Reference no: EM133579089

Discussion Question

In the Supreme Court case Department of Navy v. Egan, the Court stated: "The grant or denial of security clearance to a particular employee is a sensitive and inherently discretionary judgment call that is committed by law to the appropriate Executive Branch agency having the necessary expertise in protecting classified information. It is not reasonably possible for an outside, nonexpert body [i.e., the MSPB] to review the substance of such a judgment, and such review cannot be presumed merely because the statute does not expressly preclude it."

Although Egan was technically a case of statutory interpretation (i.e. did Congress give the MSPB authority to review security clearances), the case has really taken a life of its own. Subsequent courts have expanded its reach to find that the entire judicial branch does not have the expertise to review the substance of a security clearance denial or revocation.

In fact, in the recent case Mowery v NGA, Mowery was not denied a security clearance. Rather the CIA stopped processing his clearance based on a negative psych evaluation. In its letter to him, the CIA expressly stated that he was not being denied a security clearance and would not have to admit on future SF 86s that he was denied a clearance. Mowery felt he was being discriminated against based on his Muslim faith. Based on Egan (which concerned whether the MSPB had jurisdiction to review a security clearance denial), the Fourth Circuit refused jurisdiction, finding that the CIA made a "predictive judgment" about underlying security concerns when stopping the processing of his clearance. Hence, the judicial branch refused to look into his claim that he was being discriminated against.

Yet, in a case that came out the same year as Egan, Webster v. Doe (1988), the Supreme Court held that courts could look at colorable constitutional claims such as equal protection or due process. But Webster v. Doe seems to be an outlier. Most courts, citing Egan and its progeny, find that they cannot look at the substance behind a security clearance denial, or anything related to predictive judgments about security.

As we know from this week's readings, Section 6.3 of DoD Directive 5220.6 states:

"Each clearance decision must be a fair and impartial common sense determination based upon consideration of all the relevant and material information and the pertinent criteria and adjudication policy..." (emphasis added).

Each agency is required to apply the exact same adjudicative guidelines and standards as part of substantive due process. As you know from Executive Order 12968, every agency must provide two levels of appeals for a denial or revocation decision.

Should there be the ability, at some point, to take an adverse decision and challenge it in federal court?

Can or should a federal judge have the authority to apply a common sense determination to a security decision rendered by the Executive Branch?

What if the decision was in retaliation for whistleblowing? What if it was based on a discriminatory factor? What if it was just factually wrong?

Do federal courts really not have the expertise to make such determinations? Is there a middle ground?