If information is power, Kushner now has less of both.
While it is not unusual for clearances to be granted and withdrawn, Kushner’s case has the odor of the chaotic swamp at 1600 Pennsylvania Ave. It comes amid fallout from assault allegations against Rob Porter, a former Trump aide who also had an interim clearance, and the dizzying turnover of West Wing personnel.
But Kushner’s situation points to issues beyond Trump’s ill-advised notion that nepotism is okay in the White House, particularly when the relative has no particularly relevant qualifications. Those same issues led to a major revamp of the security clearance process just two years ago with the creation of the National Background Investigations Bureau as a self-described “agile … and robust talent acquisition” agency.
It was launched after a string of high-profile controversies. The Obama administration fired USIS, a background-check firm, amid accusations that it failed to complete 665,000 investigations. USIS also was roundly criticized because its investigations cleared Edward Snowden, the 2013 National Security Agency leaker, and Aaron Alexis, who killed 12 people at the Washington Navy Yard that same year.
Despite the 2016 overhaul, the clearance process still needs repair.
“As [Director of National Intelligence Daniel] Coats has stated, today’s system of granting security clearances — essentially the same system that was in place in 1947 — is broken,” Sen. Mark R. Warner (D-Va.) told the Federal Insider by email. “The process takes too long, costs too much, and is too complicated. It no longer serves the government agencies or their industry partners.”
Mark Zaid, a Washington national security lawyer, has problems with the process, but “I would disagree that the system is broken,” he said, adding for emphasis that “the White House system in this administration is broken.”
While many federal employees and contractors face some elements of Kushner’s situation, other aspects point to the favoritism he enjoyed. Calling it a “politicization of the clearance process,” Zaid said it is “virtually, if not completely unprecedented” for anyone with an interim clearance to have access to the presidential daily brief, the top-secret information provided to the president every day, as Kushner did.
Warner is vice chairman of the Senate Select Committee on Intelligence, which will hold a hearing Wednesday on security-clearance reform. “I hope the Intelligence Committee’s hearing will not only diagnose the current maladies,” the senator said, “but offer bold ideas to provide the transformation required to provide us with the trusted workforce our nation’s security requires.”
The Government Accountability Office returned the security clearance process to its “High Risk List” in January. That was between the regular two-year updates. “It’s very unusual to place an area on our High Risk list out of cycle,” said Brenda S. Farrell, the GAO’s director of defense capabilities and management. “We placed clearances on the list out of cycle because it represents one of the highest management risks in the federal government.”
Federal “agencies are unable to investigate and process personnel security clearances in a timely manner, contributing to a significant backlog of background investigations, totaling more than 700,000 cases as of September 2017,” according to a GAO press release. That is almost four times as large as in 2014.
At Wednesday’s hearing, Farrell is likely to reiterate issues found in two recent reports she managed. The GAO found a lack of long-term goals to address the backlog and delays in processing security clearances.
In fiscal 2012, 59 percent of executive branch agencies the GAO reviewed “reported meeting investigation and adjudication timeliness objectives for initial top-secret clearances,” says its December report. In 2016, that percentage fell to 10 percent.
The GAO has several recommendations, including for the NBIB to develop a plan “for reducing the backlog to a ‘healthy’ inventory of work, representing approximately 6 weeks of work.”
The bureau “has taken steps to improve the background investigation process” but must do more, the GAO said. “[I]t has not developed a plan for reducing the backlog or established goals for increasing total investigator capacity. Without such a plan and goals, the backlog may persist and executive branch agencies will continue to lack the cleared personnel needed to help execute their respective missions.”
Kushner, like many others, got caught in that backlog. But it wasn’t government bureaucracy that doomed his top-secret clearance. If fact, he was treated better than other federal employees and contractors ensnared by the clearance process.
“What seems to differ about Jared Kushner’s case is that he was allowed to access top-secret information even though he only had an interim clearance, and now that his access to that top-secret information has been denied, he’s still employed even though his job requires access to that information,” said Debra A. D’Agostino, founding partner of the Federal Practice Group.
“Most of my clients would find themselves indefinitely suspended.”