. Due
process is an indispensable element of security because it ensures
reliable decisions.

I commend the DOD for making several improvements in re-
sponse to GAO's recommendations. So far, however, these changes
have been at the margin. I hope the new administration will ad-
dress basic elements of the system to streamline and simplify it. I
think that the administration will find that it can provide a fuller
assurance of due process without sacrificing security.

Now we will proceed to our witnesses. Panel one, we are pleased
to have Donna M. Heivilin, Director, Defense Management Issues
of the U.S. General Accounting Office.

Welcome. Will you introduce your colleagues? You may proceed.
We have problems this morning, as you can see, with a backed up
schedule. So if the witnesses can limit their remarks to 5 minutes,
we will make all of the statements without objection a part of the
record.

I assure you they will receive careful attention. Welcome.

[The opening statement of Mr. Hyde follows:]

Opening Statement of Hon. Henry J. Hyde, a Representative in Congress

From the State of Illinois

Although the cold war has officially ended, espionage continues to pose a very real
threat to our national security. International drug trafficking, the proliferation of
nuclear weapons, terrorism and increased regional and ethnic conflicts require us
to remain on guard. Just last week, an American employee of the United States Em-
bassy in Athens was arrested on charges of selling highly classified information to
contacts suspected of being foreign military officers. This latest incident confirms
that we must continue to insure that the individuals to whom we entrust our na-
tional secrets are reliable and trustworthy and will not compromise the information
they have been given.



We are all aware, however, that there are no hard and fast rules for determining
whether or not an individual may be vulnerable to compromise by outside interests.
Whether examining procedures currently in place or formulating new procedures,
we must balance the interests of protecting national security with the need to afford
individuals with basic due process rights.

Our hearing today will focus on the processes within the various agencies and ex-
amine whether additional procedures and protections are needed. I want to thank
each of the witnesses for coming and look forward to hearing their testmony.

Mr. Edwards. Please proceed, Ms. Heivilin.

STATEMENT OF DONNA M. HEIVILIN, DIRECTOR, DEFENSE
MANAGEMENT AND NASA ISSUES, NATIONAL SECURITY AND
INTERNATIONAL AFFAIRS DIVISION, U.S. GENERAL AC-
COUNTING OFFICE, ACCOMPANIED BY VICTOR ZANGLA, AS-
SISTANT DIRECTOR, DEFENSE MANAGEMENT ISSUES, AND
IRVING T. BOKER, EVALUATOR IN CHARGE

Ms. Heivilin. Thank you, Mr. Chairman. I have with me on my
left Victor Zangla, Assistant Director of Defense Management Is-
sues and Irving Boker, evaluator in charge of the studies we are
going to be talking about today.

I appreciate the opportunity to discuss our reviews in this area.
They were two. We presented a report to you last May on the secu-
rity clearance denials and revocations of Defense, Energy, and
State and a report that we have just put out today on the denials
and revocations of access to special programs.

I have put a couple of charts up that we can be looking at as we
talk so we get an idea of the population that is involved in these
various types of classifications. They are over on the right here.

Mr. Edwards. Incidentally, we welcome Chairman McCloskey.
Do you have an opening statement?

Mr. McCloskey. In the interests of brevity, in all candor, I am
going to be coming in and out with a markup going on in Foreign
Affairs. I ask for my statement to be accepted for the record.

[The opening statement of Mr. McCloskey follows:]



OPENING STATEMENT OF CHAIRMAN FRANK MCCLOSKEY

JOINT HEARING OF SUBCOMMITTEE ON CIVIL SERVICE

AND SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS

MAY 5, 1993

CHAIRMAN EDWARDS, I WANT TO THANK YOU FOR PARTICIPATING IN
THIS JOINT HEARING TO EXAMINE AN ISSUE OF GREAT IMPORTANCE to
FEDERAL EMPLOYEES - THE RIGHTS EMPLOYEES HAVE WHEN THEY ARE
DENIED ACCESS TO CLASSIFIED INFORMATION OR HAVE THAT ACCESS
SUSPENDED OR REVOKED. CONGRESS HAS TRIED FOR YEARS TO ADDRESS
EMPLOYEE'S DUE PROCESS RIGHTS FOR ACCESS TO CLASSIFIED
INFORMATION, AND TODAY'S HEARING GIVES US AN OPPORTUNITY TO
EXAMINE THE NEED FOR REFORM IN THIS AREA.

ORIGINALLY, THE GOVERNMENT'S SYSTEM OF CLASSIFYING
INFORMATION WAS RELATIVELY SIMPLE, WITH THREE LEVELS OF
CLASSIFICATION - CONFIDENTIAL, SECRET, AND TOP SECRET. IN THE
AFTERMATH OF WORLD WAR II, AND DURING THE COLD WAR, PROTECTING
OUR NATION'S SECRETS WAS OF THE UTMOST IMPORTANCE, AND CONTINUES
TO BE SO TODAY. HOWEVER, OVER THE YEARS THE CLASSIFICATION
SYSTEM HAS GROWN INCREASINGLY COMPLEX, AND ONE LEVEL OF SECRECY
HAS BEEN LAYERED ON TOP OF ANOTHER.

IN THE NAME OF NATIONAL SECURITY, DENIAL AND REVOCATION OF
SECURITY CLEARANCES AND ACCESS TO INFORMATION IS SUBJECT TO
MANIPULATION. MY STAFF TOLD ME ABOUT A CASE IN WHICH A FEDERAL
EMPLOYEE WAS ASKED TO TAKE THREE SEPARATE PSYCHIATRIC EXAMS WITH
AGENCY APPOINTED DOCTORS AFTER BLOWING THE WHISTLE, AND PASSED
THEM EASILY. HOWEVER, WHEN SHE REFUSED A FOURTH EXAM SHE LOST
HER SECURITY CLEARANCE, AND HER ABILITY TO PERFORM HER JOB.

WHEN A CLEARANCE IS DENIED, SUSPENDED INDEFINITELY, OR



REVOKED, AN EMPLOYEE MIGHT BE TEMPORARILY OR PERMANENTLY OUT OF A
JOB SINCE ACCESS TO CLASSIFIED INFORMATION IS ESSENTIAL TO SOME
POSITIONS. BECAUSE OF THESE DIRE CONSEQUENCES, IT IS VITAL THAT
THERE BE AN ADMINISTRATIVE PROCESS IN PLACE IN WHICH EMPLOYEES BE
NOTIFIED OF THE REASONS FOR THE ACTION, HAVE A CHANCE TO REBUT
ALLEGATIONS, AND HAVE THE RIGHT TO APPEAL A FINAL DECISION TO AN
INDEPENDENT AUTHORITY.

THE RIGHTS OF CONTRACTOR EMPLOYEES TO RECEIVE NOTIFICATION,
A CHANCE TO REBUT ALLEGATIONS, A CHANCE FOR A HEARING, AND THE
RIGHT TO APPEAL WERE SPELLED OUT IN EXECUTIVE ORDER 10865, ISSUED
BY PRESIDENT EISENHOWER, AND UNBELIEVABLY, THERE IS NO SIMILAR
AUTHORITY GOVERNING THE RIGHTS OF FEDERAL EMPLOYEES. MOREOVER,
THE EISENHOWER EXECUTIVE ORDER DID NOT CONTEMPLATE THE SPECIAL
ACCESS PROGRAMS (SAPS) AND SENSITIVE COMPARTMENTED INFORMATION
(SCI) THAT HAVE ADDED LAYERS OF SECURITY UPON THE ORIGINAL THREE
LEVELS.

INSTEAD, THE RIGHTS OF FEDERAL EMPLOYEES HAS BEEN LEFT TO
THE DISCRETION OF AGENCY AND DEPARTMENT HEADS, AND HAS RESULTED
IN FEDERAL EMPLOYEES RECEIVING FEWER RIGHTS THAN CONTRACTOR
EMPLOYEES. MOREOVER, TREATMENT OF FEDERAL EMPLOYEES IS
INCONSISTENT AMONG AGENCIES AND DEPARTMENTS, AND EVEN IN
DIFFERENT COMPONENTS OF THE SAME DEPARTMENT. IT IS TIME TO
ADOPT A SINGLE, GOVERNMENT -WIDE STANDARD FOR FEDERAL EMPLOYEES
WHICH WOULD PROVIDE THE SAME DUE PROCESS RIGHTS ALREADY AFFORDED
TO CONTRACTOR EMPLOYEES WHEN A SECURITY CLEARANCE IS DENIED,
SUSPENDED, OR REVOKED. THERE IS A FURTHER NEED FOR MORE



CENTRALIZATION OF ADJUDICATING AUTHORITIES WHICH WOULD CONTRIBUTE
TO DEVELOPING MORE CONSISTENT NATIONAL SECURITY CRITERIA.

UNIFORM SECURITY CRITERIA AND CONSISTENT ADMINISTRATION OF
DUE PROCESS IS PARTICULARLY NECESSARY WITH RESPECT TO SAPS AND
SCI PROGRAMS, WHERE THERE IS NO STATUTORY OR EXECUTIVE ORDER
AUTHORITY WITH RESPECT TO RIGHTS OF BOTH FEDERAL AND CONTRACTOR
EMPLOYEES. SPECIFICALLY, AS GAO HAS IDENTIFIED, EMPLOYEES OFTEN
RECEIVE NO DE FACTO RIGHTS WHEN ACCESS IS DENIED OR REVOKED.
EMPLOYEES CAN AND DO LOSE ACCESS WITHOUT EVEN BEING TOLD THEY'VE
LOST IT, LET ALONE THE REASONS FOR THE ACTION, OR THE RIGHT TO
APPEAL THE DECISION TO AN INDEPENDENT AUTHORITY, ALTHOUGH THIS
MAY BE BECAUSE OF THE SENSITIVITY OF INFORMATION IN SAPS AND SCI
DESIGNATED PROGRAMS. SURELY WE CAN DEVELOP A MORE EQUITABLE
PROCESS THAT MAINTAINS THE SANCTITY OF CLASSIFIED INFORMATION.

ALLOWING EMPLOYEES THE RIGHT TO WRITTEN NOTIFICATION WITH
THE REASONS FOR THE ACTION, THE OPPORTUNITY TO RESPOND TO
ALLEGATIONS, AND THE RIGHT TO APPEAL TO AN INDEPENDENT
ADJUDICATING AUTHORITY, IS THE BEST WAY OUR GOVERNMENT HAS TO
INSURE THAT DECISIONS ARE MADE ON THE BASIS OF NATIONAL SECURITY
AND NOT FOR A NON-SECURITY RELATED REASON. DURING HEARINGS HELD
EARLIER THIS YEAR BY MY SUBCOMMITTEE, I HEARD TESTIMONY ABOUT THE
INCREASING PRACTICE OF DENYING OR REVOKING SECURITY CLEARANCES IN
RETALIATION AGAINST EMPLOYEES WHO BLOW THE WHISTLE. SINCE THE
MERIT SYSTEM PROTECTION BOARD LACKS THE AUTHORITY TO REVIEW
SECURITY CLEARANCE DECISIONS, FEDERAL EMPLOYEES HAVE NO STATUTORY
PROTECTION AGAINST THIS TYPE OF RETALIATION.



FINALLY, AS I MENTIONED BEFORE, THE BASIC SECURITY
CLASSIFICATION SYSTEM AND THE RIGHTS AFFORDED TO EMPLOYEES WERE
DEVELOPED NEARLY FORTY YEARS AGO, WHEN THE NATIONAL SECURITY
THREATS POSED TO OUR COUNTRY WERE DRAMATICALLY DIFFERENT. WITH A
NEW ADMINISTRATION CONDUCTING A REVIEW OF THE FEDERAL GOVERNMENT,
WE OUGHT TO CONDUCT A MORE FUNDAMENTAL EXAMINATION OF OUR
NATIONAL SECURITY SYSTEM IN WHICH WE ASK WHETHER THE ASSUMPTIONS
AT WORK WHEN THE SYSTEM WAS DEVELOPED ARE STILL OPERATIVE, AND IN
WHICH EFFICIENCY IN GOVERNMENT AND FAIRNESS TO FEDERAL AND
CONTRACTOR EMPLOYEES ARE ADDRESSED.

CHAIRMAN EDWARDS, AGAIN I THANK YOU FOR THESE JOINT
HEARINGS, I LOOK FORWARD TO WORKING WITH YOUR SUBCOMMITTEE ON
THESE ISSUES, AND TO THE TESTIMONY OF OUR WITNESSES THIS
MORNING.



8

Mr. Edwards. You may proceed.

Ms. Heivilin. A clearance, a security clearance in any of these
areas can be denied or revoked when unfavorable information on
the individual surfaces which is not consistent with national secu-
rity issues.

Generally, the individual's clearance or access is suspended pend-
ing the resolution of the unfavorable information. Generally, it is
agreed there are certain treatments that the individual should be
given in order that they have fair treatment in the situation.

We believe they should be notified of the action; they should be

fiven the reasons that the action is being taken; and they should
ave a chance to appeal the proposed actions. In other words, they
should be able to tell their side of the story. This is commonly re-
ferred to as administrative due process. That is the subject we are
going to be talking about here.

First, I would like to talk about the requirements in the area. On
another chart we have here we listed the various regulations and
directives that apply in this area.

There is no legislation or Executive order that spells out due
process requirements for Government employees. However, there is
a 1960 Executive order that applies to contractor employees and
their access to classified information, but it does not mention ac-
cess to special access programs and sensitive compartmented infor-
mation.

For their security clearance, it requires for contract employees
that their administrative due process include evidentiary hearings.
This has been set up by the Department of Defense and by the De-
partment of Energy. The Department of Energy applies the same
procedures for their Government employees, so their Government
employees receive evidentiary hearings.

DOD doesn't provide evidentiary hearings to its military or its ci-
vilian employees. Under the DOD regulation, 5200. 2-R we have
listed there, they get a written notice, a chance to respond, and a
chance to appeal to a higher authority. The Army seems to apply
these same procedures across the board for the clearances, for the
SCI, and for the SAP.

When we examined the practices, we found that the practices
ranged in the area; different situations, different types of employ-
ees, and different types of clearances get different practices when
it comes to administrative due process. For example, for the special
access programs, the Navy and the Air Force do not provide due
process in the cases we looked at for either its employees or for
contractors. For the sensitive compartmented information, when
access was denied or revoked, in the cases we looked at again, ad-
ministrative due process was provided.

We looked at suspensions, which was an area of concern to us,
and we found that Defense and State suspended clearances for long
periods of time without telling the employees why their clearance
was being suspended.

The Energy Department had much shorter suspension times. At
Energy, 84 percent of their suspensions were cleared up in less
than 6 months; whereas with the Air Force, after 6 months, you
still had 88 percent of the suspensions still pending. With the State
Department, 59 percent were still suspended after 6 months. For



the Army and the Navy, we did not have enough data to be able
to come up with a percentage.

The Defense Department is supposed to send cases to central ad-
judication for disposition when clearances are suspended. However,
in the 1990 data we looked at, neither the Air Force, the Army, nor
the Navy, in all of those, 70 percent of the cases we looked at had
not been sent forward for adjudication, there was no final action;
and the people were separated or discharged or incarcerated and
they still had not reported that their clearances had been revoked.
They hadn't resolved the suspensions.

The Air Force, only 9 percent were revoked in 1990 and 91 per-
cent were left in suspension.

When we looked at the appeals procedures, we found in the Air
Force, the Navy, and the State Department, that the appeals proce-
dures appeared to lack independence because the individuals hear-


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Online LibraryUnited States. Congress. House. Committee on the JDue process in security clearance determinations : joint hearing before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary and the Subcommittee on the Civil Service of the Committee on Post Office and Civil Service, House of Representatives, One Hundred Third Congr → online text (page 1 of 17)