September 3, 2013 Steven Aftergood
But can a court review the denial of a security clearance if it involves an unconstitutional act of discrimination or a restriction of constitutionally guaranteed rights?
A new petition for certiorari asks the U.S. Supreme Court to clarify this issue, which has been a recurring source of confusion.
In a lawsuit filed against the National Geospatial-Intelligence Agency in 2011, petitioner Mahmoud Hegab argued that his security clearance had been improperly revoked by NGA in violation of his constitutional rights. Specifically, Hegab alleged that he was being punished because his wife was employed by an Islamic faith-based charity (Islamic Relief USA), that she had attended a Saudi-funded academic institution, and that she had participated in an anti-war demonstration. (All government allegations against her were based on open sources, not classified intelligence.)
In short, Mr. Hegab argued the security process was being used punitively to violate his constitutional freedom of religion, freedom of speech and freedom of association. (“Clearance Lost Due to Anti-Islamic Prejudice, Lawsuit Says,” Secrecy News, October 6, 2011).
The National Geospatial-Intelligence Agency disputed this characterization, and a court declined to review the matter. Judge James C. Cacheris of the Eastern District of Virginia said that even if it were true that the government had violated the Constitution, the court was barred by Egan and prior precedent from reviewing the NGA decision to revoke Hegab’s security clearance. (“Court Says Review of Security Clearance Dispute is ‘Prohibited’,” Secrecy News, January 23, 2012). An appeals court upheld dismissal of the case.
This holding would seem to leave an entire domain of potentially unconstitutional government action beyond judicial review. It is also arguably contrary to another U.S. Supreme Court ruling in a case called Webster v. Doe, in which the Court held that security-based employment decisions could be reviewed where an employee alleged that his constitutional rights had been violated. In Webster v. Doe, a CIA employee challenged his dismissal on grounds of his homosexuality, and the Supreme Court ruled that the matter was judicially reviewable.
In an August 20, 2013 petition to the Supreme Court, Mr. Hegab’s attorney Sheldon I. Cohen asked the Court to rule that the Hegab case is likewise judicially reviewable. The Court is not asked to adjudicate the specific claims of discrimination made by Mr. Hegab but simply to affirm that his claims are eligible for judicial review.
The case law in this area is in “disarray,” Mr. Cohen wrote, and there is “confusion among the lower courts on the permissibility of judicial review of challenges to security clearance determinations where constitutional rights are alleged to have been violated.”
“This case is of exceptional importance because close to five million federal civilian employees, members of the military and employees of defense contractors hold security clearances,” Mr. Cohen wrote. Affirming a right of judicial review in cases like Mr. Hegab’s “would not only protect and uphold the constitutional rights of the affected individual, but would put agency decision makers on notice that they do not have carte blanche to violate the Constitution in this realm.”
A government response to the Hegab petition is due by September 25.
An internal Justice Department working group acknowledged in 1997 that the Webster case “appears to authorize, indeed require, judicial review of equitable constitutional claims.” In a candid Discussion Paper obtained by Secrecy News that was not intended for public release, the working group proposed a narrow form of judicial review in security clearance cases where constitutional claims were raised. But that proposal does not appear to have been accepted or acted upon. See Judicial Review of Claims of Discrimination in Security Clearance Determinations, Department of Justice working group, 1997.
A critical account of the impact of the Supreme Court ruling in Department of the Navy v. Egan was presented in Judicial Interpretations of Egan by Louis Fisher, Law Library of Congress, November 13, 2009.