APPENDIX B. STATEMENT OF COMMISSIONER CHAYES ON PROCEDURAL SAFEGUARDS
I support the conclusion, reached in the main text, that the procedural safeguards
available to military personnel and DoD civilians facing denial or revocation of security
clearances should be the same. I would go further, however, in urging that different
treatment for DoD government and contractor personnel also be eliminated. Elementary
fairness requires that we provide uniform treatment for both classes of people.
Reaching this state of affairs requires that we bridge the gap between the two sets of
procedures currently in place. For many of the reasons stated in the main text, the formal
trial-like procedures, using the Federal Rules of Evidence as a guide, and available to
anyone who requests it, whether or not there are any factual disputes that need to be
resolved represents procedural overkill. And while the process is perhaps more expensive,
and time and labor intensive than necessary at the front end, it is less generous than it
ought to be at the appeals stage.
A common set of procedures for both government and contractor personnel should require
provision of a full and complete statement of the reasons for the proposed denial or
revocation and a clear statement about the right to counsel at all stages of an appeal.
Appeal of the denial of an initial clearance should be decided upon a written response
without an oral hearing. Broader rights should be provided in cases involving the
revocation of a clearance or the denial of a higher clearance. In these cases, so long as
the person claims there is a factual dispute, there should be the right to an informal
hearing before a hearing officer who neither has any involvement in the issue nor is
within the chain of command of those responsible for the clearance adjudication. The
hearing should resemble an informal arbitration, with a transcript and the right to call
and examine witnesses. The Federal Rules of Evidence should not be used and the process
should be expected to take one day or less.
A second, written appeal should be available in all cases. A board established to
review these appeals should not be limited to strict scope-of-review limits but should be
free to take a fresh look at the case in reaching its decision.
To proceed to Appendix C click here.
To proceed to Appendix D click here.
To proceed to Appendix E click here.
|