The Foreign Service Journal, September 2005

had their clearances suspended for more than two years. In the absence of a criminal referral or a decision by the pros- ecutor’s office not to accept the case, DS completes the investi- gation in its own time. If it determines an employee’s con- tinued security clearance is “not clearly consistent with the inter- est of the national security,” DS prepares and submits a recom- mendation for revocation or sus- pension of clearance eligibility to the Director of the Diplomatic Security Bureau for approval. At this point, the employee is allowed to ask for doc- uments in order to prepare a rebuttal to the proposal to revoke the security clearance. He or she is also informed of the right to representation, and provided with the entire investigatory file “as permitted by national security and other applicable law.” More likely than not, these documents will not include the identity of the source of the “derogatory information.” It is also unlikely that the witnesses relied upon by DS will even be identified in the inves- tigative file. There are no rules of evidence that pertain to a DS investigation or restrain its conclusions. The government has the initial burden of proving — “based on substantial evidence” (as opposed to the famil- iar “beyond a reasonable doubt” standard) — that it is not in the national interest to continue the employee’s secu- rity clearance. This is often a minimal standard, because there need only be a “rational basis” for State Department action, due to the level of trust required for access to classified information. Once the government meets its burden, it is then the responsibility of the employee to refute or rebut the government’s case. The limited nature of this process is deemed by the courts to satisfy due process concerns because a security clearance is not a species of property that the Constitution protects with full-blown trial procedures. In other words, because an employee does not “own” a security clearance, it can be revoked without a trial. The employee is only entitled to “minimal due process,” which includes notice and an opportunity to respond. Pursuant to Executive Order 12968 (issued Aug. 4, 1995), once the head of DS approves the revocation of a security clearance, the employee must be provided with a written explanation of the grounds for the revocation. However, that docu- ment need only be as detailed as national security interests permit. State Department regulations also require that the letter advise the affected employee of any recourse available and the procedure for requesting access to his or her investigative file. The Appeals Process The employee is provided a reasonable opportunity (normally 30 days) to reply in writing and to appeal to a three-person management-level panel known as the Security Appeal Panel for review of the security deter- mination. The Under Secretary for Management chairs the panel; the other two members are the Director General of the Foreign Service and the Assistant Secretary for Administration. Personal appearance is permitted before the panel, but direct and cross-examination of witnesses is not permitted. The appeal panel renders the final departmental deci- sion concerning the employee’s security clearance with a recommendation to reinstate or revoke clearance, which ultimately determines the individual’s employa- bility by State. If the panel upholds the bureau’s decision to revoke the security clearance, the employee will likely be pro- posed for separation for cause, because the department’s position is that all Foreign Service employees must main- tain a security clearance as a condition of employment. The employee is entitled to a hearing before the Foreign Service Grievance Board, but the board may not review the merits of the underlying security revocation. The board’s review is limited to whether the procedural requirements for revocation of a clearance have been met and whether separation of the employee serves the “efficiency” of the Service. Federal courts do not have the subject matter juris- diction to review an agency’s national security clearance decision. This restriction is rarely overcome. Employees have attempted to sue the State Department, arguing that the security clearance revocation was retaliatory. Even then, however, courts are often reluctant to inter- Once DS moves to revoke a security clearance, the employee is only entitled to “minimal due process,” which includes notice and an opportunity to respond. F O C U S 60 F O R E I G N S E R V I C E J O U R N A L / S E P T E M B E R 2 0 0 5