Security Clearance Conundrum: The Need For Reform And Judicial Review

Heidi Gilchrist*

Imagine you arrive at work as a scientist at one of the country‘s foremost labs after twenty years of service. You are sipping your coffee when security arrives and informs you that your security clearance has been revoked and therefore, you are no longer authorized to work there, or even be in the building. When you ask why you have lost your security clearance, and thus your job, the answer is you are a national security risk and it would even be a threat to national security to tell you why. You try to appeal the decision, but you are told it is final. You think to yourself, I am an American, I have certain indelible rights, so you go to an attorney. You take the agency you work for to court, the court tells you that it is very sorry but no one has a right to a security clearance because matters of national security are committed to the Executive Branch, and the court cannot examine the merits of a security clearance decision. Your scientific research and expertise involve national security and there are no jobs that you are qualified for that would not require a clearance. You think to yourself, now what? This is not fiction, this is the current law of national security clearances.

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* Assistant Professor of Legal Writing at Brooklyn Law School; Lecturer-in-Law at Columbia Law School. The author would like to thank Heidi Brown, Brandon Garrett, Stephen Gottlieb, Carol McIver, Dwayne Shivnarain, and the participants in the Sharing Scholarship Workshop at Albany Law School for their incredibly thoughtful and helpful comments. She would also like to thank Alexa Bordner for her excellent research assistance.

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