SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2013, Issue No. 27
March 14, 2013

Secrecy News Blog: http://www.fas.org/blog/secrecy/

OPM MULLS CHANGES TO SECURITY CLEARANCE QUESTIONNAIRE

The Office of Personnel Management has invited the public to comment on proposed changes to Standard Form (SF) 86, the questionnaire that must be filled out by all persons who are seeking a security clearance for access to classified information.

Although critics have argued that the SF-86 is hopelessly out of date and should be abandoned in favor of a more streamlined process, the changes that OPM is currently considering are mostly technicalities, not a wholesale revision. Proposed changes include a recognition of civil unions as a legal alternative to marriage, a clarification that use of drugs that are illegal under federal law must be reported even if they are legal under state law, and changes in wording and instructions for completion of the Form.

Public comments on the changes were solicited by OPM in a March 12 Federal Register notice.

SF-86 is notoriously burdensome to fill out, requiring individuals to supply detailed personal information about all places they have lived for the past seven years, their employment history and where they went to school, along with the name and contact information of someone who can verify each item, as well as any criminal history record, use of illegal drugs, and so forth.

"The SF 86 takes approximately 150 minutes to complete," the OPM notice says. But for many people, this seems to be an underestimate.

"I spent four hours one Saturday completing [an] SF-86," wrote John Hamre, who was deputy secretary of defense under President Clinton, in a Washington Post op-ed recently. His pointed criticism of the Form and the clearance process may have inspired some of the proposed changes. ("The wrong way to weed out spies," Washington Post, February 20.)

The OPM notice promises that "once entered, a respondent's complete and certified investigative data remains secured in the e-QIP system until the next time" the form must be completed (e.g. for clearance renewal).

But in Secretary Hamre's case this didn't happen for some reason -- his previous Form was not saved. "The OPM apparently had no record of this document, which was filed with that agency," he wrote, so he had to start over from scratch.

When the SF-86 asked for a list of "all foreign travel you have undertaken in the past 7 years," Hamre balked. He said he had repeatedly traveled on official business and always reported any contacts with foreign government officials. So "I refused to enter the information, rather than give it to our government a second time."

As if in response to Hamre's objection, the new OPM notice says the Form's instructions will be "amended so that the respondent need [not] report contact related to official U.S. Government travel."

Much like the national security classification system that it supports, the security clearance process is still predicated on cold war-era presumptions that became obsolete decades ago. This fundamental critique has yet to be addressed by OPM.

"Why does our government rely on forms designed in the 1950s?" Hamre complained. "Our country needs a system built for the 21st century. The current system is pathetic."

DETERRING LEAKS THROUGH POLYGRAPH TESTING

Last summer, Director of National Intelligence James R. Clapper directed agencies that perform polygraph tests to include a "pre-test dialogue" about the need to prevent leaks of classified information as part of the polygraph interview process.

In a July 2012 memorandum to agencies, he said that the CIA's polygraph program exemplified what he had in mind.

"During the pre-test discussion, CIA specifically asks whether an individual has provided classified information or facilitated access to classified information to any unauthorized persons, to include the media, unauthorized U.S. persons, or foreign nationals. The polygraph process is also used to identify deliberate disclosures," DNI Clapper wrote. Other agencies that perform polygraph testing should follow procedures similar to CIA's, he said.

"Aggressive action is required to better equip United States Government elements to prevent unauthorized disclosures," DNI Clapper wrote.

The new policy was announced last June, but the implementing July 2012 memorandum was only released this week in response to Freedom of Information Act requests. See "Deterring and Detecting Unauthorized Disclosures, Including Leaks to the Media, Through Strengthened Polygraph Programs," July 13, 2012:

A copy of the memorandum was also obtained by Jason Leopold of Truthout.org, who reported on it yesterday.

LEAKS: WHY THE GOVERNMENT CONDEMNS AND CONDONES THEM

Leaks of classified information and the government's responses to them are the subject of a new study by David Pozen of Columbia Law School.

The starting point for his examination is the "dramatic disconnect between the way our laws and our leaders condemn leaking in the abstract and the way they condone it in practice." How can this disconnect be understood?

Leaks benefit the government, the author argues, in many ways. They are a safety valve, a covert messaging system, a perception management tool, and more. Even when a particular disclosure is unwelcome or damaging, it serves to validate the system as a whole.

This thesis may explain why the number of leak prosecutions is still lower than might be expected, given the prevalence of leaks, and why new legislative proposals to combat leaks have met with a lukewarm response from executive branch officials.

"The leak laws are so rarely enforced not only because it is hard to punish violators, but also because key institutional actors share overlapping interests in maintaining a permissive culture of classified information disclosures."

The article is full of stimulating observations woven into an original and provocative thesis. See "The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information" by David Pozen, to be published in Harvard Law Review:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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