You’ve heard of the term cancel culture: getting rid of people with unpopular opinions. It’s not all that new. The popular new movie Oppenheimer re-enacts the revocation of the scientist’s security clearance in the 1950s, because of his opposition to the hydrogen bomb. What about today? Can unorthodox opinions mean loss of clearance? For analysis, Federal Drive with Tom Temin spoke with Dan Meyer, Managing Partner at the law firm Tully Rinckey.
Tom Temin And let’s begin with that very question. If they don’t like your opinions in some committee or some project you’re working on with government and industry, can you lose security clearance? Because we don’t like the way this guy believes or thinks or talks?
Dan Meyer Well, the key here is, Tom, that there’s a fair amount of nuance required in these situations. The first thing to remember is that the movie Oppenheimer is about the classification and clearance process almost 75 years ago, and things have changed. But as a person becomes more of a celebrity — and Oppenheimer was a celebrity — the rules get distorted. And we’re seeing that and also in spades across the federal government right now with this classified document issued down in Florida. And the important thing for federal employees to remember is that they really don’t want to be celebrities. Okay. If you’re the average Jane or Joe and you are following the guidelines as they’ve been issued to you in a document known as SEAD 4, then you’re going to have a fairly neutral process. And any distortion will be easy, for instance, for an attorney to figure out, Well, the last thing anybody should do is to look at what happens to celebrities when they’re in these situations, because they get treated differently, because they’re celebrities. And that can be good for them or it can be bad for them. In the case of Oppenheimer, he was targeted because he was Jewish, and he was targeted because he had left wing views as an academic back in the prior to the Manhattan Project. There was also vicious competition on that project. And the movie brings us that. Well, Oppenheimer and Edward Teller were in deep competition within that program. Teller went on to develop the hydrogen bomb. Oppenheimer was opposed to developing the hydrogen bomb, and that got mixed in. And the Army ended up with egg on its face at the end of that process. And the Oppenheimer hearings became standard teaching in the national security field for the next half century. And the movie does a brilliant job of summarizing all of that. So the important thing is don’t look at somebody getting a break because they’re a celebrity or somebody getting worse treatment because they’re a celebrity. Just focus on the fact that the rules can get distorted the more prominent the person is.
Tom Temin And, of course, vindication 30 years after you’re dead doesn’t really do much for a lot of people, I guess. And what if you feel that your clearance has been wrongly revoked? What kind of recourse does the average non-celebrity federal employee or contractor employee actually have?
Dan Meyer Well, two things on the observation. First of all, I think it’s important for the Army, for one, it would be nice to have the secretary of the Army issue some sort of statement about Robert Oppenheimer. But also remember that Oppenheimer has descendants and family members who are still living. And so it is important to clear the record when a wrong has been done. Same thing happened with the comedian Lenny Bruce, a good friend of mine, Robert Cormier. There was in the movement to have him pardoned because he was targeted for special treatment because of his comedy routine in the 1960s, even though Lenny Bruce was long dead. That was an important thing to do. For the federal employee, the key thing to understand is that most of the distortion is worked out of the security process. Okay? The EEO concerns we always have I don’t see any of that in the security process. One, I think the security system in general has been very good in diversifying. You see people of all race, creeds, colors, disabilities in the adjudication ranks. And I think that brings some wisdom to their decision making. But if you do see distortion, if you do see something that’s incorrect, you’ve got a couple of avenues. If there’s a procedural failure, you can still go to federal district court. Doesn’t happen often because the security cats are really good at what they do and they know they could get dragged into court if they make a procedural failure. So that’s one thing. If you’re a contractor in the Defense Department, you have the ability to petition the director of the Defense Office and hearing appeals. If there’s been some negligence in the handling of your clearance. Some people might have state based actions against their company, if there’s been some tortious interference, a contract or some defamation in the process. I’m always looking for those cases. There are few and far between, but they’re always worth analyzing. And then the core of all last resort, which everybody forgets about, is the United States Congress. You have a representative and two senators. And if you’ve really been screwed to the wall, then it’s time to remember that you’re an American citizen and help get somebody to get you help up on the Hill to work through this. All of these are very tough processes. What you want to be is a model security citizen and have this go through in a normal process, because that shows that you are a team player.
Tom Temin The government sometimes sounds like Remo in Casino: “Why take a chance and shoot the guy?” We’re speaking with Dan Meyer. He is managing partner of the law firm Tully Rinckey. You started to say this doesn’t happen very often. How frequently does it happen?
Dan Meyer Procedural failures, just off the top of my head, I think I’m up at about I have several hundred cases I’m monitoring on a regular basis. I’m not representing all those people. I have associates. Of those, let’s just say of 300 cases. I know that I’m going to have five or six, that there’s going to be something a little funky going on. I got one right now at an agency that I think could be headed to federal district court because there’s something funny going on between management and security. So I would say it’s a small fraction, but it’s enough to be alert, alert for them.
Tom Temin And what should people do to avoid getting caught up in some type of situation that could result in that loss? For example stay out of jail, don’t drive drunk or have big gambling debts.
Dan Meyer Well, the most important thing is to grab a hold on the internet of a copy of a document called SEAD 4. And I tell all my clients to read that every year the week of their birthday. Now, on their birthday, that’s kind of dorky, but at least a week of their birthday, they should refresh their memory. Don’t rely on agency training because most of it stinks. I know; I’ve developed some of it and I wasn’t proud of the program I developed. It just doesn’t work on the slideshow. You need to read that regulation once a year. And then you need to get advice on when to report problems and you need to realize it. Reporting to your security officer is in your interests. There’s this huge internet chat board sort of narrative out there that says that you shouldn’t report to your security officer. It’s wrong. Every one of my clients who reports and reports upfront does well in the end. Sometimes they have to adjudicate, sometimes they don’t. But reporting is your best friend. That’s how you stay abreast of what’s going on. And then I’m not trying to be self-promotional, but if you’ve invested so much into your security clearance and you’re a federal employee, if you’re in your mid-thirties and this is your career, you need to sock away some money every payday to hire an attorney, if you get into a situation where you really don’t know. Your security officer may not be able to tell you because remember, security officers both looking for your violations and advising you on how not to do violations, kind of a conflict of interest there. But when you hire an attorney, you own that attorney, right? You pay that attorney, you paid her or him to give you advice and they’re going to give you the advice to get you out of the trouble.
Tom Temin And here’s a question on the process itself. The apparatus for security clearance has been moving to what they call continuous vetting. That is, they monitor databases, public information sources about people’s activities to see if they remain worthy of clearance. Has that resulted in, can you tell, an increase in the number of revocations or had no effect or maybe reduce them?
Dan Meyer Yeah, I talked to a security officer two weeks ago and an intelligence community element who it’s doubled his caseload. So I think that’s happening throughout the system. And what it’s going to do, it’s going to shift it’s going to shift the focus of the security community on the debt, on the gambling, on to criminal violations, onto all the things that are easily trackable with algorithms, with artificial intelligence. The critical function is how do you get to the more nuanced things: guideline B, guideline C, the espionage stuff that’s not going to come up as easily in the systems that continuous monitoring relies on. But right now there’s a massive focus on people with bad debt, drug issues. If there’s been something through local law enforcement and it’s now so automated that it’s an email that goes from the supercomputer to your security officer, there’s no human eyes on that process. Just gets spit out right away. So, yes, there’s going to be a lot more scrutiny.
Tom Temin And the theory on gambling or other types of debts means that the belief is the person could be suspect to bribery. Is that the theory here?
Dan Meyer Yeah. If you run in high debts, then the loss from Cuba or the FSB from Russia could come in and say, Hey, you got a $50,000 gambling debt, we’ll give you a hundred thousand if you give us the secret manual.