All Is Not Clear

What John Kelly’s new security clearance policy actually means in practice.

John Kelly.
Will John Kelly’s latest move actually lay to rest concerns about the state of affairs in the White House?
Photo illustration by Slate. Photo by Drew Angerer/Getty Images.

Last week, we learned that White House chief of staff John Kelly had “downgraded” the access of White House officials still operating on interim clearances, including Jared Kushner.
According to reporting, these officials will be limited to information classified at the “secret” level and restricted from accessing information classified at the much higher TS/SCI (top secret/sensitive compartmented information) level.

Explanations for the unusually high number of interim clearances this far into the administration might range from the benign—process delays or breakdowns—to the truly alarming—individuals deemed unfit to access classified information may have been continuing to do so under the cloak of interim clearances. The chances that Kelly’s latest move will actually lay to rest concerns about this state of affairs depend both on what lies beneath these interim clearances and also on Kelly’s ability to enforce his new edict. Based just on what we already know, full congressional inquiry may be warranted to determine which of the above scenarios the White House has been operating under these past 13-plus months and whether the White House has taken genuine remedial steps in the wake of the public revelations.

Background investigations and security clearances in the White House are a tangled affair. So it’s useful to take a step back to walk through the process as it typically works (and as it worked in the Obama White House, where I was an associate counsel).

Ordinarily, background investigations on White House staff members are conducted by the FBI. The result of an FBI background investigation is a report known as a BI (for “background investigation”), which serves as both a vetting tool for the White House and the basis for the adjudication—granting or denial—of a security clearance.

In general the FBI makes no decisions about White House employment or security clearances. It collects facts and provides its report to the White House. The White House counsel’s office, in consultation with entities like the chief of staff’s office, decides whether anything “derogatory” that appears in a background investigation could embarrass the president or otherwise render the individual unfit for White House service. The White House personnel security office separately determines, based in part on the BI report, whether an individual who needs a security clearance—which includes virtually all high-level White House staffers—is eligible for one. (This is the ordinary process—the president can also directly grant security clearances. The White House has given no indication that the president has been doing that here, though there’s no way to know for sure.)

Lots of people start with interim clearances, and these are an important tool, particularly around a change in administrations. Full background investigations and security clearance adjudications can take a long time, and it’s critical that the president’s advisers have access to the information they need to provide good counsel right from the start of a new administration. This is actually true even before an election—under the law, both major-party candidates can submit the names of their transition team members who will need security clearances, so that the process can get underway early.

If senior White House staffers are still operating on interim clearances more than a year into the administration, particularly individuals who were involved in the campaign and the transition, there are a few possible explanations. First is the dilatory staffer explanation—overextended and inexperienced White House staffers may have been slow to fill out paperwork, respond to FBI requests for interviews, or provide the FBI with subsequently requested follow-up information. The second possibility is process breakdown—that is, somewhere between the FBI, the White House personnel security office, and the White House counsel’s office, investigations aren’t being completed or BIs aren’t being reviewed in a timely manner. A third possibility is that the investigations have unearthed things that require follow-up, and that this follow-up is ongoing. And the fourth is that in some cases the security office doesn’t think it should grant a security clearance, but it hasn’t actually denied one, effectively working on the assumption that the White House counsel or chief of staff will decide that the concerning information is disqualifying for employment. The purpose of passing the buck directly to the White House is to not have to officially deny a clearance, which is considered quite a serious step.

Without question, the scenario that’s most concerning would be the last one: It would be truly troubling if career professionals have determined that particular individuals are unfit to access classified information—in particular TS or TS/SCI information—but those individuals have continued to access it because no official verdict was ever rendered by the security office or the White House.

Kelly’s recent move would make a certain sense for any of the first three possibilities—if individuals are on interim clearances because of process delays or failures, allowing them to access information only to the secret level lets the process run its course without removing all access to classified material. But if individuals have been deemed unfit to receive security clearances, it doesn’t make a lot of sense to decide those individuals can still view information classified at the secret level, which is still defined as information whose unauthorized disclosure “could be expected to cause serious damage to the national security.”

Whatever the reason for these interim clearances, one thing is clear. Like ethics, White House practice around classified information is largely governed by norms and practices, rather than hard law or hard walls. If Kelly really means to enforce this new directive, he needs to tightly control the agendas of meetings and the circulation of documents to be sure that the individuals he’s targeted with his new policy don’t end up accessing information classified at higher levels. This is a tall order in any White House, perhaps especially this one. And if there’s reason for concern about any of this, it falls to Congress and the press to keep the administration’s feet to the fire.