Sen. Ted Cruz (R., Texas) placed a provision in the National Defense Authorization bill that would require the department to report to Congress when security clearances are taken away outside the normal five-year window for re-evaluating them.
In a press release, Cruz said the requirement is aimed at "boosting trust and transparency in our security clearance process."
"The amendment is meant to address concerns that our security-clearance process had been politicized and weaponized, which among other things erodes the public's crucial faith in that system," said a Cruz spokesman
The move comes after at least two high-profile cases in which federal officials pulled the security clearances of two members of President Trump's National Security Council, or NSC, at the beginning of the administration last year.
Both NSC adviser Adam Lovinger, who was detailed to the NSC after serving 12 years in the Pentagon's Office of Net Assessment, or ONA, with his security clearance intact, and NSC Africa specialist Robin Townley had their security clearances pulled at the beginning of the Trump administration. The Washington Free Beacon first reported on the politicization of the security clearance process.
Advocates for Lovinger and Townley argue that the clearances were pulled to sideline them from the NSC because of their conservative political views, not for any real wrongdoing. Lovinger also alleges that he was retaliated against for whistleblowing on how the ONA doled out research projects worth millions of taxpayer dollars.
Cruz's legislative action also comes after Lovinger's attorney, Sean Bigley, wrote a Wall Street Journal editorial in early May blaming "hostile career bureaucrats" of the so-called "deep state" for "weaponizing" the process to thwart the president's agenda by holding or blocking appointees.
Bigley, an attorney who specializes in adjudicating security clearance cases, previously worked in the George W. Bush administration's Homeland Security Department. He says he doesn't use the term "deep state" lightly and previously wouldn't have believed that senior career bureaucrats and Obama holdovers would politicize the security clearance process if he hadn't represented so many clients facing the same problems over the last year.
"I've heard from dozens of people inside the administration that they or someone they know is directly impacted by this problem," he said in an interview. "It's a real epidemic."
Bigley said there are many high-ranking Trump political appointees experiencing sudden, out-of-the-blue security clearance problems, with the number of incidents accelerating over the past six months.
"I've personally represented close to a dozen people—all political appointees—who are experiencing this," he said. "The officials who are doing this to them feel like they can act with impunity" because, before Cruz acted, there was little accountability in place to ensure the security clearance revocations were warranted.
Bigley is pressing Congress to take up another legislative fix to provide stronger enforcement provisions to a law, 50 USC 3341 (j), providing redress for whistleblowers who have their security clearances revoked in retaliation.
Right now, even if an agency inspector general substantiates the retaliation, it's up to top agency officials to determine the punishment, if any, the officials who engaged in the retaliation must face.
Bigley would like the law to require the same penalties outlined in the Whistleblower Protection Act 2017.
The legislation, which was approved unanimously by both the House and Senate, would force supervisors who engaged in retaliation to face disciplinary action, including removal, reduction in pay, suspension, reprimand, and debarment from federal service.
Whistleblowers who hold security clearances and allege security clearance retaliation are not covered under the Whistleblower Protection Act ever since the 1988 Supreme Court decision in Department of the Navy v. Egan.
"For a town that is so concerned about unlawful leaks to the media, there's not a whole lot of interest in protecting whistleblowers who do the right thing and report alleged wrongdoing up their chain of command," Bigley said. "What incentive do they have in following the law rather than taking the easy route and leaking it to the media?"
Last fall, the Department of Homeland Security's inspector general found that the Secret Service had retaliated against a whistleblower, Robert MacQueen, who accused managers of abusing their authority. The Free Beacon first reported on the case. The whistleblower, a 24-year veteran of the Secret Service who had served in several prestigious assignments, had his security clearance revoked and was placed on unpaid leave for more than three years while he fought the charges.
The inspector general report found that MacQueen's protected whistleblower disclosures were at least "a contributing factor" to the agency's decision to revoke his security clearance and put him on unpaid leave.
Even though the Secret Service settled the case with MacQueen and paid out a hefty sum, it's unclear if any of the Secret Service officials who retaliated against MacQueen and revoked his clearance were ever punished.