SECRECY NEWS
from the FAS Project on Government Secrecy
April 6, 2001

THE PITFALLS OF LEGISLATING SECURITY

In response to various real and perceived security lapses, Congress has increasingly intervened to legislate new security policies for the executive branch, unilaterally enacting new rules on declassification, polygraph testing, and other aspects of security. But such legislation is a blunt instrument that is now creating more problems than it solves, many security officials say.

The latest controversy concerns a new statute that prohibits the Defense Department from granting or renewing a security clearance to: anyone who has been convicted of a crime and sentenced to a prison term exceeding one year; anyone who has received a dishonorable discharge from the military; and certain others.

The statute was crafted by Senator Robert Smith last year after it was discovered that in numerous cases, murderers and other felons had been granted security clearances. Senator Smith's language was included as Section 1071 of the FY 2001 Defense Authorization Act. See:

Keeping felons away from classified material might seem like a sensible idea, but Sen. Smith's statute is generating new problems because of its rigid and possibly unenforceable language.

In the first place, it makes no allowance for the passage of time. A 50 year old could lose a security clearance based on an dishonorable discharge from the military or a drunk driving conviction that occurred when he was 18. As a result, not only would the employee lose his job, the government could lose the benefits of a person with unique skill sets.

Security clearances are supposed to be adjudicated based on "the whole person," taking into account all relevant aspects of a person's behavior over time, including both adverse information and possible mitigating factors. The Smith statute says forget about the whole person -- there are some things that should categorically disqualify someone from holding a clearance.

A second problem is due to the fact that the statute only applies to the Department of Defense. It therefore undermines the objective of "reciprocity" according to which agencies are supposed to recognize and accept each other's security clearance policies. Under the new law, a person cleared by CIA might now have to be rejected by NSA or other defense agencies.

Worst of all, the delayed impact of the Smith statute produces some perverse incentives. The statute does not immediately affect any of the two million cleared DoD employees and contractors-- no clearances will be immediately revoked. Rather, it prohibits *renewal* of clearances whenever periodic reinvestigations are performed every 5 years or so. This means that an unknown number of cleared personnel will be in a position to anticipate that because of the new law their clearance will not be renewed, and their job will be lost, and there is nothing they can do about it.

"This is a recipe for creating a disgruntled employee," said one agency security official on Thursday at a meeting of the National Industrial Security Program Policy Advisory Committee, where the statute was discussed. "Disgruntled employees" are of course a source of security violations and other concerns.

"They [Congress] fired for effect," said Dan Jacobson, retiring staff director of the interagency Security Policy Board (which was recently abolished by President Bush's National Security Presidential Directive 1). "Obviously, this law is going to have to be fixed."

"I'm sure the Senator didn't intend this," another security official said, "but it's a real problem."

The lesson of this and similar legislative initiatives to tighten security seems to be that Congress should set performance goals and perform rigorous oversight. But it would do better to leave the execution of security policy to the executive branch.

A US-CHINA AGREEMENT ON MILITARY SAFETY

In 1998, the United States and China signed an Agreement "On Establishing a Consultation Mechanism to Strengthen Military Maritime Safety" that may provide a framework, or a model, for advancing a resolution of the current standoff concerning the downed US Navy plane in China.

In that Agreement, the two countries established a procedure "for the purpose of promoting common understandings regarding activities undertaken by their respective maritime and air forces...."

The agreement "is designed to construct a framework whereby you can work out issues between China and the United States of both maritime and aviation rules," said Adm. Craig Quigley at the Pentagon press briefing on Thursday.

The Pentagon released a copy of the Agreement, which is posted here:

BUSH ON FOIA

President George W. Bush offered his first official thoughts on the Freedom of Information Act on Thursday, responding to a question posed at a meeting of the American Society of Newspaper Editors:

It should be noted that the President's personal email messages -- and presidential records generally -- are not subject to the Freedom of Information Act. At the same time, records concerning national security are not exempt from the Freedom of Information Act, unless they are also "properly classified."

The President's agreement to "cooperate" with the requirements of the law is encouraging but not exactly inspirational. By way of comparison, oldtimers may nostalgically recall President Clinton's ringing endorsement of the FOIA in October 1993:

See:

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