Clearing the Air: Does Choosing Agency Deference in Security Clearance Rulings Dilute Constitutional Challenges?

Authors

Frank Russo

Abstract

The ability to obtain a security clearance has a wide-ranging impact from job placement to questions of fitness in a presidential election. Sustaining a functional career in intelligence, national security, and many other federal fields within the United States is nearly impossible without proper security clearance. In 2016, the importance of proper clearance evolved into a national debate as each presidential candidate staked claims that their opposition should be excluded from receiving sensitive material.

This Comment begins with a detailed history of modern security clearance procedures and MSPB reviews of clearance revocations. Part I focuses on those who need security clearances and how these clearances can be obtained, denied, or revoked. Part I then concludes with a review of the statutorily defined MSPB rules and procedures. In Part II, the conflict between due process rights and national security concerns is explored. Part II finishes with an overview of the two modern arguments, one side advocating for due process versus the other advocating for national security. Part III centers on a detailed explanation of the third approach addressed in Hegab by offering a new way forward for judicial review of security clearances that shows how the limited expansion of the federal judiciary’s role in security clearance revocation protects both constitutional due process and national security interests. Part IV concludes by reinforcing the need for greater attention in security clearance jurisprudence throughout academia.

Recommended Citation

Frank Russo, Clearing the Air: Does Choosing Agency Deference in Security Clearance Rulings Dilute Constitutional Challenges?, 67 Cath. U. L. Rev. 189 (2018).
Available at: https://scholarship.law.edu/lawreview/vol67/iss1/10