II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. EXCLUSIVITY, CONSISTENCY, AND TRANS4 PARENCY IN SECURITY CLEARANCE PROCE5 DURES AND RIGHT TO APPEAL. 

6 (a) EXCLUSIVITY OF PROCEDURES.—Section 801 of 

7 the National Security Act of 1947 (50 U.S.C. 3161) is 

8 amended by adding at the end the following: 

9 ‘‘(c) EXCLUSIVITY.—Except as provided in sub10 section (b) and subject to sections 801A and 801B, the 


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1 procedures established pursuant to subsection (a) shall be 

2 the exclusive procedures by which decisions about access 

3 to classified information are governed.’’. 

4 (b) TRANSPARENCY.—Such section is further amend5 ed by adding at the end the following: 

6 ‘‘(d) PUBLICATION.— 

7 ‘‘(1) IN GENERAL.—Not later than 180 days 

8 after the date of the enactment of this subsection, 

9 the President shall publish in the Federal Register 

10 the procedures established pursuant to subsection 

11 (a). 

12 ‘‘(2) UPDATES.—Whenever the President 

13 makes a revision to a procedure established pursuant 

14 to subsection (a), the President shall publish such 

15 revision in the Federal Register not later than 30 

16 days before the date on which the revision becomes 

17 effective.’’. 

18 (c) CONSISTENCY.— 

19 (1) IN GENERAL.—Title VIII of the National 

20 Security Act of 1947 (50 U.S.C. 3161 et seq.) is 

21 amended by inserting after section 801 the fol22 lowing: 

23 ‘‘SEC. 801A. DECISIONS RELATING TO ACCESS TO CLASSI24 FIED INFORMATION. 

25 ‘‘(a) DEFINITIONS.—In this section: 


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1 ‘‘(1) AGENCY.—The term ‘agency’ has the 

2 meaning given the term ‘Executive agency’ in section 

3 105 of title 5, United States Code. 

4 ‘‘(2) CLASSIFIED INFORMATION.—The term 

5 ‘classified information’ includes sensitive compart6 mented information, restricted data, restricted han7 dling information, and other compartmented infor8 mation. 

9 ‘‘(3) ELIGIBILITY FOR ACCESS TO CLASSIFIED

10 INFORMATION.—The term ‘eligibility for access to 

11 classified information’ has the meaning given such 

12 term in the procedures established pursuant to sec13 tion 801(a). 

14 ‘‘(b) IN GENERAL.—Each head of an agency that 

15 makes a determination for eligibility for access to classi16 fied information shall ensure that in making the deter17 mination, the head of the agency or any person acting on 

18 behalf of the agency— 

19 ‘‘(1) does not violate any right or protection en20 shrined in the Constitution of the United States, in21 cluding rights articulated in the First, Fifth, and 

22 Fourteenth Amendments; 

23 ‘‘(2) does not discriminate for or against an in24 dividual on the basis of race, color, religion, sex, na25 tional origin, age, or handicap; 


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1 ‘‘(3) is not carrying out retaliation for political 

2 activities or beliefs or a coercion or reprisal de3 scribed in section 2302(b)(3) of title 5, United 

4 States Code; and 

5 ‘‘(4) does not violate section 3001(j)(1) of the 

6 Intelligence Reform and Terrorism Prevention Act 

7 of 2004 (50 U.S.C. 3341(j)(1)).’’. 

8 (2) CLERICAL AMENDMENT.—The table of con9 tents in the matter preceding section 2 of the Na10 tional Security Act of 1947 (50 U.S.C. 3002) is 

11 amended by inserting after the item relating to sec12 tion 801 the following: 

‘‘Sec. 801A. Decisions relating to access to classified information.’’. 

13 (d) RIGHT TO APPEAL.— 

14 (1) IN GENERAL.—Such title, as amended by 

15 subsection (c), is further amended by inserting after 

16 section 801A the following: 

17 ‘‘SEC. 801B. RIGHT TO APPEAL. 

18 ‘‘(a) DEFINITIONS.—In this section: 

19 ‘‘(1) AGENCY.—The term ‘agency’ has the 

20 meaning given the term ‘Executive agency’ in section 

21 105 of title 5, United States Code. 

22 ‘‘(2) COVERED PERSON.—The term ‘covered 

23 person’ means a person, other than the President 

24 and Vice President, currently or formerly employed 

25 by, detailed to, assigned to, or issued an authorized 


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1 conditional offer of employment for a position that 

2 requires access to classified information by an agen3 cy, including the following: 

4 ‘‘(A) A member of the Armed Forces. 

5 ‘‘(B) A civilian. 

6 ‘‘(C) An expert or consultant to an agency. 

7 ‘‘(D) Counsel or other representative re8 tained by a covered person. 

9 ‘‘(E) Any other category of person who 

10 acts for or on behalf of an agency as deter11 mined by the head of the agency. 

12 ‘‘(3) ELIGIBILITY FOR ACCESS TO CLASSIFIED

13 INFORMATION.—The term ‘eligibility for access to 

14 classified information’ has the meaning given such 

15 term in the procedures established pursuant to sec16 tion 801(a). 

17 ‘‘(4) NEED FOR ACCESS.—The term ‘need for 

18 access’ has such meaning as the President may de19 fine in the procedures established pursuant to sec20 tion 801(a). 

21 ‘‘(5) SECURITY EXECUTIVE AGENT.—The term 

22 ‘Security Executive Agent’ means the Director of 

23 National Intelligence acting as the Security Execu24 tive Agent in accordance with Executive Order 

25 13467 (73 Fed. Reg. 38103; 50 U.S.C. 3161 note; 


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1 relating to reforming processes related to suitability 

2 for government employment, fitness for contractor 

3 employees, and eligibility for access to classified na4 tional security information), or as otherwise defined 

5 in a subsequent provision of law. 

6 ‘‘(b) AGENCY REVIEW.— 

7 ‘‘(1) IN GENERAL.—Not later than 180 days 

8 after the date of the enactment of this section, each 

9 head of an agency shall, consistent with the interest 

10 of national security, establish and make publicly 

11 available a process by which a covered person to 

12 whom eligibility for access to classified information 

13 was denied or revoked by the agency can appeal that 

14 denial or revocation within the agency. 

15 ‘‘(2) ELEMENTS.—The process required by 

16 paragraph (1) shall include the following: 

17 ‘‘(A) In the case of a covered person to 

18 whom eligibility for access to classified informa19 tion is denied or revoked by an agency, the fol20 lowing: 

21 ‘‘(i) The head of the agency shall pro22 vide the covered person with a written— 

23 ‘‘(I) detailed explanation of the 

24 basis for the denial or revocation as 

25 the head of the agency determines is 


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1 consistent with the interests of na2 tional security and as permitted by 

3 other applicable provisions of law; and 

4 ‘‘(II) notice of the right of the 

5 covered person to a hearing and ap6 peal under this subsection. 

7 ‘‘(ii) Not later than 30 days after re8 ceiving a request from the covered person 

9 for copies of the documents that formed 

10 the basis of the agency’s decision to revoke 

11 or deny, including the investigative file, the 

12 head of an agency shall provide to the cov13 ered person copies of such documents as— 

14 ‘‘(I) the head of the agency de15 termines is consistent with the inter16 ests of national security; and 

17 ‘‘(II) permitted by other applica18 ble provisions of law, including— 

19 ‘‘(aa) section 552 of title 5, 

20 United States Code (commonly 

21 known as the ‘Freedom of Infor22 mation Act’); 

23 ‘‘(bb) section 552a of such 

24 title (commonly known as the 

25 ‘Privacy Act of 1974’); and 


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1 ‘‘(cc) such other provisions 

2 of law relating to the protection 

3 of confidential sources and pri4 vacy of individuals. 

5 ‘‘(iii)(I) The covered person shall have 

6 the opportunity to retain counsel or other 

7 representation at the covered person’s ex8 pense. 

9 ‘‘(II) Upon the request of the covered 

10 person, and a showing that the ability to 

11 review classified information is essential to 

12 the resolution of an appeal under this sub13 section, counsel or other representation re14 tained under this clause shall be considered 

15 for access to classified information for the 

16 limited purposes of such appeal. 

17 ‘‘(iv)(I) The head of the agency shall 

18 provide the covered person an opportunity, 

19 at a point in the process determined by the 

20 agency head— 

21 ‘‘(aa) to appear personally before 

22 an adjudicative or other authority, 

23 other than the investigating entity, 

24 and to present to such authority rel25 evant documents, materials, and inforVerDate Sep 11 2014 01:35 Mar 29, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S838.IS S838

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1 mation, including evidence that past 

2 problems relating to the denial or rev3 ocation have been overcome or suffi4 ciently mitigated; and 

5 ‘‘(bb) to call and cross-examine 

6 witnesses before such authority, un7 less the head of the agency determines 

8 that calling and cross-examining wit9 nesses is not consistent with the inter10 ests of national security. 

11 ‘‘(II) The head of the agency shall 

12 make, as part of the security record of the 

13 covered person, a written summary, tran14 script, or recording of any appearance 

15 under item (aa) of subclause (I) or calling 

16 or cross-examining of witnesses under item 

17 (bb) of such subclause. 

18 ‘‘(v) On or before the date that is 30 

19 days after the date on which the covered 

20 person receives copies of documents under 

21 clause (ii), the covered person may request 

22 a hearing of the decision to deny or revoke 

23 by filing a written appeal with the head of 

24 the agency. 


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1 ‘‘(B) A requirement that each review of a 

2 decision under this subsection is completed on 

3 average not later than 180 days after the date 

4 on which a hearing is requested under subpara5 graph (A)(v). 

6 ‘‘(3) AGENCY REVIEW PANELS.— 

7 ‘‘(A) IN GENERAL.—Each head of an 

8 agency shall establish an independent panel to 

9 hear and review appeals under this subsection. 

10 ‘‘(B) MEMBERSHIP.— 

11 ‘‘(i) COMPOSITION.—Each inde12 pendent panel established by the head of 

13 an agency under subparagraph (A) shall be 

14 composed of at least three employees of the 

15 agency selected by the head, two of whom 

16 shall not be members of the security field. 

17 ‘‘(ii) TERMS.—A term of service on an 

18 independent panel established by the head 

19 of an agency under subparagraph (A) shall 

20 not exceed 2 years. 

21 ‘‘(C) DECISIONS.— 

22 ‘‘(i) WRITTEN.—Each decision of a 

23 panel established under subparagraph (A) 

24 shall be in writing and contain a justifica25 tion of the decision. 


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1 ‘‘(ii) CONSISTENCY.—Each head of an 

2 agency that establishes a panel under sub3 paragraph (A) shall ensure that each deci4 sion of the panel is consistent with the in5 terests of national security and applicable 

6 provisions of law. 

7 ‘‘(iii) FINALITY.—Each decision of a 

8 panel established under subparagraph (A) 

9 shall be final but subject to appeal and re10 view under subsection (c). 

11 ‘‘(D) ACCESS TO CLASSIFIED INFORMA12 TION.—The head of an agency that establishes 

13 a panel under subparagraph (A) shall afford ac14 cess to classified information to the members of 

15 the panel as the head determines— 

16 ‘‘(i) necessary for the panel to hear 

17 and review an appeal under this sub18 section; and 

19 ‘‘(ii) consistent with the interests of 

20 national security. 

21 ‘‘(4) CORRECTIVE ACTION.— 

22 ‘‘(A) IN GENERAL.—If, in the course of 

23 proceedings under this subsection, the head of 

24 an agency or a panel established by the head 

25 under paragraph (3) decides that a covered perVerDate Sep 11 2014 01:35 Mar 29, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S838.IS S838

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1 son’s eligibility for access to classified informa2 tion was improperly denied or revoked by the 

3 agency, the agency shall take corrective action 

4 to return the covered person, as nearly as prac5 ticable and reasonable, to the position such cov6 ered person would have held had the improper 

7 denial or revocation not occurred. 

8 ‘‘(B) COMPENSATION.—Corrective action 

9 under subparagraph (A) may include compensa10 tion, in an amount not to exceed $300,000, for 

11 any loss of wages or benefits suffered, or ex12 penses otherwise incurred, by reason of such 

13 improper denial or revocation. 

14 ‘‘(5) PUBLICATION OF DECISIONS.— 

15 ‘‘(A) IN GENERAL.—Each head of an 

16 agency shall publish each final decision on an 

17 appeal under this subsection. 

18 ‘‘(B) REQUIREMENTS.—In order to ensure 

19 transparency, oversight by Congress, and mean20 ingful information for those who need to under21 stand how the clearance process works, each 

22 publication under subparagraph (A) shall be— 

23 ‘‘(i) made in a manner that is con24 sistent with section 552 of title 5, United 

25 States Code, as amended by the Electronic 


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1 Freedom of Information Act Amendments 

2 of 1996 (Public Law 104–231); 

3 ‘‘(ii) published to explain the facts of 

4 the case, redacting as appropriate personal 

5 identifiable information or sensitive pro6 gram information; and 

7 ‘‘(iii) made available on a website that 

8 is searchable by members of the public. 

9 ‘‘(6) PUBLICATION OF PROCESSES.—Each head 

10 of an agency shall publish in the Federal Register 

11 the process established by the head pursuant to 

12 paragraph (1). 

13 ‘‘(c) HIGHER LEVEL REVIEW.— 

14 ‘‘(1) PANEL.— 

15 ‘‘(A) ESTABLISHMENT.—Not later than 

16 180 days after the date of the enactment of this 

17 section, the Security Executive Agent shall es18 tablish a panel to review decisions made on ap19 peals pursuant to the processes established 

20 under subsection (b). 

21 ‘‘(B) SCOPE OF REVIEW AND JURISDIC22 TION.—The panel established under subpara23 graph (A) shall review such decisions only— 

24 ‘‘(i) as they relate to violations of sec25 tion 801A(b); or 


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1 ‘‘(ii) to the extent to which an agency 

2 properly conducted a review of an appeal 

3 under subsection (b). 

4 ‘‘(C) COMPOSITION.—The panel estab5 lished pursuant to subparagraph (A) shall be 

6 composed of three individuals selected by the 

7 Security Executive Agent for purposes of the 

8 panel, of whom at least one shall be an attor9 ney. 

10 ‘‘(2) APPEALS AND TIMELINESS.— 

11 ‘‘(A) APPEALS.— 

12 ‘‘(i) INITIATION.—On or before the 

13 date that is 30 days after the date on 

14 which a covered person receives a written 

15 decision on an appeal under subsection (b), 

16 the covered person may initiate oversight 

17 of that decision by filing a written appeal 

18 with the Security Executive Agent. 

19 ‘‘(ii) FILING.—A written appeal filed 

20 under clause (i) relating to a decision of an 

21 agency shall be filed in such form, in such 

22 manner, and containing such information 

23 as the Security Executive Agent may re24 quire, including— 

25 ‘‘(I) a description of— 


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1 ‘‘(aa) any alleged violations 

2 of section 801A(b) relating to the 

3 denial or revocation of the cov4 ered person’s eligibility for access 

5 to classified information; and 

6 ‘‘(bb) any allegations of how 

7 the decision may have been the 

8 result of the agency failing to 

9 properly conduct a review under 

10 subsection (b); and 

11 ‘‘(II) supporting materials and 

12 information for the allegations de13 scribed under subclause (I). 

14 ‘‘(B) TIMELINESS.—The Security Execu15 tive Agent shall ensure that, on average, review 

16 of each appeal filed under this subsection is 

17 completed not later than 180 days after the 

18 date on which the appeal is filed. 

19 ‘‘(3) DECISIONS AND REMANDS.— 

20 ‘‘(A) IN GENERAL.—If, in the course of re21 viewing under this subsection a decision of an 

22 agency under subsection (b), the panel estab23 lished under paragraph (1) decides that there is 

24 sufficient evidence of a violation of section 

25 801A(b) to merit a new hearing or decides that 


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1 the decision of the agency was the result of an 

2 improperly conducted review under subsection 

3 (b), the panel shall vacate the decision made 

4 under subsection (b) and remand to the agency 

5 by which the covered person shall be eligible for 

6 a new appeal under subsection (b). 

7 ‘‘(B) WRITTEN DECISIONS.—Each decision 

8 of the panel established under paragraph (1) 

9 shall be in writing and contain a justification of 

10 the decision. 

11 ‘‘(C) CONSISTENCY.—The panel under 

12 paragraph (1) shall ensure that each decision of 

13 the panel is consistent with the interests of na14 tional security and applicable provisions of law. 

15 ‘‘(D) FINALITY.— 

16 ‘‘(i) IN GENERAL.—Except as pro17 vided in clause (ii), each decision of the 

18 panel established under paragraph (1) 

19 shall be final. 

20 ‘‘(ii) OVERTURN.—The Security Exec21 utive Agent may overturn a decision of the 

22 panel if, not later than 30 days after the 

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1 ally exercises the authority granted by this 

2 clause to overturn such decision. 

3 ‘‘(E) NATURE OF REMANDS.—In remand4 ing a decision under subparagraph (A), the 

5 panel established under paragraph (1) may not 

6 direct an outcome of any further appeal under 

7 subsection (b). 

8 ‘‘(F) NOTICE OF DECISIONS.—For each 

9 decision of the panel established under para10 graph (1) regarding a covered person, the Secu11 rity Executive Agent shall provide the covered 

12 person with a written notice of the decision that 

13 includes a detailed description of the reasons 

14 for the decision, consistent with the interests of 

15 national security and applicable provisions of 

16 law. 

17 ‘‘(4) REPRESENTATION BY COUNSEL.— 

18 ‘‘(A) IN GENERAL.—The Security Execu19 tive Agent shall ensure that, under this sub20 section, a covered person appealing a decision 

21 under subsection (b) has an opportunity to re22 tain counsel or other representation at the cov23 ered person’s expense. 

24 ‘‘(B) ACCESS TO CLASSIFIED INFORMA25 TION.— 


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1 ‘‘(i) IN GENERAL.—Upon the request 

2 of the covered person, and a showing that 

3 the ability to review classified information 

4 is essential to the resolution of an appeal 

5 under this subsection, the Security Execu6 tive Agent shall ensure the counsel or 

7 other representation retained under this 

8 paragraph is considered for access to clas9 sified information for the limited purposes 

10 of such appeal. 

11 ‘‘(ii) EXTENT OF ACCESS.—Counsel 

12 or another representative who is cleared 

13 for access under this subparagraph may be 

14 afforded access to relevant classified mate15 rials to the extent consistent with the in16 terests of national security. 

17 ‘‘(iii) WRONGFUL DENIAL OF AC18 CESS.—Wrongful denial of access of rel19 evant materials to a counsel or other rep20 resentative who is cleared for access under 

21 this subparagraph shall be reviewed, and 

22 remedied where necessary, by the panel es23 tablished under paragraph (1). 

24 ‘‘(5) ACCESS TO DOCUMENTS AND EMPLOY25 EES.— 


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1 ‘‘(A) AFFORDING ACCESS TO MEMBERS OF

2 PANEL.—The Security Executive Agent shall 

3 afford access to classified information to the 

4 members of the panel established under para5 graph (1)(A) as the Security Executive Agent 

6 determines— 

7 ‘‘(i) necessary for the panel to review 

8 a decision described in such paragraph; 

9 and 

10 ‘‘(ii) consistent with the interests of 

11 national security. 

12 ‘‘(B) AGENCY COMPLIANCE WITH RE13 QUESTS OF PANEL.—Each head of an agency 

14 shall comply with each request by the panel for 

15 a document and each request by the panel for 

16 access to employees of the agency necessary for 

17 the review of an appeal under this subsection, 

18 to the degree that doing so is, as determined by 

19 the head of the agency and permitted by appli20 cable provisions of law, consistent with the in21 terests of national security. 

22 ‘‘(6) PUBLICATION OF DECISIONS.— 

23 ‘‘(A) IN GENERAL.—For each final deci24 sion on an appeal under this subsection, the 

25 head of the agency with respect to which the 


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1 appeal pertains and the Security Executive 

2 Agency shall each publish the decision. 

3 ‘‘(B) REQUIREMENTS.—In order to ensure 

4 transparency, oversight by Congress, and mean5 ingful information for those who need to under6 stand how the clearance process works, each 

7 publication under subparagraph (A) shall be— 

8 ‘‘(i) made in a manner that is con9 sistent with section 552 of title 5, United 

10 States Code; 

11 ‘‘(ii) published in an appropriately re12 dacted form, the facts of the appeal; and 

13 ‘‘(iii) made available on a website that 

14 is searchable by members of the public. 

15 ‘‘(d) PERIOD OF TIME FOR THE RIGHT TO AP16 PEAL.— 

17 ‘‘(1) IN GENERAL.—Except as provided in para18 graph (2), any covered person who has been the sub19 ject of a decision made by the head of an agency to 

20 deny or revoke eligibility for access to classified in21 formation shall retain all rights to appeal under this 

22 section until the conclusion of the appeal process 

23 under this section. 

24 ‘‘(2) WAIVER OF RIGHTS.— 


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1 ‘‘(A) PERSONS.—Any covered person may 

2 voluntarily waive the covered person’s right to 

3 appeal under this section and such waiver shall 

4 be conclusive. 

5 ‘‘(B) AGENCIES.—The head of an agency 

6 may not require a covered person to waive the 

7 covered person’s right to appeal under this sec8 tion for any reason. 

9 ‘‘(e) RELATIONSHIP TO SUITABILITY.—No person 

10 may use a determination of suitability under part 731 of 

11 title 5, Code of Federal Regulations, or successor regula12 tion, for the purpose of denying a covered person the re13 view proceedings of this section where there has been a 

14 denial or revocation of eligibility for access to classified 

15 information. 

16 ‘‘(f) PRESERVATION OF ROLES AND RESPONSIBIL17 ITIES UNDER EXECUTIVE ORDER 10865 AND OF THE DE18 FENSE OFFICE OF HEARINGS AND APPEALS.—Nothing in 

19 this section shall be construed to diminish or otherwise 

20 affect the procedures in effect on the day before the date 

21 of the enactment of this Act for denial and revocation pro22 cedures provided to individuals by Executive Order 10865 

23 (50 U.S.C. 3161 note; relating to safeguarding classified 

24 information within industry), or successor order, including 

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1 ings and Appeals of the Department of Defense under De2 partment of Defense Directive 5220.6, or successor direc3 tive.’’. 

4 (2) CLERICAL AMENDMENT.—The table of con5 tents in the matter preceding section 2 of the Na6 tional Security Act of 1947 (50 U.S.C. 3002), as 

7 amended by subsection (c), is further amended by 

8 inserting after the item relating to section 801A the 

9 following: 

‘‘Sec. 801B. Right to appeal.’’. 

Æ 


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