As the security clearance process comes under the microscope during President-elect Donald Trump’s transition, some experts and former intelligence community members say the system for determining whether people are eligible for access to classified information needs a revamp.
Given the challenges of over-classification, insider threats, and today’s security environment, the clearance process may require significant changes, observers told The Cipher Brief. And beyond the speculation surrounding Trump’s son-in-law Jared Kushner, a real estate developer, possibly receiving a security clearance, the incoming administration faces other significant hurdles.
The Trump administration is expected to gather a number of people new to government to the stage, much like the president-elect is himself. That “will put a lot of pressure on the people who are doing background investigations,” according to Jeffrey H. Smith, former General Counsel at CIA.
“One assumes Trump is going to have a lot more people who have never had a clearance or haven’t had one for a long time. There has to be a real strain on the system,” Smith said. “On the other hand, most of the people who are coming in won’t need access to the most secret information. The Secret clearance, which can be granted pretty quickly, is probably sufficient for the vast bulk.”
But how might Kushner fit in the new administration? After reports that there had been some questions into possibly getting security clearances for Trump’s children and Kushner, the president-elect recently tweeted that “I am not trying to get ‘top level security clearance’ for my children.” When the New York Times asked Trump on Tuesday what Kushner’s role would be in his administration, Trump replied, “Oh. Maybe nothing. Because I don’t want to have people saying ‘conflict.’”
Even though “the president of the United States is allowed to have whatever conflicts he wants — he or she wants. But I don’t want to go by that,” Trump said. He added, however, that Kushner could “be very helpful” in helping broker a peace agreement between Israelis and Palestinians.
While a Secret clearance can be gotten relatively quickly, “a Top Secret security clearance, and one that would have access to highly classified intelligence or highly classified military operations, would ordinarily take much, much longer,” Smith, now a partner at Arnold & Porter, said.
“The security establishment would be very reluctant to grant that without doing a very thorough background check,” he noted.
A security clearance deems that a person — either a federal employee or a contractor doing government work — is eligible for access to classified national security information. There are three levels of security clearances: Confidential, Secret, and Top Secret. The Top Secret level is also connected with two major categories of classified information that require additional restrictions since they are associated with especially vulnerable information: Sensitive Compartmented Information, which involves intelligence sources, methods, and processes; and Special Access Programs.
The process for a security clearance is initiated by the sponsoring federal agency, and individuals looking for a national security position must fill out a 127-page form known as Standard Form 86 (SF86). This intensive questionnaire covers issues such as alcohol and drug use, employment history and foreign travel and ties, among other personal details. With that form submitted, a background check investigation occurs.
Investigators talk to friends, neighbors, and coworkers; check criminal records and credit history; and scrutinize the information provided in the SF86. Some — but not all — background investigations involve a polygraph test.
“An issue is ordinarily in order to have access to the most secret information, one has to take a polygraph test,” Smith said. “It’s not fun, and the polygraph is not a foolproof instrument, but it is certainly an effective tool for screening people. Are we going to polygraph Mr. Kushner? Probably not, but ordinarily, one would be asked to take a polygraph.”
On October 1, the responsibility for about 95 percent of all background investigations transferred from the Office of Personnel Management, Federal Investigative Services (OPM-FIS) to a new, semi-autonomous entity within OPM dubbed the National Background Investigations Bureau (NBIB).
As with OPM-FIS, the NBIB does some of the investigative work itself, but private firms are contracted for the rest. And a number of federal agencies have the authority to conduct all or some of their own investigations. Notably, the CIA does its own security clearance background checks and also conducts checks for ODNI employees and contractors.
After the background check, the sponsoring agency generally decides on the person’s eligibility for the clearance. And it’s not over there — to maintain a security clearance, individuals are periodically reinvestigated.
According to the annual report by the Office of the Director of National Intelligence, approximately 4.3 million individuals held security clearances as of October 1, 2015 — there were 2,885,570 security clearances at the Confidential or Secret level and 1,363,483 security clearances at the Top Secret level.
For Kushner, there are some specific questions about his potential role in the Trump administration given the anti-nepotism laws on the books. Bradley P. Moss, a national security lawyer, noted that “there is definitely a difference in terms of how some of the nepotism laws apply between a transition team and once you’re actually in office.”
The transition team is a limited staff with a smaller number of people, particularly at the senior level, and they are processed quickly for clearances so they can get briefings from various Obama administration counterparts and be up to speed for the turnover in January, Moss said. But once Trump becomes president, the anti-nepotism law applies.
Passed in 1967, the law states that "a public official may not appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public official."
While Kushner clearly falls into the “relative” category, the legal question of whether the White House constitutes an “agency” is not settled law, experts note. Potentially Trump could keep Kushner on board as an unofficial, unpaid advisor and the real estate developer could possibly get a clearance, but it is unclear how he would be sponsored by a federal agency to initiate the process.
“So how could Trump put his son-in-law in some position, to allow him to both serve and advise as well as hold a security clearance? Is there a viable means to do it, because of this anti-nepotism law? No one knows,” Moss said.
“It’s an unresolved legal question, and I don’t know how much political capital a President Trump would want to put into this,” Moss added.
Issues also continue to swirl around the security clearance system itself, with some experts suggesting it is time for broader reform for a flawed process.
Elizabeth Goitein, who co-directs the Brennan Center for Justice's Liberty and National Security Program, said one problem comes from so much information being “needlessly classified — then everyone and their mother needs a clearance to do their job.”
“And when everybody needs a clearance, you end up with 4.5 million people having security clearances, which is about what we have right now, which is not a good recipe for keeping secrets,” she said. “That’s one way in which reducing over-classification would actually lead to a more effective and intelligence way of sharing threat information.”
“We may have the clearance system wrong,” former CIA and NSA director General Michael Hayden said. Currently, Hayden said, it is “anchored at the front door” with the SF86 and the polygraph examination and an extensive wait as a person’s life is thoroughly investigated.
“It is, frankly, very off-putting and very invasive, and then they let you in the front door and let you wander through the playground for seven years before they check again,” he said. “Take some of the money you’re wasting with this SF86 drill — I’m being a little hyperbolic here — and begin to invest it more in terms of a continuous monitoring approach.”
Putting more of an emphasis on continuous monitoring, rather than entry-level monitoring, is key in today’s security environment, he said. That allows a “higher probability” of picking up insider threats, according to Hayden.
“You can make your continuous monitoring more invasive depending upon the kind of security clearance somebody has, the number of special access programs they have access to. I do think that is by far a more winning hand,” Hayden added.
Spike Bowman, formerly deputy general counsel for national security law at the FBI and deputy of the National Counterintelligence Executive, pointed out that another issue with the process comes from the need to trust many of the applicants given their age.
“The bottom line is you have to trust people. If you look around to see who has security clearances, most people who have clearances are young people, they’re people who have entered the workforce and do not have a history behind them,” he said. “You simply have to trust young people. Somebody like Snowden, the only thing you can do really is hope that people around him can see what’s going on.”
Smith, meanwhile, noted he is familiar with a few instances of young Americans who have spent extensive time abroad who have been unable to get security clearances, possibly due to connections developed while working, studying and living in countries such as China or Russia.
While these should certainly be checked out, such foreign contacts should not immediately eliminate otherwise well-qualified individuals from serving in the intelligence community, he said. Individuals with such life and language experience are a great asset to the intelligence business and this is one area that could be looked at anew in the clearance process, Smith suggested.
Overall, one of the most important issues “is to be vigilant after people get a clearance,” Smith said.
“We don’t want a police state and a heavy hand by the security and counterintelligence people on our fellow citizens, but we do have to worry a great deal about protecting our secrets and efforts to penetrate us. Getting that balance right is hard,” he said.
Mackenzie Weinger is a national security reporter at The Cipher Brief. Follow her on Twitter @mweinger.
