116th CONGRESS
1st Session
S. 838
To protect integrity, fairness, and objectivity in decisions regarding
access to classified information, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 14, 2019
Mr. Warner (for himself and Ms. Collins) introduced the following bill;
which was read twice and referred to the Select Committee on
Intelligence
_______________________________________________________________________
A BILL
To protect integrity, fairness, and objectivity in decisions regarding
access to classified information, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. 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 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
publish in the Federal Register the procedures established
pursuant to 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 for 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 retaliation for political
activities or beliefs or 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 by, 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 to an agency.
``(D) Counsel or other representative retained by a
covered person.
``(E) 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 Director of National Intelligence
acting as the Security Executive Agent in accordance with
Executive Order 13467 (73 Fed. Reg. 38103; 50 U.S.C. 3161 note;
relating to reforming processes related to suitability for
government employment, fitness for contractor employees, and
eligibility for access to classified national security
information), or as otherwise defined in a subsequent provision
of law.
``(b) Agency Review.--
``(1) In general.--Not later than 180 days after the date
of the enactment of this section, each head of an agency shall,
consistent with the interest of national security, establish
and make publicly available 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
an 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
``(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 an independent panel to hear and review
appeals under this subsection.
``(B) Membership.--
``(i) Composition.--Each independent 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 an
independent 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) Finality.--Each decision of a panel
established under subparagraph (A) 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) 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.
``(5) 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 as appropriate personal
identifiable information or sensitive program
information; and
``(iii) made available on a website that is
searchable by members of the public.
``(6) Publication of processes.--Each head of an agency
shall publish in the Federal Register the process established
by the head pursuant to paragraph (1).
``(c) Higher Level Review.--
``(1) Panel.--
``(A) Establishment.--Not later than 180 days after
the date of the enactment of this section, 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.--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 an 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 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
ensure the counsel or other representation
retained under this paragraph is considered 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.
``(iii) Wrongful denial of access.--
Wrongful denial of access of relevant materials
to a counsel or other representative who is
cleared for access under this subparagraph
shall be reviewed, and remedied where
necessary, by the panel established under
paragraph (1).
``(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 Agency shall each publish the
decision.
``(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;
``(ii) published in an appropriately
redacted form, the facts of the appeal; 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) 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.
``(f) 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.''.
(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.''.
