Tuesday, July 10, 2007

Republicans On Senate Intelligence Commitee Send Administration A Message

When I woke up this morning I went to my usual sites. After a little digging I found that TheHill.com was reporting an important story, made hard to either understand or confirm by the authors refusal to give citations and links. It has taken me all day to clarify theHill.com article. Perhaps Elana Schor and Roxana Tiron will do better in future editions.

Seven years ago, Congress passed a law known as the Smith Amendment. The Smith Amendment has made it either impossible or extremely difficult for members of the armed services, Department of Defense employees and employees of defense contractors to obtain security clearances if they have served a year in jail, if they are users of illegal drugs, if they have been determined to be mentally incompetent or if they have been dishonorably discharged or dismissed from the armed forces. The Smith Amendment does provide a procedure for obtaining a waiver, but the DoD complains that waivers take as much as 18 months.

Arguing that they need greater flexibility when issuing security clearances, the Pentagon has asked their friends on the Senate Armed Services Committee to slip language into nearly identical sections of S.1547, the National Defense Authorization Act for Fiscal Year 2008 and S.1548, the Department of Defense Autnorization Act for Fiscal Year 2008, repealing the Smith Amendment which is officially known as Section 989 of Title 10 of the United States Code. The Armed Services Committee inserted the language.

The Senate Intelligence Committee has oversight responsibilities on matters involving security clearances. They had to consider the repeal of the Smith Amendment.

The good folks over at the Senate Intelligence Committee sent a message to the Armed Services Committee. In a 10-5 vote, lead by Republican Kit Bond (R-MO), the committee rejected the repeal. Surprisingly, Senators Jay Rockefeller (D-WV.), Russ Feingold (D-WS.) and Ron Wyden (D-OR) supported the repeal. According to the official report,

The Committee understands DoD's desire to have more flexibility to give clearances to otherwise qualified individuals who are currently barred from receiving or renewing their security clearances. Because of the extremely sensitive nature of DoD's military and intelligence activities, however, the Committee is concerned that a blanket repeal of section 986 could lead to unintended compromises or mishandling of classified information. Further, the Committee believes that the waiver authority that is currently provided in section 986 is sufficient to give DoD the flexibility and discretion it needs in handling cases involving convictions or dishonorable discharges. With respect to the two remaining categories, it is the Committee's opinion that an individual who is currently using illicit substances or is mentally incompetent is not suited for access to classified information.

The Committee believes that the issue of security clearances, including grounds for disqualification and waiver procedures, should be examined carefully in close coordination with DoD (and other appropriate offices in the Executive Branch) and the Office of the Director of National Intelligence.
Senators Rockefeller, Wyden and Feingold dissented. Essentially they argued that,
We have been advised that there is no comparable statute applicable to any other department or agency of the government. Throughout the government, the regular security clearance procedures established by the President under Executive Order 12968 make clear that `agencies may investigate and consider any matter that relates to the determination of whether access is clearly consistent with the interests of national security.'
Senators Bond,Chambliss, Hatch, Snowe and Barr responded,
Proponents of Section 1064, including the Administration, have argued that the procedure for obtaining a waiver is `onerous' and may discourage agencies or individuals from pursuing a meritorious waiver. Section 986, however, does not mandate any procedure for considering or granting a waiver. Rather, this statute clearly states that the standards and procedures are to be established by Executive order or other Presidential guidance. Thus, to the extent that DoD believes that the waiver process is too cumbersome or does not provide sufficient flexibility, DoD should seek changes in the implementing guidance issued by the Executive branch.

In recent years, there have been some noteworthy and unfortunate leaks of sensitive intelligence programs. These leaks have compromised classified information and likely led to our enemies changing their tactics to thwart our collection efforts. Because such leaks can cause irreparable harm to our intelligence programs, reasonable measures such as Section 986 that protect classified information should be preserved.

Section 986 has significant implications for the Intelligence Community as there are a number of Intelligence Community components within DoD. Further, we believe that we should give serious consideration to extending similar security clearance restrictions to the rest of the Intelligence Community. Rather than risk compromising our intelligence sources and methods, we believe that this statute serves as a good starting point for fully exploring further options in this area.
This is an interesting little squabble. It would appear the Executive is trying secure the repeal of an existing law in order to allow the President's executive orders to totally control the granting of security clearances. Instead of the leading Democrats trying to protect the power of Congress in this area, it is the Republicans, joined by some Democrats, who are telling the President that the Congress will handle security clearance issues, thank you very much.

I only wish Senator Rockefeller's press office had returned my call. I would love to know what the Senator was thinking. Thank you to Senator Bond's office for providing us the original report and the additional views of both the majority and minority. Much appreciated.

To the nice people at theHill.com, you are an online newspaper, with the emphasis on "on-line." Please link bills and other relevant sources. Some of us are curious.