<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:44769.wais]
CAN YOU CLEAR ME NOW? WEIGHING FOREIGN INFLUENCE FACTORS IN SECURITY
CLEARANCE INVESTIGATIONS
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HEARING
before the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
JULY 13, 2006
__________
Serial No. 109-255
__________
Printed for the use of the Committee on Government Reform
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Available via the World Wide Web: http://www.gpoaccess.gov/congress/
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http://www.house.gov/reform
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COMMITTEE ON GOVERNMENT REFORM
TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut HENRY A. WAXMAN, California
DAN BURTON, Indiana TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania
GIL GUTKNECHT, Minnesota CAROLYN B. MALONEY, New York
MARK E. SOUDER, Indiana ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio DENNIS J. KUCINICH, Ohio
TODD RUSSELL PLATTS, Pennsylvania DANNY K. DAVIS, Illinois
CHRIS CANNON, Utah WM. LACY CLAY, Missouri
JOHN J. DUNCAN, Jr., Tennessee DIANE E. WATSON, California
CANDICE S. MILLER, Michigan STEPHEN F. LYNCH, Massachusetts
MICHAEL R. TURNER, Ohio CHRIS VAN HOLLEN, Maryland
DARRELL E. ISSA, California LINDA T. SANCHEZ, California
JON C. PORTER, Nevada C.A. DUTCH RUPPERSBERGER, Maryland
KENNY MARCHANT, Texas BRIAN HIGGINS, New York
LYNN A. WESTMORELAND, Georgia ELEANOR HOLMES NORTON, District of
PATRICK T. McHENRY, North Carolina Columbia
CHARLES W. DENT, Pennsylvania ------
VIRGINIA FOXX, North Carolina BERNARD SANDERS, Vermont
JEAN SCHMIDT, Ohio (Independent)
BRIAN P. BILBRAY, California
David Marin, Staff Director
Lawrence Halloran, Deputy Staff Director
Teresa Austin, Chief Clerk
Phil Barnett, Minority Chief of Staff/Chief Counsel
C O N T E N T S
----------
Page
Hearing held on July 13, 2006.................................... 1
Statement of:
Andrews, Robert, Deputy Under Secretary, Defense
Counterintelligence and Security, U.S. Department of
Defense; and J. William Leonard, Director, Information
Security and Oversight Office, National Archives and
Records Administration..................................... 12
Andrews, Robert.......................................... 12
Leonard, J. William...................................... 21
Zaid, Mark S., esq., managing partner, Krieger & Zaid; Doug
Wagoner, chairman, Intelligence Subcommittee, Information
Technology Association of America, on behalf of the
Security Clearance Coalition; and Walter S. Nagurny,
director, Industrial Security Office, EDS U.S. Government
Solutions.................................................. 41
Nagurny, Walter S........................................ 95
Wagoner, Doug............................................ 80
Zaid, Mark S............................................. 41
Letters, statements, etc., submitted for the record by:
Andrews, Robert, Deputy Under Secretary, Defense
Counterintelligence and Security, U.S. Department of
Defense, prepared statement of............................. 15
Cummings, Hon. Elijah E., a Representative in Congress from
the State of Maryland, prepared statement of............... 110
Davis, Chairman Tom, a Representative in Congress from the
State of Virginia, prepared statement of................... 4
Leonard, J. William, Director, Information Security and
Oversight Office, National Archives and Records
Administration, prepared statement of...................... 23
Nagurny, Walter S., director, Industrial Security Office, EDS
U.S. Government Solutions, prepared statement of........... 97
Porter, Hon. Jon C., a Representative in Congress from the
State of Nevada, prepared statement of..................... 114
Wagoner, Doug, chairman, Intelligence Subcommittee,
Information Technology Association of America, on behalf of
the Security Clearance Coalition, prepared statement of.... 83
Waxman, Hon. Henry A., a Representative in Congress from the
State of California, prepared statement of................. 8
Zaid, Mark S., esq., managing partner, Krieger & Zaid,
prepared statement of...................................... 45
CAN YOU CLEAR ME NOW? WEIGHING FOREIGN INFLUENCE FACTORS IN SECURITY
CLEARANCE INVESTIGATIONS
----------
THURSDAY, JULY 13, 2006
House of Representatives,
Committee on Government Reform,
Washington, DC.
The committee met, pursuant to notice, at 9:40 a.m., in
room 2154, Rayburn House Office Building, Hon. Tom Davis
(chairman of the committee) presiding.
Present: Representatives Davis of Virginia, Gutknecht,
Platts, Duncan, Dent, Foxx, Waxman, Maloney, Cummings,
Kucinich, Watson, Van Hollen, Higgins, and Norton.
Staff present: Larry Halloran, deputy staff director/
communications director; Patrick Lyden, parliamentarian; Rob
White, press secretary; Andrea LeBlanc, deputy director of
communications; Brien Beattie, professional staff member;
Teresa Austin, chief clerk; Michael Galindo, deputy clerk;
Kristin Amerling, minority general counsel; Michael McCarthy,
minority counsel; Andrew Su, minority professional staff
member; Earley Green, minority chief clerk; and Jean Gosa,
minority assistant clerk.
Chairman Tom Davis. Committee will come to order. Before
beginning the hearing, I want to dispense with some quick
committee business. I thank the gentlewoman from Florida,
Ileana Ros-Lehtinen, for graciously agreeing to step down from
the subcommittee on energy and resources so that our newest
committee member, Brian Bilbray, can have a seat on that
subcommittee. And with that, I would ask unanimous consent that
Mrs. Ros-Lehtinen be removed from the subcommittee on energy
and resources and Mr. Bilbray be assigned to the subcommittee
on energy and resources and federalism and the Census. Is there
objection? Without objection, so ordered.
Now, on with the hearing.
Today we continue the committee's oversight of efforts to
modernize and streamline the security clearance process, a slow
cumbersome and fragmented system out of sync with current
national security needs. Today we focus on one key aspect of
that process, implementation of new standards to weigh the
significance of foreign preferences or foreign influences on
the trustworthiness of security clearance applicants.
Consistent assessment of those factors across all clearance
granting agencies is one important aspect of the broader effort
to upgrade and standardize the security clearance process. An
increasingly globalized economic and political environment, our
Nation depends on immigrants for a wide range of functions,
including some of the most high tech and sensitive factors in
government work.
Naturalized citizens from every continent have come here
and been successful in businesses that support U.S. troops in
every theater around the globe. Others provide language
expertise that is absolutely critical in our efforts to thwart
the next terrorist plot against the American people.
This is the kind of work that requires a security
clearance, and the ability to distinguish loyal naturalized
citizens from those who might pose a security risk is an
essential part of getting that work done quickly and
effectively. Cold war standards and practices that broadly at
times automatically denied clearances to those with extensive
foreign contacts have to be refined to meet the new realities.
Toward that end, the President's national security advisor on
September 29, 2005 issued a revised set of parameters designed
to guide decisionmaking by security clearance adjudicators from
across government. The revised guidelines give needed
flexibility to clearance grantors in evaluating risks posed by
foreign contacts and considering factors that minimize or
mitigate the risks.
Standard uniforms apply to adjudicative guidelines are one
element of the larger effort to centralize and unify the
process so clearances granted by one agency will be honored by
others.
Achieving that clearance reciprocity is mandated by the
provisions of the 2004 Intelligence Reform Act authored by this
committee. It appears some departments, including the
Department of Defense, have been slow to embrace the new
standards.
I look forward to hearing from or distinguished first panel
today about efforts to implement the revised guidelines. At a
time when we need unique technological and cultural language
expertise of the foreign born, increased security concerns have
made it harder than ever for some with family and business
interests abroad to qualify for a clearance. That paradox is
compounded by a still broken investigative and adjudicative
system plagued by delays and backlogs.
So we asked our second panel of witnesses to discuss
foreign influence factors in the context of the end to end
clearance process. In May, we heard testimony about a complete
meltdown at the defense security service, which briefly stopped
processing contractor clearance applications all together. As
that incident illustrated, previous efforts to fix security
clearance process have produced what can only be charitably
characterized as mixed results. Delays persist, and agencies
still don't trust clearances granted by others.
A numbers of agencies, including some in the intelligence
community have chosen to avoid the lengthy delays and
inefficiencies of an OPM DSS system still addicted to paper and
shoe leather. Instead, they deal directly with the same
contractors hired by OPM, but allow them to use more modern
Web-based investigative tools. That approach appears to achieve
significant savings of time and money.
I look forward to hearing today's recommendations for
process improvement in the handling of foreign influence
factors in the overall security clearance system. Again, I want
to welcome all our witnesses today at this hearing on a
critically important national security issue.
I ask unanimous consent that recent correspondence between
the committee and the Department of Defense regarding
implementation of the adjudicative guidelines be inserted into
the hearing record. And hearing no objection, so ordered.
And I ask further unanimous consent that the hearing record
include a statement and exhibit submitted by Sheldon I. Cohen,
an attorney who represents clearance applicants and who has
analyzed the clearance appeals process. Without objection so
ordered.
[The prepared statement of Chairman Tom Davis follows:]
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Chairman Tom Davis. I would now recognize our distinguished
ranking member, Mr. Waxman, for his opening statement.
Mr. Waxman. Mr. Chairman, I am glad we are holding another
hearing on problems with the security clearance process.
Earlier this year, we heard from national security
whistleblowers whose clearances had been revoked in retaliation
for reporting illegal activities occurring in their agencies.
Six weeks ago, we heard about the problems caused when the
Defense Department stopped processing clearance applications
because they ran out of money.
And today's hearing highlights yet another serious problem,
the arbitrary and inconsistent weighing of ties to foreign
nations when determining whether to grant or deny clearances.
In making security clearance decisions, the first priority
must be maintaining our national security. Yet some of our most
talented citizens who are willing to place their knowledge of
foreign cultures and languages at the service of the United
States often have family and other connections to foreign
nations.
Disqualifying such individuals and losing the valuable
analysis and information they could provide may pose more of a
risk to our national security than the theoretical security
risk posed by their connection to foreign relatives.
Protecting national security requires us to strike the
right balance and calls for a consistent transparent process.
The process in place now is anything but consistent.
According to attorneys who handle security clearance cases,
cases where applicants have similar ties to the same countries
of origin reach different results without apparent rhyme or
reason.
The administrative judges who hear appeals nearly always
rule in favor of the government, and their decisions are not
reviewable by the independent judiciary.
And ties to some countries are subject to heightened
scrutiny without any rational process for assessing the true
risks.
I am especially concerned about how ties to Israel are
considered. In several cases that have been brought to my
attention, government investigators have moved to revoke
clearances of persons who have held high level clearances for
years, even decade, because they have family or religious ties
to Israel. Why these long standing connections which were fully
disclosed to the government years ago suddenly cause the
government to revoke clearances is unclear. It's similarly
unclear why ties to some U.S. allies like Israel are
disqualifying while ties to other allies like Great Britain or
Canada are not.
And the problem is not just limited to Israel. Ties to
other U.S. allies like South Korea also face heightened
security.
What is most disturbing is that there seems to be no more
formal process to consider input from the State Department or
the intelligence community in weighing the risks posed by ties
to particular nations.
Rather, the decision appears to be left to the whim of each
administrative judge to decide whether a foreign country is a
friend or foe without regard to official U.S. foreign policy.
I hope that today's hearing will guide us in what action
Congress can take to inject some consistency and reason into
the security clearance process.
Chairman Davis and I have been working together on these
issues. After our previous hearing that revealed retaliation
against national security whistleblowers, we introduced a bill
that would restrict the arbitrary revocation of clearances, and
it passed out of this committee on unanimous bipartisan vote,
though it has not yet been allowed to go on the full House for
a vote. I hope we can also work together to fix the problems
identified in today's hearing.
I would like to thank the witnesses testifying today. I
look forward to hearing about the progress that has been made
in addressing the issues raised at our prior hearings and a
full discussion of the problem that remain. Thank you.
[The prepared statement of Hon. Henry A. Waxman follows:]
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Chairman Tom Davis. Mr. Waxman, thank you very much.
Members will have 7 days to submit opening statements for
the record. We now recognize our first panel.
You know we like to swear you in, if you would just raise
your right hand, our first panel is Mr. Robert Andrews the
Deputy Under Secretary for Defense Counterintelligence and
Security, U.S. Department of Defense and Mr. J. William
Leonard, the Director of Information Security and Oversight
Office, National Archives and Records Administration. Raise
your right hands.
[Witnesses sworn.]
Chairman Tom Davis. Thank you, please be seated. Your
entire statement is part of the record. You will have a light
in front of you. It turns green when you start, it will go
orange in 4 minutes, it is red at 5. If you can try to keep
your comments so we can get on the questions. We can put men on
the moon. There are so many things this country can do but the
security backlog continues to grow and it's hurting us. Our
ability to get things done as from Mr. Waxman noted, and it's
costing taxpayers a lot more money. I know people now with
security clearances who don't have the skills, but they have
the clearance so they are hired for the clearance and then they
are trained and it's so inefficient and the taxpayers end up
footing the bill. So I think you understand the problem.
Mr. Andrews, we will start with you, thank you for being
with us,
STATEMENTS OF ROBERT ANDREWS, DEPUTY UNDER SECRETARY, DEFENSE
COUNTERINTELLIGENCE AND SECURITY, U.S. DEPARTMENT OF DEFENSE;
AND J. WILLIAM LEONARD, DIRECTOR, INFORMATION SECURITY AND
OVERSIGHT OFFICE, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
STATEMENT OF ROBERT ANDREWS
Mr. Andrews. Good morning, sir. I am Bob Andrews, the
Deputy Under Secretary of Defense for Counterintelligence and
Security.
My office is responsible for implementing personnel
security policy.
I know that this hearing focuses on the impact of foreign
influence in security clearance investigations, but I do want
to point out that there are other factors that go into the
decision about a person's suitability to handle classified
information.
But before I address that issue, I would like to share a
few highlights on the status of the defense security service
since my last appearance before this committee.
First, Congress approved our reprogramming request for $80
million. DSS has developed a spend plan for these funds to
ensure we can continue to process clearances, and this plan
ensures industry clearances through the end of the year.
Second, we have asked the DOD inspector general in
conjunction with the OPM inspector general to conduct an audit
of the investigation billing process. That audit is ongoing.
Third, we are conducting a baseline review of our
automation systems to ensure they are meeting our needs and the
needs of industry now and in the future.
Fourth, we have teamed with the information technology
association of America on a pilot project to process clearances
with greater efficiency.
And fifth, I am very confident in our new DSS leaders and
their ability to strengthen the organization.
Now, back to the topic of the hearing, and let me give you
some background.
There are approximately 3.2 million cleared personnel in
government. Of that total, nearly 2.5 million are in DOD.
On an annual basis, DOD may handle over 600,000 clearance
actions.
Security clearance process begins when a senior official
determines that an individual requires access to classified
information. The individual completes a questionnaire and it's
submitted for investigation.
When the investigation is completed, results are sent to an
adjudication facility. The Department of Defense has 9
facilities, adjudication facilities or CAFs. These are staffed
by over 400 trained adjudicators. To ensure we have as much
consistency as possible among the 9 facilities, my office
chairs an oversight and policy review board made up of
representatives from each CAF.
The adjudicator reviews the completed investigation and
makes a determination whether or not to grant, deny or revoke
access to classified information.
The adjudicative process examines a person's background to
determine whether or not the that person's access to classified
information poses a risk to national security.
I want to emphasize two points. First, that we make each
decision on a case-by-case basis; and second, that we consider
mitigating issues and circumstances as an integral part of the
clearance process.
If the adjudicator decides to deny or revoke a process
based on information review, the individual is afforded due
process through the right of appeal.
The President, in 1997, issued the first guidelines used by
adjudicators. This last December, as you pointed out, Mr.
Chairman, the President issued a revised set of guidelines.
There are 13 of these guidelines which the adjudicator
considers, the results of security investigation.
Two of these guidelines deal with foreign influence.
Now an investigation that turns up dual citizenship or
close associations in foreign countries will trigger a closer
examination to determine whether that individual has a foreign
preference or allegiance.
I cannot, too strongly, emphasize that access to national
security information is decided on a case-by-case basis based
on a reasonable assessment of the risks to national security.
There are no automatic denials based on country.
An individual's religious affiliation plays no part in
security clearance process.
We simply do not do that.
In the matter of foreign passports, I would further note
that in August 2000, DOD issued a clarifying guidance
concerning cases involving individuals' possession or use of a
foreign passport.
Revised guidelines we are now implementing state that the
possession of a current passport, current foreign passport
may--I want to emphasize ``may''--be a disqualifying position.
The guidelines provide, however, that an individual can
sufficiently mitigate the risk of national security by doing
one of two things, voluntarily choose to surrender the passport
or obtain official approval for its use from the appropriate
agency of the U.S. Government.
The Department has taken several steps toward implementing
the revised adjudicative guidelines, including the development
of training coordination of new guidelines with the
adjudication facilities to ensure a common and consistent
understanding.
In the interest of time, I will elaborate on these steps
during our question-and-answer period.
Mr. Chairman, we are making every effort to ensure the
determinations of access to classified information are
adjudicated fairly and balance the interest of the individual
with the need to protect our national security interest.
Mr. Chairman, this concludes my statement.
Chairman Tom Davis. Thank you very much.
[The prepared statement of Mr. Andrews follows:]
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Chairman Tom Davis. Mr. Leonard.
STATEMENT OF J. WILLIAM LEONARD
Mr. Leonard. Thank you, Mr. Chairman, Mr. Waxman, I want to
thank you for holding this hearing on efforts to improve
personnel security process. The classification system and its
ability to restrict the dissemination of information, the
unauthorized disclosure of which could result in harm to our
Nation and its citizens represents a fundamental national
security tool at the disposal of the government and its leaders
to provide for the common defense.
The protocols governing access to classified information
are established by Executive Order 12968. Pursuant to this
order, such access shall be granted only to, ``individuals who
are United States citizens for whom an appropriate
investigation has been completed and whose personal and
professional history affirmatively indicate loyalty to the
United States, strength of character, trustworthiness, honesty,
reliability, discretion, and sound judgment, as well as freedom
from conflicting allegiances and potential for coercion and
willingness and ability to abide by regulations governing the
use, handling and protection of classified information.''
In order to ensure consistent eligibility determinations
from agency to agency, this Executive order required the
issuance of investigative standards and adjudicative
guidelines. Revisions to the adjudicative guidelines were
approved by the President in December 2005 for immediate
implementation. These revisions represented the result of an
interagency process which recommended that all of the basic
considerations for approving access to classified information
be retained.
However, based upon the changing national security
environment, it was recommended that the criteria be elaborated
both in terms of the actions that could raise security concerns
and the factors that could mitigate such concerns. It should be
noted that a number of the revisions included in the
adjudicative guidelines were intended to address a concern
expressed by this committee and others with regard to personnel
security applicants with certain foreign connections.
Specifically, a number of per se criteria such as the use
of a foreign passport or voting in a foreign election that
previously rendered an applicant ineligible for a security
clearance have been modified to take into account additional
factors that could mitigate such issues under certain
circumstances. These and other changes were implemented, in
part, in recognition of the increasing globalized environment
in which our national security concerns must be addressed.
The revised adjudicative guidelines are intended to provide
sufficient flexibility to accommodate this reality without
compromising national security.
In addition to the above, Executive Order 12968 contains
two fundamental principles, reciprocity of access eligibility
determinations and the authority of agency heads or designated
senior agency officials to grant exceptions to eligibility
criteria in order to further substantial national security
interests, two imperatives that contain inherent tension but
are not necessarily incompatible.
While reciprocity of access eligibility determinations
require strict adherence to investigative standards and
adjudicative criteria, classification and personnel security
policy clearly recognizes that it may be in the national
interest to grant access to classified information to limited
individuals who are otherwise not authorized or eligible for
access.
Executive Order 12968, in particular, recognizes the
authority of an agency head to waive requirements for granting
access to classified information to further substantial
national interests.
An example of this is the frequent challenge many agencies
confront today in developing and maintaining cadres of cleared
linguists in many specialty languages. The key is that each
time a waiver of exception is granted, it should be an informed
judgment which takes into account the advantage to the national
interest that may accrue, as well as the potential increase in
risk to national security information.
Such latitude, of course, could come at a price and
included in that price could be reciprocal recognition of
security clearances. As such, what is required is proactive
management and oversight by individual agencies in order to
achieve reciprocity by ensuring strict adherence to the
standards in the vast majority of cases, while at the same
time, allowing sufficient latitude to meet unique national
security demands in other areas.
In order to enforce the imperative reciprocity while
recognizing the need to allow latitude in addressing other
national security demands, a number of initiatives have been
started under the direction of the Security Clearance Oversight
Group, led by the Office of Management and Budget.
I have detailed some of these initiatives in my written
testimony.
In closing, I want to emphasize the ongoing interagency
efforts that are currently underway in order to strengthen the
processes relating to determining eligibility for access to
classified information. Included in these is a need to focus on
leveraging technology to the point that through greater
reliance on automated data bases, we can diminish dependence on
the current half century-old process of conducting field
investigative work.
Research and pilot efforts to this end are currently
underway in a number of such agencies. These efforts will
ensure continuing process and improvements even after the
current statutory case completion goals are achieved.
Again, I thank you for inviting me here today, Mr.
Chairman. I would be happy to answer any questions that you or
Mr. Waxman may have.
[The prepared statement of Mr. Leonard follows:]
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Chairman Tom Davis. Thank you. I am going to start
questioning on our side with Mr. Duncan.
Mr. Duncan. Well, thank you very much, Mr. Chairman, and I
have just a couple questions. No. 1, I am told by staff that
this 190,000 backlog while that sounds very high 2 or 3 years
ago it was much higher, is that correct? That it reached
300,000 at one point?
Mr. Andrews. It was yes, sir, it was very high.
Mr. Duncan. And what is the, lowest it's been in, say, the
last 5 years?
Mr. Andrews. Mr. Duncan, I can't give you that answer right
now. I could provide it for you for the record. I think it
would be of great interest to have that.
Mr. Duncan. Let me ask you this: The title of this hearing
is, ``Can You Clear Me Now?'' weighing foreign influence
factors in security clearance investigations.
Do either one of you feel there is undue foreign influence
in these investigations at this time?
Mr. Andrews. I don't, sir.
Mr. Leonard. Mr. Duncan, I mentioned in my prepared, my
oral remarks that, the President recently approved revisions to
the adjudicative guidelines since December of last year. A
significant part of those revisions to the guidelines was
actually to provide greater flexibility with regard to clearing
individuals who may have foreign connections. And again, this
is in recognition of the increasing globalized environment that
we operate in, not only as a government, but as a Nation, but
as our industry as well, too. So there is greater flexibility
today than there was just 6 months ago with respect to the
adjudicative criteria.
Mr. Duncan. Well, I also understand that there is some
concern about whether those revised guidelines are being
applied, and specifically, there was at least one report that
said that the Department of Defense Office of General Counsel
has possibly instructed, given instructions not to apply those
revised guidelines. Is that correct in any way?
Mr. Andrews. No, sir that is not correct.
Mr. Duncan. So that is not happening?
Mr. Andrews. No. We are pushing as fast as we can to
implement those guidelines, sir.
Mr. Duncan. When you say pushing as fast as you can, does
that mean some of they have implemented or all of them or none
of them?
Mr. Andrews. We are in the process of implementing them
now, sir.
We have been--there are 4 factors that we are working on
right now, first is training our adjudicators. As I mentioned,
we have over 400 adjudicators, and a training program for them
we have the Department of Defense is implementing or
accommodating the Smith amendment into the guidelines which we
have to do which no other department has to do.
And, we are making certain that our automated desk
reference, the on-line system that adjudicators use is up and
running. We have a target date of full implementation by first
of September, sir.
Mr. Duncan. Well, I am also old told that part of the
impetus for this hearing is the Legal Times, a major legal
publication, highlighted a case in which a Korean American
defense contractor had what are described as tremendous
difficulties obtaining his security clearance. And he went
through, went through the whole system, the whole process and
an administrative law judge ruled in his favor.
Are you familiar with that case and is that just an unusual
case, or what is the ordinary situation? How long does it take
in an average type case to get these clearances? Or is there
such a thing?
Mr. Andrews. I am not familiar with that case, sir. I will
have to research it.
Mr. Duncan. Well, what, is there an average length of time
that this process is taking or does it just vary widely from
case to case?
Mr. Andrews. It's going to vary, Mr. Duncan. Generally, the
secret and top secret clearances, top secret clearances may
take over as long as a year. And they shouldn't.
Mr. Leonard. If I could add to that, Mr. Duncan, one of the
things that this committee was responsible for was some
statutory timeframes, one of which is the adjudication process,
and if I recall correctly, 80 percent of all clearances are
required to be adjudicated within 30 days by a certain date.
That recognizes that, you know, 20 percent of the cases
will be the complex cases. So the simple cases should be able
to be adjudicated in 30 days, those with issues they will take
longer periods of time.
Mr. Duncan. Is that requirement fairly accurate? As far as
those percentages?
Mr. Leonard. Agencies are not at those goals yet but they
are making process toward getting there.
Chairman Tom Davis. Let me just, before I recognize Mr.
Waxman, pursue, Mr. Andrews, you are not familiar with a case
of the Korean American defense contractor who went through the
adjudication system at DOHA, the administrative law judge ruled
in his favor, and then the Department of Defense appealed the
decision, which then went to a three-judge appeals panel, which
also ruled in the contractor's favor, and again, DOD threatened
to appeal the case.
Finally the contractor received the clearance, but it seems
in this case, the bar was set extraordinarily high for someone
whose only offense seemed to be that he had relatives in South
Korea, which I might add, is a very strong ally of this country
and North Korea to the north is a huge problem in the world.
If you are not familiar with the case, there is an article
in The Legal Times. I would like you to come back and just find
out where why the Department is so concerned in a case like
this, why it so doggedly pursues appeals when the expert judges
rule that no significant threat was posed by granting the
clearance. There may be something we don't know about.
Mr. Andrews. We will come back to you, sir.
Chairman Tom Davis. We will do that. We will hold you to
that. Mr. Waxman.
Mr. Waxman. I mentioned in my opening statement that I was
concerned about how a sudden change to family ties to Israel
are being considered in the clearance process. And I would like
to describe a few cases and ask about the policies that govern
these types of cases. One engineer received a security
clearance more than 7 years ago to work on a fighter jet
project. He has lived in the United States for 25 years, but
was born in Israel and has dual citizenship. All of this was
fully disclosed when he first applied for a security clearance
7 years ago.
Earlier this year, the government moved to revoke his
clearance citing his dual citizenship and the fact that his
mother and siblings lived in Israel.
In two other separate but similar cases, long-time State
Department employees had clearances revoked with officials
citing concerns about travel to Israel in past years.
But it had been fully disclosed. And there have been more
cases with similar circumstances, people have always had ties
to Israel that were fully disclosed a year ago, who have
maintained security clearances without any incident for years
are suddenly having clearances revoked.
And according to several lawyers, government attorneys have
cited the indictment of two employees from the American Israel
Public Affairs Committee as a grounds for revoking clearances
for people with family and religious ties to Israel.
Mr. Andrews what has prompted this sudden scrutiny of
connections to Israel and are these reports about the AIPAC
issue accurate?
Mr. Andrews. Mr. Waxman, I would like to ask that the
individual cases that obviously concern you and other members
of the committee, be sent to us for you know; for analysis. I
can't sit here and tell you about each individual cases. I
don't know the details.
Mr. Waxman. This is the first time that it's been brought
to your attention that there have been increases in security
clearance withdrawals on the grounds that there were ties to
Israel by people who had security clearances?
Mr. Andrews. The first time it was brought to my attention,
sir, was to--my attention was a letter from Mr. Dent of this
committee, who sent to us an article out of Insight Magazine,
in which claimed that the Department of Defense imposed loyalty
tests on American Jews, and that is really the first.
Mr. Waxman. And did you respond to his letter?
Mr. Andrews. Yes, sir.
Mr. Waxman. Could we have a copy of that response,
certainly, for the record, if you don't have it with you right
now.
Mr. Andrews. I don't have it with me, and I know that Mr.
Dent, probably, has a copy.
Chairman Tom Davis. Could you make a copy of that available
to the committee? That would be great. Specifically this one.
Mr. Waxman. What was he told? Was he told it wasn't true?
It looks like I do have a copy of the letter. It says this is a
followup to our recent conversation concerning the accuracy of
media reports, the allegation is untrue, as I promised,
enclosing a copy of the standardized Federal adjudication
guidelines, guidelines are not country specific, and then
people get due process.
I am not reading it precisely, but that is generally the
answer that I see, that it's not true, the allegations aren't
true, and they have a right to appeal and that it appears from
this answer from you, that it's not a problem.
But did you check into it to see whether there was, in
fact, a problem that brought about the concerns expressed by
Congressman Dent?
Mr. Andrews. Yes, sir, I have.
Mr. Waxman. And you found it not to be true?
Mr. Andrews. I found it not to be true.
Mr. Waxman. I am going to give you the information that we
have received.
Mr. Andrews. Please.
Mr. Waxman. Because I think it's more important that if we
raise the issue, we get an investigation by you, not just a
letter saying it's not true.
The AIPAC case, do you know of any reason why that should
be invoked to deny people security clearances?
Mr. Andrews. I am not certain that it was invoked to deny
security clearance.
Mr. Waxman. Was it invoked not to grant a security
clearance?
Mr. Andrews. I am not certain that it was, sir.
Mr. Waxman. Do you know whether it has been involved at all
in security clearance questions?
Mr. Andrews. I am certain it probably has.
Mr. Waxman. And why would it be?
Mr. Andrews. I think it would be involved, sir, as a
indication that you have to look at ties and the relationships
of each individual case, not on the basis of religion or
country, but what was substantively happening in that case.
Mr. Waxman. You are talking about the case of the
applicant? You are talking about the case of the applicant
himself or you are talking about the AIPAC case?
Mr. Andrews. No, I am talking about the case of the
applicant himself.
Mr. Waxman. Why would the AIPAC case that involves an
indictment and trial that hasn't even yet been held on
allegations that they did something improper affect another
person who happens to have ties to Israel or was Jewish?
Mr. Andrews. I don't think it did.
Mr. Waxman. I thought you just said that you thought that
it would be relevant.
Mr. Andrews. No. The issue of whether anybody's foreign
relations and contacts have relevance in security clearance
investigation, these are relevant things to talk about and
important to think about.
Mr. Waxman. Well, if the ties to Israel which is one of our
allies, why would it be relevant.
Mr. Andrews. The ties to any foreign country are relevant.
We do not, Mr. Waxman, as I said before, have a list of good
countries and bad countries.
Each case of a foreign relationship, whether it's with
Israel or with Ireland, is looked at in a way to determine that
the applicant is not going to be put in a position of getting
pressure put on him or irresponsibly giving away national
security information.
Mr. Waxman. So would that mean that anybody who has a
foreign relative, close foreign relative, might be--should be
denied a security clearance?
Mr. Andrews. No, it doesn't. It means that relationship
will be examined and looked at to see if it poses a risk.
Mr. Waxman. Give me an example of a relationship that you
think would raise a red flag.
Besides the two I's, Ireland and Israel, tell me examples
you can think of that would raise a concern about a security
clearance.
Mr. Andrews. I think I would be concerned if I were an
adjudicator, and I don't like to play hypothetical questions,
but I would have to be concerned if I were an adjudicator and
opened the file and found out that Sheehan McFagus had
relatives in the IRA.
Mr. Waxman. And how about in Israel? I don't know of
examples of--I know someone in Israel. Give me an example of
something that would raise a red flag.
Mr. Andrews. I think perhaps financial ties to an Israeli
company that is competing for a U.S. Government contract. I
mean, there are all kinds of things. All this does is
illustrate my contention that it's a case-by-case basis, sir.
Mr. Waxman. But is there a consistent standard? I know my
time has expired. Is there a case-by-case feeling?
Mr. Andrews. I know what you are reaching for, but you get
into, this we get caught in this thing of consistency is the
hobgoblin of small minds. We can't have a checklist for these
adjudicators and say if this guy has X amount of dollars
involved in a defense contract in Cairo, I mean, you just can't
do that in the name of consistency.
In the name of consistency, though, sir, I think you are
entitled to see some guidelines of these are the general
baskets in which we put things and look at them when we make an
individual decision.
But one size doesn't fit all, is what I am saying.
Mr. Leonard. Can I contribute something just from an
overall policy point of view, Mr. Waxman? The recent revisions
to the adjudicative guidelines that the President approved in
this particular area were intended, as I said, to increase
flexibility and, in essence, what they want to focus on is
there a situation where we can expect that an individual will
have to choose between the interests of the United States and
the interests of a foreign interest.
That is the focus. And even still, even if there is a
possibility of that, the guidelines were further modified to
provide a mitigation--and this goes to maybe some of the
examples you cited--where there is every indication that the
sense of loyalty to the foreign interests is minimal or that
there are deep and long-standing relationships and loyalties to
the United States that is expected to resolve any potential
conflicts in the interests of the U.S. interest.
Those are two examples of how the policy, the guidelines
have been specifically revised back in December, to try to
address these issues and to provide greater flexibility and
greater guidance and do away with the per ses.
Mr. Waxman. May we just get the guidelines for the record?
Chairman Tom Davis. Frankly, what Ralph Waldo Emerson said
was a foolish consistency is a hobgoblin of small minds, not a
consistency. There is a difference there. And that is the
difference that Mr. Waxman is trying to ask, is how is this
carried out, Mr. Dent.
Mr. Dent. Thank you, Mr. Chairman I came in during Mr.
Waxman's interrogation, and we had spoken yesterday, Mr.
Andrews, Secretary Andrews, regarding just a blog site that was
pointed out to me by some constituents who had said that the
DOD, for whatever reasons, was denying clearance to American
Jews who may have had ties to Israel. You and I had spoken, and
you said that is really not the case and that there is no
specific bias against American Jews, for example, when it comes
to security clearances, we have no specific prohibition against
any particular set of people in this country, as I understand
it.
Mr. Andrews. Well, I think any religion, no.
Mr. Dent. The other question deals with a general issue, if
somebody, for example, would adopt a child from another
country, China or Russia, fairly common, seeks a security
clearance, you would probably investigate that issue, would you
not?
Mr. Andrews. I think it would be noted, Congressman, and in
the case of the child himself or herself, obviously the
citizenship of the child would be irrelevant in a case like
that.
Mr. Dent. I have been told that is an issue, at least a
point of tension.
Mr. Andrews. Well----
Mr. Dent. There is nothing wrong with it, I just want to
point that out.
Mr. Andrews. It's a case of we want to know if we're going
to give you access to classified information we want to know
about your foreign contacts and your foreign trips, travels,
relationships, in toto.
And if part of that is, I went to China, I went and adopted
a child, that would be in there.
Mr. Dent. Another question, too, I guess as it related to
the Israeli situation, and I just want to be able to get back
to my constituents and allay them that there is not a specific
bias or prohibition against Jewish Americans who may have ties
or family or friends in Israel that seek security clearances,
that they can go through the process and be treated like every
other American. Is that a safe question?
Mr. Andrews. Yes, when I got the invitation to come down
here, I asked some of our people, I said is it possible to
build a profile of how we look at people by religion, and we
don't. We don't do that.
So it's hard to find out who is Jewish, who is Irish, who
has an Israeli background.
Mr. Dent. And I guess some other questions I have in
response to the committee's June 14th inquiry about
implementation of new guidelines, you said that before DOD can
apply those guidelines to adjudication of clearances for
contractors, DOD had to take appropriate actions to comply with
the Administration Procedures Act.
You use that phrase twice. What are those appropriate
actions and do they include formal rulemaking?
Mr. Andrews. I was talking about the Smith amendment that
applies only to the Department of Defense, which sets up
certain adjudication considerations that don't apply to other
departments of government. And, so that, we have had to work
that in to our implementing those guidelines as well, so it's
sort of a different kettle of fish for us. And as I mentioned
before, of the 3.2 million people who have security clearances
in America, 2.5 million of them belong to us. So it's a big job
to do that.
Mr. Dent. And just one other thing too, with respect to
that rulemaking, how long does that usually take, on the
rulemaking side? You were talking about those appropriate
actions, I asked you about the, does that include a formal
rulemaking and how long about will that take ordinarily?
Mr. Andrews. About 30 days.
Mr. Dent. 30 days?
Mr. Andrews. Yes, sir.
Mr. Dent. And during that time, will DOD use one set of
standards for government employees and another for contractors?
Mr. Andrews. No, we don't.
I will point out, however, that in the appeals process the
government people, both military and civilian, do not have
the--are not--cannot bring outside counsel in; however your
civilian contractors can bring outside counsel in.
Mr. Dent. Thank you Mr. Andrews, and I did want to thank
you for your letter you sent to me dated today the 12. I
appreciate that.
Mr. Andrews. We are also including full copies of the
adjudication guidelines too with that. That will be coming in.
Mr. Dent. Thank you very much, and Mr. Chairman, I yield
back.
Chairman Tom Davis. Thank you. Mr. Van Hollen.
Mr. Van Hollen. Thank you, Mr. Chairman and let me also
thank the witnesses here today.
And I am interested in following up maybe beyond this
hearing in terms of the criteria, I know we are going to get a
list of the criteria, I do remember a number of years ago I had
a constituent who was a Greek American who had a dual
citizenship which is also permitted by Greece and ended up
going through really a terrible process here. And I am
interested I guess, I guess before looking at the guidelines,
let's say you do have somebody who is a dual citizen, has dual
citizenship. How do you determine, I mean, someone a dual
citizenship obviously has connections to more than the United
States. But that doesn't mean that they have any less of a
loyalty to the United States. There are various reasons people
would want to maintain a dual citizenship. I guess the question
is, what factors would, in fact, disqualify you under those
circumstances?
Mr. Andrews. Right now, the fact of dual citizenship is a
disqualifier.
Mr. Van Hollen. So if you choose you have to choose
between----
Mr. Andrews. You have to choose your country, sir.
Mr. Van Hollen. I understand that. But there are obviously
advantages in terms of being able to hold another passport
things like that, but the rule right now is you choose your
citizen, period.
Mr. Andrews. On the passport issue, you can hold another
passport provided the U.S. Government agency to whom you are
going to go work, State Department, DOD or whatever, permits
that.
Mr. Van Hollen. In this case, if I recall correctly, they
decided to drop their Greek citizenship, their--that portion of
the dual citizenship.
Is that disqualifying if you had once held dual
citizenship?
Mr. Andrews. If you give up your passport or you give up
your dual citizenship in that other country----
Mr. Van Hollen. You then become eligible.
Mr. Andrews. You are all right.
Mr. Van Hollen. Just on the general issue of the backlog
and security clearances and the recommendations that were made
by the 9/11 Commission and others, and I'm sorry I missed your
opening comments, but where are we on that? In other words, the
recommendations I understood it was to try to have some kind of
uniform standard policy, so we don't have multiple agencies
with their own standards and none of them trusting the degree
of competence of the others, it just seems to make sense as a
national government to have these uniform standards. Where are
we on that?
Mr. Andrews. Well, you have two real questions on that one
is the backlog, which is sort of like the elephant that is
always in the room when everybody meets on these issues. And I
have to defer to my colleagues at OPM, because they are the
keepers of the backlog.
In terms of consistency across the board, we are still
working on that.
I don't think the issue of reciprocity is as big a problem
as people make it out to be.
We do have, our NSA does have different investigative
requirements for its people.
But I think that is probably very wise thing, given the
sensitivity of what, some of the things they do.
Mr. Leonard. If I can add something, one of the things I do
have an opportunity to do is actually chair an interagency
working group on reciprocity to focus on that one particular
issue. And I can say we are making process. As a matter of
fact, just within the past week, I believe, we have been able
to narrow down to the bare minimum the authorized exceptions to
reciprocity with respect to special access programs which has
been one toughest nuts to crack.
The challenge is to get that guidance now down to the
implementation level. The next several months will tell, in
terms of how successful we are at that. But we have been making
progress. I believe there is clear guidance now with respect to
what is an authorized exception to reciprocity and what is not,
and they have been narrowed. And we should see the, what I
still think is an inordinate number of instances of non
reciprocity to be reduced in the future but there is still a
ways to go.
Mr. Van Hollen. Mr. Andrews' response was he didn't see it
to be that many obstacles in the way to this. Can you give us a
timeline when you would be able to have, with the exception of
NSA, Mr. Andrews mentioned may have a special status, can you
give us a time line as to when you will complete that work?
Mr. Leonard. Well, again, from a guidance point of view,
the work is completed. What is left is the hard part, the
implementation part. And that is then up to the agencies to get
that down to the working level and make sure that they
understand, they comprehend, they have access to, they have
knowledge of and they understand the latest guidance. I would
expect that should not take more than several months, a couple
of months. That would be my expectation.
But then again, I don't have an agency that I am
responsible for.
Mr. Van Hollen. How are things going at DOD in terms of the
implementing that, implementing the reciprocity agreements?
Mr. Andrews. Well, the new guidelines as I mentioned we are
hoping to have those implemented by the first of September, the
adjudication guidelines.
In terms of total reciprocity, sir, I think that you will
probably always have something to work on and gnaw on. There
will always be some cultural and organizational things that get
in the way.
One of the things that impressed me coming back into
government was when I was at CIA in the 70's, I had about five
or six different badges for different parts of building out
there at Langley, and I came back into government, and I have
this one badge here that gets me into DIA, that gets me into
CIA and, who knows where else? I certainly--they won't tell me.
But it's one badge, one pin number, and to me that is the heart
of success.
Mr. Van Hollen. That is some progress. I think you would
agree we have a ways to go.
Mr. Andrews. We do.
Mr. Van Hollen. I thank you, Mr. Chairman.
Chairman Tom Davis. Thank you. That is it.
I have a few questions. In testimonies submitted for the
record that we put in today by Sheldon Cohen, who is an
attorney who represents clients before DOHA, he cites a study
that he has just completed and he analyzes 898 appeals before
the appeals board at DOHA between 2000 and 2006.
He found a statistically incredible slant in favor of
government appeals.
Of appeals submitted by applicants, whose clearances were
denied, less than 1 percent of the decisions were reversed;
whereas in cases where DOD appealed in granting a clearance, it
sees 74 percent were reversed.
He goes on to note that a foreign preference influence case
where DOD appealed the granting of an appeal, 92 percent were
reversed. Any thoughts on that?
Does that seem right to you?
Mr. Andrews. Sir, we will have to get back to you on that,
on the analysis of that.
Chairman Tom Davis. Industry has expressed concern that
since GAO criticized DOD for favorably adjudicating some cases
where a minimal amount of investigative information was
missing, the so-called closed pending cases, DOD no longer
adjudicates any other such cases, but rather sends them back to
OPM where they pile up and add to the backlog. OPM testified
before this committee on May 17th that its backlog of closed
pending cases has been growing, and at a time, stood at 70,000.
What is your understanding of what currently happens to
investigative files where just a minimal amount of information
is missing? Are they being adjudicated by DOD on a risk
management basis, or are they just send them back pending
approval.
Mr. Andrews. Sir, again it--I have to come back to you with
an answer. It depends on what is missing.
Chairman Tom Davis. Minimal, we are talking minimal things.
We are not talking about big major gaps. We are just talking
about, I would like to get your impressions on the record and
you can get back to me on this.
Mr. Andrews. Yes, sir, I will.
Chairman Tom Davis. I think it's important just to remind
you I know from where you sit and other people sit. It's kind
of a job, you want to make sure these applicants, all the I's
are dotted and T's crossed, but for taxpayers, for industry,
but particularly at the end of the day for taxpayers, what they
are doing is they are paying a huge premium for people who have
security clearances. And they are doing that because the
backlog is so great that just the clearance itself adds a
premium to their hiring.
And we end up paying for that.
And in other cases, just means the mission isn't going
forward, and in some cases, these are vital missions and in
some cases, that we are talking about in the contract area
where there is some foreign country involved, it can be
language interpreters, it can be people who, people who can
listen in on conversations and aren't available, this can be
very, very vital. So I want to stress how important this is
that this backlog get cleared and that we walk into this with a
can do attitude. When I hear reports which--you have, I think,
alleviated our fears today, but when I hear reports that the
DOD office of general counsel says don't apply these new
guidelines and that is, by the way, is what DOHA chief
administrative judge is reported to have said, that they had
been specifically instructed not to apply the new guidelines,
it gets disturbing because we want to do this in a can-do
attitude, how can we get through this, if there are issues and
you are not getting the tools you need, we need to move forward
because at the end of the day, there is a huge frustration and
the taxpayers end up picking up the tab.
Mr. Leonard, we let you off the hook, so I am going to ask
you a couple of questions. In looking at the revised
adjudicative guidelines that were issued by the NSC, it seems
there is additional flexibility granted to government
adjudicators might improve the quality of the clearance
decisions being made. For example, the new regulations allow
adjudicators to distinguish between foreign countries rather
than just treating them as black boxes equal in threat.
In your reading of the revised guidelines, what has changed
from the old version vis-a-vis foreign influence and
preference?
Mr. Leonard. Yes, Mr. Chairman, you are absolutely correct.
Previously, there were some provisions in the old guidelines
that were interpreted as a per se situation, possession of, a
mere possession of a foreign passport could be per se a
disqualifier, voting in a foreign election could be per se
disqualifier. For all intents and purposes those per se
language has been done away with, greater flexibility has been
introduced. And as I mentioned before the key that we try to
focus on in these guidelines with respect to foreign
connections is, is there a basis to believe that this
individual will be in a position where they will have to choose
between the U.S. interests and a foreign interest? And but even
in that case, there is a further mitigator that allows that if,
through a recognition, that their foreign connection is so
minimal or the ties and loyalty and connections to the United
States run so deep that there is every expectation that the
individual will resolve the potential conflict in the U.S.
interests, that is a mitigator for the foreign connection would
allow issuance of a clearance.
Chairman Tom Davis. Now I understand the two passport
issue, because you can't, if there is another passport you
can't always account to where they have been to, and that
raises other issues. They are resolvable, but it is obviously a
red flag.
We will be hearing from the second panel more about
industry's proposals for reengineering the entire clearance
process. In particular, ITAA has proposed in its written
testimony the implementation of a pilot program utilizing
latest IT and industry best practices.
This program would involve feeding the same cases both into
the pilot system and the existing OPM-DOD system in order to
compare their effectiveness.
What recommendations can you make regarding such a
reengineering of the clearance process? And are there any
potential pitfalls in moving that direction, for example,
reciprocity?
Mr. Leonard. Definitely, Mr. Chairman, we need to, as I
mentioned in my statement, move away from the half century old
process of shoe leather on the ground, especially some of the
dubious checks we do in the field such as neighborhood checks
and things along those lines. Increased reliance on automation
is the key. The challenge is at what point in time are we going
to be there. I will give you just an anecdote.
My 23-year-old daughter just took advantage of going online
to try to procure her first auto insurance policy, which is
great, and the fact that you can sit at home on a weekend and
apply for auto insurance is an advantage of technology. The
challenge is she spent the rest of the weekend trying to
disprove negatives that came up, and it highlights the
unreliability of many of these data bases that are routinely
accessed. That's the limitation.
As those data bases become more and more reliable and we
can be more confident in false positives and things along those
lines, I think we will be a long way to replacing the shoe
leather.
Chairman Tom Davis. Which leads me to my next question. In
the old adjudicative guidelines, applicants with family members
living abroad were asked to prove the impossible; namely, that
foreign family members who have never been before pressured by
a hostile government as a means of obtaining classified
information will never be pressured in the future.
Do the new standards change that standard of proof in this
respect or are we like your daughter with insurance, trying to
prove a negative.
Mr. Leonard. Again, the adjudicative guidelines, the way I
read them, is that these types of potential scenarios that you
described need to be more than just an assertion. There needs
to be some sort of demonstration of the potential for coercion
and it cannot be a theoretical. So it would be highly
situational. Not to say that would never be the situation, but
again looking at the primary focus of the adjudicative
guidelines, it should not be a frequent occurrence.
Chairman Tom Davis. Is it realistic to expect that the new
guidelines will have any impact on the number of applicants
with the foreign influence, preference issues, getting
clearances if there is any more realistic burden of proof
expectation?
Mr. Leonard. Yes, I fully believe that with the new
adjudicative guidelines individuals that may have been found
ineligible for a security clearance under the prior guidelines
would be found eligible today.
Chairman Tom Davis. We just push to you and move people
through the process and all you need to do is make one mistake
and we will have you up here. But right now the backlog is a
huge problem.
Mr. Leonard. Absolutely, sir. I am hard pressed to come up
with anything. You know, security investigations and clearances
are the one thing that permeates almost everything this
government does from fighting wars, from doing intelligence, to
getting the best technology from industry. It permeates
everything, and I am hard pressed to come up with something
that is analogous that is so ubiquitous.
Chairman Tom Davis. It is not as if there are not enough
people in the pipeline that can do the job. That is the other
thing, is that there are people to do this. It's not a scarcity
of people. It is basically a failure of government to be able
to put the resources in and get these out in a timely manner.
Mr. Leonard. And it is also a failure to get a handle on
requirements, and we add to those requirements every day not
just in the classified national security arena, but
investigations are now being done much more frequently for
other purposes, for homeland security, for access to
information systems that are purely unclassified, for hazardous
materials truck drivers, for airport tarmac workers. The
requirements are burgeoning and the inability to get a handle
on these requirements and to project them and to manage them is
making it exceedingly difficult to work that issue.
Chairman Tom Davis. Thank you. Mr. Waxman, do you have any
questions?
Mr. Waxman. Yes, I do, Mr. Chairman. I want to go back to
this discussion that we have all been touching upon. I know you
treat each applicant on a case-by-case basis, as you should,
but the problem seems to be that the risks posed by a
particular nation are also handled on a case-by-case basis,
which does not really make a lot of sense.
For example, in his written testimony Mr. Zaid, who is
going to testify in the next panel, cites the example of one
judge finding Pakistan to be a U.S. ally that presents little
security risk, while another judge finding that Pakistan has
terrorists links and was a high risk country.
Should administrative law judges have the authority to
disregard the official U.S. foreign policy of the State
Department and base decisions on their own impressions of a
foreign country? The new guidelines for adjudication security
clearances provide--that the President issued last December
state that the adjudicators can and should consider the
identity of the foreign country which the foreign contact or
financial interest is located.
Mr. Leonard, explain to me how this works in reality. What
additional guidelines or training are adjudicators given to
help them consider the identity of the foreign country and what
steps are being taken to ensure that these considerations are
consistent across agencies.
Mr. Leonard. Well, one of the things that the guidelines
were also revised to take into account or to acknowledge is the
fact that oftentimes the basis for a decision may be based upon
classified intelligence and things along those lines. And I
mention that from the point of view to indicate that decisions
along those lines, again not getting into any of the specific
cases but decisions along the lines of which you outline,
should be based upon official intelligence, not based upon the
impressions of a single adjudicator.
Mr. Waxman. Let's assume it's not based upon additional
classified information. But look at the case of Pakistan. One
judge says Pakistan is a terrorist country and the other says
no, they are an ally of the United States.
Mr. Leonard. That is my point. If those are the basis of
decisions as opposed to individual situations with respect to
an individual's background, you are absolutely right, they are
required to be consistent decisions and should be based upon
representation of issues emanating from the foreign interest,
should be based upon official positions, again, not assumptions
or impressions on the part of the individual adjudicator.
Mr. Waxman. Is there a way to use the appeals process to
introduce more consistency? Even then different judges reach
different decisions, but is there a way to develop consistent
precedents that judges are bound to follow so there is another
judge looking at it and they can----
Mr. Leonard. That is one of the things--speaking as an
outsider, that is one of the things that I admire about the DOD
system, especially the DOHA system, is their system is highly
transparent, more so than the rest of the government. And just
about anybody can research precedence, can research cases and
look for precedence, which quite frankly no other agencies do.
And so from that point of view, that is a part of the DOD
process quite frankly that I admire.
Mr. Waxman. Let me give you a factual situation just to get
your judgment on it because we talk about a preference for
another country. Let's assume there is an American citizen,
Jewish, daughter moved to Israel, living in Israel permanently,
has dual citizenship, married to an Israeli who serves in the
Israeli Army in a high position and she works for a number of
Israeli corporations trying to advance their interests. Would
we assume that the father should be looked at with greater care
or maybe even denied a security clearance because he may have
more concern about the benefit of his children?
Mr. Leonard. Obviously, again from other theoretical point
of view that is an issue that would be examined. Should we
assume anything as a result of those examinations? I would say
not. And in fact I would point out that again the two key
issues that should be the basis of a decision would be is there
a basis to expect that individual would be in a position where
they would have to choose between the U.S. interests and a
foreign interest and even if that is the case, is there enough
evidence in terms of long-standing ties and loyalty and
commitment and everything else that there is every expectation
that if the individual was given such a conflict that they
would invariably decide in the U.S.'s interests, then that
clearance should be granted.
Mr. Waxman. Well, the son-in-law could be captured, held
hostage by Lebanon or the Palestinians, Hamas group as a
military person.
Mr. Leonard. My son is in the U.S. military. He served in
Iraq. He could be captured as well, too.
Mr. Waxman. You would be annoyed if you were turned down
for a security clearance then?
Mr. Leonard. Interestingly enough----
Mr. Waxman. But that is not a foreign preference. But you
see what I am talking about. We are getting reports from people
who say why are we being singled out because of longstanding
ties to Israel, family ties or religious ties or whatever,
especially when we have people who have already had security
clearances and they haven't abused it. If you've got somebody
who abuses a security clearance something ought to be done
about it. I have been trying to get the chairman to pay some
attention to the fact that Karl Rove had a security clearance
and violated it by disclosing information about a CIA agent and
yet he maintains a security clearance. That is a case where a
clearance ought to be revoked. But if somebody has done
something wrong, they should not have their security clearance
revoked because they suddenly found out information that had
already been disclosed.
Mr. Leonard. With respect to people who have had long-
standing clearances, I would point out that is particularly one
of the revisions to the guidelines where it was changed to
indicate that the individual has such deep and long-standing
relationships and loyalties in the United States that the
individual can be expected to resolve any conflicts in the
interest or favor of the United States.
Clearly if someone has a long-standing history of a
security clearance already, that's exactly why that provision
in the adjudicative guidelines was modified to allow that
flexibility.
Chairman Tom Davis. Mr. Van Hollen.
Mr. Van Hollen. Just a quick followup to one of the
responses to Mr. Waxman's question on this consistency issue
because I think it is important for the process and the
integrity of the process for people to have some idea of what
the guidelines are. Obviously each case is different and has to
be weighed on its own facts.
You mention the DOHA process as being one that actually
provided greater transparency. In every case do you have to
have a written decision that sets forth the basis for a
particular finding across the board? In other words, does the
person who is denied get a written decision?
Mr. Leonard. As a minimum the individual needs to be
provided a statement of reasons which outlines the reasons why
they have been deemed ineligible and an opportunity to reply to
that statement. The extent to which the individual can reply,
that's what varies from agency to agency. And again I defer to
Bob about the DOHA, but they are much more elaborate than most
other agencies.
Mr. Van Hollen. But across every agency there is a written
explanation they can respond to?
Mr. Leonard. Yes.
Chairman Tom Davis. Thank you very much. Why don't we take
a 2-minute recess and we will call our next panel. Mr. Andrews,
Mr. Leonard, thank you.
[Recess.]
Chairman Tom Davis. We move now to our second distinguished
panel. We have Mr. Mark Zaid, esq., managing partner at Krieger
& Zaid law firm. We have Mr. Doug Wagoner, the chairman of the
Intelligence Subcommittee, Information Technology Association
of America, on behalf of the Security Clearance Coalition. We
have Mr. Walter Nagurny, the director of the Industrial
Security Office, EDS U.S. Government Solutions. Thank you all.
Thank you for your patience in getting through the first panel.
It's our policy that we swear you in before you testify. Please
rise and raise your right hands.
[Witnesses sworn.]
Chairman Tom Davis. Mr. Zaid, you know the rules. We have
gone through the first panel. Your entire statement is in the
record. We appreciate your being here. Go ahead.
STATEMENTS OF MARK S. ZAID, ESQ., MANAGING PARTNER, KRIEGER &
ZAID; DOUG WAGONER, CHAIRMAN, INTELLIGENCE SUBCOMMITTEE,
INFORMATION TECHNOLOGY ASSOCIATION OF AMERICA, ON BEHALF OF THE
SECURITY CLEARANCE COALITION; AND WALTER S. NAGURNY, DIRECTOR,
INDUSTRIAL SECURITY OFFICE, EDS U.S. GOVERNMENT SOLUTIONS
STATEMENT OF MARK S. ZAID, ESQ.
Mr. Zaid. Good morning, Mr. Chairman, members of the
committee. It is a pleasure to testify here today on such an
important topic. I have been handling cases involving national
security now for more than a decade, represented nearly 100
individuals in security clearance cases before numerous Federal
agencies.
This is a period in our history when our country
desperately needs individuals with foreign language expertise
and intimate experience with other cultures to assist in the
war against terror. The logical population from which to
recruit individuals are those Americans citizens with foreign
backgrounds. Yet our agencies are losing the ability to utilize
numerous loyal Americans simply because they brazenly admitted
to affection from their parents residing overseas, dared to
telephone their siblings back in the home country, or through
no action of their own hold dual citizenship.
The disqualifying conditions of foreign influence and
foreign preference especially are often arbitrarily and
inconsistently applied. Whether the country involved be ally,
such as Israel or the United Kingdom, or an enemy and hostile,
such as Iran or China, there is typically little rhyme or
reason why a clearance is denied or granted.
In recent years it has become common for the Department of
Defense to revoke an individual's clearance after having held
one for years or even decades. Oftentimes these individuals
have never misled or lied about their foreign relatives or
origins, but DOD has suddenly decided that the person poses a
risk that never previously existed before.
At the CIA individuals have wasted months through the
application training process only to eventually be informed
that their foreign background, which had neither changed nor
been hidden from the outset, prevented the granting of the
clearance.
Though my testimony is more critical than positive, I do
wish to highlight that there are many shining examples of how
some agencies and individuals employed therein implement their
security clearance programs. Indeed, I would rate DOHA as one
of the better, if not best, venues for challenging a denial or
revocation.
Executive Order 12968, issued by President Clinton in 1995,
created the current framework. In response, adjudicative
guidelines were issued in March 1997 in order to establish a
common set of standards. These were revised last December and
in the cover memo from Mr. Hadley they were to be implemented
immediately. As far as I know, DOD is the only agency not to
have done so. This posture is, disappointingly, not surprising.
It was not until April 1999 after publication in the
Federal Register, a useless act, that DOD adopted the March
1997 guidelines, and actual application only commenced
beginning July 1, 1999. Thus we might not see until 2008 that
DOD implements the 2005 guidelines notwithstanding what we
heard earlier, and that is unacceptable.
Only DOD likely knows how many revocation denials have been
based on foreign influence or preference concerns, but the
number has increased in the last few years. For decisions
posted on DOHA's Web site this year alone approximately 25
percent involved foreign influence.
How significant an impact can there be between the
application of the old and new guidelines? Let me focus on
foreign influence, and I'll address foreign preference during
the Q and A if desired.
Under the 1997 guidelines one of the more common
disqualifying conditions is whether an individual or his family
member may be potentially vulnerable to coercion, exploitation
or pressure by a foreign power. To mitigate this concern, one
can seek to prove the contrary, yet it is virtually impossible
for any individual to truly affirmatively prove a negative and
to demonstrate that a foreign relative or contact is not in
some way possibly subject to exploitation by a foreign power.
Another available mitigating factor is that contact and
correspondence with the foreign citizen are casual and
infrequent. Unfortunately, the terms have no standardized
definition or application.
Consider one case in particular I had in 2004 where I
unsuccessfully represented a defense contractor originally from
Pakistan. This is the case Congressman Waxman referenced. My
client provided unrefuted testimony that he had infrequent
contact with his siblings three to four times a year. Although
the judge ruled that there was nothing in the record to
indicate that the family members were agents of a foreign
power, she concluded that there is no evidence to show that he
is not in a position to be exploited that would force him to
choose between the two countries and be disloyal to the United
States. Yet, at the same time the judge also concluded that can
there was nothing in the applicant's testimony or demeanor that
suggested he was not a loyal American and credit to his adopted
country.
What was behind the judge's rationale? She believed that
``Pakistan is on the front lines in the war against
international and regional terrorism and despite the efforts of
its government there are individuals and groups within Pakistan
who have acted and continue to act in a hostile manner to U.S.
Security interests.''
Beyond the fact that in today's world this description fits
dozens of countries, including even the United States itself,
it was completely inconsistent with factual findings reached in
numerous other DOHA cases and contrary to the official position
of this administration. For example, just 3 months after 9/11
another DOHA judge had held Pakistan is not a country hostile
to the security interests of the United States, but a country
whose political institutions, while not democratic at present,
are specifically aligned with our own traditions, which include
the rule of law to absolve the applicant of any foreseeable
security risk.
Under the 2005 guidelines I have no doubt that my client
would have had a much greater chance of attaining a security
clearance. Even a casual comparison between the 1997 and 2005
guidelines should leave a reader with the notion that the
revisions are more relaxed and flexible. They fit a moralistic
environment. They legitimately raise the bar or, more
precisely, perhaps set a more appropriate bar for the
government to revoke or deny a clearance based on foreign
influence or preference.
The most frequently cited disqualifying condition now
requires a heightened risk of exploitation, inducement,
manipulation, pressure or coercion. And the country is taking
into account the nature of the relationships and the fact that
it has to be unlikely the individual will be placed in such a
position to choose between their native country or country
where their relatives might live. If DOD denies a security
clearance based on application of the 1997 guidelines when a
favorable result could have been attained under the 2005
guidelines, then DOD will have harmed the national security
interests of the United States.
I won't talk about the appeal process, Mr. Chairman. You
referenced my colleague Sheldon Cohen's conclusions. They are
quite damming regarding the appeal process. With respect to
foreign connection since 2000 the Appeal Board has affirmed all
144 of applicants' appeals of decisions that denied a clearance
and reversed all but four of the appeals granting a clearance.
In my testimony I submitted 15 recommendations for
consideration. Let me just take 30 seconds to highlight a few.
I would suggest that Congress, one, require DOD to adopt the
new guidelines immediately; two, consider removing DOHA's
ability to appeal favorable decisions unless a more balanced
framework can be instituted. Other than the Department of
Energy they are the only agency that can appeal a favorable
decision.
Three, task GAO to conduct a thorough assessment of the
security clearance appeal process as it is implemented
throughout the Federal Government. There are numerous GAO
investigative reports, but they deal primarily with DOD.
Three, create an administrative hearing system similar to
that of DOHA and the Energy Department across the board at all
Federal agencies. And the final two, either create an
independent body outside of the involved Federal agency to
adjudicate final appellate challenges, or grant the Federal
judiciary statutory jurisdiction to review substantive
clearance decisions.
Again, I thank you for the opportunity to appear before
you, and I will be very happy to answer any questions or work
with you or your staff.
[The prepared statement of Mr. Zaid follows:]
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Chairman Tom Davis. Thank you for your excellent testimony.
Mr. Wagoner.
STATEMENT OF DOUG WAGONER
Mr. Wagoner. Mr. Chairman, it is good to be here today. My
name is Doug Wagoner. I'm the senior vice president of DSA, a
small northern Virginia based information technology business
that requires that all of my employees have clearance. I am
speaking today, however, as the chairman of the ITAA'S
Intelligence Committee and as a spokesman for the Security
Clearance Reform Coalition.
Thank you for this opportunity to appear before you once
again to discuss the industry perspective on the continued
issues facing the Federal security clearance process. Our
coalition is comprised of the Aerospace Industries Association,
FC International Association, Associated General Contractors of
America and the Association of Old Crows, Contract Services
Association, ITAA, Intelligence and National Security Alliance,
NDIA and PSC.
We represent thousands of companies that provide classified
products, services and personnel to the Federal Government. The
coalition compliments the President for extending the authority
of Executive Order 13381 for an additional year and applauds
the implementation of the updated December 2005 President's
adjudicative guidelines for determining eligibility for access
to classified information. This is a vital reform needed to
achieve clearance reciprocity across the government. For too
long clearances have not been reciprocally recognized between
departments or even within agencies within the same department.
The root of the problem is an institutional lack of trust
between agency adjudicators, each of them thinking that only
they can determine the person's trustworthiness for granting
access to classified information that they control. These
revised guidelines are the latest iteration of a long-standing
effort to get departments and agencies to adopt uniform
clearance adjudications.
Unfortunately, although the President has issued the
revised guidelines in December 2005 they have yet to be
uniformly adopted or applied across government. We continue to
experience problems with the equitable application of
adjudicative criteria and reciprocal acceptance of those
criteria, and this lies at the heart of the problem.
If agencies could be confident that all Federal agencies
adjudicate the same criteria and standards, they should have
confidence in recognizing a clearance issued by another agency.
However, there are efforts underway to bring about change and
industry would like to recognize and thank Mr. Bill Leonard,
the Director of Information Security Oversight Office, for his
continued leadership on the issue of reciprocity with
clearances.
The application of criteria regarding the foreign influence
on an applicant is especially important to our coalition member
companies because of the many gifted technical personnel with
foreign connections who can provide valuable help to national
security missions. Other clearance applicants are singled out
because of family or marital status, marital ties to foreign
nationals or because they may be considered a dual citizen
based on their birth abroad to U.S. parents. America cannot
deny itself access to this talent.
There is the anecdotal case of the U.S. General who, upon
retirement, applied to have his clearance transferred to his
new employer and was rejected because he was married to a
Canadian national. His spouse's nationality was never a
disqualifier during his 30-year military career, yet the same
person working for industry apparently was no longer considered
trustworthy.
Unfortunately, the more frequent response is to either
reject or forever delay applicants with such conditions without
measurement of actual risks they may pose.
Chairman Tom Davis. That was when they had a liberal
government I assume, right, before the Tories came in?
Mr. Wagoner. I am sure.
Part of this problem can be attributed to lack of training
for adjudicators regarding the degree of risk presented by
certain foreign nations. This measurement of risk should
include counterintelligence, infrastructure of a nation and its
ability or history of applying coercion to U.S. citizens with
relatives or friends residing in the country.
Evaluating the extent of a person's foreign connections as
part of the investigative process is one of the weakest links
in the entire effort. Applicants with foreign interaction
routinely wait months before being investigated, thereby
creating uncertainty for the applicant and their employer. As
part of its investigative process OPM queues up applications
for foreign investigations, waiting for critical mass for those
tied to a particular country to save money.
That is not good enough and other government agencies
appear to agree. The State Department specifically sought and
received approval to establish their own investigative and
clearance granting program after they found OPM's process was
unable to meet its needs. State electronically sends out
queries for their international clearance applications as they
are received. The State Department's personnel security program
may already meet or exceed the ambitious time lines mandated by
the Intelligence Reform Act of 2004. Industry suggests OPM
contract with the State Department to utilize their best
practice system when foreign checks on an applicant are needed.
Government oversight of adjudication is itself sometimes
part of the problem. As discussed earlier, since GAO has
previously criticized DOD for granting clearances on cases that
do not fully comply with the national guidelines, DOD has
directed OPM to not return any case for adjudication unless all
leads have been completed. This development has caused many
cases to be held at OPM that otherwise would have been
favorably adjudicated on a risk management basis, pending
completion of some relative minor lead in the case. While this
approach assures complete adherence to the guidelines, it
precludes a clearance based on otherwise favorable
investigation where risk is minimal to non-existent.
Our coalition has two recommendations that we believe will
enhance the Federal security process. Both of these steps are
within the clear direction of Congress that Congress provided
in the 2004 Intelligence Reform Act.
First, we recommend the creation of an agency-sponsored
pilot program that would utilize technology with government and
industry best practices in each stage of the clearance granting
process, including periodic reinvestigation. This pilot program
would provide an opportunity for government and industry to
work together to demonstrate that technology can improve both
the efficiency and even the security of the clearance process.
Industry believes that the efficiencies of such a pilot would
provide a clear contrast to current Eisenhower era, paperwork-
intensive processes. A statistically valid sample of
investigations could be selected for a parallel test of the
standard OPM investigation versus an investigation utilizing
automated applications, electronic submission of fingerprints
and signatures and verification of investigative criteria using
commercial and government data bases. If requested, industry
can provide the committee staff with a detailed proposal,
including how it can reduce the backlog, lower costs, and
ensure equitable treatment of all applicants.
Second, we recommend each agency evaluate every stage of
the clearance process against the 2004 Intelligence Reform Act.
We are not aware that such metrics are being measured nor are
there viable mechanisms to identify whether weaknesses persist.
This should be a stoplight grading process much as the
President's management agenda to recognize agencies with best
practices and advice to those needing more attention.
On behalf of the ITA Intelligence Committee and the
Security Clearance Reform Coalition, thank you again for this
opportunity to testify before you today and I am happy to
answer your questions.
[The prepared statement of Mr. Wagoner follows:]
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Chairman Tom Davis. Thank you very much.
Mr. Nagurny, thank you for being with us.
STATEMENT OF WALTER S. NAGURNY
Mr. Nagurny. Chairman Davis, Ranking Minority Member Waxman
and members of the Committee on Government Reform, first, I
would like to commend you and your colleagues for your fast
response and action in helping resolve the precarious situation
created because of the daunting backlog in the security
clearance process.
My name is Walter Nagurny. I am the Security Director for
the U.S. Government Solutions business unit of Electronic Data
Systems Corp. I have served EDS in that capacity for 2 years. I
have experience that dates back to 1987 as a government
employee and for the past 10 years as a contractor related to
security clearances. My responsibilities at EDS include
oversight of all activities related to security clearances and
support of contracts awarded to EDS by the Federal Government.
EDS has a sizable cleared work force.
As a major supplier of information technology to the
Federal Government, the very significant challenge EDS faces is
to identify and hire capable people who can provide the leading
edge expertise government customers expect from EDS.
One practice EDS utilizes to identify appropriate
candidates is to conduct a voluntary prescreening with respect
to the likelihood the clearance need for access to classified
information will be granted. To this point candidates are not
asked to divulge personal information to EDS, but are required
to read an EDS internal use document that provides an overview
of the clearance process and the Hadley guidelines. Once
educated about the process, some candidates decide they do not
want to face the scrutiny of a security clearance
investigation.
Prescreening minimizes drawn out clearance requests and
helps the overarching U.S. Government security clearance
infrastructure. Prescreening also provides EDS hiring managers
with an estimated date the clearance process should be
completed. Sometimes having a cleared employee on the job
outweighs the technical qualifications of other candidates.
That's unfortunate. EDS takes no action and makes no decisions
that will impact an individual's eligibility for a security
clearance. EDS will submit a candidate for a clearance under a
contract that requires it as long as an EDS hiring manager made
the decision that it is a good business. EDS's procedures
simply provide an estimate about how long it might take to gain
an approval for a security clearance.
EDS has a good track record of getting employees approved
for a security clearance. One troubling area, however, is that
some clearance requests languish for several months without any
feedback or end in sight. All too often highly qualified
employees leave because a clearance decision took longer than
18 months.
The overall security clearance process has improved. The
Joint Personnel Adjudication System, JPAS, for example, has
shown a major positive impact on the way contractors interface
with government agencies regarding security clearances.
On the other hand, other changes have also made an impact.
The assumption of responsibility for DOD clearance
investigations by the Office of Personnel Management in March
2005 is a case in point. I say that because on one hand a DOD
interim secret clearance is now being granted to many employees
in less than 5 business days, some in fact overnight. Final
secret clearances are often being granted within 60 days.
EDS has many employees who are either naturalized U.S.
citizens, have non-citizen immediate family members or hold
dual citizenship. Getting a security clearance for them is
often difficult.
EDS recognizes the indisputable need to keep classified and
other sensitive information out of the hands of non-citizens.
It is no doubt a huge challenge to distinguish foreign
preference individuals who could be blackmailed from
individuals who would never contemplate divulging information.
The Hadley guidelines address such concerns as well as the
factors that mitigate security concerns. As significant numbers
of naturalized citizens accept positions in the IT industry,
the need for government contractors to submit naturalized
citizens for a security clearance will only increase.
Cleared EDS employees who are naturalized citizens have an
outstanding record of filing required security reports,
complying with classification rules and following security
procedures. While the Hadley guidelines speak of dual citizens
expressing willingness to renounce their non-U.S. citizenship
as mitigation, these cases nonetheless always end up at DOHA. A
dual citizen who submits proof that it is his expressed intent
to renounce non-U.S. citizenship would seem to satisfy the
adjudicative guidelines.
A real time example: A well-qualified EDS employee was
recently denied an interim secret clearance. He is a veteran of
the U.S. Marine Corps and retains a dual citizenship in
Portugal, where he was born. Eventually DOHA will ask this
employee to renounce his Portuguese citizenship and he will
receive swift clearance approval. There must be a method to
handle cases in which dual citizenship is the issue more
swiftly.
In closing, a few observations regarding the overarching
status of contractors being processed for security clearances.
Security requirements issued by user agencies that are well
written, clear and explicit streamline the overall process.
Many companies, including EDS, conduct a comprehensive
background investigation and drug screening of all potential
employees as a condition of employment. It is conceivable that
standards could be developed to leverage on a voluntary basis
the information obtained in preemployment investigations done
by many national industrial security program companies, thereby
leading to more informed security clearance decisions being
made more swiftly.
I thank you and I am happy to answer any questions you
might have, Mr. Chairman.
[The prepared statement of Mr. Nagurny follows:]
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Chairman Tom Davis. Well, thank you all very much. Mr.
Zaid, let me start with you. A recent story in the Legal Times
reported of the plight of the Korean American I referred to in
the previous panel. It is a client of yours, I think, the
government dropping its second appeal, the decision that
granted your client a security clearance. Mr. Andrews pled
amnesia on the case even though this was a very highly
publicized case. What reason, if any, did DOD provide for
dropping its appeal and why the sudden change of heart in your
opinion?
Mr. Zaid. Thank you, Mr. Chairman. That was in fact my
case. I am not entirely surprised that Mr. Andrews did not know
that specific case. Quite frankly and with all due respect to
him, he got quite a lot of facts wrong about how DOD has been
implementing the security clearance process, especially the new
guidelines. That case started to essentially focus----
Chairman Tom Davis. Do you think he is just mistaken or do
you think he's up here----
Mr. Zaid. I got the impression frankly he just didn't know
the answers to those questions.
Chairman Tom Davis. We will try to followup.
Mr. Zaid. I am sure he has quite a lot of responsibilities
obviously and this is just one of them. And he was just
misinformed on quite a bit; for example, like when the
guidelines are going to be approved, the notice and comment
period and why that would be. He kept referring back to the
Smith amendment. Well, the Smith amendment was enacted 6 years
ago. It has been long implemented within the DOD process and
for the most part it's culled out most of the people in DOD who
were subject to having a prior felony conviction in their
record. So I am not quite sure why the Smith amendment is
impacting current DOD policies or training, nor do I know why
DOD feels they need to train their adjudicators any more so
than every other Federal agency that's already adopted the new
Hadley guidelines or President Bush guidelines.
With respect to Mr. Moon's case, on appeal the second time
around it was made known to me that they were a little bit
concerned regarding a nonforeign influence question, which
dealt with advertising on the client's Web site as to whether
he had foreign business contacts. The Small Business
Administration had told him it would be beneficial to him for
business development of his minority company to promote his
foreign business connections. He hadn't had any for about a
decade, but he had never updated the Web site. So the
department counsel had argued that he was lying about the
extent of his business contacts. The administrative judge did
not agree with that, thought it was somewhat absurd. And I made
it analogous to as a lawyer, I often say, well, I represented X
person; I don't any longer but I did at one point. And in fact
it was very interesting to note in the case specifically that
Mr. Moon was not just any individual contractor. He was the
contractor who did the wiring, the computer wiring for the
entire DOHA new building. The courtroom we sat in was all his
handiwork. And I thought it quite ironic when we walked in for
that morning his daughter testified, Korean American, born here
in the United States, can't even speak Korean because her
father wanted to make sure she was American more than Korean,
and every security guard in the building, which she is a young
attractive woman, was saying hi, how are you? We missed seeing
you around the building.
It is unclear and Sheldon Cohen, as you referenced, has put
in this analysis, excellent analysis of the appeal process. It
is unclear what motivates or the intent of department counsel
as to why they appeal some favorable rulings and not others.
All that is known is that it is quite clear that if you as a
lawyer or an applicant prevail in a foreign influence case and
that case is appealed, the odds are you might as well kiss that
victory goodbye the way the current system is. And if you are
denied a clearance at that initial stage you might as well
forget trying to appeal it.
Chairman Tom Davis. You don't tell your clients that, do
you?
Mr. Zaid. I have started recommending to clients don't
waste your money paying me to have a worthless appeal.
Chairman Tom Davis. You think Mr. Cohen's analysis is
essentially correct?
Mr. Zaid. It was absolutely consistent with my anecdotal
experience. It's dead on.
Chairman Tom Davis. You note in your testimony that DOD and
DOE have the authority to appeal favorable clearance
determinations and you recommend abolishing DOD's authority to
do so. What's your understanding of the historical origins of
that unique authority?
Mr. Zaid. I don't know. In fact, I posed that to some
senior government officials in the security field and they
didn't know about it either. It's very interesting, most of the
agencies really don't know how the other agencies conduct their
own clearance processes. There is a basic framework, of course,
but they have all implemented them differently. And in fact
they not only implement them differently, but there are
different factors that are taken more seriously at one agency
versus the other. For example, the CIA is one of the worst
agencies to take a clearance appeal to. If you did a
statistical analysis, although you will probably never get the
data because they refuse to give it to GAO, every time you ask
them to get it you probably will find they have the lowest
percentage of having applicants overturn a clearance decision,
including foreign influence cases.
I don't know why some agencies have implemented it
differently. DOHA clearly proves as well as the Energy
Department that, one, you can have a seemingly transparent
process by publishing your decisions with privacy concerns
redacted of course, and that you can have live witnesses, no
other agency does that, and sworn statements and all sort of a
more formal judicial process. There are nuances of the DOHA
process. We don't have subpoena ability. We can't obtain
additional documentation from the agencies if we think it is
relevant. We can't utilize classified information, and I would
say in fact that the DOHA judges I believe don't even have
generally access to classified information.
Chairman Tom Davis. You know, we wouldn't be here
complaining about DOHA if there weren't such a backlog. If they
were denying people and we still had plenty of people in the
pipeline, I suspect that congressional interest, there may be
some rights issues, but the fact is we have such a huge backlog
at this point and it looks like a lot of qualified people for
important jobs just aren't being qualified and cleared to do it
and that's a huge burden.
Mr. Zaid. That's a huge problem. Every agency has a
different backlog. The CIA process will take 2 to 3 years to
get somebody through. DOHA process now is probably within a
year you will get a hearing. A decision will take 4 to 6 months
depending on the judge's individual backlog, and the appeal can
take anywhere from 6 to another 12 months. If the government
appeals, you are stuck in a process for 2 to 3 years if not
longer.
Chairman Tom Davis. So you're going to be doing something
else for your employment.
Mr. Zaid. As we are sitting here today, I checked my trusty
BlackBerry, I got an e-mail from a high level DOJ official
whose daughter it took 45 months to get a clearance approved by
DOHA in a foreign influence case.
Chairman Tom Davis. And that is not atypical, right?
Mr. Zaid. That's a little bit longer than I have seen but
doesn't surprise me.
Chairman Tom Davis. Mr. Wagoner, you have a small company,
right?
Mr. Wagoner. Yes, sir.
Chairman Tom Davis. You depend on clearances?
Mr. Wagoner. Yes, absolutely. Everyone has to have a
clearance.
Chairman Tom Davis. Do you have trouble keeping people
because of the scarcity of just--the clearance is like a
commodity itself outside of the qualifications, isn't it?
Mr. Wagoner. Absolutely, and we do have a hard time keeping
people, and what's ironic is a lot of the proposals these days
they want to talk about describe your ability to retain people
and we are all losing people because of another broken
government process. One part of the government says, hey, you
got to keep your turnover low but the other side is not doing
anything to help us out there.
Chairman Tom Davis. You are caught in a Catch-22 because of
the government's own regulations?
Mr. Wagoner. Absolutely.
Chairman Tom Davis. Now, I hear from large companies
because of the scarcity, but the smaller companies if your
clearance expires or you need a clearance you can't afford
sometimes to put people on another job while you're waiting for
clearance.
Mr. Wagoner. We can't. Obviously, that's why we are small.
We don't have enough jobs just to move those people around
while we're waiting, putting people on the bench, so to speak.
We can't afford that. But even the larger companies, they have
margin issues as well. They have a hard time keeping people on
the bench as well.
Chairman Tom Davis. What do you think the premium is in
payment? I will ask Mr. Nagurny the same thing. What is the
clearance premium that somebody is paid today because of the
backlog and the scarcity versus if we had plenty of--if
clearances weren't a problem?
Mr. Wagoner. ITAA, we have just finished our third; second
or third survey of industry. This last time we went through
Federal Computer Week Magazine so we have many more respondents
this time, and the premium for a top secret clearance was
somewhere between 15 and 25 percent. I know even in my company
we give special bonuses to those people, special incentives to
those people, again, treating them like a whole different class
of citizen, which I don't want to do, but I have contractual
commitments to my customers where I have to keep these people.
Chairman Tom Davis. Mr. Nagurny, what do you think? Do you
have a premium you pay? If somebody loses a clearance are they
worth as much at EDS without a clearance?
Mr. Nagurny. Salary information is generally not something
I have exposure to. Candidates tell us, just like Mr. Wagoner
said, 15 to 20 percent is what they were offered in the
marketplace.
Chairman Tom Davis. If you had two candidates in front of
you for the same job and one had a security clearance and one
didn't, which one are you going to hire, all things being
equal?
Mr. Nagurny. The one with the clearance. And from my own
personal experience certainly, and the salary would be higher
for the person with the clearance.
Chairman Tom Davis. They're more mobile with that, right?
Again you can train them for anything. If they've got that
clearance it ends up being a premium. So the real question, and
nobody can answer it accurately, is how much is this costing
American taxpayers because they're afraid to spend a few
dollars on the front end; how much is this costing us up the
back end because of these premiums that we are having to pay,
let alone the inefficiencies that you have to do in shuffling
people around and everything else, and the answer is you are
better off paying upfront.
Mr. Wagoner. Absolutely. And there's a cost that our
missions are not getting done. Our missions are being delayed.
Chairman Tom Davis. And some critical missions in some
cases. And that's why this foreign influence, why we're talking
about that. Some of these jobs are so specialized. This isn't
just somebody who wants to get in line for a security clearance
and happened to live in a foreign country or had a foreign
relative. In many cases these have a language expertise or a
specific expertise. Why else would you sit through 3 years
waiting for a clearance when you can go out and do something
else? I am saying you can put a man on the Moon but you can't
move a security clearance through in a reasonable time and it
just shows priorities. Somebody needs to pay full time and
attention to get this done and all we can do, we can legislate
until the cows come home, the Smith act 6 years ago, and they
are using that as an excuse. We mandated in the Intelligence
Reform Act certain things, and it's just very difficult. So we
can hold hearings. We can hold our feet to the fire. We can
beat them up. We can penalize them a little bit on the
budgetary side.
We had the State Department up here and the head of OMB
didn't know this was a problem until they said we're not moving
ahead with security clearances. There's just no coordination.
It's got to be a priority. It just needs full time and
attention and supervision.
Mr. Wagoner, what are some of the new technologies
available that allow the private sector to improve on the
current investigative approach employed by OPM?
Mr. Wagoner. Again, what's ironic is that they're not even
necessarily new technologies, Mr. Chairman. These are
technologies that have been out there, they're proven. The
private industry uses them. Two key areas, one is trying to use
digital signature and digital fingerprints. We think that would
speed up the process. We also think that it would lead to a lot
more accuracy. Additionally, related to that, we're going to
have a huge tidal wave coming of additional investigations for
HSPD-12; as Mr. Leonard said, additional investigations coming
down for transportation workers. And I believe they are using
digital fingerprints, digital signatures. So we would like that
to be part of the pilot.
Additionally, we think a lot of data collected with that
shoe leather can be acquired and analyzed through commercial
government data bases. And that is what I would like to do with
the pilot, to do the math and see what is the accuracy. I mean
the entire consumer credit, consumer insurance industry relies
on the exact same kind of data to verify a person's identity,
previous addresses, creditworthiness. We would like to see a
pilot and do the math and see if we could be just as accurate
with the security clearances.
Chairman Tom Davis. Let me ask you both, and I don't want
to get company specific because I don't want to put your
company in a situation that somebody could somehow misconstrue
that, so without naming names but in a generic basis, do you
think companies are sometimes forced to settle for employees
that are perhaps less qualified for a particular position than
others who have been unable to obtain a clearance because of
foreign preference and influence issues?
I'm asking generically.
Mr. Wagoner. May I answer that? In that situation the
security clearance is the No. 1 priority.
Chairman Tom Davis. So the end result would be that the
person with the clearance, even if they have less
qualifications, is the one that is going to be utilized?
Mr. Wagoner. Certainly we would not hire a nonqualified
person because that would be in conflict with the contractual
requirements, but the security clearance would be the No. 1
priority in that situation.
Chairman Tom Davis. But if you want Alfonso Soriano in the
outfield and he has a clearance, that's who you would rather
have and you would put me in left field. And I only mention
myself because I did have an RBI single in the congressional
baseball game.
Mr. Wagoner. What if Soriano is on second base though?
Chairman Tom Davis. He still would be better than me. I can
fill in the holes for a couple of innings if I got the
clearance.
Mr. Nagurny.
Mr. Nagurny. I think indeed, yes, it would depend somewhat
if we had some place for the person to work, if they could do
productive work, billable work while the clearance was in
process. Several of our largest sort of basic ordering
agreement contracts, the people can go to work on that contract
when they are cleared. Perhaps there are task orders that don't
require a clearance, but generally yeah, the person with the
clearance would be looked at more favorably than the person
without.
Chairman Tom Davis. When employees have left EDS because of
the delays in getting a clearance, what happens to them? Where
do they go? Are they simply heading to other companies to try
the process all over again or do they just drop out of that
sector of the labor market or do they just go where they can
get a job that doesn't require but maybe suits their needs
better?
Mr. Nagurny. I think the largest number get out of the
Federal sector, if you will. State and local government is
another business area of EDS. But something no one has
mentioned was the public trust position which also requires the
investigations OPM conducts and also taxes the same resources
at OPM. So few people not able to get a clearance will be
eligible for a public trust approval for nonclassified IT work.
So generally they are leaving the Federal sector.
Chairman Tom Davis. In your testimony you mentioned a
prescreening document that EDS has perspective security
clearance applicants reviewed to prepare them for the process.
You stated that this document is geared to the adjudicative
standards that now are in the Hadley memorandum. Does EDS
prepare clearance applicants using the revised adjudicative
guidelines issued in December 2005?
Mr. Nagurny. We're prohibited from--until we've actually
made an offer to someone we can't review their personally
sensitive information. What we can do with them is explain the
process and the considerations the government looks at, the
aggravating, the mitigating factors.
Chairman Tom Davis. Let them know that if you give them an
offer and they have something that could delay them it may not
happen as quickly?
Mr. Nagurny. And that they may be let go very quickly if
they don't get the clearance.
Chairman Tom Davis. OK. That's how it works.
Mr. Zaid. Mr. Chairman, if I might add to this a little bit
with respect to the inefficiency of the system and the cost
effectiveness. In fact, I give recommendations or advise
defense contractors on how to best put their employees or
perspective employees through this system. Part of the problem
is that with respect to foreign preference and foreign
influence cases, from an anecdotal perspective at the very
least, the majority of the potentially derogatory or
disqualifying information comes not from the background
investigation, not from the computer checks, nothing like that.
It comes from the applicant themselves. It comes from either
the filling out of the SF-86 where you say I am a dual citizen
or I have a foreign passport or where you list your relatives
or during the security interview process that may take place
months later. So there needs to be a way in which to streamline
some of the transfer, the initial transfer of information. The
SF-86 is not detailed enough. There are terms that are very
confusing that are misapplied or differently applied from
agency to agency. And clearly many of the individuals filling
out the SF-86 do not understand what that agency may wish.
I had a foreign influence case with the CIA, an Iranian
American, a lawyer whose actually family member had worked in
intelligence services under the Shah when we had a good
relationship obviously with that country. One would think given
her language experience we would want her to be able to
contribute to the U.S. national security interests. One, among
several, issues that came up was she did not indicate that she
had been married to an Iranian American? Why didn't she
indicate that? Because she had had the marriage annulled. She
was a lawyer. She was going, the marriage is annulled, there is
no legal record that this marriage took place. It is a
legitimate argument but the agencies don't look at it that way.
The CIA said, no, you were married. I don't care if you had it
legally annulled. You were. Now, that could have been an easy
issue to resolve if the instructions were a little bit more
clear.
Chairman Tom Davis. I got you. Thank you all very much. It
has been very, very helpful to us. We will continue to proceed,
try to prod the executive branch. Mr. Zaid, we will take some
of your recommendations and see if we might try to do something
legislatively with them.
Mr. Zaid. I will be happy to help in any way, sir.
Chairman Tom Davis. Thank you very much. The hearing is
adjourned.
[Whereupon, at 11:35 a.m., the committee was adjourned.]
[The prepared statements of Hon. Elijah E. Cummings and
Hon. Jon C. Porter follow:]
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