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[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 838 Introduced in Senate (IS)]

<DOC>

116th CONGRESS
  1st Session
                                 S. 838

To protect integrity, fairness, and objectivity in decisions regarding 
       access to classified information, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             March 14, 2019

Mr. Warner (for himself and Ms. Collins) introduced the following bill; 
     which was read twice and referred to the Select Committee on 
                              Intelligence

_______________________________________________________________________

                                 A BILL

 
To protect integrity, fairness, and objectivity in decisions regarding 
       access to classified information, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. EXCLUSIVITY, CONSISTENCY, AND TRANSPARENCY IN SECURITY 
              CLEARANCE PROCEDURES AND RIGHT TO APPEAL.

    (a) Exclusivity of Procedures.--Section 801 of the National 
Security Act of 1947 (50 U.S.C. 3161) is amended by adding at the end 
the following:
    ``(c) Exclusivity.--Except as provided in subsection (b) and 
subject to sections 801A and 801B, the procedures established pursuant 
to subsection (a) shall be the exclusive procedures by which decisions 
about access to classified information are governed.''.
    (b) Transparency.--Such section is further amended by adding at the 
end the following:
    ``(d) Publication.--
            ``(1) In general.--Not later than 180 days after the date 
        of the enactment of this subsection, the President shall 
        publish in the Federal Register the procedures established 
        pursuant to subsection (a).
            ``(2) Updates.--Whenever the President makes a revision to 
        a procedure established pursuant to subsection (a), the 
        President shall publish such revision in the Federal Register 
        not later than 30 days before the date on which the revision 
        becomes effective.''.
    (c) Consistency.--
            (1) In general.--Title VIII of the National Security Act of 
        1947 (50 U.S.C. 3161 et seq.) is amended by inserting after 
        section 801 the following:

``SEC. 801A. DECISIONS RELATING TO ACCESS TO CLASSIFIED INFORMATION.

    ``(a) Definitions.--In this section:
            ``(1) Agency.--The term `agency' has the meaning given the 
        term `Executive agency' in section 105 of title 5, United 
        States Code.
            ``(2) Classified information.--The term `classified 
        information' includes sensitive compartmented information, 
        restricted data, restricted handling information, and other 
        compartmented information.
            ``(3) Eligibility for access to classified information.--
        The term `eligibility for access to classified information' has 
        the meaning given such term in the procedures established 
        pursuant to section 801(a).
    ``(b) In General.--Each head of an agency that makes a 
determination for eligibility for access to classified information 
shall ensure that in making the determination, the head of the agency 
or any person acting on behalf of the agency--
            ``(1) does not violate any right or protection enshrined in 
        the Constitution of the United States, including rights 
        articulated in the First, Fifth, and Fourteenth Amendments;
            ``(2) does not discriminate for or against an individual on 
        the basis of race, color, religion, sex, national origin, age, 
        or handicap;
            ``(3) is not carrying out retaliation for political 
        activities or beliefs or a coercion or reprisal described in 
        section 2302(b)(3) of title 5, United States Code; and
            ``(4) does not violate section 3001(j)(1) of the 
        Intelligence Reform and Terrorism Prevention Act of 2004 (50 
        U.S.C. 3341(j)(1)).''.
            (2) Clerical amendment.--The table of contents in the 
        matter preceding section 2 of the National Security Act of 1947 
        (50 U.S.C. 3002) is amended by inserting after the item 
        relating to section 801 the following:

``Sec. 801A. Decisions relating to access to classified information.''.
    (d) Right To Appeal.--
            (1) In general.--Such title, as amended by subsection (c), 
        is further amended by inserting after section 801A the 
        following:

``SEC. 801B. RIGHT TO APPEAL.

    ``(a) Definitions.--In this section:
            ``(1) Agency.--The term `agency' has the meaning given the 
        term `Executive agency' in section 105 of title 5, United 
        States Code.
            ``(2) Covered person.--The term `covered person' means a 
        person, other than the President and Vice President, currently 
        or formerly employed by, detailed to, assigned to, or issued an 
        authorized conditional offer of employment for a position that 
        requires access to classified information by an agency, 
        including the following:
                    ``(A) A member of the Armed Forces.
                    ``(B) A civilian.
                    ``(C) An expert or consultant to an agency.
                    ``(D) Counsel or other representative retained by a 
                covered person.
                    ``(E) Any other category of person who acts for or 
                on behalf of an agency as determined by the head of the 
                agency.
            ``(3) Eligibility for access to classified information.--
        The term `eligibility for access to classified information' has 
        the meaning given such term in the procedures established 
        pursuant to section 801(a).
            ``(4) Need for access.--The term `need for access' has such 
        meaning as the President may define in the procedures 
        established pursuant to section 801(a).
            ``(5) Security executive agent.--The term `Security 
        Executive Agent' means the Director of National Intelligence 
        acting as the Security Executive Agent in accordance with 
        Executive Order 13467 (73 Fed. Reg. 38103; 50 U.S.C. 3161 note; 
        relating to reforming processes related to suitability for 
        government employment, fitness for contractor employees, and 
        eligibility for access to classified national security 
        information), or as otherwise defined in a subsequent provision 
        of law.
    ``(b) Agency Review.--
            ``(1) In general.--Not later than 180 days after the date 
        of the enactment of this section, each head of an agency shall, 
        consistent with the interest of national security, establish 
        and make publicly available a process by which a covered person 
        to whom eligibility for access to classified information was 
        denied or revoked by the agency can appeal that denial or 
        revocation within the agency.
            ``(2) Elements.--The process required by paragraph (1) 
        shall include the following:
                    ``(A) In the case of a covered person to whom 
                eligibility for access to classified information is 
                denied or revoked by an agency, the following:
                            ``(i) The head of the agency shall provide 
                        the covered person with a written--
                                    ``(I) detailed explanation of the 
                                basis for the denial or revocation as 
                                the head of the agency determines is 
                                consistent with the interests of 
                                national security and as permitted by 
                                other applicable provisions of law; and
                                    ``(II) notice of the right of the 
                                covered person to a hearing and appeal 
                                under this subsection.
                            ``(ii) Not later than 30 days after 
                        receiving a request from the covered person for 
                        copies of the documents that formed the basis 
                        of the agency's decision to revoke or deny, 
                        including the investigative file, the head of 
                        an agency shall provide to the covered person 
                        copies of such documents as--
                                    ``(I) the head of the agency 
                                determines is consistent with the 
                                interests of national security; and
                                    ``(II) permitted by other 
                                applicable provisions of law, 
                                including--
                                            ``(aa) section 552 of title 
                                        5, United States Code (commonly 
                                        known as the `Freedom of 
                                        Information Act');
                                            ``(bb) section 552a of such 
                                        title (commonly known as the 
                                        `Privacy Act of 1974'); and
                                            ``(cc) such other 
                                        provisions of law relating to 
                                        the protection of confidential 
                                        sources and privacy of 
                                        individuals.
                            ``(iii)(I) The covered person shall have 
                        the opportunity to retain counsel or other 
                        representation at the covered person's expense.
                            ``(II) Upon the request of the covered 
                        person, and a showing that the ability to 
                        review classified information is essential to 
                        the resolution of an appeal under this 
                        subsection, counsel or other representation 
                        retained under this clause shall be considered 
                        for access to classified information for the 
                        limited purposes of such appeal.
                            ``(iv)(I) The head of the agency shall 
                        provide the covered person an opportunity, at a 
                        point in the process determined by the agency 
                        head--
                                    ``(aa) to appear personally before 
                                an adjudicative or other authority, 
                                other than the investigating entity, 
                                and to present to such authority 
                                relevant documents, materials, and 
                                information, including evidence that 
                                past problems relating to the denial or 
                                revocation have been overcome or 
                                sufficiently mitigated; and
                                    ``(bb) to call and cross-examine 
                                witnesses before such authority, unless 
                                the head of the agency determines that 
                                calling and cross-examining witnesses 
                                is not consistent with the interests of 
                                national security.
                            ``(II) The head of the agency shall make, 
                        as part of the security record of the covered 
                        person, a written summary, transcript, or 
                        recording of any appearance under item (aa) of 
                        subclause (I) or calling or cross-examining of 
                        witnesses under item (bb) of such subclause.
                            ``(v) On or before the date that is 30 days 
                        after the date on which the covered person 
                        receives copies of documents under clause (ii), 
                        the covered person may request a hearing of the 
                        decision to deny or revoke by filing a written 
                        appeal with the head of the agency.
                    ``(B) A requirement that each review of a decision 
                under this subsection is completed on average not later 
                than 180 days after the date on which a hearing is 
                requested under subparagraph (A)(v).
            ``(3) Agency review panels.--
                    ``(A) In general.--Each head of an agency shall 
                establish an independent panel to hear and review 
                appeals under this subsection.
                    ``(B) Membership.--
                            ``(i) Composition.--Each independent panel 
                        established by the head of an agency under 
                        subparagraph (A) shall be composed of at least 
                        three employees of the agency selected by the 
                        head, two of whom shall not be members of the 
                        security field.
                            ``(ii) Terms.--A term of service on an 
                        independent panel established by the head of an 
                        agency under subparagraph (A) shall not exceed 
                        2 years.
                    ``(C) Decisions.--
                            ``(i) Written.--Each decision of a panel 
                        established under subparagraph (A) shall be in 
                        writing and contain a justification of the 
                        decision.
                            ``(ii) Consistency.--Each head of an agency 
                        that establishes a panel under subparagraph (A) 
                        shall ensure that each decision of the panel is 
                        consistent with the interests of national 
                        security and applicable provisions of law.
                            ``(iii) Finality.--Each decision of a panel 
                        established under subparagraph (A) shall be 
                        final but subject to appeal and review under 
                        subsection (c).
                    ``(D) Access to classified information.--The head 
                of an agency that establishes a panel under 
                subparagraph (A) shall afford access to classified 
                information to the members of the panel as the head 
                determines--
                            ``(i) necessary for the panel to hear and 
                        review an appeal under this subsection; and
                            ``(ii) consistent with the interests of 
                        national security.
            ``(4) Corrective action.--
                    ``(A) In general.--If, in the course of proceedings 
                under this subsection, the head of an agency or a panel 
                established by the head under paragraph (3) decides 
                that a covered person's eligibility for access to 
                classified information was improperly denied or revoked 
                by the agency, the agency shall take corrective action 
                to return the covered person, as nearly as practicable 
                and reasonable, to the position such covered person 
                would have held had the improper denial or revocation 
                not occurred.
                    ``(B) Compensation.--Corrective action under 
                subparagraph (A) may include compensation, in an amount 
                not to exceed $300,000, for any loss of wages or 
                benefits suffered, or expenses otherwise incurred, by 
                reason of such improper denial or revocation.
            ``(5) Publication of decisions.--
                    ``(A) In general.--Each head of an agency shall 
                publish each final decision on an appeal under this 
                subsection.
                    ``(B) Requirements.--In order to ensure 
                transparency, oversight by Congress, and meaningful 
                information for those who need to understand how the 
                clearance process works, each publication under 
                subparagraph (A) shall be--
                            ``(i) made in a manner that is consistent 
                        with section 552 of title 5, United States 
                        Code, as amended by the Electronic Freedom of 
                        Information Act Amendments of 1996 (Public Law 
                        104-231);
                            ``(ii) published to explain the facts of 
                        the case, redacting as appropriate personal 
                        identifiable information or sensitive program 
                        information; and
                            ``(iii) made available on a website that is 
                        searchable by members of the public.
            ``(6) Publication of processes.--Each head of an agency 
        shall publish in the Federal Register the process established 
        by the head pursuant to paragraph (1).
    ``(c) Higher Level Review.--
            ``(1) Panel.--
                    ``(A) Establishment.--Not later than 180 days after 
                the date of the enactment of this section, the Security 
                Executive Agent shall establish a panel to review 
                decisions made on appeals pursuant to the processes 
                established under subsection (b).
                    ``(B) Scope of review and jurisdiction.--The panel 
                established under subparagraph (A) shall review such 
                decisions only--
                            ``(i) as they relate to violations of 
                        section 801A(b); or
                            ``(ii) to the extent to which an agency 
                        properly conducted a review of an appeal under 
                        subsection (b).
                    ``(C) Composition.--The panel established pursuant 
                to subparagraph (A) shall be composed of three 
                individuals selected by the Security Executive Agent 
                for purposes of the panel, of whom at least one shall 
                be an attorney.
            ``(2) Appeals and timeliness.--
                    ``(A) Appeals.--
                            ``(i) Initiation.--On or before the date 
                        that is 30 days after the date on which a 
                        covered person receives a written decision on 
                        an appeal under subsection (b), the covered 
                        person may initiate oversight of that decision 
                        by filing a written appeal with the Security 
                        Executive Agent.
                            ``(ii) Filing.--A written appeal filed 
                        under clause (i) relating to a decision of an 
                        agency shall be filed in such form, in such 
                        manner, and containing such information as the 
                        Security Executive Agent may require, 
                        including--
                                    ``(I) a description of--
                                            ``(aa) any alleged 
                                        violations of section 801A(b) 
                                        relating to the denial or 
                                        revocation of the covered 
                                        person's eligibility for access 
                                        to classified information; and
                                            ``(bb) any allegations of 
                                        how the decision may have been 
                                        the result of the agency 
                                        failing to properly conduct a 
                                        review under subsection (b); 
                                        and
                                    ``(II) supporting materials and 
                                information for the allegations 
                                described under subclause (I).
                    ``(B) Timeliness.--The Security Executive Agent 
                shall ensure that, on average, review of each appeal 
                filed under this subsection is completed not later than 
                180 days after the date on which the appeal is filed.
            ``(3) Decisions and remands.--
                    ``(A) In general.--If, in the course of reviewing 
                under this subsection a decision of an agency under 
                subsection (b), the panel established under paragraph 
                (1) decides that there is sufficient evidence of a 
                violation of section 801A(b) to merit a new hearing or 
                decides that the decision of the agency was the result 
                of an improperly conducted review under subsection (b), 
                the panel shall vacate the decision made under 
                subsection (b) and remand to the agency by which the 
                covered person shall be eligible for a new appeal under 
                subsection (b).
                    ``(B) Written decisions.--Each decision of the 
                panel established under paragraph (1) shall be in 
                writing and contain a justification of the decision.
                    ``(C) Consistency.--The panel under paragraph (1) 
                shall ensure that each decision of the panel is 
                consistent with the interests of national security and 
                applicable provisions of law.
                    ``(D) Finality.--
                            ``(i) In general.--Except as provided in 
                        clause (ii), each decision of the panel 
                        established under paragraph (1) shall be final.
                            ``(ii) Overturn.--The Security Executive 
                        Agent may overturn a decision of the panel if, 
                        not later than 30 days after the date on which 
                        the panel issues the decision, the Security 
                        Executive Agent personally exercises the 
                        authority granted by this clause to overturn 
                        such decision.
                    ``(E) Nature of remands.--In remanding a decision 
                under subparagraph (A), the panel established under 
                paragraph (1) may not direct an outcome of any further 
                appeal under subsection (b).
                    ``(F) Notice of decisions.--For each decision of 
                the panel established under paragraph (1) regarding a 
                covered person, the Security Executive Agent shall 
                provide the covered person with a written notice of the 
                decision that includes a detailed description of the 
                reasons for the decision, consistent with the interests 
                of national security and applicable provisions of law.
            ``(4) Representation by counsel.--
                    ``(A) In general.--The Security Executive Agent 
                shall ensure that, under this subsection, a covered 
                person appealing a decision under subsection (b) has an 
                opportunity to retain counsel or other representation 
                at the covered person's expense.
                    ``(B) Access to classified information.--
                            ``(i) In general.--Upon the request of the 
                        covered person, and a showing that the ability 
                        to review classified information is essential 
                        to the resolution of an appeal under this 
                        subsection, the Security Executive Agent shall 
                        ensure the counsel or other representation 
                        retained under this paragraph is considered for 
                        access to classified information for the 
                        limited purposes of such appeal.
                            ``(ii) Extent of access.--Counsel or 
                        another representative who is cleared for 
                        access under this subparagraph may be afforded 
                        access to relevant classified materials to the 
                        extent consistent with the interests of 
                        national security.
                            ``(iii) Wrongful denial of access.--
                        Wrongful denial of access of relevant materials 
                        to a counsel or other representative who is 
                        cleared for access under this subparagraph 
                        shall be reviewed, and remedied where 
                        necessary, by the panel established under 
                        paragraph (1).
            ``(5) Access to documents and employees.--
                    ``(A) Affording access to members of panel.--The 
                Security Executive Agent shall afford access to 
                classified information to the members of the panel 
                established under paragraph (1)(A) as the Security 
                Executive Agent determines--
                            ``(i) necessary for the panel to review a 
                        decision described in such paragraph; and
                            ``(ii) consistent with the interests of 
                        national security.
                    ``(B) Agency compliance with requests of panel.--
                Each head of an agency shall comply with each request 
                by the panel for a document and each request by the 
                panel for access to employees of the agency necessary 
                for the review of an appeal under this subsection, to 
                the degree that doing so is, as determined by the head 
                of the agency and permitted by applicable provisions of 
                law, consistent with the interests of national 
                security.
            ``(6) Publication of decisions.--
                    ``(A) In general.--For each final decision on an 
                appeal under this subsection, the head of the agency 
                with respect to which the appeal pertains and the 
                Security Executive Agency shall each publish the 
                decision.
                    ``(B) Requirements.--In order to ensure 
                transparency, oversight by Congress, and meaningful 
                information for those who need to understand how the 
                clearance process works, each publication under 
                subparagraph (A) shall be--
                            ``(i) made in a manner that is consistent 
                        with section 552 of title 5, United States 
                        Code;
                            ``(ii) published in an appropriately 
                        redacted form, the facts of the appeal; and
                            ``(iii) made available on a website that is 
                        searchable by members of the public.
    ``(d) Period of Time for the Right To Appeal.--
            ``(1) In general.--Except as provided in paragraph (2), any 
        covered person who has been the subject of a decision made by 
        the head of an agency to deny or revoke eligibility for access 
        to classified information shall retain all rights to appeal 
        under this section until the conclusion of the appeal process 
        under this section.
            ``(2) Waiver of rights.--
                    ``(A) Persons.--Any covered person may voluntarily 
                waive the covered person's right to appeal under this 
                section and such waiver shall be conclusive.
                    ``(B) Agencies.--The head of an agency may not 
                require a covered person to waive the covered person's 
                right to appeal under this section for any reason.
    ``(e) Relationship to Suitability.--No person may use a 
determination of suitability under part 731 of title 5, Code of Federal 
Regulations, or successor regulation, for the purpose of denying a 
covered person the review proceedings of this section where there has 
been a denial or revocation of eligibility for access to classified 
information.
    ``(f) Preservation of Roles and Responsibilities Under Executive 
Order 10865 and of the Defense Office of Hearings and Appeals.--Nothing 
in this section shall be construed to diminish or otherwise affect the 
procedures in effect on the day before the date of the enactment of 
this Act for denial and revocation procedures provided to individuals 
by Executive Order 10865 (50 U.S.C. 3161 note; relating to safeguarding 
classified information within industry), or successor order, including 
those administered through the Defense Office of Hearings and Appeals 
of the Department of Defense under Department of Defense Directive 
5220.6, or successor directive.''.
            (2) Clerical amendment.--The table of contents in the 
        matter preceding section 2 of the National Security Act of 1947 
        (50 U.S.C. 3002), as amended by subsection (c), is further 
        amended by inserting after the item relating to section 801A 
        the following:

``Sec. 801B. Right to appeal.''.
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