Security Clearance and the Unwritten Rules of Democracy

On August 15, President Trump announced that he was revoking the security clearance of former CIA Director John Brennan, an outspoken critic of the President, citing his “frenzied commentary.” And Trump is threatening to do the same to others, including James Clapper, former Director of National Intelligence; James Comey, former Director of the FBI; Michael Hayden, former Director of the National Security Agency; and Susan Rice, former National Security Adviser. Admiral William McRaven (Ret.), who oversaw the raid that killed Osama bin Laden, responded to the Brennan revocation by telling Trump in a Washington Post column that he would “consider it an honor if you would revoke my security clearance as well.”

The Admiral isn’t on Trump’s list, but a man named Bruce Ohr is. Mr. Ohr, whom Trump calls a “disgrace,” is an expert on Russian organized crime and has a long history of working closely with the FBI. Taking away his clearance would likely prevent him from continuing in his current position as a career prosecutor with the Department of Justice. So far as I am aware, no one has produced any evidence that he has done anything wrong.

This is starting to look a lot like Nixon’s secret “Enemies List.” Trump makes no attempt to conceal his motives. Just like Nixon, he doesn’t like what these people are saying about him. These are not leakers such as Edward Snowden, but rather people who have expressed strong criticism of Trump and his administration. It seems that former Press Secretary Sean Spicer expressed this administration’s aggressive image policy when he said, in response to criticism from the media, “We’re just not going to sit back and let … false narratives, false stories, inaccurate facts get out there.”

In 1881, the Massachusetts Supreme Judicial Court decided a case called McAuliffe v. Mayor of New Bedford.  Justice Oliver Wendell Holmes, a member of that court before becoming a Supreme Court Justice, famously wrote, “A policeman may have a constitutional right to speak his mind, but he has no constitutional right to be a policeman.”

The same can be said about security clearance. No one has a “right” to know government secrets. So, while the vexatious First Amendment may prevent Trump from silencing what he considers “frenzied commentary,” presidential power over national security is a mighty sword which he will wield whenever and however he chooses.

Today’s question is not whether someone has a right to be a policeman. It is whether the President can summarily revoke a benefit from someone, whether it be a current Justice Department civil servant or a member of the previous administration, based on what he or she has said.

Suppose a president decides to revoke the security clearance of all members of a particular religion, or of a particular race. Such actions would have sounded far-fetched not long ago, but today one need only recall Trump’s travel ban on Muslims.

Even if the arbitrary revocation of a person’s security clearance raises constitutional questions, it is far from certain that Brennan or some other aggrieved person would even be allowed to cross the judicial threshold in order to air his grievances in a court of law. If not, then whether such rights exist is beside the point. It’s like the tree falling in the forest with no one within earshot. If a right isn’t “justiciable” in the sense that a court will adjudicate it, then there is no right.

We have no definitive answer to the question of whether the usual presumption of judicial reviewability applies to national security matters. In 1988, however, the Supreme Court said that “courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.”

Does that give the President carte blanche? It depends on how you read the word “reluctant.”

In all likelihood, such constitutional rights as freedom of speech and religion under the First Amendment, and due process of law under the Fifth Amendment, impose no limits when it comes to revoking security clearance. Indeed, that understanding of virtually unlimited executive power appears to be the view held by Judge Brett Kavanaugh, now well on his way to the Supreme Court.

But our government has not functioned since 1787 only because of the words in the Constitution or the freedoms embodied in that document. We have also followed unwritten rules, which, as the authors of “How Democracies Die” point out, include such essential norms as mutual toleration and institutional forbearance. Even if these words are not in the Constitution, Americans have always expected their elected officials to abide by them.

An editorial in last Sunday’s New York Times ruefully lamented that in today’s America, it seems as if such norms “are for sissies.” The upcoming mid-term elections may give us a sense of whether Trump’s refusal to abide by traditional democratic principles – which are a sign of strength rather than weakness – meets with public approval. A rejection of those candidates who support the arbitrary revocation of security clearance, and the countless other ways in which Trump repudiates constitutional protections and non-constitutional norms every day, may mark the first step towards a restoration of normalcy.

2018-09-10T14:34:00+00:00By |