SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2018, Issue No. 47
July 24, 2018

Secrecy News Blog: https://fas.org/blogs/secrecy/

SECURITY CLEARANCES AND PRESIDENTIAL AUTHORITY

Revoking security clearances for access to classified information in order to punish critics, as the White House proposed to do yesterday, is probably within the President's authority. But it shouldn't be. And there is, in principle, a way to prevent it.

"Not only is the President looking to take away [former CIA director John] Brennan's security clearance, he's also looking into the clearances of Comey, Clapper, Hayden, Rice, and McCabe," said White House press secretary Sarah Sanders. "The President is exploring the mechanisms to remove security clearance because they've politicized and, in some cases, monetized their public service and security clearances." (Comey and McCabe, it turns out, no longer hold security clearances.)

"Making baseless accusations of improper contact with Russia or being influenced by Russia against the President is extremely inappropriate," she said. "And the fact that people with security clearances are making these baseless charges provides inappropriate legitimacy to accusations with zero evidence."

In fact, making baseless accusations (let alone well-founded accusations) is not normally grounds for denial or revocation of a security clearance.

But in the wake of a 1988 Supreme Court case known as Navy v. Egan, it is often presumed that the President can grant, deny or revoke a security clearance for any reason or for no reason at all.

Yet that is not exactly correct, as Louis Fisher explained in a 2009 paper for the Law Library of Congress.

While the Court in Egan affirmed deference to the executive branch in matters of national security, even there such deference was not absolute and it was explicitly constrained by the possibility of legislative action ("unless Congress specifically has provided otherwise").

"Nothing in Egan recognizes a plenary or exclusive power on the part of the President over classified information," Fisher concluded. See Judicial Interpretations of Egan by Louis Fisher, The Law Library of Congress, November 13, 2009.

It follows that if Congress disapproved of the use of the security clearance system to regulate or suppress critical commentary, then it -- or perhaps a new Congress -- could effectively prohibit such use.

FLYING CARS AND DRONES AND MORE FROM CRS

New and updated reports from the Congressional Research Service include the following.

Flying Cars and Drones Pose Policy Challenges for Managing and Regulating Low-Altitude Airspace, CRS Insight, July 23, 2018:

"Duck Boat" Accident Highlights Gap in Regulation, CRS Insight, July 20, 2018:

Emergency Department Boarding of Behavioral Health Patients, CRS In Focus, July 19, 2018:

Transnational Crime Issues: Human Trafficking, CRS In Focus, July 19, 2018:

The U.S. Trade Deficit: An Overview, CRS In Focus, July 18, 2018:

U.S.-EU Trade and Economic Issues, CRS In Focus, July 20, 2018:

U.S.-EU Trade and Investment Ties: Magnitude and Scope, CRS In Focus, July 20, 2018:

Mexico: Evolution of the Mérida Initiative, 2007-2019, CRS In Focus, July 23, 2018:

Iran Nuclear Agreement and U.S. Exit, updated July 20, 2018:

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

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