Article by Robert J. Eatinger. Jr. “Can John Brennan Really Sue the President?”

The below article appeared in the cipherbrief by Bob Eatinger.    While we occasionally work together, Bob, now retired from the Agency, has his own law practice.

His article is a good view of the limited judicial review available in clearance matters.

Can John Brennan Really Sue the President?
August 23, 2018 | Robert Eatinger

Robert J. Eatinger, Jr.
Former Senior Deputy General Counsel, CIA

Cipher Brief Expert and Former CIA Senior Deputy Counsel Robert Eatinger weighs in on the realities if a potential lawsuit.
On last Sunday’s Meet the Press, former Director of the Central Intelligence Agency, John Brennan said he was considering a court challenge to the President’s decision to revoke his security clearance. How realistic is it that he’d be successful with such a suit?
Here are the facts: Any lawsuit challenging an adverse security clearance determination will need to overcome the seemingly insurmountable 1988 Supreme Court opinion in Department of the Navy v. Egan. There is, however, one possible exception to Egan, and the President’s stated reasons for revoking Mr. Brennan’s security clearance may allow Mr. Brennan to avail himself of that exception.

First, let’s set some ground rules: The purpose of the following discussion is not to provide legal advice to Mr. Brennan indirectly, to encourage him to bring any legal action challenging the President’s revocation of his security clearance, or to express a view on the merits of any potential legal claim. Rather, it is merely to provide a basic level of understanding about two of the leading cases on court challenges to security clearance decisions and how these cases are relevant to the publicly available facts about the President’s decision.

In Egan, the Supreme Court held that the Merit System Protection Board (MSPB) was without authority to review the merits of an agency’s security clearance decision. In Egan, the Supreme Court reiterated the government’s “compelling interest in withholding national security information from unauthorized persons in the course of executive business” and noted that the authority to do so resided with the President. The Court explained that the President’s authority to control access to classified information is founded in his Constitutional assignments as head of the Executive Branch and Commander in Chief, and the decision fell within areas of his Constitutional duties as to which “the courts have traditionally shown the upmost deference to Presidential responsibilities.”

The Supreme Court further made clear that no one has a “right” to a security clearance. The Court found that determining whether to grant a person a security clearance involved “an attempt to predict his possible future behavior and to assess whether, under compulsion of circumstances or for other reasons, he might compromise sensitive information [that this attempt to predict] may be based . . upon past or present conduct, but it also may be based upon concerns completely unrelated to conduct,” rendering security clearance decisions “an inexact science at best.”
Such predictive judgments, the Supreme Court held “must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.” The Court stated that “it is not reasonably possible for an outside non-expert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction with confidence [,or to] determine what constitutes an acceptable margin of error in assessing the potential risk.”

Although the Supreme Court opined on the MSPB’s authority in Egan, U.S. Courts of Appeals have uniformly held that Egan’s reasoning also precludes the courts from reviewing the merits of Executive Branch security clearance determinations. That is, the courts may not second-guess the Executive’s discretionary judgment as to whether or not a person’s access to classified information was clearly consistent with the interests of national security. Courts may, however, review whether agencies followed their own procedures when making security clearance decisions.
Egan’s bar against the courts reviewing the merits of security clearance decisions may not be absolute; some courts have found that Webster v. Doe, a non-security clearance case the Supreme Court decided shortly after Egan, allows the courts to hear colorable constitutional claims arising out of security clearance determinations. In Webster, the Supreme Court considered whether the courts could review the CIA Director’s decision to dismiss a CIA employee pursuant to the Director’s statutory authority to “terminate the employment of any officer or employee of the Agency whenever he shall deem such termination necessary or advisable in the interests of the United States.”

Alleging he was fired because he was a homosexual, a former CIA employee filed a lawsuit challenging his termination on a number of statutory and constitutional grounds. The Supreme Court held that while the statute used by the Director to fire the employee precluded the courts from reviewing the merits of the Director’s decision that the employee’s discharge was necessary or advisable in the interests of the United States, the statute did not prevent courts from hearing a colorable constitutional claim. The U.S. Court of Appeals for the Ninth Circuit has interpreted Webster to allow courts to hear colorable constitution claims challenges arising from security clearance decisions.

In Dubbs v. CIA, the Ninth Circuit found that Egan precluded courts from hearing all of the claims in a lawsuit challenging an adverse CIA security clearance determination except for the allegation that CIA unconstitutionally discriminated against gays by treating homosexual conduct, but not heterosexual conduct, as a negative. That allegation, the Ninth Circuit held, raised a colorable constitutional claim that courts could hear in light of the Webster opinion.

Despite the Ninth Circuit’s Dubbs decision, Webster must be viewed as providing a “possible” exception to Egan because the Supreme Court has not itself held that courts have jurisdiction to hear colorable constitutional claims on the merits of security clearance determinations. Neither has every Court of Appeals. The U.S. Court of Appeals for the Fourth Circuit, for example, has “left open the question of whether we can review a security clearance decision even where an individual presents a colorable claim,” Hegab v. Long, and in 2017 the U.S. Court of Appeals for the District of Columbia Circuit said that “at most Webster permits judicial review of a security clearance denial only when that denial results from the application of an allegedly unconstitutional policy.” Gill v. Department of Justice (emphasis in original).
If Mr. Brennan decides to challenge the President’s revocation of his security clearance, in order to avoid a dismissal for lack of subject matter jurisdiction, Mr. Brennan he will likely have to allege sufficient facts to present a colorable constitutional claim and then argue the Webster opinion allows the court to adjudicate that claim.

Mr. Brennan may be able incorporate text from the President’s statement that the White House Press Secretary read during a televised press briefing on August 15, 2018 (“Statement”), to allege a colorable constitutional claim. The Statement declared that “risks posed by [Mr. Brennan’s] erratic conduct and behavior” outweighed the reasons agencies historically maintained the security clearances of former agency heads.
The Statement does not specifically describe that conduct and behavior, but it does provide two assertions that may be the referenced conduct and behavior. The Statement asserts that Mr. Brennan “has a history that calls into question his objectivity and credibility,” and that he has “recently leveraged his status as a former high-ranking official with access to highly sensitive information to make a series of unfounded and outrageous allegations – wild outbursts on the Internet and television – about [the President’s] administration.” The Statement continued that “Mr. Brennan’s lying and recent conduct, characterized by increasingly frenzied commentary, is (sic) wholly inconsistent with access to the nation’s most closely held secrets, and facilities [facilitates] the very aim of our adversaries, which is to sow division and chaos.”

The Statement also questions the Executive Branch’s practice of maintaining the security clearances of very senior government officials after they leave government, and characterized the practice as “particularly inappropriate when former officials have transitioned into highly partisan positions and seek to use real or perceived access to sensitive information to validate their political attacks.” The Statement then announced that for the reason that “any access granted to our nation’s secrets should be in furtherance of national, not personal, interests,” the President has “also begun to review the more general question of the access to classified information by government officials” and was “evaluating action with respect to” eight other former and one current government officials “[a]s part of this review.” The list appears populated heavily by individuals who have criticized the President.

Some have interpreted the Statement’s reference to “objectivity,” “unfounded and outrageous allegations … about this administration,” “frenzied commentary,” and “highly partisan positions” as evidence that the President was not revoking Mr. Brennan’s security clearance out of a concern that Mr. Brennan posed a risk to disclose or compromise classified information, but rather to punish, silence, and discredit a critic. Thus, for purposes of pleading a colorable constitutional claim in a lawsuit, Mr. Brennan could incorporate all or portions of the Statement into a complaint. Mr. Brennan might also include in his complaint other public statements from the President, such as the President’s tweet of 9:12 a.m., August 18, 2018 that referred to Mr. Brennan as “a loudmouth, partisan, political hack.”

Mr. Brennan might use the Statement to plead as a colorable constitutional claim that the President is making individualized security clearance determinations by treating speech that criticizes him differently than speech that supports him in violation of the First Amendment. Mr. Brennan might also refer to the identities of the nine other individuals whose access to classified information the President has taken under review to buttress an allegation that the President making security clearance determinations to punish unfavorable political speech, to impeach the credibility of his critics, and to chill others from expressing political views unfavorable to the President. The courts could find that such allegations to raise a colorable constitution claim are subject to judicial review.

Of course, courts may still decide they cannot hear Mr. Brennan’s claims. No case has discussed whether the courts can review a security clearance decision made personally by the President. All prior cases have involved the decisions of subordinate Executive Branch officials who have been applying standards set by the President.

I’m certain the lawyers Mr. Brennan said contacted him to provide their thoughts on possible legal actions to challenge the President’s decision discussed additional and more creative legal approaches.

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