[Congressional Record Volume 165, Number 99 (Thursday, June 13, 2019)]
[Senate]
[Pages S3518-S3520]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 518. Mr. WARNER (for himself and Ms. Collins) submitted an
amendment intended to be proposed by him to the bill S. 1790, to
authorize appropriations for fiscal year 2020 for military activities
of the Department of Defense, for military construction, and for
defense activities of the Department of Energy, to prescribe military
personnel strengths for such fiscal year, and for other purposes; which
was ordered to lie on the table; as follows:
At appropriate place in title X, insert the following:
SEC. ___. EXCLUSIVITY, CONSISTENCY, AND TRANSPARENCY IN
SECURITY CLEARANCE PROCEDURES AND RIGHT TO
APPEAL.
(a) Exclusivity of Procedures.--Section 801 of the National
Security Act of 1947 (50 U.S.C. 3161) is amended by adding at
the end the following:
``(c) Exclusivity.--Except as provided in subsection (b)
and subject to sections 801A and 801B, the procedures
established pursuant to subsection (a) shall be the exclusive
procedures by which decisions about eligibility for access to
classified information are governed.''.
(b) Transparency.--Such section is further amended by
adding at the end the following:
``(d) Publication.--
``(1) In general.--Not later than 180 days after the date
of the enactment of this subsection, the President shall--
``(A) publish in the Federal Register the procedures
established pursuant to subsection (a); or
``(B) submit to Congress a certification that the
procedures currently in effect that govern access to
classified information as described in subsection (a)--
``(i) are published in the Federal Register; and
``(ii) comply with the requirements of subsection (a).
``(2) Updates.--Whenever the President makes a revision to
a procedure established pursuant to subsection (a), the
President shall publish such revision in the Federal Register
not later than 30 days before the date on which the revision
becomes effective.''.
(c) Consistency.--
(1) In general.--Title VIII of the National Security Act of
1947 (50 U.S.C. 3161 et seq.) is amended by inserting after
section 801 the following:
``SEC. 801A. DECISIONS RELATING TO ACCESS TO CLASSIFIED
INFORMATION.
``(a) Definitions.--In this section:
``(1) Agency.--The term `agency' has the meaning given the
term `Executive agency' in section 105 of title 5, United
States Code.
``(2) Classified information.--The term `classified
information' includes sensitive compartmented information,
restricted data, restricted handling information, and other
compartmented information.
``(3) Eligibility for access to classified information.--
The term `eligibility for access to classified information'
has the meaning given such term in the procedures established
pursuant to section 801(a).
``(b) In General.--Each head of an agency that makes a
determination regarding eligibility for access to classified
information shall ensure that in making the determination,
the head of the agency or any person acting on behalf of the
agency--
``(1) does not violate any right or protection enshrined in
the Constitution of the United States, including rights
articulated in the First, Fifth, and Fourteenth Amendments;
``(2) does not discriminate for or against an individual on
the basis of race, color, religion, sex, national origin,
age, or handicap;
``(3) is not carrying out--
``(A) retaliation for political activities or beliefs; or
``(B) a coercion or reprisal described in section
2302(b)(3) of title 5, United States Code; and
``(4) does not violate section 3001(j)(1) of the
Intelligence Reform and Terrorism Prevention Act of 2004 (50
U.S.C. 3341(j)(1)).''.
(2) Clerical amendment.--The table of contents in the
matter preceding section 2 of the National Security Act of
1947 (50 U.S.C. 3002) is amended by inserting after the item
relating to section 801 the following:
``Sec. 801A. Decisions relating to access to classified information.''.
(d) Right to Appeal.--
(1) In general.--Such title, as amended by subsection (c),
is further amended by inserting after section 801A the
following:
``SEC. 801B. RIGHT TO APPEAL.
``(a) Definitions.--In this section:
``(1) Agency.--The term `agency' has the meaning given the
term `Executive agency' in section 105 of title 5, United
States Code.
``(2) Covered person.--The term `covered person' means a
person, other than the President and Vice President,
currently or formerly employed in, detailed to, assigned to,
or issued an authorized conditional offer of employment for a
position that requires access to classified information by an
agency, including the following:
``(A) A member of the Armed Forces.
``(B) A civilian.
``(C) An expert or consultant with a contractual or
personnel obligation to an agency.
``(D) Any other category of person who acts for or on
behalf of an agency as determined by the head of the agency.
``(3) Eligibility for access to classified information.--
The term `eligibility for access to classified information'
has the meaning given such term in the procedures established
pursuant to section 801(a).
``(4) Need for access.--The term `need for access' has such
meaning as the President may define in the procedures
established pursuant to section 801(a).
``(5) Security executive agent.--The term `Security
Executive Agent' means the officer serving as the Security
Executive Agent pursuant to section 803.
``(b) Agency Review.--
``(1) In general.--Not later than 180 days after the date
of the enactment of the Damon Paul Nelson and Matthew Young
Pollard Intelligence Authorization Act for Fiscal Years 2018,
2019, and 2020, each head of an agency shall, consistent with
the interest of national security, establish and publish in
the Federal Register a process by which a covered person to
whom eligibility for access to classified information was
denied or revoked by the agency can appeal that denial or
revocation within the agency.
``(2) Elements.--The process required by paragraph (1)
shall include the following:
``(A) In the case of a covered person to whom eligibility
for access to classified information is denied or revoked by
an agency, the following:
``(i) The head of the agency shall provide the covered
person with a written--
``(I) detailed explanation of the basis for the denial or
revocation as the head of the agency determines is consistent
with the interests of national security and as permitted by
other applicable provisions of law; and
``(II) notice of the right of the covered person to a
hearing and appeal under this subsection.
``(ii) Not later than 30 days after receiving a request
from the covered person for copies of the documents that
formed the basis of the agency's decision to revoke or deny,
including the investigative file, the head of the agency
shall provide to the covered person copies of such documents
as--
``(I) the head of the agency determines is consistent with
the interests of national security; and
``(II) permitted by other applicable provisions of law,
including--
``(aa) section 552 of title 5, United States Code (commonly
known as the `Freedom of Information Act');
``(bb) section 552a of such title (commonly known as the
`Privacy Act of 1974'); and
[[Page S3519]]
``(cc) such other provisions of law relating to the
protection of confidential sources and privacy of
individuals.
``(iii)(I) The covered person shall have the opportunity to
retain counsel or other representation at the covered
person's expense.
``(II) Upon the request of the covered person, and a
showing that the ability to review classified information is
essential to the resolution of an appeal under this
subsection, counsel or other representation retained under
this clause shall be considered for access to classified
information for the limited purposes of such appeal.
``(iv)(I) The head of the agency shall provide the covered
person an opportunity, at a point in the process determined
by the agency head--
``(aa) to appear personally before an adjudicative or other
authority, other than the investigating entity, and to
present to such authority relevant documents, materials, and
information, including evidence that past problems relating
to the denial or revocation have been overcome or
sufficiently mitigated; and
``(bb) to call and cross-examine witnesses before such
authority, unless the head of the agency determines that
calling and cross-examining witnesses is not consistent with
the interests of national security.
``(II) The head of the agency shall make, as part of the
security record of the covered person, a written summary,
transcript, or recording of any appearance under item (aa) of
subclause (I) or calling or cross-examining of witnesses
under item (bb) of such subclause.
``(v) On or before the date that is 30 days after the date
on which the covered person receives copies of documents
under clause (ii), the covered person may request a hearing
of the decision to deny or revoke by filing a written appeal
with the head of the agency.
``(B) A requirement that each review of a decision under
this subsection is completed on average not later than 180
days after the date on which a hearing is requested under
subparagraph (A)(v).
``(3) Agency review panels.--
``(A) In general.--Each head of an agency shall establish a
panel to hear and review appeals under this subsection.
``(B) Membership.--
``(i) Composition.--Each panel established by the head of
an agency under subparagraph (A) shall be composed of at
least three employees of the agency selected by the head, two
of whom shall not be members of the security field.
``(ii) Terms.--A term of service on a panel established by
the head of an agency under subparagraph (A) shall not exceed
2 years.
``(C) Decisions.--
``(i) Written.--Each decision of a panel established under
subparagraph (A) shall be in writing and contain a
justification of the decision.
``(ii) Consistency.--Each head of an agency that
establishes a panel under subparagraph (A) shall ensure that
each decision of the panel is consistent with the interests
of national security and applicable provisions of law.
``(iii) Overturn.--The head of an agency may overturn a
decision of the panel if, not later than 30 days after the
date on which the panel issues the decision, the agency head
personally exercises the authority granted by this clause to
overturn such decision.
``(iv) Finality.--Each decision of a panel established
under subparagraph (A) or overturned pursuant to clause (iii)
of this subparagraph shall be final but subject to appeal and
review under subsection (c).
``(D) Access to classified information.--The head of an
agency that establishes a panel under subparagraph (A) shall
afford access to classified information to the members of the
panel as the head determines--
``(i) necessary for the panel to hear and review an appeal
under this subsection; and
``(ii) consistent with the interests of national security.
``(4) Representation by counsel.--
``(A) In general.--Each head of an agency shall ensure
that, under this subsection, a covered person appealing a
decision of the head's agency under this subsection has an
opportunity to retain counsel or other representation at the
covered person's expense.
``(B) Access to classified information.--
``(i) In general.--Upon the request of a covered person
appealing a decision of an agency under this subsection and a
showing that the ability to review classified information is
essential to the resolution of the appeal under this
subsection, the head of the agency shall sponsor an
application by the counsel or other representation retained
under this paragraph for access to classified information for
the limited purposes of such appeal.
``(ii) Extent of access.--Counsel or another representative
who is cleared for access under this subparagraph may be
afforded access to relevant classified materials to the
extent consistent with the interests of national security.
``(5) Corrective action.--
``(A) In general.--If, in the course of proceedings under
this subsection, the head of an agency or a panel established
by the head under paragraph (3) decides that a covered
person's eligibility for access to classified information was
improperly denied or revoked by the agency, the agency shall
take corrective action to return the covered person, as
nearly as practicable and reasonable, to the position such
covered person would have held had the improper denial or
revocation not occurred.
``(B) Compensation.--Corrective action under subparagraph
(A) may include compensation, in an amount not to exceed
$300,000, for any loss of wages or benefits suffered, or
expenses otherwise incurred, by reason of such improper
denial or revocation.
``(6) Publication of decisions.--
``(A) In general.--Each head of an agency shall publish
each final decision on an appeal under this subsection.
``(B) Requirements.--In order to ensure transparency,
oversight by Congress, and meaningful information for those
who need to understand how the clearance process works, each
publication under subparagraph (A) shall be--
``(i) made in a manner that is consistent with section 552
of title 5, United States Code, as amended by the Electronic
Freedom of Information Act Amendments of 1996 (Public Law
104-231);
``(ii) published to explain the facts of the case,
redacting personally identifiable information and sensitive
program information; and
``(iii) made available on a website that is searchable by
members of the public.
``(c) Higher Level Review.--
``(1) Panel.--
``(A) Establishment.--Not later than 180 days after the
date of the enactment of the Damon Paul Nelson and Matthew
Young Pollard Intelligence Authorization Act for Fiscal Years
2018, 2019, and 2020, the Security Executive Agent shall
establish a panel to review decisions made on appeals
pursuant to the processes established under subsection (b).
``(B) Scope of review and jurisdiction.--After initial
review to verify grounds for appeal, the panel established
under subparagraph (A) shall review such decisions only--
``(i) as they relate to violations of section 801A(b); or
``(ii) to the extent to which an agency properly conducted
a review of an appeal under subsection (b).
``(C) Composition.--The panel established pursuant to
subparagraph (A) shall be composed of three individuals
selected by the Security Executive Agent for purposes of the
panel, of whom at least one shall be an attorney.
``(2) Appeals and timeliness.--
``(A) Appeals.--
``(i) Initiation.--On or before the date that is 30 days
after the date on which a covered person receives a written
decision on an appeal under subsection (b), the covered
person may initiate oversight of that decision by filing a
written appeal with the Security Executive Agent.
``(ii) Filing.--A written appeal filed under clause (i)
relating to a decision of an agency shall be filed in such
form, in such manner, and containing such information as the
Security Executive Agent may require, including--
``(I) a description of--
``(aa) any alleged violations of section 801A(b) relating
to the denial or revocation of the covered person's
eligibility for access to classified information; and
``(bb) any allegations of how the decision may have been
the result of the agency failing to properly conduct a review
under subsection (b); and
``(II) supporting materials and information for the
allegations described under subclause (I).
``(B) Timeliness.--The Security Executive Agent shall
ensure that, on average, review of each appeal filed under
this subsection is completed not later than 180 days after
the date on which the appeal is filed.
``(3) Decisions and remands.--
``(A) In general.--If, in the course of reviewing under
this subsection a decision of an agency under subsection (b),
the panel established under paragraph (1) decides that there
is sufficient evidence of a violation of section 801A(b) to
merit a new hearing or decides that the decision of the
agency was the result of an improperly conducted review under
subsection (b), the panel shall vacate the decision made
under subsection (b) and remand to the agency by which the
covered person shall be eligible for a new appeal under
subsection (b).
``(B) Written decisions.--Each decision of the panel
established under paragraph (1) shall be in writing and
contain a justification of the decision.
``(C) Consistency.--The panel under paragraph (1) shall
ensure that each decision of the panel is consistent with the
interests of national security and applicable provisions of
law.
``(D) Finality.--
``(i) In general.--Except as provided in clause (ii), each
decision of the panel established under paragraph (1) shall
be final.
``(ii) Overturn.--The Security Executive Agent may overturn
a decision of the panel if, not later than 30 days after the
date on which the panel issues the decision, the Security
Executive Agent personally exercises the authority granted by
this clause to overturn such decision.
``(E) Nature of remands.--In remanding a decision under
subparagraph (A), the panel established under paragraph (1)
may not direct the outcome of any further appeal under
subsection (b).
``(F) Notice of decisions.--For each decision of the panel
established under paragraph (1) regarding a covered person,
the Security Executive Agent shall provide the covered person
with a written notice of the decision that includes a
detailed description
[[Page S3520]]
of the reasons for the decision, consistent with the
interests of national security and applicable provisions of
law.
``(4) Representation by counsel.--
``(A) In general.--The Security Executive Agent shall
ensure that, under this subsection, a covered person
appealing a decision under subsection (b) has an opportunity
to retain counsel or other representation at the covered
person's expense.
``(B) Access to classified information.--
``(i) In general.--Upon the request of the covered person
and a showing that the ability to review classified
information is essential to the resolution of an appeal under
this subsection, the Security Executive Agent shall sponsor
an application by the counsel or other representation
retained under this paragraph for access to classified
information for the limited purposes of such appeal.
``(ii) Extent of access.--Counsel or another representative
who is cleared for access under this subparagraph may be
afforded access to relevant classified materials to the
extent consistent with the interests of national security.
``(5) Access to documents and employees.--
``(A) Affording access to members of panel.--The Security
Executive Agent shall afford access to classified information
to the members of the panel established under paragraph
(1)(A) as the Security Executive Agent determines--
``(i) necessary for the panel to review a decision
described in such paragraph; and
``(ii) consistent with the interests of national security.
``(B) Agency compliance with requests of panel.--Each head
of an agency shall comply with each request by the panel for
a document and each request by the panel for access to
employees of the agency necessary for the review of an appeal
under this subsection, to the degree that doing so is, as
determined by the head of the agency and permitted by
applicable provisions of law, consistent with the interests
of national security.
``(6) Publication of decisions.--
``(A) In general.--For each final decision on an appeal
under this subsection, the head of the agency with respect to
which the appeal pertains and the Security Executive Agent
shall each publish the decision, consistent with the
interests of national security.
``(B) Requirements.--In order to ensure transparency,
oversight by Congress, and meaningful information for those
who need to understand how the clearance process works, each
publication under subparagraph (A) shall be--
``(i) made in a manner that is consistent with section 552
of title 5, United States Code, as amended by the Electronic
Freedom of Information Act Amendments of 1996 (Public Law
104-231);
``(ii) published to explain the facts of the case,
redacting personally identifiable information and sensitive
program information; and
``(iii) made available on a website that is searchable by
members of the public.
``(d) Period of Time for the Right to Appeal.--
``(1) In general.--Except as provided in paragraph (2), any
covered person who has been the subject of a decision made by
the head of an agency to deny or revoke eligibility for
access to classified information shall retain all rights to
appeal under this section until the conclusion of the appeal
process under this section.
``(2) Waiver of rights.--
``(A) Persons.--Any covered person may voluntarily waive
the covered person's right to appeal under this section and
such waiver shall be conclusive.
``(B) Agencies.--The head of an agency may not require a
covered person to waive the covered person's right to appeal
under this section for any reason.
``(e) Waiver of Availability of Procedures for National
Security Interest.--
``(1) In general.--If the head of an agency determines that
a procedure established under this section cannot be made
available to a covered person in an exceptional case without
damaging a national security interest of the United States by
revealing classified information, such procedure shall not be
made available to such covered person.
``(2) Finality.--A determination under paragraph (1) shall
be final and conclusive and may not be reviewed by any other
official or by any court.
``(3) Reporting.--
``(A) Case-by-case.--
``(i) In general.--In each case in which the head of an
agency determines under paragraph (1) that a procedure
established under this section cannot be made available to a
covered person, the head shall, not later than 30 days after
the date on which the head makes such determination, submit
to the Security Executive Agent and to the congressional
intelligence committees a report stating the reasons for the
determination.
``(ii) Form.--A report submitted under clause (i) may be
submitted in classified form as necessary.
``(B) Annual reports.--
``(i) In general.--Not less frequently than once each
fiscal year, the Security Executive Agent shall submit to the
congressional intelligence committees a report on the
determinations made under paragraph (1) during the previous
fiscal year.
``(ii) Contents.--Each report submitted under clause (i)
shall include, for the period covered by the report, the
following:
``(I) The number of cases and reasons for determinations
made under paragraph (1), disaggregated by agency.
``(II) Such other matters as the Security Executive Agent
considers appropriate.
``(f) Denials and Revocations Under Other Provisions of
Law.--
``(1) Rule of construction.--Nothing in this section shall
be construed to limit or affect the responsibility and power
of the head of an agency to deny or revoke eligibility for
access to classified information in the interest of national
security.
``(2) Denials and revocation.--The power and responsibility
to deny or revoke eligibility for access to classified
information pursuant to any other provision of law or
Executive order may be exercised only when the head of an
agency determines that an applicable process established
under this section cannot be invoked in a manner that is
consistent with national security.
``(3) Finality.--A determination under paragraph (2) shall
be final and conclusive and may not be reviewed by any other
official or by any court.
``(4) Reporting.--
``(A) Case-by-case.--
``(i) In general.--In each case in which the head of an
agency determines under paragraph (2) that determination
relating to a denial or revocation of eligibility for access
to classified information could not be made pursuant to a
process established under this section, the head shall, not
later than 30 days after the date on which the head makes
such determination under paragraph (2), submit to the
Security Executive Agent and to the congressional
intelligence committees a report stating the reasons for the
determination.
``(ii) Form.--A report submitted under clause (i) may be
submitted in classified form as necessary.
``(B) Annual reports.--
``(i) In general.--Not less frequently than once each
fiscal year, the Security Executive Agent shall submit to the
congressional intelligence committees a report on the
determinations made under paragraph (2) during the previous
fiscal year.
``(ii) Contents.--Each report submitted under clause (i)
shall include, for the period covered by the report, the
following:
``(I) The number of cases and reasons for determinations
made under paragraph (2), disaggregated by agency.
``(II) Such other matters as the Security Executive Agent
considers appropriate.
``(g) Relationship to Suitability.--No person may use a
determination of suitability under part 731 of title 5, Code
of Federal Regulations, or successor regulation, for the
purpose of denying a covered person the review proceedings of
this section where there has been a denial or revocation of
eligibility for access to classified information.
``(h) Preservation of Roles and Responsibilities Under
Executive Order 10865 and of the Defense Office of Hearings
and Appeals.--Nothing in this section shall be construed to
diminish or otherwise affect the procedures in effect on the
day before the date of the enactment of this Act for denial
and revocation procedures provided to individuals by
Executive Order 10865 (50 U.S.C. 3161 note; relating to
safeguarding classified information within industry), or
successor order, including those administered through the
Defense Office of Hearings and Appeals of the Department of
Defense under Department of Defense Directive 5220.6, or
successor directive.
``(i) Rule of Construction Relating to Certain Other
Provisions of Law.--This section and the processes and
procedures established under this section shall not be
construed to apply to paragraphs (6) and (7) of section
3001(j) of the Intelligence Reform and Terrorism Prevention
Act of 2004 (50 U.S.C. 3341(j)).''.
(2) Clerical amendment.--The table of contents in the
matter preceding section 2 of the National Security Act of
1947 (50 U.S.C. 3002), as amended by subsection (c), is
further amended by inserting after the item relating to
section 801A the following:
``Sec. 801B. Right to appeal.''.
______