APPENDIX B. STATEMENT OF COMMISSIONER CHAYES ON PROCEDURAL SAFEGUARDS

I support the conclusion">

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.

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