John V. Berry is a Virginia lawyer who specializes in cases involving security clearances.
My legal practice involves representing clients denied or at risk of losing their security clearances. Facing the same set of facts outlined by FBI Director James B. Comey about Hillary Clinton and her aides, my less-well-known clients — whether an entry-level government contractor or a GS-14 federal employee — would be in serious jeopardy of losing their security clearances. In fact, I cannot foresee a situation in which an ordinary employee facing such allegations would be able to keep a security clearance with the types of concerns raised in the FBI findings.
I write this as a political centrist who tends to like Clinton as a candidate — but who is also frustrated by a lack of consistency in the security clearance process and a bias in favor of the well-connected. It is a problem that runs across the political spectrum and is not a Democratic or Republican issue, but rather a “who you are and who you know” issue.
The higher-profile the individual, the less likelihood, in most circumstances, of sanctions relating to security issues. In short, current security clearance policy factors in the importance of an individual in deciding whether to revoke a security clearance. Basically, lower-profile individuals get treated differently than those at the top of the political food chain facing the same concerns. Perhaps this is human nature, but it is wrong and should be fixed.
Clinton’s use of a personal server for classified government email, without appropriate approvals and security, would normally be treated as a serious security violation. Another security violation would be the storage and transmission of classified materials using personal (nongovernmental) means off site. Everyone involved in the setting up of the server, the transmission or storage of such information or knowledge of same would have had separate security obligations to follow regarding the rules for protecting classified information. Finally, providing classified information to defense lawyers who are not cleared to review such documents (as was alleged to have occurred) could also constitute a security violation for a regular employee.
Normally, the types of security concerns listed above would be considered significant clearance violations under Guideline K (Handling Protection Information) and Guideline M (Use of Information Technology Systems) of the rules governing security clearances as referenced in State Department regulations.
Consider the government contractor who comes to my office to see me based on allegations that she accidentally took home a personal hard drive containing low-level classified information. Even if the information at issue was not important, it is not uncommon for such an individual to lose her security clearance, be placed on leave and then terminated. This outcome varies, based on the facts of an individual case, but the risk is significant. Other common clearance cases involve government contractors or federal employees who accidentally email classified information to their homes and then face the serious risk of losing their security clearances.
Essentially, these individuals — and I have seen many over the years — go from a job making $150,000 a year to trying to find any job that will take them. Most of these individuals have spent their entire careers in cleared positions, so they have little transferrable experience when they lose their clearance, which leads to the end of their existing career.
Another problem is that there is no single agency that oversees the security clearance process for all individuals. Instead, because each federal agency adjudicates its own security clearances, there can be significant disparity in outcomes between agencies. Security concerns at one agency, say, the Defense Department, may be resolved favorably and a person granted clearance, but the same person presenting the same security concerns may be denied clearance at the FBI. Having so many agencies with duplicative processes also opens the door for more manipulation of individual outcomes.
Security clearances are ultimately governed by presidential executive order, which means that a president can decide who does and doesn’t get a security clearance, and can change the rules. Thus, as a practical matter, a President Clinton would not face a problem obtaining access to classified information, and she could overrule any recommendations denying clearances to her trusted aides. The real issue is fairness. Either we treat everybody the same with respect to classified information or we do not. The next president should overhaul the system so that there is consistency for all clearance holders, whatever their station in life.