District Attorney Bruce Brown: Trump, security clearance revocations and the courts (column)
August 22, 2018
Time and again, the federal courts, whose powers are outlined in Article 3 of the U.S. Constitution, have blocked questionable actions of the Trump administration including overturning or requiring the president to depart from his chosen course of action precluding immigration from Muslim countries and separating migrant children from their parents. The actions taken by federal district courts has enhanced the reputation of the judiciary, often overlooked by the American public as a power center.
Now, President Trump endeavors to curtail the access of his perceived political opponents, trodding upon their free speech rights unimpeded by any constitutional arbiter. Those targeted are former executive branch and intelligence community employees who have publicly voiced disagreement with Trump's policies. Will the administration's revocation of security clearances of former officials soon be tested in the courts?
A security clearance is granted for a term of years depending upon the holder's job classification within categories dependent upon the sensitivity associated with the information given access to.
The first former official whose security clearance has been revoked by Trump is John Brennan, a former CIA director under President Obama and the director of the National Counterterrorism Center under President George W. Bush. The Presidential directive revoking Brennan's security clearance cited Brennan's work supporting Russian interference in the 2016 election (the Steele dossier), and specifically noted Brennan's public criticism of the administration based upon the president's "constitutional authority." While presidential power regarding national security is broad, it is not limitless. At this point, the question is probably not if a federal court will be asked to weigh in on the question of lawful withdrawal of Brennan's security clearance, but when. Given the president's threatened revocation of other official's clearances, if it is not Brennan, then it is likely that another former official will challenge the president's prerogative.
When the United States Supreme Court has weighed in on the question previously, the analytical touchstone is a constitutional command that the president is the commander in chief, and therefore great deference is given to classify and control access to information bearing on national security, including determining whether an individual is sufficiently trustworthy to hold security clearance credentials. Much like the 1944 court decision allowing Japanese Americans to be interned in Korematsu v. United States, the Supreme Court at times has been willing to cede great power to the executive, even isolating minorities in internment camps.
Sadly, another case that may serve as precedent centered upon the executive branches authority to discharge a Central Intelligence Agency employee because he was homosexual. The Supreme Court restrained the agency from a general prescription against homosexuals, suggesting that a Court reviewing Trump's attack on free speech might result in restricting presidential power in the realm of national security when the primary purpose is to punish political opponents from speaking out.
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Even in times when there were no national crises, such as war, the courts have been reluctant to restrain presidential power in matters related to national security. However, that deference is not absolute, and it is conceivable that the motives of this president will be examined in court because the stated justification in the order revoking Brennan's classification makes explicit reference to his public criticism of the administration. This is overt swipe at the constitutional right to free speech, guaranteed by the First Amendment to the Constitution.
While many public servants have been known to keep a copy of the Constitution close at hand, it is clear that this president does not respect it and his words and actions highlight his contempt for the right to free speech. Since it is unlikely that this congress will take steps to limit Trump's imperial tendencies, the nation will be relying on the judiciary to restore constitutional sanity to governance.
The presidential order revoking Brennan's security clearance credentials is premised upon purported national security aims. In truth, if such directives are to stand, our national security interests will be undermined. National security is not an excuse to discourage dissenting opinions, the obvious intent of the order. True security can only be achieved when our political system is flexible enough to accept contrasting views and opinions. Ironically, Trump's efforts to smother dissent is the central threat to our national security.
Since 2013 Bruce Brown has been the District Attorney for the 5th Judicial District, consisting of Clear Creek, Eagle, Lake and Summit Counties. He can be reached at firstname.lastname@example.org.
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