A bill to protect integrity, fairness, and objectivity in decisions regarding access to classified information, and for other purposes.

II 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 Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. EXCLUSIVITY, CONSISTENCY, AND TRANS- 3 PARENCY IN SECURITY CLEARANCE PROCE- 4 DURES AND RIGHT TO APPEAL. 5 (a) EXCLUSIVITY OF PROCEDURES.—Section 801 of 6 the National Security Act of 1947 (50 U.S.C. 3161) is 7 amended by adding at the end the following: 8 ‘‘(c) EXCLUSIVITY.—Except as provided in sub- 9 section (b) and subject to sections 801A and 801B, the 10 VerDate Sep 11 2014 01:35 Mar 29, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S838.IS S838 kjohnson on DSK79L0C42 with BILLS 2 •S 838 IS procedures established pursuant to subsection (a) shall be 1 the exclusive procedures by which decisions about access 2 to classified information are governed.’’. 3 (b) TRANSPARENCY.—Such section is further amend- 4 ed by adding at the end the following: 5 ‘‘(d) PUBLICATION.— 6 ‘‘(1) IN GENERAL.—Not later than 180 days 7 after the date of the enactment of this subsection, 8 the President shall publish in the Federal Register 9 the procedures established pursuant to subsection 10 (a). 11 ‘‘(2) UPDATES.—Whenever the President 12 makes a revision to a procedure established pursuant 13 to subsection (a), the President shall publish such 14 revision in the Federal Register not later than 30 15 days before the date on which the revision becomes 16 effective.’’. 17 (c) CONSISTENCY.— 18 (1) IN GENERAL.—Title VIII of the National 19 Security Act of 1947 (50 U.S.C. 3161 et seq.) is 20 amended by inserting after section 801 the fol- 21 lowing: 22 ‘‘SEC. 801A. DECISIONS RELATING TO ACCESS TO CLASSI- 23 FIED INFORMATION. 24 ‘‘(a) DEFINITIONS.—In this section: 25 VerDate Sep 11 2014 01:35 Mar 29, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S838.IS S838 kjohnson on DSK79L0C42 with BILLS 3 •S 838 IS ‘‘(1) AGENCY.—The term ‘agency’ has the 1 meaning given the term ‘Executive agency’ in section 2 105 of title 5, United States Code. 3 ‘‘(2) CLASSIFIED INFORMATION.—The term 4 ‘classified information’ includes sensitive compart- 5 mented information, restricted data, restricted han- 6 dling information, and other compartmented infor- 7 mation. 8 ‘‘(3) ELIGIBILITY FOR ACCESS TO CLASSIFIED 9 INFORMATION.—The term ‘eligibility for access to 10 classified information’ has the meaning given such 11 term in the procedures established pursuant to sec- 12 tion 801(a). 13 ‘‘(b) IN GENERAL.—Each head of an agency that 14 makes a determination for eligibility for access to classi- 15 fied information shall ensure that in making the deter- 16 mination, the head of the agency or any person acting on 17 behalf of the agency— 18 ‘‘(1) does not violate any right or protection en- 19 shrined in the Constitution of the United States, in- 20 cluding rights articulated in the First, Fifth, and 21 Fourteenth Amendments; 22 ‘‘(2) does not discriminate for or against an in- 23 dividual on the basis of race, color, religion, sex, na- 24 tional origin, age, or handicap; 25 VerDate Sep 11 2014 01:35 Mar 29, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S838.IS S838 kjohnson on DSK79L0C42 with BILLS 4 •S 838 IS ‘‘(3) is not carrying out retaliation for political 1 activities or beliefs or a coercion or reprisal de- 2 scribed in section 2302(b)(3) of title 5, United 3 States Code; and 4 ‘‘(4) does not violate section 3001(j)(1) of the 5 Intelligence Reform and Terrorism Prevention Act 6 of 2004 (50 U.S.C. 3341(j)(1)).’’. 7 (2) CLERICAL AMENDMENT.—The table of con- 8 tents in the matter preceding section 2 of the Na- 9 tional Security Act of 1947 (50 U.S.C. 3002) is 10 amended by inserting after the item relating to sec- 11 tion 801 the following: 12 ‘‘Sec. 801A. Decisions relating to access to classified information.’’. (d) RIGHT TO APPEAL.— 13 (1) IN GENERAL.—Such title, as amended by 14 subsection (c), is further amended by inserting after 15 section 801A the following: 16 ‘‘SEC. 801B. RIGHT TO APPEAL. 17 ‘‘(a) DEFINITIONS.—In this section: 18 ‘‘(1) AGENCY.—The term ‘agency’ has the 19 meaning given the term ‘Executive agency’ in section 20 105 of title 5, United States Code. 21 ‘‘(2) COVERED PERSON.—The term ‘covered 22 person’ means a person, other than the President 23 and Vice President, currently or formerly employed 24 by, detailed to, assigned to, or issued an authorized 25 VerDate Sep 11 2014 01:35 Mar 29, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S838.IS S838 kjohnson on DSK79L0C42 with BILLS 5 •S 838 IS conditional offer of employment for a position that 1 requires access to classified information by an agen- 2 cy, including the following: 3 ‘‘(A) A member of the Armed Forces. 4 ‘‘(B) A civilian. 5 ‘‘(C) An expert or consultant to an agency. 6 ‘‘(D) Counsel or other representative re- 7 tained by a covered person. 8 ‘‘(E) Any other category of person who 9 acts for or on behalf of an agency as deter- 10 mined by the head of the agency. 11 ‘‘(3) ELIGIBILITY FOR ACCESS TO CLASSIFIED 12 INFORMATION.—The term ‘eligibility for access to 13 classified information’ has the meaning given such 14 term in the procedures established pursuant to sec- 15 tion 801(a). 16 ‘‘(4) NEED FOR ACCESS.—The term ‘need for 17 access’ has such meaning as the President may de- 18 fine in the procedures established pursuant to sec- 19 tion 801(a). 20 ‘‘(5) SECURITY EXECUTIVE AGENT.—The term 21 ‘Security Executive Agent’ means the Director of 22 National Intelligence acting as the Security Execu- 23 tive Agent in accordance with Executive Order 24 13467 (73 Fed. Reg. 38103; 50 U.S.C. 3161 note; 25 VerDate Sep 11 2014 01:35 Mar 29, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S838.IS S838 kjohnson on DSK79L0C42 with BILLS 6 •S 838 IS relating to reforming processes related to suitability 1 for government employment, fitness for contractor 2 employees, and eligibility for access to classified na- 3 tional security information), or as otherwise defined 4 in a subsequent provision of law. 5 ‘‘(b) AGENCY REVIEW.— 6 ‘‘(1) IN GENERAL.—Not later than 180 days 7 after the date of the enactment of this section, each 8 head of an agency shall, consistent with the interest 9 of national security, establish and make publicly 10 available a process by which a covered person to 11 whom eligibility for access to classified information 12 was denied or revoked by the agency can appeal that 13 denial or revocation within the agency. 14 ‘‘(2) ELEMENTS.—The process required by 15 paragraph (1) shall include the following: 16 ‘‘(A) In the case of a covered person to 17 whom eligibility for access to classified informa- 18 tion is denied or revoked by an agency, the fol- 19 lowing: 20 ‘‘(i) The head of the agency shall pro- 21 vide the covered person with a written— 22 ‘‘(I) detailed explanation of the 23 basis for the denial or revocation as 24 the head of the agency determines is 25 VerDate Sep 11 2014 01:35 Mar 29, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S838.IS S838 kjohnson on DSK79L0C42 with BILLS 7 •S 838 IS consistent with the interests of na- 1 tional security and as permitted by 2 other applicable provisions of law; and 3 ‘‘(II) notice of the right of the 4 covered person to a hearing and ap- 5 peal under this subsection. 6 ‘‘(ii) Not later than 30 days after re- 7 ceiving a request from the covered person 8 for copies of the documents that formed 9 the basis of the agency’s decision to revoke 10 or deny, including the investigative file, the 11 head of an agency shall provide to the cov- 12 ered person copies of such documents as— 13 ‘‘(I) the head of the agency de- 14 termines is consistent with the inter- 15 ests of national security; and 16 ‘‘(II) permitted by other applica- 17 ble provisions of law, including— 18 ‘‘(aa) section 552 of title 5, 19 United States Code (commonly 20 known as the ‘Freedom of Infor- 21 mation Act’); 22 ‘‘(bb) section 552a of such 23 title (commonly known as the 24 ‘Privacy Act of 1974’); and 25 VerDate Sep 11 2014 01:35 Mar 29, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S838.IS S838 kjohnson on DSK79L0C42 with BILLS 8 •S 838 IS ‘‘(cc) such other provisions 1 of law relating to the protection 2 of confidential sources and pri- 3 vacy of individuals. 4 ‘‘(iii)(I) The covered person shall have 5 the opportunity to retain counsel or other 6 representation at the covered person’s ex- 7 pense. 8 ‘‘(II) Upon the request of the covered 9 person, and a showing that the ability to 10 review classified information is essential to 11 the resolution of an appeal under this sub- 12 section, counsel or other representation re- 13 tained under this clause shall be considered 14 for access to classified information for the 15 limited purposes of such appeal. 16 ‘‘(iv)(I) The head of the agency shall 17 provide the covered person an opportunity, 18 at a point in the process determined by the 19 agency head— 20 ‘‘(aa) to appear personally before 21 an adjudicative or other authority, 22 other than the investigating entity, 23 and to present to such authority rel- 24 evant documents, materials, and infor- 25 VerDate Sep 11 2014 01:35 Mar 29, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S838.IS S838 kjohnson on DSK79L0C42 with BILLS 9 •S 838 IS mation, including evidence that past 1 problems relating to the denial or rev- 2 ocation have been overcome or suffi- 3 ciently mitigated; and 4 ‘‘(bb) to call and cross-examine 5 witnesses before such authority, un- 6 less the head of the agency determines 7 that calling and cross-examining wit- 8 nesses is not consistent with the inter- 9 ests of national security. 10 ‘‘(II) The head of the agency shall 11 make, as part of the security record of the 12 covered person, a written summary, tran- 13 script, or recording of any appearance 14 under item (aa) of subclause (I) or calling 15 or cross-examining of witnesses under item 16 (bb) of such subclause. 17 ‘‘(v) On or before the date that is 30 18 days after the date on which the covered 19 person receives copies of documents under 20 clause (ii), the covered person may request 21 a hearing of the decision to deny or revoke 22 by filing a written appeal with the head of 23 the agency. 24 VerDate Sep 11 2014 01:35 Mar 29, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S838.IS S838 kjohnson on DSK79L0C42 with BILLS 10 •S 838 IS ‘‘(B) A requirement that each review of a 1 decision under this subsection is completed on 2 average not later than 180 days after the date 3 on which a hearing is requested under subpara- 4 graph (A)(v). 5 ‘‘(3) AGENCY REVIEW PANELS.— 6 ‘‘(A) IN GENERAL.—Each head of an 7 agency shall establish an independent panel to 8 hear and review appeals under this subsection. 9 ‘‘(B) MEMBERSHIP.— 10 ‘‘(i) COMPOSITION.—Each inde- 11 pendent panel established by the head of 12 an agency under subparagraph (A) shall be 13 composed of at least three employees of the 14 agency selected by the head, two of whom 15 shall not be members of the security field. 16 ‘‘(ii) TERMS.—A term of service on an 17 independent panel established by the head 18 of an agency under subparagraph (A) shall 19 not exceed 2 years. 20 ‘‘(C) DECISIONS.— 21 ‘‘(i) WRITTEN.—Each decision of a 22 panel established under subparagraph (A) 23 shall be in writing and contain a justifica- 24 tion of the decision. 25 VerDate Sep 11 2014 01:35 Mar 29, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S838.IS S838 kjohnson on DSK79L0C42 with BILLS 11 •S 838 IS ‘‘(ii) CONSISTENCY.—Each head of an 1 agency that establishes a panel under sub- 2 paragraph (A) shall ensure that each deci- 3 sion of the panel is consistent with the in- 4 terests of national security and applicable 5 provisions of law. 6 ‘‘(iii) FINALITY.—Each decision of a 7 panel established under subparagraph (A) 8 shall be final but subject to appeal and re- 9 view under subsection (c). 10 ‘‘(D) ACCESS TO CLASSIFIED INFORMA- 11 TION.—The head of an agency that establishes 12 a panel under subparagraph (A) shall afford ac- 13 cess to classified information to the members of 14 the panel as the head determines— 15 ‘‘(i) necessary for the panel to hear 16 and review an appeal under this sub- 17 section; and 18 ‘‘(ii) consistent with the interests of 19 national security. 20 ‘‘(4) CORRECTIVE ACTION.— 21 ‘‘(A) IN GENERAL.—If, in the course of 22 proceedings under this subsection, the head of 23 an agency or a panel established by the head 24 under paragraph (3) decides that a covered per- 25 VerDate Sep 11 2014 01:35 Mar 29, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S838.IS S838 kjohnson on DSK79L0C42 with BILLS 12 •S 838 IS son’s eligibility for access to classified informa- 1 tion was improperly denied or revoked by the 2 agency, the agency shall take corrective action 3 to return the covered person, as nearly as prac- 4 ticable and reasonable, to the position such cov- 5 ered person would have held had the improper 6 denial or revocation not occurred. 7 ‘‘(B) COMPENSATION.—Corrective action 8 under subparagraph (A) may include compensa- 9 tion, in an amount not to exceed $300,000, for 10 any loss of wages or benefits suffered, or ex- 11 penses otherwise incurred, by reason of such 12 improper denial or revocation. 13 ‘‘(5) PUBLICATION OF DECISIONS.— 14 ‘‘(A) IN GENERAL.—Each head of an 15 agency shall publish each final decision on an 16 appeal under this subsection. 17 ‘‘(B) REQUIREMENTS.—In order to ensure 18 transparency, oversight by Congress, and mean- 19 ingful information for those who need to under- 20 stand how the clearance process works, each 21 publication under subparagraph (A) shall be— 22 ‘‘(i) made in a manner that is con- 23 sistent with section 552 of title 5, United 24 States Code, as amended by the Electronic 25 VerDate Sep 11 2014 01:35 Mar 29, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S838.IS S838 kjohnson on DSK79L0C42 with BILLS 13 •S 838 IS Freedom of Information Act Amendments 1 of 1996 (Public Law 104–231); 2 ‘‘(ii) published to explain the facts of 3 the case, redacting as appropriate personal 4 identifiable information or sensitive pro- 5 gram [Text truncated for display. Full text available on Congress.gov.]