Cutting off former high-ranking government officials from classified information sends a chilling message to current rank-and-file intelligence professionals. That message, coming through quite clearly from the White House, is that dissent is not welcome. And for intelligence analysts with a family or a mortgage, the prospect of losing a security clearance is grim — it means you lose your job, too. Will CIA employees be worried they may have their security clearance revoked if they don’t go along with Trump’s impulses? How can we attract the “best and brightest” to work in government when the administration keeps showing what it does to people who criticize the president?
Trump is correct that the executive branch has almost absolute authority for making security clearance decisions. People have had their clearances revoked without even learning exactly why, as it is a matter of “national security.” After 9/11, Muslims working in the intelligence community as experts in aviation and physics had their clearances revoked and were told those decisions, as all security clearance decisions, were not judicially reviewable.
The Supreme Court is clear — no one has a right to a security clearance, and decisions are not generally judicially reviewable. The only small opening the Supreme Court left open, never successfully used, is when there is a “colorable constitutional claim.” Brennan, along with other past officials the administration may revoke clearances for, such as former FBI director James B. Comey and Obama national security adviser Susan E. Rice, might really have such a claim: exercising their First Amendment right to criticize the president appears to be the reason for the decision.
The Supreme Court ruled in Department of Navy v. Egan that, “The protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.” The courts do not want to second-guess these decisions, so they leave it to the agency that has the necessary expertise in national security decisions. But I do not think the court contemplated a scenario where the president was unilaterally making these decisions for political reasons.
One of the things that makes the United States intelligence services so unique and adept is their incredible diversity. When I worked at the CIA, if I had trouble translating a difficult Arabic phrase that I could not find in any dictionary, in my office was a native speaker who could tell me what it referred to and give me the background to make sense of it. Having people precisely because they disagreed and had different backgrounds — race, religion, language — is what made us better. Would you join the CIA right now if you were Muslim? Or if you simply disagreed with Trump?
Heidi Gilchrist is an assistant professor at Brooklyn Law School.
The Washington Post