It is not the role of the Commission to attempt to pass judgment on the legal sufficiency of any of these procedural safeguards or remedies. If any of them is legally defective, either on its face or as it might be applied in any particular case, an appropriate plaintiff will presumably come forward and any claims will then be duly determined by the courts, with the benefit of adversary briefs and on the basis of a properly developed factual record.

There are, however, policy issues raised by the differences between the sets of safeguards available to DoD contractor employees on the one hand and DoD civilian employees on the other. As the Commission sees it, the most fundamental differences are the following: contractor personnel have the assurance that they will have a chance to review all documents on which a decision is based, whereas civilian employees, although in practice they may be provided with such materials, appear to have no such assurance; contractor personnel, unlike civilian personnel, have a right to a trial-type hearing, at which the government has an initial burden of showing that its allegations have some substantial support, at which witnesses testify subject to cross-examination, and at which the Federal Rules of Evidence are used in at least a guideline sense; and more generally, the cases involving contractor personnel, assuming the hearing right is exercised, are handled in a more formal manner, akin to judicial proceedings, with the government's side represented by a qualified trial attorney and with the final decision in the hands of an Administrative Judge who is also an attorney, and a three-member Appeal Board also composed of attorneys.

It is the premise of the questions posed in the Conference Report to which we have already alluded, and it is also the position of the American Bar Association, which has been outspoken on the matter, that the procedural safeguards available to DoD contractor personnel are superior to the safeguards to which DoD civilian personnel are entitled. However, it is not at all self-evident that this is so.

To begin with, as nearly as the Commission can tell, the right of a contractor employee to demand a trial-type hearing before an Administrative Judge is made absolute by the applicable directive, whether or not there are any factual disputes that need to be resolved. Not even civil litigants operating under the Federal Rules of Civil Procedure have as broad a right. On the contrary, those rules effectively foreclose any opportunity for a trial in any case in which the material facts are undisputed, and the only genuine issues concern the significance of those facts. In addition, contractor employees are evidently free to demand a trial-type hearing not only in circumstances where they do not contest the government's allegations and do not have any rebuttal evidence, but also where they desire only to present some information that may be extenuating or mitigating. Even assuming that such a broad hearing right may be superior from an employee's standpoint, and may be available in other contexts involving for example the denial or revocation of professional licenses, that does not mean that such a right is required in the name of fundamental fairness, or that is should become the universal standard in connection with decisions that are as highly discretionary and judgmental as clearance decisions.

Second, while it is true that contractor employees have the right to be represented by counsel at their own expense, that right is empty for those who cannot afford that expense or obtain pro bono representation. Such persons are left with the prospect of facing an experienced trial attorney alone and without representation. Civilian employees may also go unrepresented, but they are not caught up in a system in which there is an experienced trial attorney on the government side. Further, even where contractor employees are able to avail themselves of the right to counsel, that may be only because their employers agree to bear the expense, which is not a possibility in cases involving civilian DoD employees. In our estimation, although we haven't seen any evidence on the point, there is a somewhat lower chance that an employee union might come forward to pick up the expense of such employees.

Third, in contractor employee cases, the employee's right of appeal from an adverse decision is confined by strict scope-of-review limits. The Appeal Board may not consider any evidence not considered by the Administrative Judge. Nor is the Appeal Board free to reverse a decision except on grounds that it was arbitrary, capricious, or contrary to law, or that the factual findings were unreasonable, or that procedural error was committed. These same constraints do not exist in civilian employee cases. The appeal authorities in those cases can take an entirely fresh look and make what they believe to be the appropriate decision, without regard for the lower-level decision, which is apt to be far less detailed than a decision of an Administrative Judge in the DISCR process. Further, while either losing party, which may be the government, can appeal the decision of an Administrative Judge, in civilian employee cases there does not appear to be any provision for appeals of decisions that are favorable to the employee.

Fourth, the system of adjudicating contractor employee cases has a rigidity that can work against the employee. No allowance is made in that system for the value that such employees may bring to the classified work being performed by their employers. No matter how high that value, it does not figure in the adjudicative criteria, and it is therefore ignored. The civilian employee system, however, is flexible enough to take account of that value. In that system, either at the lower level or the appeal stage, decisions can be influenced by arguments that the employee is a big contributor, that any security risk is manageable, and therefore that the risk should be taken. There is also a good chance that supervisors within an employee's component will actually come forward to champion such arguments or to make other arguments on the employee's behalf.

We do not say any of this to denigrate in any way the DISCR process. Rather we make these points only to show that the policy debate is not one-sided, and because it is very unclear to us whether, given a choice between the DISCR process and the existing arrangements, civilian DoD employees would opt for the former. It is even more unclear to us that military personnel, who have an understandable confidence in their own chain of command, would opt for the DISCR process.

We come now to the specific questions posed by the Conference Report, which were directed to the Secretary of Defense but as to which the views of the Commission were invited. These questions asked why, in each of six different respects, "DoD civilian employees should not be provided with procedural rights (in connection with the denial or revocation of a security clearance) that are as protective as those provided to DoD contractor employees."

1. Notice of the reasons for the proposed denial or revocation. In this respect, as the Commission understands, any difference between the rights afforded to the two classes of employees is a matter of degree. The Statement of Reasons that commences the DISCR process is apt to be a more detailed statement than the notice provided to civilian employees. Without attempting to draw any fine lines, the operative principle here should be that affected employees are entitled to a statement that adequately informs them of the factual basis of any proposed adverse action, and that identifies the adjudicative criteria that are relevant under the circumstances.

2. An opportunity to respond. Here again the Commission believes that this opportunity is already afforded to both classes of employees. In any event, the Commission believes that it should be.

3. The right to a hearing or other appearance before a tribunal. A hearing and a trial-type hearing are not synonymous terms. Many forms of proceedings, including some more informal than those now available to civilian DoD employees, could accurately be described as hearings, even though they don't have the characteristics typically associated with trials, such as live testimony subject to cross-examination and precise rules governing the admissibility of evidence. The real issue here is not whether there should be a right to some sort of hearing, because civilian DoD employees already have that right. The issue is whether the hearing rights of civilian employees and contractor employees should be conformed, which is an issue we discuss in a moment, under the caption "The availability of trial-type procedures."

So far as concerns the right to an "appearance before a tribunal," the Commission understands that as matters stand today, civilian DoD employees cannot demand, with any assurance that the demand will be granted, an opportunity to appear personally before any designated adjudicative authority that is considering whether to deny or revoke a clearance. The Commission believes such an opportunity should exist.

4. The right to be represented by counsel. This right exists today, although it is diluted by the fact that employees who retain counsel must do so at their own expense, and the cost may be beyond the means of many employees. We note again that contractor employees, particularly senior officials, may have an important edge here, because for them, unlike civilian DoD employees, there is at least a possibility that the employer may agree to bear the cost of any legal representation. The Commission also believes that while the right to counsel is secured to civilian employees in the sense that there is nothing to stop them from consulting an attorney if they choose to do so, such employees should be explicitly informed, as are contractor employees, that they have this right.

5. The availability of trial-type procedures, such as the opportunity to present and cross-examine witnesses. The availability of such procedures to DoD contractor employees, and their unavailability to DoD civilian employees, is the most dramatic difference between the two adjudicative systems. The hard question posed by the Conference Report is whether such procedures should be extended to the civilian employees.

The Commission recognizes that there may be complex legal issues that come into play here, and that the nature of those issues may vary from one individual case to another, depending for example on such circumstances as whether the person affected is an initial applicant for a clearance or already holds a clearance, whether the denial or loss of a clearance leads to the loss of a job, and whether and if so how far and in what way the person's reputation may be impaired or the person may otherwise be stigmatized by an adverse decision. Again, however, any legal issues are for courts to determine, and are beyond the purview of the Commission.

On balance, from solely a policy standpoint, the Commission does not favor the idea of extending trial-type procedural protections to civilian DoD employees.

As already noted, the hearing rights currently granted to contractor employees are broader and more absolute in important respects than even the hearing rights available to civil litigants whose claims and defenses are adjudicated in the Federal courts. No matter what interests such litigants may have at stake, they are not entitled to a trial, and their claims or defenses may be resolved against them on the basis of written submissions, unless they are able to show that there is something to have a trial about-namely, a material factual dispute that needs to be resolved. Contractor employees faced with a denial or loss of clearance, however, are evidently entitled to a trial-type hearing, on demand, without making such a showing.

The extension of such a broad hearing right to civilian employees could well result in a great many trial-type hearings in cases involving only undisputed facts. It would certainly have the result of putting a great many more discretionary clearance decisions into the hands of judges. It would also introduce new and significant delays into the system, because it is unquestionably the fact that cases handled under the DISCR process, if trial-type hearings are demanded, on the average take far longer to resolve than cases adjudicated on a written record. Such delays are not merely a matter of inconvenience. One practical effect is that persons who are applicants for an initial clearance, and have been assigned to positions requiring a clearance, cannot move into those positions so long as the clearance outcome remains in doubt. Other difficulties arise if a person already holds a clearance that is threatened with revocation. If that clearance is a job requirement and is suspended pending the outcome of the revocation proceedings, the person cannot perform the job in the meantime. If the clearance is not suspended pending the outcome, a security risk must be taken in the meantime. In all these circumstances there is a price to be paid, not just by the employee but also by the government.

To be sure, there will always be cases that do involve serious factual disputes, and in which the existence or non-existence of those facts and the credibility of witnesses might be determined with more certainty if trial-type procedures were employed. There may also be cases in which an experienced Administrative Judge might be better able to apply the clearance criteria even to undisputed facts than other adjudicators. These considerations, however, do not persuade the Commission to alter its policy advice. Trial-type procedures are at their most effective in promoting fairness and accuracy only when both sides are equally represented. In the DISCR process only the government is sure to be represented. The same would be true if the DISCR model was followed for DoD civilian employees. The Commission is also influenced in its view by the fact that such employees are less likely than contractor employees to lose their jobs, or to incur serious damage to their careers, if a clearance is denied or revoked. And the Commission is also influenced by its doubt that, if given the choice, most civilian employees would prefer the DISCR process to the system now in place.

At the same time, the Commission believes that the fairness of the system now in place can and should be improved. In particular, the procedural protections now available to DoD civilian employees should be expanded to include the same explicit right to review any documents on which a proposed denial or revocation of a clearance may be based, or which are germane to such a proposed action, that is presently afforded to DoD contractor employees. This opportunity should be afforded as early in the process as possible, so as to make it useful to the employee in preparing an initial written response to the allegations set forth in statement of reasons that commences the process.

6. The opportunity to appeal any final decision. This right exists today. Indeed in some ways, as already noted, the appeal available to civilian employees may be a more valuable right than the appeal available to contractor employees, because the latter is constrained by scope-of-review limits whereas the former gives the employee a true "second bite at the apple." Nevertheless, the Commission realizes that the appeal procedures vary from one DoD component to another and believes that these procedures should be standardized and should provide for review by appeal boards consisting of three members. In the Commission's view these boards should have a diverse membership, including at least one senior official in the employee's DoD component and, in the absence of an attorney adviser to the board, one attorney. Part of the purpose here would be to ensure a broad perspective, and a review that is not solely in the hands of security officials.