[Senate Hearing 113-368]
[From the U.S. Government Printing Office]
S. Hrg. 113-368
SAFEGUARDING OUR NATION'S SECRETS: EXAMINING THE NATIONAL SECURITY
WORKFORCE
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE EFFICIENCY AND
EFFECTIVENESS OF FEDERAL PROGRAMS AND THE FEDERAL WORKFORCE
of the
COMMITTEE ON
HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 20, 2013
__________
Available via the World Wide Web: http://www.fdsys.gov
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
THOMAS R. CARPER, Delaware Chairman
CARL LEVIN, Michigan TOM COBURN, Oklahoma
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri ROB PORTMAN, Ohio
JON TESTER, Montana RAND PAUL, Kentucky
MARK BEGICH, Alaska MICHAEL B. ENZI, Wyoming
TAMMY BALDWIN, Wisconsin KELLY AYOTTE, New Hampshire
HEIDI HEIKAMP, North Dakota
Richard J. Kessler, Staff Director
John P. Kilvington, Deputy Staff Director
Keith B. Ashdown, Minority Staff Director
Laura W. Kilbride, Chief Clerk
Lauren Corcoran, Hearing Clerk
SUBCOMMITTEE ON THE EFFICIENCY AND EFFECTIVENESS OF FEDERAL PROGRAMS
AND THE FEDERAL WORKFORCE
JON TESTER, Montana, Chairman
MARK L. PRYOR, Arkansas ROB PORTMAN, Ohio
CLAIRE McCASKILL, Missouri RON JOHNSON, Wisconsin
MARK BEGICH, Alaska RAND PAUL, Kentucky
TAMMY BALDWIN, Wisconsin MICHAEL B. ENZI, Wyoming
HEIDI HEITKAMP, North Dakota
Tony McClain, Majority Staff Director
Brent Bombach, Minority Staff Director
Kelsey Stroud, Chief Clerk
C O N T E N T S
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Opening statement:
Page
Senator Tester............................................... 1
Senator Portman.............................................. 16
WITNESSES
Wednesday, November 20, 2013
Brian A. Prioletti, Assistant Director, Special Security
Directorate, National Counterintelligence Executive, Office of
the Director of National Intelligence.......................... 4
Tim Curry, Deputy Associate Director for Partnership and Labor
Relations, Office of Personnel Management...................... 6
Brenda S. Farrell, Director, Defense Capabilities and Management,
U.S. Government Accountability Office.......................... 8
David Borer, General Counsel, The American Federation of
Government Employees........................................... 10
Angela Canterbury, Director of Public Policy, Project on
Government Oversight........................................... 11
Alphabetical List of Witnesses
Borer, David:
Testimony.................................................... 10
Prepared statement........................................... 60
Canterbury, Angela:
Testimony.................................................... 11
Prepared statement........................................... 66
Curry, Tim:
Testimony.................................................... 6
Prepared statement........................................... 35
Farrell, Brenda S.:
Testimony.................................................... 8
Prepared statement........................................... 39
Prioletti, Brian A.:
Testimony.................................................... 4
Prepared statement........................................... 29
APPENDIX
Statement for the Record from Colleen M. Kelley, National
President, National Treasury Employees Union................... 76
Responses to post-hearing questions for the Record:
Mr. Prioletti................................................ 79
Mr. Curry.................................................... 85
Ms. Farrell.................................................. 278
Mr. Borer.................................................... 282
SAFEGUARDING OUR NATION'S SECRETS:
EXAMINING THE NATIONAL SECURITY WORKFORCE
----------
TUESDAY, NOVEMBER 20, 2013
U.S. Senate,
Subcommittee on the Efficiency and Effectiveness of
Federal Programs and the Federal Workforce,
of the Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:01 p.m., in
room SD-342, Dirksen Senate Office Building, Hon. Jon Tester,
Chairman of the Subcommittee, presiding.
Present: Senators Tester and Portman.
OPENING STATEMENT OF SENATOR TESTER
Senator Tester. I will call to order this hearing of the
Subcommittee on Efficiency and Effectiveness of Federal
Programs and Federal Workforce. This afternoon's hearing is
entitled, Safeguarding our Nation's Secrets: Examining the
National Security Workforce.
I will say that Senator Portman is tied up. He is going to
be here a little bit late and he is going to have to leave
early, unfortunately. It is not because of the importance of
this issue. It is because we have a Defense authorization bill
on the floor and that is keeping a lot of the folks who wanted
to be here today away. But we will do our best to get as much
good information as we can on the record as we proceed through
this so that they will have the ability to make good decisions
with good information as those decisions arise.
From the significant disclosures of classified information
to the tragedy at the Washington Naval Yard, it is abundantly
clear to the American people that the Federal Government is
failing to properly vet the individuals who are granted access
to our Nation's most sensitive information and secure
facilities.
And as we all see, there are real life consequences of
these failures. In looking at the lessons learned, it is
obvious that there is no single quick fix to such a broken
system. It is about incomplete, falsified, and ultimately,
background investigations and re-investigations. It is about
agencies improperly adjudicating which employees and
contractors should be granted a clearance, and it is about pure
volume.
Today there are nearly five million individuals with a
security clearance. You heard me right. Five million. And there
are no indications that number will decrease any time soon. But
it only takes one individual to slip through the cracks, one
individual who could do untold damage to our national security
by exposing sensitive information about government actions and
programs.
One individual who, with no motive, with no warning, could
kill 12 men and women in a secure government facility on a
random Monday morning. Now, we have to get this right because
there literally is no margin for error. This hearing will focus
on the designation of positions in the Federal Government as
sensitive to the national security, as well as the requirement
for government personnel to have access to classified
information.
Lacking appropriate guidance for such designations, Federal
agencies are currently relying on a patchwork of Executive
Orders (EO), Federal regulations, and an Office of Personnel
Management (OPM) position designation tool that was not created
to address security-related issues.
Meanwhile, OPM and the Office of Director of National
Intelligence (ODNI) are finalizing a rule they claim will
provide the update and guidance sought by the agencies and
called for by the Government Accountability Office (GAO) and
Members of this Committee.
But others, including some of the witnesses that are here
today, have real concerns that the proposed guidance is
inadequate and that it could have negative and substantial
implications on taxpayers, national security, and Federal
employee rights.
These concerns are compounded by this summer's Kaplan v.
Conyers and Northover decision. This case involved two Federal
employees who lost their jobs when their employing agency
stripped them of their sensitive position status. Because the
Conyers decision denied these employees their rights to due
process through the Merit Systems Protection Board (MSPB),
there is a real potential that tens of thousands of employees
across the Federal Government have just lost their fundamental
right to appeal a personnel decision, regardless of what drove
that decision.
With this in mind, Senator Portman and our Ranking Member
and I wrote a letter to ODNI and OPM in September regarding
their proposed rule. In that letter we said, ``From a fiscal
and security perspective, far too many questions remain
unanswered about the implications of this proposal, and due to
the seriousness of the concerns we share, we urge you to defer
finalizing this rule until the matter has been fully and
publicly aired, and questions about its true scope, including
the estimated cost and number of impacted Federal workers are
answered.'' We are here today to get some of those answers.
Now I would like to introduce our witnesses, and Senator
Portman has an opening statement. He can do that when he gets
here. But I want to introduce my witnesses to the panel here
today and we want to welcome them all. This truly is a great
panel of witnesses, very knowledgeable and distinguished in
your own right.
First we have Brian Prioletti, is Assistant Director of
Special Security Directorate in the Office of the Director of
National Intelligence. In that post, he is responsible for
leading oversight and reform efforts of the security clearance
process. Mr. Prioletti took the Assistant Director position
this last May after more than three decades in the Central
Intelligence Agency (CIA). He testified before the full
Committee on security clearance issues last month, and I want
to thank you for your service, Brian, and I want to thank you
for joining us again today.
Tim Curry is the Deputy Associate Director for Partnership
and Labor Relations in the Office of Personnel Management. He
is responsible for OPM's efforts to design and promulgate
governmentwide programs for labor and employee relations. Prior
to his current position, he served as the Executive Director of
the Labor, Management, and Employees Relations at the
Department of Defense (DOD). Tim, thank you for being here and
getting through the traffic to be here.
Brenda Farrell is a Director for the Defense Capabilities
Management Team in the Government Accounting Office, a post
that she has held since 2007. She is responsible for GAO
oversight of military and civilian personnel issues and has
worked extensively on the personnel security clearance program.
She testified before this Subcommittee in June about the lack
of clearly defined policy and procedures needed to consistently
determine whether a position requires a security clearance. It
is good to have you back, Brenda, and as with the previous two,
we look forward to your testimony.
David Borer is the General Counsel of The American
Federation of Government Employees (AFGE). AFGE represents some
650,000 Federal employees, including tens of thousands who
currently occupy positions deemed sensitive to national
security. He is a veteran on labor relations issues and is here
today to discuss the impact of the proposed OPM/ODNI rule and
its impact on Federal employees. Welcome. We look forward to
what you have to say, David.
Finally, Angela Canterbury. Angela is the Director of
Public Policy for the Project on Government Oversight (POGO),
where she has worked in that capacity since 2010. Founded in
1981, POGO is a non-partisan, independent watchdog that
champions good government efforts. In particular, they have
aggressively advocated for more appropriate balance between
national security and Civil Service rights with similar
protections and taxpayer accountability. Angela's work focuses
on advancing policies that help stamp out corruption and
promote government openness and accountability. She is here
today to help us understand how the OPM/ODNI rule might impact
transparency and whistle-blower rights. We welcome you, Angela,
and I want to thank you and everybody else for being here
today.
It is customary that we swear all witnesses in who appear
before this Subcommittee. If you do not mind, I would ask you
to stand and raise your right hand.
Do you swear the testimony you will give before this
Subcommittee will be the truth, the whole truth, and nothing
but the truth, so help you, God?
Mr. Prioletti. I do.
Mr. Curry. I do.
Ms. Farrell. I do.
Mr. Borer. I do.
Ms. Canterbury. I do.
Senator Tester. Let the record reflect that the witnesses
answered in the affirmative.
With that, we will give each of you 5 minutes for your oral
testimony. Know that your entire written testimony will be a
part of the record. We will start with you, Brian. If you want
to proceed, please do.
TESTIMONY OF BRIAN PRIOLETTI,\1\ ASSISTANT DIRECTOR, SPECIAL
SECURITY DIRECTORATE, NATIONAL COUNTERINTELLIGENCE EXECUTIVE,
OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE
Mr. Prioletti. Thank you, Senator. Chairman Tester, Ranking
Member Portman, and distinguished Members of the Subcommittee,
thank you for inviting me here today to discuss our proposed
updates to the Federal Government's position designation
system.
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\1\ The prepared statement of Mr. Prioletti appears in the Appendix
on page 29.
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Recently, the ODNI and OPM jointly proposed changes to the
existing regulations outlining the position designation
process. These revisions, which include more detail than
previous regulations, are geared to ensure that a consistent
process is applied across the government for designating
positions as sensitive or requiring a security clearance.
This foundational step helps ensure that individuals are
investigated at a level appropriate to the risks inherent to
the position they hold, thereby mitigating risks to national
security interests. Our proposed rule for the designation of
national security positions was published in the Federal
Register for a 30-day public comment in May 2013 with comments
due in June. We are in the process of reviewing those comments
and working to finalize the proposed regulations by February
2014.
The events of September 11, 2001, drove a dramatic increase
in the number of positions requiring a security clearance, a
trend which has continued in recent years. Our office reported
this year that about 4.9 million Federal Government and
contractor employees either hold or have been determined to be
eligible to hold security clearances. The potential risk to
national security and costs associated with this volume of
cleared individuals underscore the need for executive branch
agencies to have a uniform and consistent process to accurately
designate the sensitivity of a position based on the position
duties and the potential impact to national security, and
ensure that the individuals holding these positions are
appropriately investigated and adjudicated commensurate with
that risk.
The concern with position designation is not a recent
phenomenon. Civilian positions within the Federal Government
have been designated as sensitive based on the duties and
responsibilities for over 60 years, when Executive Order 10450
first established the requirement for the Federal employment
process to consider national security interests, and charged
the heads of Federal departments and agencies to establish
effective programs to ensure that employee hiring and retention
is clearly consistent with the interests of national security.
EO-10450 requires a position to be designated as sensitive if
the occupant of that position could, by virtue of the nature of
position, bring about a material adverse effect on national
security. EO-12968, which was issued in 1995, establishes a
uniform Federal personnel security program for individuals to
have access to classified information which only may be granted
on the basis of a demonstrated foreseeable need for that
access. EO-12968 also makes agency heads responsible for
establishing and maintaining an effective program to ensure
that eligibility for access to classified information is
clearly consistent with the interests of national security.
The existing designation system requires revision to align
with other recently updated aspects of the clearance reform
effort, such as the revised Federal Investigative Standards
(FIS) signed in December 2012, and to ensure a common
understanding by Federal agencies as to how to designate
positions and ensure accurate and consistent position
designation across the U.S. Government.
Under EO-13467, the DNI, as Security Executive Agent, and
the Director of OPM, as the Suitability Executive Agent, both
have related roles to ensure that a uniform system for position
designation related to each, to their respective populations of
authority.
The proposed regulation is not intended to increase or
decrease the total number of national security-sensitive
positions within the Federal Government; but, rather, to ensure
that each position is designated accurately. The intent is to
issue national-level policy guidance to promote consistency in
designating positions and address changed national security
concerns post-9/11. This approach will improve consistency and
the level of investigation performed for similar positions in
other agencies; thereby, promoting efficiency and facilitating
reciprocity. Additionally, the proposed regulations align with
the GAO recommendations in its July report entitled, Security
Clearances: Agencies Need a Clearly Defined Policy for
Determining Civilian Position Requirements. In that report, the
GAO noted the need for standardized and clearly defined policy
for agencies to designate positions as sensitive, or requiring
a security clearance and for the existing position designation
tool to be updated to include such guidance. The proposed
regulations also incorporate the GAO's recommendation that the
executive branch agencies periodically review and validate or
revise designations of existing positions. This guidance is
expected to have positive implications for both national
security and the Federal workforce.
The proposed rule and revised position designation tool
will provide executive branch agencies with consistent guidance
and a concrete process to accurately reassess the sensitivity
level assigned to the current positions, and ensure future
positions are designated accurately and consistently.
The proposed rule will help guide agency heads in
designating a position as sensitive with respect to national
security, even if the position does not require access to
classified information. The enhanced guidance will facilitate
more uniform designations across agencies, which are better
aligned with the actual national security implications and
sensitivities inherent with the position. This process is
expected, in some cases, to result in a re-designation of
positions to a lower sensitivity level or public trust
designation, thereby reducing costs associated with
investigations and adjudications required for the higher
clearance levels. Conversely, there may be instances in which a
sensitivity designation of a position increases, therefore
requiring more extensive background investigation, depending
upon that we designate its sensitivity level. If that happens,
the workforce can be assured that the change is necessary, and
based upon the measured execution of the updated guidance
deemed necessary to protect national security interests. The
new regulations are intended to clarify the position
designation requirements and provide additional details over
the previous regulations in order to ensure that positions are
accurately designated in a manner that appropriately mitigates
the risk.
The Federal workforce will benefit from accurately
designated positions and that employees will not be required to
complete extensive background application paperwork or undergo
investigations for positions that do not warrant it. Further, a
consistent designation and investigative approach promotes
clearance reciprocity, and therefore, personnel mobility
between positions of equivalent position designation or between
agencies.
It is imperative that we develop a sound position
sensitivity designation process because the sensitivity level
of a position determines the complexity and cost of the
investigation conducted on the individual selected to occupy
its position. ODNI will continue to work with OPM and other
executive branch agencies to ensure that position designation
policy and procedures include requirements for agencies to
conduct periodic reviews to validate the accuracy of the
existing position designations.
Thank you at this time for the opportunity to testify and
this concludes my statement.
Senator Tester. Thank you, Brian. Tim, you are up next.
TESTIMONY OF TIM F. CURRY,\1\ DEPUTY ASSOCIATE DIRECTOR FOR
PARTNERSHIP AND LABOR RELATIONS, OFFICE OF PERSONNEL MANAGEMENT
Mr. Curry. Thank you, Senator. Mr. Chairman, Ranking Member
Portman, and Members of the Subcommittee. Thank you for the
invitation to testify on behalf of the Office of Personnel
Management on regulations affecting the designation of
positions in the Federal Government as national security-
sensitive, as well as the Kaplan v. Conyers case.
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\1\ The prepared statement of Mr. Curry appears in the Appendix on
page 35.
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The obligation to designate national security positions is
not a new authority. It is outlined in an Executive Order which
was published in 1953. Additionally, the Code of Federal
Regulations (CFR) presently requires each agency to follow
established procedures to identify national security positions.
In this vein, OPM and the Office of Director of National
International, jointly proposed regulations in May of this year
regarding the designation of national security positions in the
competitive service. Similar regulations have been in effect
for over 20 years. The proposed rule is one of a number of
initiatives OPM and ODNI have undertaken to simplify and
streamline the system of Federal Government investigative and
adjudicative processes to make them more efficient and
equitable. OPM originally proposed amendments on this issue in
December 2010, with a publication to the Federal Register.
Those proposed amendments were later withdrawn and reissued in
May 2013 by OPM and ODNI jointly, pursuant to a Presidential
Memorandum directing OPM and ODNI to issue amended regulations.
The Presidential Memorandum recognizes responsibility both
agencies possess with respect to the relevant rulemaking
authority. The current proposed rule simply reissues the 2010
proposal under joint authority with technical modifications and
clarifications, and provides the public an opportunity to
submit additional comments.
The purpose of the proposed rule, both as originally
published and as republished, is to clarify the requirements
and procedures agencies should observe when designating as
national security positions, positions in the competitive
service, positions in the excepted service where the incumbent
can be non-competitively converted to the competitive service,
and Senior Executive Service (SES) positions filled by career
appointment.
The proposed rule is not intended to increase or decrease
the number of positions designated as national security-
sensitive, but is intended to provide more specific guidance to
agencies in order to enhance the efficiency, accuracy, and
consistency with which agencies make position designations. The
older regulations provide only general guidance. The newer
proposed regulations are intended to clarify the requirements
and procedures agencies should follow when designating national
security positions by providing more detail and concrete
examples.
In addition, the newer proposed regulations will help
agencies correctly determine the specific level of sensitivity
for a position that is determined to affect national security,
which in turn will help determine the type of background
investigation that will be required.
Finally, the proposed rule addresses periodic
reinvestigations in order to better coordinate the
reinvestigation requirements for national security positions
with requirements already in place for security clearances.
This will help ensure that the same reinvestigations can be
used for multiple purposes and prevent costly duplication of
effort.
The proposed rule was published in the Federal Register on
May 28, 2013, with a comment period that closed 30 days later.
OPM and ODNI are presently reviewing comments from members of
the public.
This Subcommittee also invited OPM to testify on a separate
topic, the Kaplan v. Conyers case. As you know, the U.S. Court
of Appeals for the Federal Circuit, in a 7-3 decision, held
that the Merit Systems Protection Board, lacks jurisdiction to
review the merits of executive branch risk determinations
regarding eligibility to hold national security sensitive
positions.
Conyers examined whether the MSPB, in reviewing an appeal
of an adverse personnel action against an employee, may review
the merits of the Department of Defense's predictive judgment
of national security risk. On appeal of the MSPB decision, the
Federal Circuit concluded that the MSPB can review whether
DOD's action is procedurally correct, but cannot review whether
DOD correctly exercised its predictive judgment of national
security risk. The Federal Circuit held that Congress did not
give the MSPB this authority. The Federal Circuit based its
decision on long-standing precedent, specifically the Supreme
Court's 1988 decision in Department of the Navy v. Egan, that
the MSPB, in reviewing an appeal of an adverse action cannot
review the merits of an agency decision to deny an employee
security clearance. The Federal Circuit held that Egan
controlled all such national security determinations, not just
those related to access to classified information.
Thank you again for the opportunity to testify and I look
forward to answering any questions you may have.
Senator Tester. Thank you, Tim. Brenda, you may proceed.
TESTIMONY OF BRENDA S. FARRELL,\1\ DIRECTOR, DEFENSE
CAPABILITIES AND MANAGEMENT, GOVERNMENT ACCOUNTABILITY OFFICE
Ms. Farrell. Chairman Tester, thank you for the opportunity
to be here today to discuss the requirements for personnel to
have access to classified information. As you know, my
testimony on the governmentwide security clearance process
before your Subcommittee this past June included a discussion
of our work on the steps that agencies use to first determine
whether a Federal civilian position requires access to
classified information. Today, I am here to elaborate on that
process and report on the extent of progress by the agencies in
implementing our recommendations and actions still needed.
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\1\ The prepared statement of Ms. Farrell appears in the Appendix
on page 39.
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Over the years, GAO has conducted a broad body of work on
security clearance issues that gives us a unique historical
perspective. My remarks today are based primarily on our July
2012 report on defining policy and guidance for national
security positions. My main message today is that actions are
still needed to help ensure that a sound requirements process
is in place to determine whether a position requires a security
clearance for access to classified information.
My written statement is divided into two parts. The first
addresses guidance to determine if a civilian position requires
a security clearance. In July 2012, we reported that the DNI,
as Security Executive Agent, had not provided agencies clearly
defined policy and procedures to consistently determine if a
position requires a clearance. Absent such guidance, agencies
are using an OPM tool to determine the sensitivity and risk
levels of positions, which in turn informed the type of
investigation needed.
The sensitivity level is based on the potential of an
occupant of a position to bring about a material, adverse
affect on national security. OPM audits, however, found
inconsistencies among agencies using this tool to determine the
proper sensitivity level.
For example, in an April 2012 audit, OPM assessed the
sensitivity level of 39 positions and its designations differ
from the agency in 26 of them. In our July 2012 report, we
recommended that the DNI, in coordination with OPM, issue
clearly defined policy and procedures for Federal agencies to
follow when first determining if a position requires a
clearance.
ODNI concurred with our recommendation and has moved
forward with actions to address it. We found that in January of
this year, the President authorized the DNI and OPM to jointly
address revisions to the Federal regulations that are intended
to provide guidance for the designation of national security
positions. We believe that the proposed regulation is a good
step toward meeting the intent of our recommendation. However,
implementation guidance still needs to be developed and the
proposed regulation recognizes that point.
The second part of my statement addresses the guidance in
place to periodically reassess civilian positions that require
security clearance. We also reported in July 2012 that the DNI
had not established such guidelines requiring agencies to
review existing positions.
Without such a requirement, agencies may be hiring or
budgeting for initial and periodic personnel security clearance
investigations using position descriptions and security
clearance requirements that do not reflect current national
security needs.
Further, since such reviews are not done consistently,
agencies cannot have assurances that they are keeping the
number of positions that require clearances to a minimum, as
required by Executive Order 12968. Moreover, conducting
background investigations is costly. We found the Federal
Government spent over $1 billion to conduct background
investigations in fiscal year (FY) 2011.
We recommended in July 2012 that the DNI, in coordination
with OPM, issuance guidance to require agencies to periodically
reassess the designation of all Federal civilian positions.
ODNI and OPM concurred with this recommendation. The proposed
regulations do not appear to require a periodic reassessment,
as we have recommended. We still believe that this needs to be
done.
For more than a decade, GAO has emphasized the need to
build and monitor quality throughout the personnel security
clearance process to promote oversight and positive outcomes
such as maximizing the likelihood that individuals who are
security risks will be scrutinized more closely, the first step
to ensure that a sound process is in place to determine whether
or not positions need access to classified information.
We will continue to monitor the outcome of the final
Federal regulation, as well as other agency actions to address
our remaining recommendations. Mr. Chairman, this concludes my
remarks. I will be happy to take questions when you are ready.
Senator Tester. Well, thank you, Brenda. I appreciate your
comments. David, you may proceed.
TESTIMONY OF DAVID A. BORER,\1\ GENERAL COUNSEL, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES
Mr. Borer. Mr. Chairman, Senator Portman, and Members of
the Subcommittee. On behalf of AFGE and the more than 650,000
Federal employees we represent, including tens of thousands who
occupy positions designated as sensitive, I thank you for the
opportunity to testify today.
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\1\ The prepared statement of Mr. Borer appears in the Appendix on
page 60.
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AFGE has grave concerns about the recent decision issued by
the U.S. Court of Appeals for the Federal Circuit in Kaplan v.
Conyers, and about the proposed rules on the designation of
positions as national security sensitive issued jointly by OPM
and ODNI.
The Conyers decision and the proposed regulations strike at
the heart of the merit system, which for decades has been the
foundation in the Federal Civil Service. Conyers eliminated the
right to a meaningful hearing before the U.S. Merit Systems
Protection Board. The proposed regulations exacerbate this
problem by allowing agencies to pick and choose which employees
will have the right to due process before the MSPB. Conyers and
the proposed regulations are only the latest injustices
inflicted upon Federal workers.
Thanks to a 3-year pay freeze, sequestration in which over
half of the Federal employees lost 30 percent of their take-
home pay for 6 weeks, and a 16-day furlough with the shutdown,
many were left unsure of how or when they would be able to pay
their bills. Some untold number fell into debt or fell deeper
into debt. That additional debt now potentially exposes
thousands of Federal employees to unfair removal from so-called
sensitive positions without so much as a hearing before the
MSPB.
To be clear, Conyers does not pertain to individuals with
security clearances. It is not a case about classified
information. The individuals in that litigation, Rhonda Conyers
and Devon Northover, were an accounting technician and a
grocery story clerk, respectively. Both lost their eligibility
because of a modest amount of delinquent debt due to
circumstances beyond their control. They were penalized because
of their credit scores, and worse, they had to face the loss of
their jobs.
This is deeply troubling to AFGE and it should be a real
concern for this Committee. The implication that financial
hardship equates to disloyalty, even for employees with no
access to classified information, is unsupported and offensive.
In fact, AFGE has found that the practice of penalizing
employees based on their credit scores has had a
disproportionate impact on employees, over 40 female employees,
and employees of color.
Conyers is an ill-founded extension of an earlier case
involving security clearances. In 1988, the Supreme Court
decided the Department of Navy v. Egan, holding that the MSPB
could not review the merits of a security clearance
determination in the course of adjudicating an adverse action.
Later, in Conyers and Northover, the MSPB held that in the
absence of a security clearance, Egan did not apply. In its
Conyers' decision, the Federal Circuit opened the door to
arbitrary and unchecked Executive agency action. The Conyers'
ruling rejected the text, the structure, and the history of the
Civil Service Reform Act (CSRA), along with the plain language
of Egan to hold that the MSPB may not review the merits of an
agency determination that an employee is ineligible to hold a
sensitive position.
The proposed regulations provide no real oversight for
agency position designation determinations. By contrast to the
rule proposed by OPM in 2010, these new rules fail to direct
the agencies that in order to designate a national security
position, they must make an affirmative determination that the
occupant of that position could cause a material, adverse
effect on national security through neglect, action, or
inaction.
In both Conyers and the proposed regulations are allowed to
stand, executive branch agencies will have the unreviewable
power to deprive hundreds of thousands of employees the
protections that Congress gave them in the CSRA. That,
Senators, is likely to be an irresistible invitation to abuse.
To counter this loss of due process rights, Delegate
Eleanor Holmes Norton introduced H.R. 3278 to clarify that
workers or applicants are entitled to be heard by the MSPB even
if it implicates a sensitive position determination. AFGE
strongly urges introduction of a companion bill in the Senate
with the same bipartisan support shown in the House.
AFGE also looks forward to working with the Members of this
Committee to restore fairness and common sense to the due
process protections and other rights that have historically
protected the Federal workforce. This concludes my statement
and I would be happy to respond to any questions.
Senator Tester. Thank you for your statement, David.
Angela.
TESTIMONY OF ANGELA CANTERBURY,\1\ DIRECTOR OF PUBLIC POLICY,
PROJECT ON GOVERNMENT OVERSIGHT
Ms. Canterbury. Chairman Tester and Ranking Member Portman,
thank you very much for your oversight of the national security
workforce and for inviting me to testify here today. I am
speaking on behalf of POGO, but also on behalf of the Make it
Safe Coalition which represents more than 50 groups and
millions of Americans very concerned with whistleblower
protections in both the public and the private sector.
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\1\ The prepared statement of Ms. Canterbury appears in the
Appendix on page 66.
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We are deeply concerned that the national security claims
here and throughout the government really threaten to engulf
our government and, with cruel irony, will make us less safe.
In August of this year, this Court decision in Conyers stripped
Federal employees in national security sensitive positions of
their right to an appeal an adverse action, setting the stage
to also strip due process rights for actions that are
discriminatory or in retaliation for whistle blowing.
This deeply flawed decision in Kaplan v. Conyers armed
agencies with sweeping power that affects untold numbers of
civil servants, untold because OPM cannot say exactly how many
position holders there are. The definition under the Executive
Order 10450 for personnel who may have material adverse affect
on national security must have objective, credible boundaries.
Yet, in Conyers, the government did not provide adequate
boundaries or justifications for national security sensitive
designations. Indeed, Rhonda Conyers was an accounting
technician and David R. Northover was a commissary stocker, and
neither had any real credible national security role.
While there is a need for additional screening for a very
limited number of civilian positions with specific national
security responsibilities but no access to classified
information, extensive background checks should never be a
predicate for denying due process rights. Quite the opposite.
Congress gave the Civil Service and whistleblower
protections to this critical workforce to foster accountability
for waste, fraud, and abuse. These workers had, for years, been
able to challenge adverse personnel actions at the Merit
Systems Protection Board, but not anymore.
Now if an agency fires a national security sensitive
employee for having made a legally protected whistleblower
disclosure, or because of that employee's race or religion, the
employee likely will not be able to seek justice. It is just a
matter of time, as was noted from the bench in oral arguments
in Conyers after the Egan decision removed due process rights
for security clearance actions, it was inevitable that the
Board would do the same for whistleblower retaliation as it did
in Hesse v. Department of State.
Because Conyers is so broad, it flouts the congressional
intent of the Civil Service Reform Act, as well as the
Whistleblower Protection Act, and the recently passed and
strongly bipartisan Whistleblower Protection Enhancement Act,
reforms that we worked for years to enact.
Of course, even before Conyers, there was a jaw dropping
lack of oversight of these seemingly arbitrary and overused
designations. At the direction of the President, OPM and DNI
issued a joint proposed rule to clarify the proper use. We
agree, it is about time, but unfortunately, it does nothing to
assure us that the Obama Administration plans to curb the
practically unlimited discretion afforded to agencies,
improved, efficient oversight, or protect critical rights for
whistleblowers and Civil Service.
In fact, the proposed rule is poised to expand the use of
these designations to overly broad categories of positions such
as senior managers and undefined key programs and fact finding
positions. Before a final rule, far more needs to be known
about the scope and cost, policy impacts, due process
protections, and oversight of these designations.
We would welcome a directive from the President clarifying
access to the MSPB and for OPM and DNI to curb the expansive
use of these designations and conduct proper oversight.
However, we believe that ultimately Congress must re assert the
rights it previously provided. We urge you to advance an easy
legislative fix. Simply clarify that an employee appealing an
action arising from an eligibility determination for a position
that does not require a security clearance may not be denied
MSPB review. This is the Delegate Holmes Norton legislation
that was mentioned.
We also urge you to consider the broader context of the
growing national security State. In the wake of the Snowden
disclosures, we caution you to guard against over reactions.
Excessive secrecy undermines our democracy and threatens our
national security by making it harder for us to protect our
legitimate secrets.
The evidence for the growing national security State is
disturbing. As you mentioned, Chairman, we have almost five
million security clearance holders. Approximately 20 million
four-drawer filing cabinets could be filled with the amount of
classified data accumulated every 18 months by just one
international agency, according to the GAO.
It is time for Congress to be far less deferential to the
executive branch on claims of national security. You can begin
by reining in the nearly unbridled power of agencies to misuse
national security labels and make whole swaths of our
government hidden and accountable. We must be able to hear from
whistle-blowers.
Thank you again for inviting me to testify today and I look
forward to your questions.
Senator Tester. Well, thank you for your testimony, Angela,
and I thank all of you for your testimony. We will get to the
questions right now. Some of this is going to be repetition
from what some of the panelists said, but this is for anybody
who wants to answer it.
In terms of the Conyers decision, we are talking about two
Federal employees without a security clearance or any need for
access to classified information. One was an accounting
technician. I assume that is similar to a Certified Public
Accountant (CPA) maybe, or not even at that level?
Mr. Borer. Lower level accounting.
Senator Tester. Lower level accounting for the Defense
Department, in that position for 20 years. One was a clerk in a
commissary, which indicates to me he probably ran a cash
register. Is that fairly accurate?
Mr. Borer. He was a grocery store clerk, essentially, yes.
He ran a cash register.
Senator Tester. And stocked shelves?
Mr. Borer. Stocked shelves.
Senator Tester. And because of delinquent debts brought
about by a divorce of one and a death in the family of another,
they were stripped of their ability to hold a government
position designated as sensitive to national security. The
designation is consistently and arbitrarily applied to
positions across government as Angela just got done saying.
They were subsequently stripped of their rights to appeal
these personnel decisions of the Merit Service Protection
Board, a basic right of Federal employees. There are so many
questions to be asked about this. I will just start with the
basic one and that is, can somebody explain to me how these
actions were carried out in the best interest of our national
security? Do you want to jump in on that one? No? OK.
So just let me ask you this. You have a position that is
designated as sensitivity, and then you have a person in that
position that does not have any level of security clearance.
Correct so far? And yet, that person is fired because they have
accrued some debt beyond their control. And that is deemed as
being OK? That is the first question. No? Anybody want to talk
about that? Do you want to tell me why that is OK?
Mr. Curry. Senator, as you may know, AFGE has filed an
appeal to the Supreme Court related to these issues and I may
be limited on what I can say about the case because the Justice
Department represents the executive branch on that.
Senator Tester. Sure.
Mr. Curry. But I guess the point I would make on this is,
one, that under Executive Order 10450, positions could have
national security impact whether they have access to classified
information or not. And the reason that we have--OPM went
forward on challenging the MSPB's decision on this is the
Director of OPM has authority, under the law, when it believes
that MSPB has rendered an erroneous decision, which is--an
erroneous interpretation of Civil Service law, rule, or
regulation.
Senator Tester. OK.
Mr. Curry. And so, when the Director sought reconsideration
from MSPB on this, the intent was to preserve the executive
branch's authority to make risk determinations regarding
national security positions.
Senator Tester. I got it. So, I mean, let me put it on one
hand. I get it where if you have somebody that has a high
security clearance and they owe somebody some money, that could
possibly compromise what is going on. These guys did not have a
security clearance at all. They were working in sensitive
positions, but they did not have a security clearance.
And it escapes me, it totally escapes me, and we are going
to get further down, because, I mean, you have to start here to
get down into the real problems of this. It escapes me how a
grocery store clerk could be put at the same level as somebody
that is dealing in the Department of Defense with really
sensitive information, or in the CIA with really sensitive
information that owes somebody some money.
I honest to God do not get it. First of all, I do not get
how you can have a person working in a position that is deemed
as sensitive and not have a security clearance. I do not get
that at all. And second, if they do not have the security
clearance, I do not understand why they can be fired for that
reason and not have any appeal rights. Fired because they
basically accrued debt.
Am I on a different level here? Does this make sense to you
guys?
Mr. Prioletti. Senator, I am not in a position to determine
what level you are on, but I can say to you----
Senator Tester. I will take that as a compliment.
Mr. Prioletti [continuing]. It was meant as a compliment,
sir. In this particular case, it is difficult for us to speak
on behalf of DOD, but as you mentioned, there are two points
here. One, in fact, they were in what were deemed at that time
sensitive positions.
Senator Tester. But they did not have a personal clearance.
They had not been vetted.
Mr. Prioletti. There is a difference between the sensitive
position and having a clearance, as we know, and the reason
that the position was considered sensitive is not based upon
whether they were going to have access to classified
information. It was whether the position could cause any type
of adverse impact to national security. And in this particular
case, if you have access to a food supply, you could, in fact,
have an adverse affect to national security, if that food
supply, in this particular case, is DOD.
Senator Tester. Would you think the folks down in the
Dirksen Service Southern Buffet are in sensitive positions?
They have access to food. I eat, as you can tell, more
regularly than I should there.
Mr. Prioletti. Again, sir, I would not comment on that last
statement, for sure. The designations are done by the
individual organizations and I would leave that to the
appropriate organization to determine.
Senator Tester. OK. So let us get back to where you are
going, and that is, you are laying down--ODNI and OPM are
laying down in concert, laying down some regulations that
agencies can follow, right? Once those regulations are laid
down, will you be able to tell me whether the folks down in the
server will be designated as sensitive positions?
Mr. Prioletti. Once the regulation is enacted, sir, it will
provide you much clearer guidance so that we have uniform
consistency across the determination factors, so that when you
are making a determination on a particular position, the
guidelines and the standards by which the position will be
judged against will be consistent across the U.S. Government.
Senator Tester. So regardless if you are working in the
Food and Drug Administration (FDA) or the Small Business
Administration (SBA), the same guidelines will apply, correct?
Mr. Prioletti. Well, sir, the CFR 1400 applies to the
competitive service. But the idea is to apply that eventually
across the U.S. Government for consistency.
Senator Tester. Just to get your point, I mean, once you
get the regulations down, they will apply across State--every
Federal agency equally, correct?
Mr. Prioletti. Yes, sir.
Senator Tester. OK. So who is going to make sure that the
agency actually utilizes--and I do not want to pick on you,
Brian. Tim, you can answer, too. Who is going to make sure that
the agency actually utilizes the rules that you promulgate?
Mr. Curry. Senator, I echo Brian's remarks. The idea here
is, the current rules at 5 CFR Part 732, they provide some very
general guidelines, where the proposed rule is providing
concrete examples, more detail.
Senator Tester. Got you.
Mr. Curry. And so, the goal here is to allow for more
precision in making a position sensitivity designation. So OPM
and ODNI both have oversight roles that they can assess how
agencies are implementing these rules. We expect to also
develop implementing guidance and also update the position
designation tool which will also provide for more consistency
across the government.
Senator Tester. Got you.
Mr. Curry. And what we are trying to minimize is under
designation of positions where it might impact national
security and minimize over designation of positions which might
increase costs.
Senator Tester. OK. Where is the oversight of the agencies
to use the rules that you are putting down? Is it voluntary or
is somebody--where is the oversight coming from? That is the
question. The question is, you can put down the rules and if
they decide not to use them, you do not have rules, you do not
have consistency, you are not going to achieve the goals that I
think you want to achieve. So the question is, who has
oversight?
Mr. Prioletti. Sir, oversight is a dual role in this case.
Both OPM from the suitability side and ODNI from the security
exec side.
Senator Tester. So you are going to be--I mean, pick an
agency. Department of Justice (DOJ), CIA, DOD. You are going to
be providing oversight to see that they use those rules?
Mr. Prioletti. Yes, sir. That would be our responsibility.
Senator Tester. And so, we have how many sensitive
positions do we have? I have to be quiet here. I will come
back. Senator Portman.
Senator Portman. Thank you, Chairman. You will give them
time to think about that question.
Senator Tester. Exactly.
OPENING STATEMENT OF SENATOR PORTMAN
Senator Portman. Well, first, thanks for holding the
hearing. This is, as you all know, maybe our second hearing we
have held. There has also been a hearing at the full Committee
level on this same issue. I think we have acknowledged there is
a need for significant reform with regard to the security
clearance process.
This is not our last hearing, so we will continue to work
on this. We appreciate your being here and giving us some
input. Sorry I was a little late. This is kind of a crazy time
right now with the budget conference I am on and so on. But I
am pleased we have made a little progress, even in the last
couple of months.
We have a legislation that Senator Tester and I introduced
that actually passed called the SCORE Act, and it gives some
important oversight responsibilities on this to the Inspector
General (IG) at OPM, Mr. Curry, as I think you are familiar
with. We are actually working on additional legislation now
that we think will also be able to be moved pretty quickly
because this is bipartisan and I think it makes the system more
accountable and more efficient.
On the Defense Authorization Bill, which is on the floor
this week, we have an amendment that asks GAO to examine
quality metrics and reciprocity as it pertains to the process.
And along those same lines, we asked OMB's Performance
Accountability Council (PAC) to examine how we can improve the
processes for access to State and local law enforcement records
in the background investigation process.
That came out of the tragic incident at the Navy Yard with
Aaron Alexis. Some of you may have followed that. That came up
in one of our hearings. That again, better access to State and
local law enforcement records would have been very helpful in
that investigation, in the background investigation for him,
and it would be a way to shortcut some of these investigations.
Today, as we have heard, we are focusing more broadly on
the question of who should have access to information, how much
information should be classified, how can we more efficiently
and effectively again go through the clearance process. I have
appreciated your testimony. I have had a chance to hear from
some of you and look at some of your other testimony.
I am going to focus in on over classification because I
think that is one of our issues here. Ultimately, we are not
going to be able to keep up with the clearance process if we
continue to classify so much information. And so, I think we
need to get back to the root of the problem. And then if we
have time, I will also ask some more questions along the lines
the Chairman was asking.
But on over classification or on classification, not to
have a bias here, we have had, in our Committee hearings, and
in the full Committee hearing, this consistent theme come up
that there is more information being classified. It is a
concern, one, because it is hard for people we represent, our
constituents, to have access to this information to understand
how the government works and how it is conducting itself.
And two, if everything is classified, sort of nothing is
classified, in my view. I mean, to the extent you are not being
careful about what you prioritize, it is tough to protect
information that really is of national security importance.
I think, not making that information available to the
public might be one reason the national security sector
sometimes is interested in classifying, even when it might not
have a national security implication. So this Public Interest
Declassification Board (PIDB), which was established by
Congress back in 2000, has said that a single intelligence
agency classifies one petabyte of data every 18 months. That is
the equivalent of 20 million filing cabinets filled with text,
or approximately 13 years of high-definition video.
So that is a single intelligence agency classifying that
much every year-and-a-half. And so, I guess volume should not
be the only indication, the only metric we use, but that
certainly seems like a lot of information that, frankly, is
very tough to keep up with.
So starting with this notion of how much should we be
keeping under lock and key, I have a couple questions. And by
the way, the cost of this is growing, too. From 2001 to 2011,
that 10-year period, until a couple years ago, the cost went
from $4.7 billion to $13.6 billion a year. So now, $13.6--
$13.4--$13.36 billion a year in simply costs associated with
storing this vast amount of information.
And by the way, that does not include the over $1 billion
needed every year just to clear the personnel authorized to
have contact with this information, or to work with this
material.
So maybe starting with ODNI, Mr. Prioletti, appreciate your
being here today because I think you probably have the most
expertise on the national security side to be able to talk
about this. Do you think we are classifying too much, too
little, and talk a little bit about what goes into the
decisionmaking process for information to be labeled classified
or sensitive?
Mr. Prioletti. Thank you, Senator. I think what we do is
classify what we feel is necessary at the time. I do not
believe I am in a position to say whether we over classify or
not. The volume that you mentioned is epic, but there are
guidelines that are set specifically to determine what
information needs to be classified and that set of guidelines
are used to determine what information goes under a
classification or a non-classification status.
I think we are using those as judicially as possible. The
pace of business and the emerging threats environment that we
are working in necessitates that we look at information on a
daily basis and make that determination using those guidelines
that I referred to.
Senator Portman. And these new tools that we are talking
about, the new regulations and so on, is for determining
whether somebody has a position that should be designated as
sensitive. But you have also got tools that you are using to
try to determine whether something is classified or not.
And do you believe that the kind of tools that you have
available to you are appropriate to make those decisions?
Mr. Prioletti. Yes, sir, I believe they are appropriate,
but they are evolutionary in nature and change to meet the
changing environment in which we work in.
Senator Portman. So here is one of the other data points we
have from this PIDB, which is charged with looking at, how much
classified information we have and whether it is growing or
not. They are the ones that have indicated that it is growing
so dramatically from $4.7 billion to protect it, roughly 12
years ago, to over $11 billion today.
But they say that it would take two millions employees 1
year to review even one petabyte of information. And as I have
indicated, one petabyte of data is now being collected every 18
months by a single intelligence agency. So two millions
employees 1 year to review it. So obviously we do not have the
workforce to review that information. Is that a concern?
Mr. Prioletti. Sir, if you mean is there a concern over the
numbers that you just listed, or the lack of personnel to do--
--
Senator Portman. Well, I mean, it is not practical. I am
sure you guys would like a bigger budget, but there is not
going to be two million employees to review even this one
petabyte we talked about. I guess, just give me a sense of
whether ODNI is tackling this issue of declassification and
trying to ensure that we have the classification of materials,
but do not over classify.
And if not, how can this be justified? We are not going to
have the employees to be able to review that. It will not be
useful information. So what is ODNI's latest effort on
declassification?
Mr. Prioletti. Well, sir, what we do is we provide that
oversight and that guidance to the organizations, and as I
referred to the standards earlier before in one of your earlier
questions, that particular guidance is Executive Order 13526,
which lays out the standards for classifying information, and
basically that information is tied to two areas.
It is tied to potential damage to national security in the
event of an unauthorized disclosure, and what that damage would
be to national security. And that is the overriding guidance
that is provided to organizations. EO-13526 is looked at on a
periodic basis to see if there is any need for change. And that
is how we continue to provide oversight to the organizations.
Senator Portman. OK. Let me take you off the hot seat for a
minute and go to Brenda Farrell, if she would comment on it,
from a sort of oversight perspective, more general perspective.
Do you think it is a problem of over classification, and if so,
do you think ODNI and others are doing the right things to try
to de-classify information so it is more useful?
Ms. Farrell. GAO, as noted earlier, has looked at the area
of what is in place for classified material, but it has been
several years. We have just initiated work in this area and I
would be more than happy to have that team come and explain the
scope of that work to you or your staff if you would like.
Senator Portman. And is GAO doing a specific research
project on this issue of classification?
Ms. Farrell. Yes.
Senator Portman. That would be terrific if you could
provide the Subcommittee with that and that may be the subject
of a future hearing.
Ms. Canterbury, you talked about it earlier. You mentioned,
as I recall, that you think that the legislative branch
provides too much deference to the executive branch on
classification. Can you tell us why you think that and what you
think ought to be done?
Ms. Canterbury. Well, I think it is on a range of issues. I
think classification is one of them. I think the national
security claim is being used in more and more contexts now, and
it sounds to me like the executive branch itself is not
conducting proper oversight. And I thank you very much for this
hearing because this is such a--and the previous hearings that
you have had in this area because I think it has been long
overdue.
So now, all of this congressional attention in this space,
hopefully, will spur some action and create some internal
controls that are really lacking.
Senator Portman. Thank you. My time is over. I appreciate
you all being here today. And again, this is just another
hearing in our attempt to try to get at this issue, not just of
over classification of material, but also on the security
clearance process and how do you make it more efficient and
more effective to avoid the problems we saw at the Navy Yard.
So thank you, Mr. Chairman.
Senator Tester. Thank you, Senator Portman. I appreciate
your work on this issue. I know you are busy. Appreciate your
being here while you can. So thank you.
I am going to go back to where I left off, and that was, we
were talking about sensitive positions. We were talking about
security clearances for people, both those issues. This is for
anybody and if more than one of you want to answer, you can.
How many sensitive positions have been designated?
Mr. Curry. Senator, it is difficult to estimate the number
of sensitive positions across the government, but I would note
that the number of sensitive positions does not necessarily
equate to the number of security clearances, because not only
our regulations are dealing with competitive service employees.
We also have excepted service in the Federal Government. And,
of course, security clearances apply to excepted service
employees as well as contractors.
Senator Tester. I got it.
Mr. Curry. It is difficult to estimate that right now.
Senator Tester. David.
Mr. Borer. Mr. Chairman, yes, it is impossible probably to
estimate, but under the proposed regulations, virtually anybody
in the Department of Defense could be designated as holding a
sensitive position. So we are talking about hundreds of
thousands of employees who are being potentially denied MSPB
rights.
Now, let me illuminate something based on what you said
earlier, that the Conyers and the regulations are so insidious
for two more reasons we have not discussed today. One is that
Conyers and Northover were both serving in their positions for
years before their position was suddenly re-designated as a
sensitive position.
And with that re-designation, they were suddenly
scrutinized for their credit ratings and, summarily brought
before the agency and action was taken that was later deemed
unreviewable. So that is one thing which fine public servants,
long service, no problem at all, it is invisible to the
government what their credit looks like, who cares, and
suddenly with this stroke of a pen, they are hauled into this
process.
Second, because it is unreviewable, we have not even been
told to this day what it was about Mr. Northover's or Ms.
Conyers' positions that merited this kind of treatment. The
government, at some point in the Northover case, mumbled
something to the effect that, Well, he might be able to tell
how many sunglasses we were ordering. I fail to see, as I am
sure the Chairman does, how that is a security risk to the
Nation, unless we are rolling out an amphibious assault on the
city of Seattle where the sun never shines.
Senator Tester. Go ahead, Brenda.
Ms. Farrell. Mr. Chairman, our work that we conducted in
2011 and 2012 found that there was a lack of guidance to help
determine the sensitivity. The current 732 was in place, but it
was very broad. And, of course, in our work at DOD and DHS, we
repeatedly had officials tell us that the definition was so
broad that it could capture just about any Federal position.
So the steps that have been taken to put some parameters
around that is much needed. It is not to say that by itself,
that Federal regulation can answer the mail, but it is a start.
Senator Tester. You are talking about the one that was
initially put on the books, or are you talking about the one
that was presented in May 2010?
Ms. Farrell. May 2010, which does repeat quite a bit of
what was previously put on the books. The difference is, some
of the problems that we discovered in 2011 and 2012 was that
the ODNI had not taken an active involvement with OPM in this
particular area, and that was due to their evolving roles, that
they both received their respective designations which was ODNI
as Security Executive Agent, and OPM as the Suitability Agent
in 2008.
So there was a period when they have been determining
exactly how their roles would interrelate.
Senator Tester. OK. And I may not have the month right, but
I think it was May 2010. Is that right? Or is it December 2010?
Mr. Curry. I can. Senator, the original regulation was
proposed in December 2010.
Senator Tester. OK. Good enough.
Mr. Curry. And I would like to clarify a point----
Senator Tester. Go ahead.
Mr. Curry [continuing]. With regard to every position in
DOD being designated as sensitive. As we noted in the
explanation in the supplemental of that proposed rule in
December 2010, each position designation is going to be based
on a review of each individual position based on their duties
and nature of their work, not a broad class of the employees
across an agency based on their mission.
Senator Tester. Mr. Borer can speak for himself, but I am
not sure that he said that. I think what he said was if you
could take each position and designate it, you could literally
designate the whole DOD.
Let me get to the rule of 2010, which--and I do not want to
put words in your mouth, Brenda--you said was not adequate. Am
I correct?
Ms. Farrell. Well, it did not have the involvement of ODNI
and the DNI is the Security Executive Agent responsible for
making sure there is uniform policy, and now the current
proposed regulation does acknowledge the DNI's role.
Senator Tester. So ODNI is involved now?
Ms. Farrell. Yes.
Senator Tester. Does that make the rule--have you seen the
rule, the February 14th, the rule that they were going to get
put in stone? Have you seen that rule?
Ms. Farrell. The current proposed regulation?
Senator Tester. Yes.
Ms. Farrell. Yes. And it does----
Senator Tester. Is that adequate?
Ms. Farrell. By itself, no. And the rule does note that
implementation guidelines are the responsibility of ODNI with
OPM----
Senator Tester. Right.
Ms. Farrell [continuing]. And that is definitely what will
be needed to make sure that there is the oversight you are
talking about, and quality controls in place for the agencies
to implement it.
Senator Tester. But ultimately in the end, is it giving the
agencies the kind of guidance they need to develop some
uniformity? Does it give them the metrics to both determine
which positions need to be designated as sensitive? And I
assume it deals with security clearances, too?
Ms. Farrell. It provides more detail. Some of it is very
similar to the old rule in terms of the definition of national
security positions.
Senator Tester. Was the old rule adequate as far as that
goes?
Ms. Farrell. Apparently not based on the work that we
conducted in 2011 and 2012 because it was so broad the agencies
had difficulty interpreting it.
Senator Tester. So where are we heading here? Are we
heading here back to the same spot? I mean, the new rule is
very similar to the old rule and the old rule was not adequate?
Ms. Farrell. Well, the new rule does expand on the
definition of national security positions. It includes some of
the key positions that were named, but then it tweaks it and it
expands much more so.
Senator Tester. Still not adequate?
Ms. Farrell. I do not know. I do not know because----
Senator Tester. I thought you said there were studies that
were done in 2010 and 2011 that said it was not adequate.
Ms. Farrell. When we did our review that we issued last
year, we found that the guidance not adequate to help the
agencies determine the suitability of positions.
Senator Tester. OK.
Ms. Farrell. The 2010 proposed rule was never implemented.
Senator Tester. OK. David, you had something else?
Mr. Borer. Yes, Mr. Chairman. The new rule, the new version
of the rules that were published in 2010 omit key provisions
that talk about what the agencies have to do in order to
designate a position as a national security position.
The 2010 rule would have required an affirmative
determination that the occupant could cause a material, adverse
effect on national security. That has been deleted. So there is
no direction, and certainly it will be easier for the agencies
if they do not have to make that hurdle.
Senator Tester. OK.
Mr. Borer. As you talk about oversight, for our money, the
oversight that is required here is MSPB review on the back end.
Senator Tester. Yes. Tim, you want to talk about that for a
second? Why was that deleted?
Mr. Curry. Yes. Senator, OPM and ODNI, by these regulations
and by our implementing guidance, will provide detail on
uniformity and consistency across the government. But under the
Executive Order 10450, each agency has had responsibility to
make the position designation.
So what we are trying to do is assist them in exercising
their authority by trying to ensure uniformity across the
government.
Senator Tester. So why would material, adverse effect be
taken out of the rule?
Mr. Curry. No, sir, that is a requirement of the Executive
Order. This rule is implementing that Executive Order.
Senator Tester. OK. Getting back to the part about
different agencies, and you are right, the head makes that
call. Are they bound by anything other than just their respect
for you to utilize the rules that you put forth?
Mr. Curry. Well----
Senator Tester. The agencies, yes.
Mr. Curry. For purposes of consistency, yes, they will
apply these rules, but they ultimately make the designation
themselves.
Senator Tester. Just to be clear, and this is not picking
on anybody here. To be clear, the agencies can determine
whether to use or whether to go their own way when it comes to
those designations?
Mr. Curry. No, sir.
Senator Tester. They have to use your rules?
Mr. Curry. They have to use our rules, but they make the
ultimate final decision when applying these rules.
Senator Tester. OK.
Mr. Curry. And, Senator, just for clarification, when they
are applying these rules, they are in the best position to look
at the positions in their agencies, the nature of those duties
of that position, and determine the adverse impact on national
security if there is action, inaction, or neglect to duty by
the person in that job.
Senator Tester. OK.
Mr. Borer. Mr. Chairman.
Senator Tester. Yes, sir.
Mr. Borer. Just so there is no misconception on the part of
the Committee about the consistency and the integrity of this
process, I would point out that in Ms. Conyers' case,
Northover's agency reversed itself and cited, expressly cited,
the pending litigation as the reason why they were going to
drop the re-designation of her position.
And in Mr. Northover's case, he was later restored to this
position as a result of an unrelated Equal Employment
Opportunity (EEO) claim and has since been promoted. So we can
talk about consistency and about applying rules and so forth.
The reality is on a ground level at these agencies, it does not
happen. These managers are manipulating the process.
Senator Tester. I hear you. Look, what I want to get to is
I want to make sure that--and I think that Angela brought this
up in her opening statement--cost oversight, due process, all
those things need to be handled. And I am an open government
guy. I think the more transparent government is, the better
government works.
I also understand that there are people who want to do a
lot of harm to this country, so we have to make sure that the
folks that really do have access to sensitive information are
properly vetted. Why we do not know how many sensitive
positions are classified within government is disturbing to me,
and maybe I should not feel that way, but I do.
I think that if we have agencies out there that are
arbitrarily--and I know that was part of the goal for the rule,
is to get rid of the arbitrary nature of designations, but if
they can still do that and the only person that knows that
without a doubt are you guys, probably everybody at the table,
as a matter of fact.
But if they can arbitrarily do what they want as far as
determining which positions are sensitive, because they can
find something out there that would do that--I mean, the
example of food was a fine example because we all eat--why--I
guess the question is, are we going to end up with another
Snowden incident or another Naval Yard shooter incident,
because we have so many of these things to do that folks end up
cutting corners in the process?
I do not mean to verbalize too much about this. Angela
brought it up. I mean, the fact is, we have a situation where
we have so many people out here with security clearances that
corners are being cut now to get those clearances done.
And a person could deny that, but the proof is in the
pudding and look what happened with Alexis. So I guess
oversight by the legislative branch is something that I think
we ought to take back a lot of the power that we have to make
three equal branches of government and hearings like this help.
Any other suggestions that you might have, Angela, as far
as what we could do here to make sure that the rules that ODNI
and OPM are putting in place actually do what I think you guys
want them to do; and yet, does not break the bank, protects due
process of workers, and, go ahead.
Ms. Canterbury. Thank you very much, Chairman. First and
most importantly, Congress is going to have to fix the law and
make sure that these civil servants and whistleblowers have
access to review at the Merit Systems Protection Board. That is
an absolute first must.
Second, these positions need to be better understood and
categorized before a proposed rule, before a finalized rule. It
should have been done before the proposed rule, in our
estimation. I might suggest a process similar to that with the
analogous information.
We had all of these strange, secret markings that
proliferated. Right? And the agencies were just marking things
for official use only, secret but unclassified, and so, the
Obama Administration put together a process to try to rein that
in and have some rationale for information that is not
classified, but is controlled but unclassified.
And so, an inventory took place. I might recommend
something along those lines for these positions. If we really
want to get a handle on legitimate designations, then tell us
what those are. I mean, I am a little confused like you. Like,
if there is not a security clearance, then what are the
legitimate designations for national security? Tell us,
agencies, and then base a rule upon that designation.
Senator Tester. You are saying tell us what the metrics are
for determining the position?
Ms. Canterbury. Yes, absolutely, and which positions you
are using now, and have a really good, thorough look at whether
or not those can be streamlined into very narrow, very specific
concrete categories so that the agencies do not have wiggle
room.
Then you need to have some oversight over that process. OPM
has not been doing its job. They were given responsibility by
President Eisenhower in Executive Order 10450 and they are
supposed to be overseeing how the agencies designate these.
I mean, what we have heard today is they are just letting
them do whatever, and after this rule, they also will be
completely deferential to the heads of these agencies. They
have no plans to go back and check whether or not their rule
will be applied properly.
Senator Tester. OK. I will let you respond to that, Tim.
Mr. Curry. Well, as I noted earlier, OPM and ODNI do have
the joint oversight rule with regard to these rules and there
will be oversight and assessment of how the agencies are
applying these rules. So I would respectfully disagree with
that.
Senator Tester. OK. And excuse me for not knowing this
answer. Are there metrics within the rule?
Mr. Curry. OK. I am consulting with my advisor.
Senator Tester. That is perfectly all right. I do the same
thing.
Mr. Curry. There are reporting requirements, so based on
the reporting requirements, we can learn information on how
they are implementing this, but there is no specific metrics.
Senator Tester. So if there are not metrics in the rule, do
you have metrics to know that they are implementing the rule in
a way that it is intended?
Mr. Curry. OK, sir. Just what we are proposing in the rule
is to comply with process efficiency requirements. Additional
data may be collected from agencies conducting investigations
or taking action under this part. These collections will be
identified in separate OPM guidance issued as necessary under 5
CFR 732.103, which is our current regulations which deal with
national security positions.
So there is an opportunity for us that we would collect
additional data.
Senator Tester. OK. So do you feel confident that what you
have done with the rule and your ability to collect additional
data and you have the manpower to be able to ensure that
security clearances are given to those who only absolutely need
them?
Mr. Curry. Well, I would note that this rule is unrelated
to security clearances. It is only related to position
sensitivity designation, so I would have to defer to Mr.
Prioletti on security clearances.
Senator Tester. That is fine. Apply it to the designation
of the position.
Mr. Curry. Well, in addition to the rules and the
implementing guidance and the updates to the position
designation tool, those are tools that are going to help the
agencies in making those designations being consistent. There
will be training that is offered by our Federal Investigative
Services and that training will be updated for agencies to,
again, assist agencies when they are making those
determinations.
Senator Tester. So putting that in Montana talk, do you
have the ability then to make sure that the positions that are
classified are positions that necessarily need to be
classified?
Mr. Curry. Sir, I cannot answer that question right now. I
think as we are developing implementing guidance, those are
kind of----
Senator Tester. Is that a goal the Department--I do not
want to----
Mr. Curry. We certainly, as part of our oversight
responsibilities, would want to ensure that the proper
designations are being made.
Senator Tester. OK. Brian, do you want to speak about the
security clearance angle for the same group of questions as far
as making sure that the folks who absolutely need them get them
and folks who do not, do not?
Mr. Prioletti. Right. I agree with what Mr. Curry had
mentioned. The CFR 1400 that we were originally talking about
here was, in fact, the position designation tool, not a
security clearance tool.
And if I may speak to what Angela mentioned earlier, asking
for more detail, that is exactly what the proposed rule would
do. It would provide more detail to the organizations in terms
of guidance on how to determine those designations of the
positions. And we believe that this rule will get us a lot
farther than we were in the past.
This is not new, sir. As we mentioned in our testimony, all
of us mentioned, designation of positions has been going on
since 1953 and it is an evolutionary process, and I think we
continue to build and make a better product to address those
issues.
Senator Tester. Got you. I want to talk about security
clearances for people, though. OK? That is part of the other
part of this, because we have five million of them, 1.4 million
top secret. Is there anything being done in that realm to make
sure that the people who need them have them and the folks that
do not need them do not have them?
I do not know about you, but five million seems like a heck
of a lot of folks to have a security clearance, and 1.4 million
top secret security clearances seems like a pile. That is more
than live in the State in Montana by about 40 percent. Can you
give me an idea on, if there is any metrics or any advice, any
guidance that is being to agencies on that?
Mr. Prioletti. Sir, we have existing guidance under 12968
and 13467 Executive Orders.
Senator Tester. How old are those rules?
Mr. Prioletti. 12968 was amended in 1995 and 13467 came out
in 2008, so they are not quite as old as 10450.
Senator Tester. Right.
Mr. Prioletti. And those are the guidelines that are given
to all organizations to determine clearance-granting for
individuals. It includes your adjudicative guidelines, it
includes your investigative guidelines, and those are what are
used by all organizations to make a determination if a security
clearance is required for an individual or not.
Senator Tester. In your opinion, is that adequate? Are we
making sure that security clearances are going to those who
absolutely need that access to that information to be able to
do their jobs?
Mr. Prioletti. Yes, sir, I believe they are, because they
are continually reviewed and revisited to ensure that they are
meeting today's environment in which we work.
Senator Tester. Brenda, I want to get back to the rules and
codification of them. Do you think there is a worth in
codifying the guidance, the updated guidance along with quality
controls, periodic reviews, guidance beyond the 24 months
proposed in the rule? Do you think codification is a good thing
in this case or do you think it is not necessary?
Ms. Farrell. What we do see missing is the periodic
reassessments. There will be a one-time assessment that the
agencies would be required to conduct within 2 years after the
rule is finalized. But periodic reviews are still a missing
piece. We still do not know what the implementation guidelines
will provide--which I agree, which should be developed after
the rule. But the implementation guidelines will be critical in
order to understand what the oversight will be and what the
quality controls will be used for oversight.
The rule, the proposed rule is an improvement over the
current rule. The current rule, again, is so broad it is
subject to interpretation across the board. The proposed rule
does provide more information to help the agencies. But again,
by itself and without proper oversight, it is still unknown
whether this will increase the number of clearances, decrease
the number of clearances, or whether there will be some other
issues, as some of the panel members have raised.
Senator Tester. OK. Well, I think we will wrap this up. I
want to thank everybody for being a part of the hearing. Look,
I will just say this. If we are going to--hopefully, we all
have the same goals and I think they were goals that set out
that I think Angela put forth in her opening statement, and if
she did not do maybe somebody else did that dealt with cost and
due process and oversight and all that stuff, over
classification.
If those are not the goals, then somebody has to tell me
what the goals are, because those ought to be the goals. I
think the only way we are going to get to a position where, No.
1, this does not break the bank and that we can do a good job
really classifying the positions that need to be classified, is
we really laser in and give these agencies some directive and
have oversight to make sure that they are following your
directives.
I am not sure that is going to happen, but I can tell you
that if it does not happen, these kind of sessions are not
going to stop; they are going to continue. These Committee
hearings and asking folks to be accountable for what is going
on are going to continue.
So I would just say that if there are ideas, either from
the private sector, non-profit sector, from the union groups or
from the agencies, that we can help you with to be able to help
you do your job to make sure that we are able to achieve what
we are trying to get here with truly having positions that are
designated sensitive that need to be designated sensitive, and
not because it is convenient to designate them as sensitive for
some other reason.
Or the same thing with security clearances, making sure
that the folks who have them need them and they are not just
handed out like candy at Halloween. I think it is really going
to be important. And so, I will offer, as Chairman of this
Committee, and I know Senator Portman will do his level best,
too, to make sure that we fix what I think is a very serious
problem that I talked about in my opening remarks.
I would just say that this will only get fixed if we work
together, and I mean between branches on this and with the
private sector.
So I just want to thank you all for being here. This
afternoon I am going to be introducing legislation, the
Clearance Accountability and Reform Enhancement Act, along with
Ranking Member Portman, McCaskill, and Johnson and others to
bring more accountability the security clearance process.
Hopefully that will help you do your job.
A key part of this legislation will require an updated
guidance to agencies, along with quality controls, from you
folks, OPM and ODNI, who will require periodic reviews and
guidance to ensure it is regularly updated to reflect our
current requirements.
I would argue, in fact, that there is a lack of clear
guidance that has led us down a path where we now have five
millions folks with security clearances and access to our
Nation's most sensitive information and facilities. Would you
like to speak about that, Brian? Go ahead.
Mr. Prioletti. Sir, if I may?
Senator Tester. Sure.
Mr. Prioletti. And I do not mean to interrupt.
Senator Tester. No.
Mr. Prioletti. I just wanted to clarify, we are very
sensitive to what you say about that number, and the five
million number that you are referring to covers both people
with security clearances as well as people eligible for access.
And being sensitive to that number, as you mentioned, five
million of anything is a lot.
Senator Tester. That is.
Mr. Prioletti. And because of that, recently, and speak of
the devil, as you mentioned, on Halloween, the DNI signed an
Executive Correspondence going out to all the government
agencies stating that they are required to go through their
clearance lists, validate the numbers, come back with the
people who are being debriefed from their clearances, and get
back with us with that information.
Senator Tester. When will they get back to you with that
information?
Mr. Prioletti. They were given 90 days, sir.
Senator Tester. And you did it on Halloween, OK. Well, my
next question would be, if there are five million that either
have clearances or are eligible, how many have clearances? And
you will have that in about, what, 75 days or so? OK. That is
good. Right?
Mr. Prioletti. Yes, sir.
Senator Tester. Would love to have that as soon as you get
it.
Anyway, I look forward to working with the folks that are
on this panel today and I want to express my appreciation for
you being here. I think it was a worthwhile discussion about
where we are and, potentially, where we are going. And I look
forward to working with my colleagues on this Subcommittee and
throughout the Senate to get legislation on this done.
I am confident that in a time of hyper-partisanship that we
can act responsibly and put the partisanship aside and
buildupon the passage of the SCORE Act and take further steps
to improve the security clearance process for the security of
this country.
And so, with that, I will say this record will remain open
for 15 days for any additional comments or questions that might
want to be submitted. Once again, thanks to the panel for being
here. This Committee meeting is adjourned.
[Whereupon, at 3:29 p.m., the hearing was adjourned.]
A P P E N D I X
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