Security Clearance Investigations
█ JUDSON KNIGHT
A security clearance is a limited license or initial general permission to access classified information—that is, any data or material belonging to the federal government that relates to sensitive topics such as military plans or vulnerabilities of security systems. Authorization for a security clearance is far from automatic, but rather requires extensive background checks and investigations. A number of laws, including Executive Order 12968, govern background investigations and security clearances, but numerous aspects of the topic remain controversial. This is equally so for the private sector, in which background investigations as a precondition for employment are an increasingly familiar fixture of the workplace.
There are three levels of security clearance, corresponding to three levels of classified material: Confidential, a term referring to information whose disclosure to unauthorized personnel could reasonably be expected to cause damage to national security; Secret, or information whose disclosure to unauthorized personnel could result in serious damage to national security; and Top Secret, a term referring to information whose disclosure to unauthorized personnel could reasonably be expected to result in exceptionally grave consequences.
In addition to the most basic and widely known levels of security clearance, there are numerous other categories, including "need to know" and "compartment." An individual or agency with a "need to know" has a demonstrable and recognized purpose for accessing specific information. "Compartment," in the context of security clearances, refers to a group of individuals with a need to know regarding a specific topic.
Each "compartment" has its own code words and access keys for computerized information. For example, the Central Intelligence Agency (CIA) has used specific colors on cover sheets to indicate particular compartments. Such agencies may designate information according both to the level of security clearance and the compartment. Thus, for one compartment of CIA in the 1970s, devoted to aspects of intelligence concerning the Soviet Union, a message might be designated TOP SECRET REDWOOD.
Implementation of the "compartment" concept as such—and, indeed, the concept of the security clearance— goes back to the days just before America's entry into World War II. At that time, General George Marshall established a list of persons authorized to receive intelligence obtained through the decoding of Japanese diplomatic transmissions. According to Marshal's "Top List," access to this compartment, designated MAGIC, would be limited to the president; the secretaries of State, War, and the Navy; and the directors of army and naval intelligence. As Jeffrey T. Richelson noted in The United States Intelligence Community, "Among those not on the list was the Commander of United States Naval Forces at Pearl Harbor, Admiral Husband Kimmel."
During the war, United States and British intelligence developed a number of compartments, and after signing the Brusa Communications Intelligence Agreement in May 1943, the Allies designated high-level shared information as ULTRA, a term that emerged from British intelligence. Usually ULTRA intelligence would carry a second word designating the compartment: for example, ULTRA RABID referred to traffic analysis intelligence based on intercepted Japanese communications.
In the quarter-century that passed between the beginning of World War II and the height of the Vietnam War, the degree to which the concepts of classified information, compartments, and security clearances matured was nothing short of astounding. Richelson noted this extraordinary development in connection with an interchange during a 1964 Senate Foreign Relations Committee hearing. At the time, the Gulf of Tonkin resolution—which would ultimately give President Lyndon B. Johnson authority to greatly expand the United States presence in Southeast Asia—was under discussion. When committee chairman William Fulbright asked for the source of information on a planned attack by North Vietnamese gun boats against the U.S.S. Turner Joy on the night of August 4, Defense Secretary Robert McNamara replied that "We have some problems because the [committee] staff has not been cleared for certain intelligence."
Senator Frank Lausche expressed bewilderment because, as far as he knew, the committee staff had the highest level of clearance, but Fulbright noted that "he [McNamara] is talking of a special classification of intelligence communications." When Senator Albert Gore, Sr., asked McNamara to clarify, saying, "I had not heard of this particular super classification," McNamara replied, "Clearance is above top secret for the particular information on the situation."
Sensitive compartmented information. "Above top secret" might sound like a contradiction in terms, or at least similar to a fantastic invention of a conspiracy buff, but what McNamara referred to was a compartment. As Senate records show, McNamara went on to identify the category of clearance as Special Intelligence, or SI. The latter is in turn part of a category designated Sensitive Compartmented Information (SCI), which the National Foreign Intelligence Board (NFIB) defined in a 1984 report as "data about sophisticated technical systems for collecting intelligence[,] and information collected by those systems." The systems referred to here would include any and all submarines and ships, ground stations, aircraft, and satellites tasked to the gathering on sensitive information.
Within SCI are several compartments, such as TK or TALENT-KEYHOLE, which concerns data gathered from imaging satellites. SCI also has its own levels of security clearance, ranging from MORAY to SPOKE to UMBRA. To these may be added the more traditional designations mentioned earlier, but even a Confidential document at this high level carries much greater restrictions than an ordinary Top Secret document.
Executive Order 12968. One of the most important documents governing access to classified information and the granting of security clearances is Executive Order 12968, signed by President William J. Clinton on August 4, 1995. Titled "Access to Classified Information," the order "establishes a uniform Federal personnel security program for employees who will be considered for initial or continued access to classified information." It provides rules governing access, among which is the requirement that those being considered for such access submit themselves to investigation of financial records. The order calls upon employers to submit the names of employees who might be considered risks for revealing classified information, and to educate employees with regard to their responsibilities to maintain classified information.
At the beginning of Part 2, "Access Eligibility Policy and Procedure," the order provides for strict limitations on the number of employees in a given office who may be eligible for access to classified information, and notes that such eligibility "shall not be requested or granted solely to permit entry to, or ease of movement within, controlled areas where the employee has no need for access and access to classified information may reasonably be prevented." Part 3 establishes the standards of eligibility, and Part 4 consists of a single paragraph allowing federal agencies to conduct background investigations on behalf of foreign governments if needed.
Part 5 enumerates the employee's right to appeal in cases where access is denied. If the denial has occurred because the employee has no justifiable need to know, there is no appeal, but if he or she has been deemed wanting according to the standards established in Section3.1, then the employee has a right to request an explanation, as well as copies of all documents upon which the denial is based, assuming that access to them is permitted under the Freedom of Information Act.
Criticisms of 12968. Despite these provisions, according to the journal Government Executive, Executive Order 12968 did not reach as far as some advocated. Federal labor unions and legal experts complain that private sector workers still have more substantial appeal rights "that were unaffected by the executive order." Writing in the same publication, Richard Lardner described the order as the culmination of efforts to prevent another case like that of Aldrich Ames, the CIA employee arrested in 1994 for passing information to the Soviet Union and later Russia. For his efforts, Ames received a total of $2 million from Moscow. If the federal government had possessed greater knowledge concerning Ames's finances, supporters of the new financial disclosure measures maintained, he might have been stopped sooner.
To this end, the order had called for the United States Security Policy Board to develop a financial disclosure form whereby employees could provide information regarding their personal finances. Though the board was given 180 days to develop such a form, Lardner noted, a year and a half had passed without any such document emerging. Furthermore, he argued that there were "plenty of questions as to whether a form makes any sense at all," since "Agents willing to betray their country are no more inclined to fill out a financial disclosure form honestly than they are to turn themselves in."
Some 3 million federal employees, as well as about 1.5 million employees of private contracting or consulting firms such as General Dynamics or Boeing, hold security clearances of one kind or another. They receive these only after an extensive series of background checks, which may be as intrusive are they are detailed.
Still, there are gaps in the system. Political parties have often resorted to charges that opponents in government office did not legitimately hold appropriate clearances. These charges reached historical peaks during the 1950s "Red scare" and again during the Clinton administration.
Procedures for government employees and contractors. Military personnel and federal employees requesting security clearances are required to fill out Standard Form (SF) 86, "Questionnaire for National Security Positions." The form, which is rather like an extremely lengthy and detailed version of a job application, then goes to the appropriate investigating authority—for example, the Defense Security Service (DSS) for military personnel. If the clearance requested is Confidential or Secret, there will follow computerized checks with federal and state agencies for information on employment, residences, education, and criminal history. A check of credit history is also conducted.
For Top Secret clearance, in addition to these checks of computerized data, the investigating authority also conducts interviews of personal references given on SF 86, including friends, present and former coworkers and employees, present and former neighbors, and others. Investigators use these references to generate others—i.e., acquaintances mutual to the subject and the reference that the subject may not have listed on the form.
Interviews involve questions about past and present activities, family background, finances, and so on, with an eye toward determining whether the individual has a questionable record involving drugs, alcohol, unexplained foreign travel, criminality, mental imbalance, financial malfeasance, or compromising sexual behavior. Additionally, investigators will check the records of employers, courts, and rental offices, and conduct a one-on-one interview with the subject.
Non-governmental background investigations. In the civilian world, background investigations are typically less stringent for a number of reasons. Companies lack both the resources and the power that the federal government has at its disposal, and in any case, it is hard to imagine a situation in which a security breach involving a producer of game software or soft drinks could impinge on the future of civilization. Nevertheless, non-governmental background investigations can still be quite extensive. Among the devices used by companies to screen employees are drug tests, polygraph tests, medical and physical exams, routine reference checks, and thorough investigations of the individual's criminal history, driving record, financial and credit information, history of civil litigation, and other details. In some cases, investigators may even gather information on the applicant's lifestyle and personal reputation.
Background investigations in the private sector are increasingly big business. Thousands of companies offer their services to investigate virtually every aspect of the job candidate's background, including such sensitive issues as family history. The more thorough private investigators may conduct door-to-door interviews with neighbors, and some even go through the job candidate's trash—which is legal as long as it is on the curb for pickup—to find correspondence, receipts, or other revealing documents or materials.
Naturally, job candidates—especially those disqualified by the results of background checks—have challenged the legality of such activities. Such concerns played a part in the passage of the Fair Credit Reporting Act (FCRA) by Congress in September 1997. The FCRA requires potential employers to obtain written authorization from a job candidate or employee before accessing records from a consumer-reporting agency, and to notify the employee or applicant is any adverse action is taken pursuant to a negative report. According to a study published in Public Personnel Management, background and reference checks are potentially so risky, in a legal sense, to employers that many consider alternatives such as personality tests.
█ FURTHER READING:
The Guide to Background Investigations: A Comprehensive Source Directory for Employee Screening and Background Investigations. Tulsa, OK: T.I.S.I., 1998.
Newman, Elizabeth L. Security Clearance Law and Procedure. Arlington, VA: Dewey Publications, 1998.
Richelson, Jeffrey T. The United States Intelligence Community, third edition. Boulder, CO: Westview Press, 1995.
"Access Denied." Government Executive 29, no. 2 (February 1997): 19.
Bland, Timothy S. "Background Checks: Making a Federal Case." Journal of Property Management 64, no. 5 (September/October 2000): 26–31.
Lardner, Richard. "The Need to Know." Government Executive 29, no. 2 (February 1997): 16–21.
Terpstra, David E., et al. "The Nature of Litigation Surrounding Five Screening Devices." Public Personnel Management 29, no. 1 (spring 2000): 43–54.
Ames (Aldrich H.) Espionage Case
Clinton Administration (1993–2001), United States National Security Policy
Executive Orders and Presidential Directives
Privacy: Legal and Ethical Issues