[Senate Report 113-283]
[From the U.S. Government Publishing Office]


113th Congress 
 2d Session                      SENATE                          Report
                                                                113-283
_______________________________________________________________________

                                     

                                                       Calendar No. 610


                ENHANCED SECURITY CLEARANCE ACT OF 2014

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 1618

 TO ENHANCE THE OFFICE OF PERSONNEL MANAGEMENT BACKGROUND CHECK SYSTEM 
   FOR THE GRANTING, DENIAL, OR REVOCATION OF SECURITY CLEARANCES OR 
 ACCESS TO CLASSIFIED INFORMATION OF EMPLOYEES AND CONTRACTORS OF THE 
                           FEDERAL GOVERNMENT




                December 2, 2014.--Ordered to be printed
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                  THOMAS R. CARPER, Delaware Chairman
CARL LEVIN, Michigan                 TOM COBURN, Oklahoma
MARK L. PRYOR, Arkansas              JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana          RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri           ROB PORTMAN, Ohio
JON TESTER, Montana                  RAND PAUL, Kentucky
MARK BEGICH, Alaska                  MICHAEL B. ENZI, Wyoming
TAMMY BALDWIN, Wisconsin             KELLY AYOTTE, New Hampshire
HEIDI HEITKAMP, North Dakota

                  Gabrielle A. Batkin, Staff Director
               John P. Kilvington, Deputy Staff Director
                    Mary Beth Schultz, Chief Counsel
       Lawrence B. Novey, Chief Counsel for Governmental Affairs
         Troy H. Cribb, Chief Counsel for Governmental Affairs
               Keith B. Ashdown, Minority Staff Director
         Christopher J. Barkley, Minority Deputy Staff Director
               Andrew C. Dockham, Minority Chief Counsel
           Mark K. Harris, Minority U.S. Coast Guard Detailee
                     Laura W. Kilbride, Chief Clerk


                                                       Calendar No. 610
113th Congress
                                 SENATE
                                                                 Report
 2d Session                                                     113-283

======================================================================



 
                ENHANCED SECURITY CLEARANCE ACT OF 2014

                                _______
                                

                December 2, 2014.--Ordered to be printed

                                _______
                                

 Mr. Carper, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 1618]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 1618), to enhance 
the Office of Personnel Management background check system for 
the granting, denial, or revocation of security clearances or 
access to classified information of employees and contractors 
of the Federal Government, having considered the same, reports 
favorably thereon with an amendment in the nature of a 
substitute and recommends that the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History.............................................11
 IV. Section-by-Section Analysis.....................................11
  V. Evaluation of Regulatory Impact.................................12
 VI. Congressional Budget Office Cost Estimate.......................13
VII. Changes in Existing Law Made by the Bill, as Reported...........14

                         I. Purpose and Summary

    S. 1618 seeks to make the nation more secure by requiring 
that federal personnel who have security clearances or who hold 
sensitive agency jobs will have their background information 
checked more frequently than is done now. The government 
periodically reinvestigates the background information of these 
individuals, though the required schedule for these periodic 
reinvestigations is frequently not met, and the sometimes 
lengthy periods between reinvestigations creates vulnerability. 
This bill would address that vulnerability by supporting the 
government's efforts to clear the backlog of periodic 
reinvestigations and by requiring randomly timed automated 
background checks during the interim between the periodic 
reinvestigations. Taken together, these steps would enable the 
quicker discovery of information that may call into question 
the trustworthiness of personnel with clearances or in 
sensitive positions.

              II. Background and Need for the Legislation

    Processes for vetting government personnel for security 
clearances and sensitive positions. Because unauthorized 
disclosure of classified information can cause damage to 
national security and loss of human life, federal personnel--
including civilian employees, military personnel, and employees 
of contractors and grantees--are allowed access to classified 
information only after the government conducts a background 
investigation and issues them a security clearance.\1\ For 
classified national security information, the levels of 
security clearance--``Top Secret,'' ``Secret,'' and 
``Confidential''--correspond to the degree of sensitivity of 
the classified information to which the individual may have 
access.\2\ To indicate access to sensitive nuclear information 
and materials, ``Q'' clearances and ``L'' clearances are 
issued, with Q clearances allowing access to the more highly 
sensitive level.\3\ Another category of security clearances 
allow access to ``Controlled Access Programs,'' including 
``Sensitive Compartmented Information,'' which involves 
intelligence matters and is particularly sensitive.\4\
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    \1\See Exec. Ord. 12968 ``Access to Classified Information'' (Aug. 
2. 1995) (50 U.S.C. Sec. 3161 note).
    \2\See Exec. Ord. 13526 ``Classified National Security 
Information'' (Dec. 29, 2009) (50 U.S.C. Sec. 3161 note).
    \3\See U.S. Department of Energy, Order DOE O 472.2, ``Personnel 
Security'' (Approved: July 21, 2011), https://www.directives.doe.gov/
directives-documents/400-series/0472.2-BOrder, https://
www.directives.doe.gov/directives-documents/400-series/0472.2-BOrder/
@@download/file; U.S. Nuclear Regulatory Commission, Information 
Security (Last Reviewed/Updated October 31, 2013), http://www.nrc.gov/
security/info-security.html.
    \4\See Office of the Director of National Intelligence, Number 
704.1, Intelligence Community Policy Guidance, Personnel Security 
Investigative Standards and Procedures Governing Eligibility for Access 
to Sensitive Compartmented Information and Other Controlled Access 
Program Information (ICPG 704.1, Oct. 2, 2008), http://www.ncix.gov/
publications/policy/docs/ICPG_704-1_Investigative%20Standards.pdf.
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    Moreover, the head of an agency is required to designate 
positions within the agency as ``sensitive positions'' if an 
individual occupying a position could bring about ``a material 
adverse effect on the national security.''\5\ Most sensitive 
career civil-service positions and some others are categorized 
among three levels of sensitivity: ``Noncritical-Sensitive,'' 
``Critical-Sensitive,'' and ``Special-Sensitive.''\6\
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    \5\See Exec. Ord. 10450 (April 27, 1953) (5 U.S.C. Sec. 7311 note).
    \6\See 5 C.F.R. Sec. 732.101 (The requirement to designate 
sensitive positions at one of these three levels of sensitivity applies 
to position in the competitive service (i.e., positions filled 
according to the Office of Personnel Management's competitive-hiring 
regulations) and to Senior Executive Service positions filled by career 
appointment, and agencies may apply the requirement to other 
positions); Office of Personnel Management, Position Designation Tool, 
Position Designation of National Security and Public Trust Positions 
(October 2010), http://www.opm.gov/investigations/background-
investigations/position-designation-tool/oct2010.pdf.
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    The vetting of government personnel generally involves two 
distinct steps: investigation and adjudication. A security 
investigation begins when the individual, at the request of the 
sponsoring agency, submits an application in which the 
individual provides detailed information on a broad range of 
topics, including: personal history, identity of relatives and 
friends, foreign contacts and activities, criminal and legal 
record, any financial or tax difficulties, use of drugs and 
alcohol, and other matters.\7\ Then, using the information 
provided by the applicant, a background investigation is 
conducted. The Office of Personnel Management (OPM) conducts 
the great majority of the investigations, though several 
agencies, many of which are in the Intelligence Community, are 
authorized to conduct their own.\8\ OPM hires contractors to 
conduct much of the information collection, and other agencies 
also use a mix of contractors and federal employees to gather 
the information needed for a background investigation.\9\
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    \7\See OPM, Standard Form 86, ``Questionnaire for National Security 
Positions (Revised December 2010).
    \8\See Office of Management and Budget, ``Suitability and Security 
Processes Review: Report to the President,'' conducted by the 
Suitability and Security Clearance Performance Accountability Council 
(February 2014) (``120-day Suitability and Security Report''), at pages 
2-3, 
http://www.whitehouse.gov/sites/default/files/omb/reports/suitability-
and-security-process-review-report.pdf.
    \9\See id.
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    The degree of scrutiny of an individual's background will 
depend on the level of risk or sensitivity of the information 
or position to which the individual may be granted access. The 
background investigation may include reviews of the 
individual's criminal history, any terrorist activity, credit 
issues, and foreign activities and influence, and may also 
include interviews of the subject, employers, and social 
references.\10\ Following the background investigation comes 
the adjudication stage, in which the sponsoring agency assesses 
the information collected and determines whether to grant to 
the individual a security clearance or allow the individual to 
occupy the sensitive position.
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    \10\See id.
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    Individuals with security clearances may be the subject of 
reinvestigation any time there is reason to believe the 
individual may no longer meet the standards for the clearances, 
but cleared individuals are also supposed to be the subject of 
a periodic reinvestigation a specified number of years after 
the last investigation. The frequency of periodic 
reinvestigation was originally established government-wide in 
1997 with three different periods for the three levels of 
security-clearance access,\11\ and the frequency has been 
standardized with a uniform reinvestigation requirement of 
every five years, regardless of the level of access.\12\
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    \11\The requirement for periodic reinvestigations established in 
1997 was: every 5 years for a Top Secret clearance or for access to 
sensitive compartmentalized information; every 10 years for a Secret 
clearance, and every 15 years for a Confidential clearance. See id., at 
page 2. This minimum frequency was established in Federal Investigative 
Standards issued in 1997 pursuant to section 3.4(c) of Exec. Ord. 
12968, note 1 above.
    \12\See Beth Cobert, Deputy Director for Management at the Office 
of Management and Budget and Chair of the Suitability and Security 
Clearance Performance Accountability Council, ``Progress on Security 
and Suitability,'' posted by Beth Cobert (Sept. 16, 2014), http://
www.whitehouse.gov/blog/2014/09/16/progress-security-and-suitability.
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    Moreover, employees in Special-Sensitive and Critical-
Sensitive positions must undergo reinvestigation at least every 
five years under current regulations, and some agencies require 
reinvestigations for employees in Noncritical-Sensitive 
positions every 10 years. The regulations applicable to these 
categories of sensitive positions in the career civil service 
are now under review, and the requirements for reinvestigation 
may be changed when revised regulations are issued.\13\
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    \13\See 5 C.F.R. Sec. 732.203; 78 Fed. Reg. 31847 (May 28, 2013); 
75 Fed. Reg. 77783, 77784-77785 (Dec. 14, 2010).
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    Recent high-profile incidents focused attention on the need 
to strengthen security-related vetting processes. Several high-
profile crimes committed in recent years by individuals with 
security clearances have highlighted weakness in our processes 
for vetting cleared federal personnel and demonstrated the 
urgent need to strengthen these processes:
     On November 5, 2009, U.S. Army Major Nidal Malik 
Hasan, while holding a Secret security clearance, shot and 
killed 13 people and wounded 43 others at Fort Hood, Texas.\14\
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    \14\See U.S. Senate Committee on Homeland Security and Governmental 
Affairs, ``A Ticking Time Bomb: Counterterrorism Lessons from the U.S. 
Government's Failure to Prevent the Fort Hood Attack,'' a special 
report by Joseph I. Lieberman, Chairman, and Susan M. Collins, Ranking 
Member (Feb. 3, 2011), http://www.hsgac.senate.gov/download/fort-hood-
report; Hearing before the Senate Committee on Homeland Security and 
Governmental Affairs, 111th Cong., 1st Sess., ``The Fort Hood Attack: A 
Preliminary Assessment,'' S.Hrg. 111-810 (November 19, 2009), http://
www.gpo.gov/fdsys/pkg/CHRG-111shrg56145/pdf/CHRG-111shrg56145.pdf; U.S. 
Department of Defense, Report of the DoD Independent Review, 
``Protecting the Force: Lessons from Fort Hood'' (January 2010), at 
pages 12-13, http://www.defense.gov/pubs/pdfs/DOD-Protecting TheForce-
Web_Security_HR_13Jan10.pdf; Department of Defense, ``Internal Review 
of the Washington Navy Yard Shooting: A Report to the Secretary of 
Defense'' (November 20, 2013) (``DoD Internal Review''), at pages 15-
16, http://www.defense.gov/pubs/DoD-Internal-Review-of-the-WNY-
Shooting-20-Nov-2013.pdf.
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     During 2009 and 2010, an Army intelligence 
analyst, then named Bradley Manning, stole and publicly leaked 
enormous quantities of classified documents regarding military 
operations in Iraq and Afghanistan.\15\
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    \15\See U.S. Army, ``Army to transfer Manning to new Leavenworth 
correctional facility,'' by Donna Miles, American Forces Press Service 
(April 19, 2011), http://www.army.mil/article/55211/army-to-transfer-
manning-to-new-leavenworth-correctional-facility/; U.S. Army, ``Army 
charges Manning with leaking intelligence,'' by Dave Vergun (Feb. 23, 
2012), http://www.army.mil/article/74417/
Army_charges_Manning_with_leaking_intelligence/; U.S. Army, ``Manning 
guilty of 20 specifications, but not `aiding the enemy''', by David 
Vergun, Gary Sheftick (July 26, 2013), http://www.army.mil/article/
108143/Manning_guilty_of_20_specifications_but_not_aiding_enemy_/. In 
April 2014, Manning's name was legally changed to Chelsea Elizabeth 
Manning, at Manning's request. See Ernesto Londono, ``Convicted leaker 
Bradley Manning changes legal name to Chelsea Elizabeth Manning,'' 
Washington Post (April 23, 2014), http://www.washingtonpost.com/world/
national-security/convicted-leaker-bradley-manning-changes-legal-name-
to-chelsea-elizabeth-manning/2014/04/23/e2a96546-cb1c-11e3-a75e-
463587891b57_story.html.
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     During June 2013, computer systems administrator 
Edward Snowden leaked to the news media enormous quantities of 
National Security Agency classified documents that he obtained 
while working for intelligence contractors Dell and Booz Allen, 
in what is said to be the most massive and damaging 
intelligence leak in our history.\16\
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    \16\See ``Safeguarding our Nation's Secrets: Examining the Security 
Clearance Process,'' joint hearing before the Subcommittee on the 
Efficiency and Effectiveness of Federal Programs and the Federal 
Workforce and the Subcommittee on Financial and Contracting Oversight, 
Senate Committee on Homeland Security and Governmental Affairs, 113th 
Cong, 1st Sess. (June 20, 2013), S. Hrg. 113-316; testimony of James R. 
Clapper, Director of National Intelligence, ``Open Hearing: Current and 
Projected National Security Threats Against the United States,'' before 
the Senate Intelligence Committee, January 29, 2014, http://
www.intelligence.senate.gov/
hearings.cfm?hearingid=138603a26950ad873303535a630ec9c9&witnessId=138603
a26950 ad873303535a630ec9c9-0-1, unofficial transcript at http://
www.washingtonpost.com/world/national-security/transcript-senate-
intelligence-hearing-on-national-security-threats/2014/01/29/b5913184-
8912-11e3-833c-33098f9e5267_story.html.See also, Mark Hosenball, 
``Snowden downloaded NSA secrets while working for Dell, sources say,'' 
Reuters (Aug. 15, 2013), 
http://www.reuters.com/article/2013/08/15/usa-security-snowden-dell-
idUSL2N0GF11220130815.
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     Most recently, on September 16, 2013, Aaron 
Alexis, fatally shot 12 U.S. Navy civilian and contractor 
employees and wounded several others in a mass shooting inside 
the Washington Navy Yard in Washington, D.C.\17\ At the time of 
the shooting, and despite a history of arrests and other 
troubling behavior, Alexis was employed by a Navy contractor 
and held a Secret-level security clearance, issued in March 
2008 while he was in the military service.
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    \17\See DoD Internal Review, note 14 above; ''), http://
www.defense.gov/pubs/DoD-Internal-Review-of-the-WNY-Shooting-20-Nov-
2013.pdf; Department of Defense, ``Security from Within: Independent 
Review of the Washington Navy Yard Shooting'' (November 2013) (``DoD 
Independent Review''), http://www.defense.gov/pubs/Independent-Review-
of-the-WNY-Shooting-14-Nov-2013.pdf.
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    In the periods leading up to each of these incidents, there 
had been warning signs about troublesome behavior by the 
individual involved which were not heeded or communicated to 
the proper authorities. During Hasan's military medical 
training, colleagues and superiors had expressed concern about 
his behavior and comments, and government officials were aware 
that Hasan had expressed violent, extremist sentiments.\18\ 
Manning had demonstrated instability by his many emotional and 
physical outbursts in the months leading up to his leaking 
classified documents, and had even disregarded basic security 
measures common to classified working environments.\19\ 
Reportedly, Snowden had been suspected of trying to break into 
classified computers, and changes in his behavior and work 
habits raised concerns when he was working for the CIA in 2007-
2009.\20\ Alexis had been arrested several times, twice 
involving firearms, and in the weeks before the Navy Yard 
shooting had been observed complaining of being followed, of 
hearing voices, and of being under attack by vibrations and 
microwaves.\21\
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    \18\See U.S. Senate Committee on Homeland Security and Governmental 
Affairs, ``A Ticking Time Bomb: Counterterrorism Lessons from the U.S. 
Government's Failure to Prevent the Fort Hood Attack,'' a special 
report by Joseph I. Lieberman, Chairman, and Susan M. Collins, Ranking 
Member (Feb. 3, 2011), at pages 27-39, http://www.hsgac.senate.gov/
download/fort-hood-report. 
    \19\See DoD Internal Review, note 14 above, at page 16.
    \20\See Eric Schmitt, ``CIA Warning on Snowden in '09 Said to Slip 
Through the Cracks,'' New York Times (October 10, 2013), http://
www.nytimes.com/2013/10/11/us/cia-warning-on-snowden-in-09-said-to-
slip-through-the-cracks.html?pagewanted=all&_r=0.
    \21\See DoD Internal Review, note 14 above, at page 16.
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    On October 30, 2013, in the aftermath of the Navy Yard 
shooting, Senators Collins, McCaskill, Ayotte, and Heitkamp 
introduced S. 1618, the Enhanced Security Clearance Act, to 
require randomly timed audits of background information for 
cleared personnel. The next day, on October 31, 2013, this 
Committee held a hearing entitled ``The Navy Yard Tragedy: 
Examining Government Clearances and Background Checks,'' at 
which S. 1618 was one of several topics discussed.\22\
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    \22\Hearing before the Senate Committee on Homeland Security and 
Governmental Affairs, ``The Navy Yard Tragedy: Examining Government 
Clearances and Background Checks'' (October 31, 2013) (``HSGAC 
hearing''), http://www.gpo.gov/fdsys/pkg/CHRG-113shrg85500/pdf/CHRG-
113shrg85500.pdf. Witnesses were: Joseph G. Jordan, Administrator, 
Office of Federal Procurement Policy, Office of Management and Budget; 
Elaine D. Kaplan, Acting Director, U.S. Office of Personnel Management; 
Brian A. Prioletti, Assistant Director, Special Security Directorate, 
National Counterintelligence Executive, Office of the Director of 
National Intelligence; Stephen Lewis, Deputy Director for Personnel, 
Industrial and Physical Security Policy, Directorate of Security Policy 
& Oversight, Office of Under Secretary of Defense for Intelligence, 
U.S. Department of Defense; and Brenda Farrell, Director, Defense 
Capabilities and Management, U.S. Government Accountability Office.
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    Also in the fall of 2013, the President instructed the 
Office of Management and Budget (OMB) to conduct within 120 
days a thorough review of the suitability and security vetting 
procedures for civilian, military, and contractor personnel. 
(``Suitability'' refers to being found suitable for federal 
employment generally; ``security'' refers to being found 
eligible to hold a sensitive national security position or to 
have access to classified information.\23\) Having conducted 
the work through an interagency team,\24\ OMB prepared and 
submitted, and the President approved, the report in the winter 
of 2013 (``Suitability and Security Processes Review: Report to 
the President'' (February 2014), referred to herein as the 
``120-day Suitability and Security Report'').\25\
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    \23\For employment in a civilian position outside the competitive 
service or a position with a government contractor, the term 
``fitness'' is generally used instead of ``suitability.'' See, 
generally, 5 C.F.R. parts 302, 731.
    \24\The work was carried out by the Suitability and Security 
Clearance Performance Accountability Council (PAC), which was 
established by section 2.2 of Exec. Order. 13467 (June 30, 2008) (5 
U.S.C. Sec. 3161 note); and a Senior Review Panel of representatives 
from key security and personnel agencies drove the review and to 
identify recommended solutions. See 120-day Suitability and Security 
Report, note 8 above, at page 1.
    \25\120-day Suitability and Security Report, note 8 above; see also 
OMB press release, ``Administration Releases Suitability and Security 
Report'' (March 18, 2014), http://www.whitehouse.gov/sites/default/
files/omb/press--releases/suitability-and-security-report-press-
release-03182014.pdf.
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    Addressing the vulnerable time-gap between periodic 
reinvestigations. Reviews in the aftermath of the Navy Yard 
shooting and the other recent incidents found that a 
substantial weakness in the current process arises from the 
time-gap between periodic reinvestigations. As the 
Administration's 120-day Suitability and Security Report put 
it,

          The current reinvestigation practices do not 
        adequately reevaluate or appropriately mitigate risk 
        within the security and suitability population. Lengthy 
        periods between reinvestigations do not provide 
        sufficient means to discover derogatory information 
        that develops following the initial adjudication.\26\
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    \26\120-day Suitability and Security Report, note 8 above, at page 
8.

    The events involving Alexis prior to the shooting at the 
Navy Yard starkly demonstrate this vulnerability. Alexis had 
several run-ins with law enforcement, including at least two 
within the period since his 2007 background investigation: an 
August 2008 arrest in Georgia for disorderly conduct and a 
September 2010 arrest in Texas for unlawfully discharging a 
firearm.\27\ Moreover, the defense contractor by whom Alexis 
was employed at the time of the shooting was aware of 
indications of his mental instability, but failed to report 
that information to the Defense Department as required under 
the contract, apparently influenced by a lack of clear 
understanding about what must be reported.\28\ Thus, 
information showing Alexis's instability was available in 
police records and was known to government contractors with an 
obligation to report it, but no mechanism existed to adequately 
bring such information to the attention of the agency between 
periodic investigations. The DoD Independent Review found that 
``DoD gains little to no insight into its cleared workforce 
between periodic investigations'' and that the Department must 
find a way to account for this risk.\29\
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    \27\DoD Independent review, note 17 above, at page 39.
    \28\See HSGAC October 31, 2013 hearing, note 23 above, Lewis's oral 
testimony; DoD Internal Review, note 14 above, at page 20-21, 36-37; 
DoD Internal Review, note 14 above, at page 20.
    \29\DoD Independent Review, note 17 above, at page 16.
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    Moreover, the schedule for periodic reinvestigations is not 
being met. The 120-day Suitability and Security Report found 
that ``resource constraints lead agencies to conduct fewer than 
the required number of reinvestigations,''\30\ resulting in a 
backlog of periodic reinvestigations for even the most 
sensitive populations.\31\ Of the individuals eligible for 
access to Top Secret classified information or to Sensitive 
Compartmentalized Information, roughly 22 percent of the 
background investigations were outdated as of March 2014, and 
no reinvestigation had even been requested.\32\
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    \30\120-day Suitability and Security Report, note 8 above, at page 
8.
    \31\Id., at page 11.
    \32\Id.
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    During the time-gap between reinvestigations, the 
government relies on individuals to self-report and on others 
to report any relevant information. However, the requirements 
are not adequate, and too little reporting is being done. As 
noted above, the managers at the defense contractor that 
employed Alexis were aware of troubling behavior, but ``[t]he 
employer's decision not to report Alexis' behavior appears to 
be influenced by a lack of awareness about what types of 
behaviors are considered `adverse' information that must be 
reported (particularly those related to mental health 
issues).''\33\ Likewise, regarding the incident involving 
Manning, DoD found, ``In the months leading up to the 
unauthorized disclosure, Manning displayed behaviors indicating 
instability through multiple emotional and physical outbursts, 
expressed discontent with the Army and the Federal Government, 
and disregarded basic security measures common to all 
classified working environments.''\34\ More generally, the 120-
day Suitability and Security Report found that inadequate 
reporting and self-reporting is a critical and pervasive 
problem:
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    \33\See DoD Internal Review, note 14 above, at page 20.
    \34\See id., at page 16.

          This review found that clear and consistent 
        requirements do not exist across government for 
        employees or contractors to report, subsequent to their 
        being hired or granted a clearance, information that 
        could affect their continued fitness, suitability, or 
        eligibility for Federal employment (e.g., criminal 
        conduct, behaviors of concern), or their eligibility to 
        access government facilities and IT systems. Neither is 
        there consistent guidance in place to direct 
        contractors or contract managers in the Federal 
        Government to report noteworthy or derogatory 
        information regarding employees.\35\
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    \35\120-day Suitability and Security Report, note 8 above, at page 
7.

    Recognizing the security vulnerabilities that arise from 
the time-gap between reinvestigations, the agencies are 
undertaking a number of efforts to eventually address various 
aspects of this problem. The government has been working to 
establish automated systems, referred to generally as 
Continuous Evaluation (CE), to check government and commercial 
data sources on a more frequent or even continuous basis to 
flag issues of concern during the period between background 
investigations. At this Committee's October 31, 2013 hearing, 
witnesses reported that all government agencies already conduct 
some automated electronic record checks now,\36\ and described 
the Automated Continuous Evaluation System (ACES) being 
developed by DoD to test, on a large population of cleared 
military, civilian, and contractor personnel, the concepts of 
conducting one-time inquiries and then moving towards providing 
real-time updates as soon as an arrest is posted on a law-
enforcement database, for example, or when other relevant 
information becomes available.\37\
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    \36\HSGAC Hearing, note 23 above, oral testimony of Prioletti.
    \37\HSGAC Hearing, note 23 above, oral testimony of Lewis.
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    The 120-day Suitability and Security Report stated that the 
ACES and other pilots provide compelling evidence of the 
benefits of the CE approach, and that CE can help address the 
vulnerability arising from the years-long time-gap between 
periodic reinvestigations:

          By identifying issues between reinvestigations, CE 
        will more frequently evaluate employees and contractors 
        who are eligible for access to classified information 
        by using periodic, random, and event-driven assessments 
        to better resolve issues or identify risks to national 
        security.\38\
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    \38\120-day Suitability and Security Report, note 8 above, at page 
9.

    The Report explained that CE is an ambitious undertaking--
``Success of the CE program will depend on a fully-integrated 
solution across government, which will eliminate inefficiency 
and avoid the expenses of duplicative systems''\39\--and the 
report also recognized the challenges and stated how much is 
yet to be done to reach that goal:
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    \39\Id.

          Implementing a system for continuous evaluation is 
        resource intensive, and poses genuine technical and 
        procedural challenges. Currently there is no 
        government-wide capability, plan or design present in 
        the investigative community to operate a data-driven 
        architecture to collect, store, and share relevant 
        information.\40\
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    \40\Id.

    To help manage and track government-wide progress towards 
implementing the recommendations from the 120-day Suitability 
and Security Review, including CE, OMB recently published an 
implementation work plan as part of its new Cross Agency 
Priority Goal of ``Insider Threat and Security Clearance 
Reform.''\41\ The workplan for FY2014 Quarter 3 sets out a 
series of ten milestones. Specifically for personnel with Top 
Secret or sensitive compartmented clearance, the workplan sets 
a December 2014 goal for having an initial CE capability for 
the most sensitive population, and a December 2016 goal for the 
entire population. The workplan includes tiered expansion by 
DoD of its CE capability to cover 100,000 cleared personnel by 
October 2014, 225,000 personnel by December 2015, 500,000 
personnel by December 2016, and 1 million during 2017. Other 
milestones include various planning goals and other items. The 
workplan illustrates the Administration's commitment to 
achieving a government-wide CE capability, as well as the 
length of the road ahead.
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    \41\Cross Agency Priority Goal Quarterly Progress Update, ``Insider 
Threat and Security Clearance Reform,'' FY2014 Quarter 3, Work Plan: 
Implement Continuous Evaluation, http://www.performance.gov/node/3407/
view?view=public#progress-update.
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    To address the reinvestigation backlog itself, the 120-day 
Suitability and Security Report includes recommendations to 
reduce the backlog using a ``risk-based approach'' that would 
``identify high risk populations through the use of automated 
records checks (e.g., derogatory credit or criminal activity) 
and prioritize overdue investigations based on the risk posted 
by job responsibilities and access.''\42\
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    \42\120-day Suitability and Security Report, note 8 above, at pages 
11-12.
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    With respect to self-reporting and reporting by others 
during the period between reinvestigations, the 120-day 
Suitability and Security Report set forth a multi-stage 
planning process. Uniform reporting requirements applicable to 
employees across the executive branch must first be developed 
and issued, followed by training for both employees and 
supervisors. Moreover, to establish uniform reporting 
requirements applicable to government contractors, the Office 
of Federal Procurement Policy will need to propose and issue 
changes to the Federal Acquisition Regulations that would 
``impose those applicable reporting requirements on contractors 
and to ensure that enforcement and accountability mechanisms 
are in place.''\43\
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    \43\Id., at pages 7-8.
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    S. 1618, to require randomly timed automated record checks 
during the time-gap between reinvestigations. As discussed, 
plans are being developed and implemented to address the three 
major aspects of time-gap between reinvestigations--
     Development and implementation of CE capabilities, 
which can provide prompt or real-time access to relevant data 
during the period between reinvestigations.
     A program to apply a risk-based approach to 
identify high-risk populations while eliminating the backlog of 
overdue reinvestigations.
     Plans to foster more reliable self reporting and 
reporting by managers and colleagues when troubling information 
becomes evident.
    Even with the current efforts, full implementation of these 
efforts will be years in the future. To support these ongoing 
efforts and to strengthen the security process while long-term 
solutions are being put into place, the Committee decided that 
every individual with a security clearance or eligible to hold 
a sensitive position should be covered by a program of random 
automated record checks, as provided under S. 1618.
    As noted, S. 1618 was introduced soon after the mass 
shooting at the Washington Navy Yard. Over the subsequent 
several months, the responsible agencies under the leadership 
of the PAC conducted in-depth reviews and developed strategies 
and plans, summarized in the 120-day Suitability and Security 
Report, to reform the processes to improve decisionmaking and 
reduce risk in the vetting of federal personnel, particularly 
with regard to eligibility for security clearances and for 
holding sensitive positions. Over the past several months, 
staff for the bill sponsors have engaged in detailed 
discussions with agency officials involved in the preparation 
of the Report and implementation of its recommendations, and, 
informed by those discussions, the sponsors modified the 
legislation to ensure that it is consistent with, and 
supportive of, the agencies' ongoing plans. That modified 
language constitutes the substitute amendment submitted to, and 
approved by, the Committee.
    S. 1618, as amended, would reform the security programs for 
federal employees, military personnel, and employees of 
contractors in several key ways. The central element of the 
legislation is to require each agency to establish an Enhanced 
Personnel Security Program under which individuals with 
security clearances or who are eligible to occupy sensitive 
positions would be the subject of randomly timed automated 
record checks. To avoid drawing resources away from the ongoing 
efforts to address the backlog in reinvestigations, the full 
requirements regarding enhanced personnel security programs 
would not go into effect until the backlog is eliminated, or 
until five years pass since enactment, whichever comes first.
    For this initial period, S. 1618 codifies the 
recommendation in the 120-day Suitability and Security Report 
stating that the Director of National Intelligence must develop 
and implement a plan to eliminate the backlog and that this 
plan should use a risk-based approach to prioritize 
reinvestigations. To achieve a prompt reduction in 
vulnerability while this backlog is being eliminated, the bill 
requires that every individual who has a security clearance or 
who is eligible to hold a sensitive position would be placed 
into a pool of individuals subject to a one-time automated 
record check. It is expected that the agencies will require at 
least five years to address the reinvestigation backlog. During 
this period, the randomly timed audits will insert a critical 
security component for the population who have not yet been the 
subject of a reinvestigation.
    Once the backlog has been addressed or five years have 
passed, whichever comes first, the full requirements of the 
Enhanced Personnel Security Program will go into effect. The 
Director of National Intelligence will then direct each agency 
to provide enhanced security review of all individuals who have 
security clearances or eligibility to occupy sensitive 
positions. Such a program must integrate relevant information 
from various sources, including government and commercial data 
sources, consumer reporting agencies, and social media, 
including the types of information that are relevant for 
consideration in a background investigation. Any individual 
covered by the enhanced personnel security program will then be 
subject to two randomly timed audits every five years.
    The audits will increase the likelihood that troubling 
information about cleared personnel or employees in sensitive 
positions will be promptly discovered by the responsible 
agency. Moreover, by making covered individuals aware (as well 
as making those, like managers, who are obligated to report, 
aware) that the individual's background information will be 
audited and that the timing of the audits is unpredictable, the 
legislation would create a powerful incentive for the 
individual to promptly self-report (and for others, like 
managers, to report) before the audit occurs. S. 1618 would 
thus strengthen the national security helping agencies to 
promptly learn of incidents or changed circumstances indicating 
that an individual is no longer trustworthy enough to be 
eligible for a security clearance or a sensitive government 
position.
    S. 1618 provides that random audits would not be required 
if more frequent automated checks of governmental and 
commercial records and data are being conducted with respect to 
the individual. This exemption for individuals who are the 
subject of more frequent automated checks is a key component of 
the program. This provision would phase out the random audit 
requirement as individuals are placed under CE or similar 
automated programs, because relevant data regarding such 
individuals would be obtained more frequently or in real-time. 
The enhanced personnel security program under S. 1618 in this 
way dovetails with CE as it is being implemented, thereby 
preventing duplication of effort but enabling the automated 
record checks to apply with respect to individuals who are not 
covered by the more rigorous CE systems in the future.
    S. 1618 thus increases the likelihood that troubling 
behavior or other derogatory information about personnel with 
security clearances or eligibility to occupy sensitive 
positions will be identified in the current system. It also 
provides a safety net should CE not be fully implemented or be 
delayed. S. 1618 does not replace the current process, but 
rather strengthens the current system and provides a safety net 
while these broader reforms, like CE, are instituted.

                        III. Legislative History

    On October 30, 2013, Senators Collins, McCaskill, Ayotte, 
and Heitkamp introduced S. 1618, the Enhanced Security 
Clearance Act of 2013, which was referred to the Homeland 
Security and Governmental Affairs Committee. The Committee 
considered S. 1618 at a business meeting on July 30, 2014.
    Senators McCaskill and Heitkamp offered a substitute 
amendment containing a number of changes based on staff 
discussions with representatives of OMB and other agencies 
involved in preparing the 120-day Suitability and Security 
Review. Changes in the legislation made by the substitute 
amendment include--(1) deferring the requirement that enhanced 
security programs be implemented until after the agencies have 
eliminated the backlog in reinvestigations (not to exceed five 
years after enactment); (2) assigning to the Director of 
National Intelligence the responsibility for directing the 
implementation of a program to provide enhanced security review 
by each agency; and (3) making the enhanced personnel security 
program applicable to individuals eligible to hold a sensitive 
position in the government, as well as to individuals with 
security clearances. In addition, Senator McCaskill offered an 
amendment to the title of the bill.
    The Committee approved the McCaskill-Heitkamp substitute 
amendment and the McCaskill amendment to the title of the bill, 
both by voice vote. The Committee then ordered S. 1618, as 
amended, reported favorably by voice vote, with Senator Coburn 
asking to be recorded ``present.'' Senators present for all 
three votes were: Carper, Levin, Landrieu, McCaskill, Begich, 
Baldwin, Coburn, Johnson, and Ayotte.

        IV. Section-by-Section Analysis of the Bill, as Reported


Section 1--Short title

    This section states that the short title of the bill is the 
``Enhanced Security Clearance Act of 2014.''

Section 2--Enhancing Government Personnel Security Programs

            Subsection (a)--Definitions
    This subsection defines two terms:
     The term ``covered individual'' is defined to mean 
an individual who has been determined eligible for access to 
classified information or to hold a sensitive position.
     The term ``periodic reinvestigations'' is defined 
to mean investigations conducted periodically, with a frequency 
as required by the Director of National Intelligence, for the 
purpose of updating a previously conducted security background 
investigation.
            Subsection (b)--Resolution of backlog of overdue periodic 
                    reinvestigations
    This subsection directs the Director of National 
Intelligence to develop and implement a plan to eliminate the 
backlog of overdue periodic investigations of covered 
individuals. In developing this plan, the Director must use a 
risk-based approach to identify high-risk populations and to 
prioritize investigations. During this time, each covered 
individual would be included in a pool subject to one random 
audit.
            Subsection (c)--Enhanced Security Clearance Programs
    This subsection adds a new section 11001 to title 5, United 
States Code, which would require that an Enhanced Personnel 
Security Program be established at each agency. In addition, 
the subsection would provide that the Inspector General of each 
agency must conduct at least one audit of the agency's enhanced 
personnel security program.
    The subsection includes the following specific requirements 
with respect to the Enhanced Personnel Security Programs:
     The Director of National Intelligence must direct 
each agency to provide for enhanced security reviews of all 
covered individuals following the elimination of the backlog of 
reinvestigations or by five years after enactment of the bill, 
whichever comes first.
     The Enhanced Security Program at each agency must 
require at least two random automatic record checks (audits) in 
each five-year period for each covered individual who is 
employed by the agency or by a contractor for the agency, 
unless an individual is covered by Continuous Evaluation or a 
similar program that provides for automated record checks 
regarding the individual more frequently than twice in each 
five-year period.
     The Enhanced Security Program of each agency must 
integrate relevant information from various sources, including 
government sources, publicly available and commercial data 
sources, consumer reporting agencies, social media, and such 
other sources as are determined by the Director of National 
Intelligence.
     The head of each agency must ensure that each 
covered individual is adequately advised of the types of 
information the individual is required to report. A review of 
the information relating to the individual may not be conducted 
until more than 120 days after the individual receives the 
notification.
     The Director of National Intelligence also must 
issue guidance defining minor financial or mental health issues 
in accordance with this section of the bill.
    Beginning two years after the date of implementation of the 
Enhanced Personnel Security Program at each agency, the 
Inspector General of the agency must conduct at least one audit 
to assess the effectiveness and fairness of the system, in 
accordance with performance measures and standards established 
by the Director of National Intelligence.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of S. 1618. The Congressional 
Budget Office states that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandate Reform Act and would impose no costs on state, 
local, or tribal governments, or private entities. The 
enactment of this legislation will not have significant 
regulatory impact.

             VI. Congressional Budget Office Cost Estimate


S. 1618--Enhanced Security Clearance Act of 2014

    S. 1618 would require federal agencies to develop an 
enhanced personnel security program that would conduct interim 
reviews of certain types of information (primarily electronic 
records) between regularly scheduled full background 
investigations for individuals with security clearances or who 
hold sensitive positions that might affect national security 
(some positions are designated as sensitive but do not require 
security clearances). Based on guidance from the Office of the 
Director of National Intelligence (ODNI), agencies would be 
required to check certain types of information--such as 
criminal, financial, and social media records--not less than 
twice every five years to ensure the continued suitability of 
individuals to hold security clearances or to remain in 
sensitive positions.
    Enacting S. 1618 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    Conducting the required checks and incorporating newly 
acquired information into the security records of employees 
would increase the costs to certain federal agencies, subject 
to appropriation of the necessary funds. However, the bill 
would not require the program to be implemented until the 
earlier of five years after enactment of the bill or such time 
as the current backlog in periodic security reinvestigations is 
eliminated. Periodic reinvestigations are background checks of 
individuals who have previously had background investigations 
and are supposed to occur every five years. Because there has 
been a significant backlog in such investigations for many 
years, CBO anticipates that the new program would not be 
implemented until after 2019; therefore, the costs of 
implementing the bill would be negligible over the 2015-2019 
period.
    Although CBO does not have enough information to provide a 
precise estimate of the costs of implementing S. 1618 after 
2019, the cost of conducting the kinds of record checks that 
would be required by the bill and the large number of employees 
who would probably be affected indicates that those costs would 
be significant. S. 1618 would require such checks to be 
completed twice every five years. CBO expects that the records 
checks would require a level of effort roughly equivalent to 
that of a basic National Agency check, which is a check of 
certain government records, including federal investigative 
records. Such checks currently cost about $100 each.
    About 5 million people currently hold security clearances 
and an unknown additional number hold positions that do not 
require security clearances but are deemed sensitive for the 
purpose of national security. However, both the ODNI and the 
Department of Defense (DoD) are developing programs under 
current law to continually evaluate certain personnel for their 
fitness to hold security clearances or to remain in sensitive 
positions. Personnel subject to those programs would be 
exempted from the checks required under S. 1618. Although no 
data are available on the number of people the ODNI's program 
would cover, DoD's program is expected to apply to 
approximately 1 million employees by the end of 2017. On that 
basis, the costs of implementing S. 1618 would probably be in 
the low hundreds of millions of dollars a year after 2019.
    S. 1618 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Jason Wheelock. 
The estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

       VII. Changes in Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 1618, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

                           UNITED STATES CODE

TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

           *       *       *       *       *       *       *



                           PART III--EMPLOYEES


                      Subpart A--General Provisions

Chap.                                                               Sec.
21. Definitions...................................................  2101
     * * * * * * *

             Subpart J--Enhanced Personnel Security Programs

110. Enhanced personnel security programs......................... 11001

Subpart A--General Provisions

           *       *       *       *       *       *       *


            Subpart J--Enhanced Personnel Security Programs

           CHAPTER 110--ENHANCED PERSONNEL SECURITY PROGRAMS

Sec.
11001. Enhanced personnel security programs

    (a) Definitions.--In this section----
          (1) the term ``agency'' has the meaning given that 
        term in section 3001 of the Intelligence Reform and 
        Terrorism Prevention Act of 2004 (50 U.S.C. 3341);
          (2) the term ``consumer reporting agency'' has the 
        meaning given that term in section 603 of the Fair 
        Credit Reporting Act (15 U.S.C. 1681a);
          (3) the term ``covered individual'' means an 
        individual who has been determined eligible for access 
        to classified information or eligible to hold a 
        sensitive position;
          (4) the term ``enhanced personnel security program'' 
        means a program implemented by an agency at the 
        direction of the Director of National Intelligence 
        under subsection (b); and
          (5) the term ``periodic reinvestigations'' means 
        investigations conducted periodically, with a frequency 
        as required by the Director of National Intelligence, 
        for the purpose of updating a previously completed 
        security background investigation.
    (b) Enhanced Personnel Security Program.--The Director of 
National Intelligence shall direct each agency to implement a 
program to provide enhanced security review of covered 
individuals--
          (1) in accordance with this section; and
          (2) not later than the earlier of--
                  (A) the date that is 5 years after the date 
                of enactment of the Enhanced Security Clearance 
                Act of 2014; or
                  (B) the date on which the backlog of overdue 
                periodic reinvestigations of covered 
                individuals is eliminated, as determined by the 
                Director of National Intelligence.
    (c) Comprehensiveness.--
          (1) Sources of information.--The enhanced personnel 
        security program of an agency shall integrate relevant 
        information from various sources, including government, 
        publicly available, and commercial data sources, 
        consumer reporting agencies, social media, and such 
        other sources as determined by the Director of National 
        Intelligence.
          (2) Types of information.--Information obtained and 
        integrated from sources described in paragraph (1) may 
        include--
                  (A) information relating to any criminal or 
                civil legal proceeding;
                  (B) financial information relating to the 
                covered individual, including the credit 
                worthiness of the covered individual;
                  (C) public information, including news 
                articles or reports, that includes relevant 
                security or counterintelligence information 
                about the covered individual;
                  (D) publicly available electronic 
                information, to include relevant security or 
                counterintelligence information on any social 
                media website or forum, that may suggest ill 
                intent, vulnerability to blackmail, compulsive 
                behavior, allegiance to another country, change 
                in ideology, or any other information that may 
                suggest the covered individual lacks good 
                judgment, reliability or trustworthiness; and
                  (E) data maintained on any terrorist or 
                criminal watch list maintained by any agency, 
                State or local government, or international 
                organization.
    (d) Reviews of Covered Individuals.--
          (1) Reviews.--
                  (A) In general.--The enhanced personnel 
                security program of an agency shall require 
                that, not less than 2 times every 5 years, the 
                head of the agency shall conduct or request the 
                conduct of automated record checks and checks 
                of information from sources under subsection 
                (c) to ensure the continued eligibility of each 
                covered individual employed by the agency or a 
                contractor of the agency, unless more frequent 
                reviews of automated record checks and checks 
                of information from sources under subsection 
                (c) are conducted on the covered individual.
                  (B) Scope of reviews.--Except for a covered 
                individual who is subject to more frequent 
                reviews to ensure the continued eligibility of 
                the covered individual, the reviews under 
                subparagraph (A) shall consist of random or 
                aperiodic checks of covered individuals, such 
                that each covered individual is subject to at 
                least 2 reviews during the 5-year period 
                beginning on the date on which the agency 
                implements the enhanced personnel security 
                program of an agency, and during each 5-year 
                period thereafter.
                  (C) Individual reviews.--A review of the 
                information relating to the continued 
                eligibility of a covered individual under 
                subparagraph (A) may not be conducted until 
                after the end of the 120-day period beginning 
                on the date the covered individual receives the 
                notification required under paragraph (3).
          (2) Results.--The head of an agency shall take 
        appropriate action if a review under paragraph (1) 
        finds relevant information that may affect the 
        continued eligibility of a covered individual.
          (3) Information for covered individuals.--The head of 
        an agency shall ensure that each covered individual 
        employed by the agency or a contractor of the agency is 
        adequately advised of the types of relevant security or 
        counterintelligence information the covered individual 
        is required to report to the head of the agency.
          (4) Limitation.--Nothing in this subsection shall be 
        construed to affect the authority of an agency to 
        determine the appropriate weight to be given to 
        information relating to a covered individual in 
        evaluating the continued eligibility of the covered 
        individual.
          (5) Guidance for minor financial or mental health 
        issues.--The Director of National Intelligence shall 
        issue guidance defining minor financial or mental 
        health issues, in accordance with this section and any 
        direction from the President.
          (6) Authority of the president.--Nothing in this 
        subsection shall be construed as limiting the authority 
        of the President to direct or perpetuate periodic 
        reinvestigations of a more comprehensive nature or to 
        delegate the authority to direct or perpetuate such 
        reinvestigations.
    (e) Audit.--
          (1) In general.--Beginning 2 years after the date of 
        implementation of the enhanced personnel security 
        program of an agency under subsection (b), the 
        Inspector General of the agency shall conduct at least 
        1 audit to assess the effectiveness and fairness, which 
        shall be determined in accordance with performance 
        measures and standards established by the Director of 
        National Intelligence, to covered individuals of the 
        enhanced personnel security program of the agency.
          (2) Submissions to the dni.--The results of each 
        audit conducted under paragraph (1) shall be submitted 
        to the Director of National Intelligence to assess the 
        effectiveness and fairness of the enhanced personnel 
        security programs across the Federal Government.