by Emily Berman, assistant professor, University of Houston Law Center
Each day, it seems, another personnel-related headline emerges from the West Wing of the White House. As a result, the events of just a few days past often feel like ancient history. But rather than succumb to the 24-hour news cycle, it behooves us to pause and consider more closely White House Chief of Staff General John Kelly’s recent intervention regarding security clearances for White House staff and the circumstances that precipitated it.
In addition to making reforms to the clearance process, the memo terminated interim high-level clearances for anyone whose application had been pending since June 2017. While it is not unusual for senior White House staff to have interim clearance at the outset of an administration, hundreds of staffers in November and dozens as late as February still were cleared only on an interim basis. This list included the President’s Senior Advisor and son-in-law, Jared Kushner—despite which fact he enjoyed regular access to America’s most sensitive secrets, including the President’s daily intelligence briefing. (Recognizing that Kushner is likely ineligible for a permanent clearance—Kelly ultimately downgraded his interim clearance level.) Given that the clearance process usually takes about 8-10 weeks, providing access to the PDB to staff whose clearance applications are pending after 13 months in office is both unusual and alarming.
As it turns out, Kushner actually provides a textbook example of the risks that the security-clearance system is designed to guard against and the danger to the United States’ interests posed when that system is not enforced effectively.
To understand the importance of security clearances, consider the nature of the information they are designed to safeguard. Clearances are governed by Executive Order 13526, which establishes three levels of classified information, for which there are three corresponding levels of clearance—Confidential, Secret, and Top Secret. Information is designated “Confidential” if its unauthorized disclosure “reasonably could be expected to cause damage to the national security”; “Secret” if the disclosure could “cause serious damage to the national security”; and “Top Secret” if that damage could be “exceptionally grave.” Certain agencies also use additional access controls to further limit the distribution of classified information that is extraordinarily sensitive, such as information about sources and methods of intelligence collection—known as “Sensitive Compartmented Information”—and certain military operations—known as “Special Access Programs.”
Foreign governments and individuals around the world are constantly on the lookout for opportunities to access these secrets. To ensure that they do not succeed, access is limited to individuals who can be relied upon for loyalty and discretion. To smoke out applicants who do not qualify, executive-branch investigators seek to discover whether the individual’s history or character raises one or more of several different red flags. These warning signs generally fall into one of two categories: first, circumstances that might make an applicant susceptible to outside influence (particularly foreign influence); and second, behavior that calls into question an applicant’s allegiance to the United States, judgment, reliability, or general trustworthiness. The investigation into Kushner’s background raised red flags in both of these categories.
Consider the ways in which Kushner opened himself up to pressure or coercion from those who may not have the best interests of the U.S. at heart. Unlike most officials who pursue high-level government jobs, Kushner retained hundreds of millions of dollars in assets as well as substantial interest in his family’s real estate firm, Kushner Companies. And now we know that Kushner Companies received hundreds of millions of dollars in loans from two companies after Kushner met with their executives in the White House. What, if anything, did they ask Kushner for in return? The family company is also currently struggling under a $1.2 billion dollar debt on a single building in Manhattan—a debt for which Kushner has been in contact with investors in multiple countries, including allies of the U.S. as well as rivals, such as China. Might officials from one of these countries be willing to bankroll Kushner Companies in return for access to Kushner himself, and perhaps to the information entrusted to him? Moreover, that Kushner repeatedly failed to report both millions of dollars in assets and hundreds of foreign contacts on his security questionnaire surely did not inspire investigators’ confidence in Kushner’s trustworthiness and willingness to prioritize the good of the United States over his own personal interests.
One need not accuse Kushner of intentionally conveying dangerous classified information to foreigners to see that he has placed himself in a situation that others might exploit. Indeed we already know that government officials from four different countries—United Arab Emirates, Israel, China, and Mexico—view Kushner as a “soft target” due to (among other things) his “complex business arrangements and financial difficulties.” Yet disclosure of Top Secret information conveyed with even the best of intentions is just as dangerous as any calculated act of espionage.
To be sure, the classification and security-clearance system is imperfect. There is broad agreement across the political spectrum that far more material is stamped “classified” than is necessary. And while it might seem appealing at first glance to err on the side of caution, as Supreme Court Justice Potter Steward said in the Pentagon Papers, “when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless.” Another threat to the integrity of the system often discussed in the wake of the Edward Snowden disclosures is the sheer number of individuals who possess security clearances—as the Washington Post has pointed out, the number of people with a security clearance is larger than the entire population of Norway. Indeed, there are well over a million with top secret clearance alone. The laws of probability say that the more people who have access to information, the more likely it is to leak out.
Despite its flaws, the process serves an important purpose. And while Gen. Kelly’s belated efforts to address information-security concerns are laudable, the White House Staff’s seemingly casual approach to the issue during their first year in office is yet another example of the Trump presidency’s disregard for longstanding norms, the erosion of which could be devastating for America.