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S. Hrg. 113–368 

SAFEGUARDING OUR NATION’S SECRETS: EXAMINING THE NATIONAL SECURITY WORKFORCE 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE EFFICIENCY AND 

EFFECTIVENESS OF FEDERAL PROGRAMS AND THE 

FEDERAL WORKFORCE 

OF THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

NOVEMBER 20, 2013 

Available via the World Wide Web: http://www.fdsys.gov 

Printed for the use of the Committee on Homeland Security 

and Governmental Affairs 

( 
(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

THOMAS R. CARPER, Delaware Chairman 

CARL LEVIN, Michigan 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

MARK BEGICH, Alaska 

TAMMY BALDWIN, Wisconsin 

HEIDI HEIKAMP, North Dakota 

TOM COBURN, Oklahoma 

JOHN MCCAIN, Arizona 

RON JOHNSON, Wisconsin 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

MICHAEL B. ENZI, Wyoming 

KELLY AYOTTE, New Hampshire 

RICHARD J. KESSLER, Staff Director 

JOHN P. KILVINGTON, Deputy Staff Director 

KEITH B. ASHDOWN, Minority Staff Director 

LAURA W. KILBRIDE, Chief Clerk 

LAUREN CORCORAN, Hearing Clerk 

SUBCOMMITTEE ON THE EFFICIENCY AND EFFECTIVENESS OF 

FEDERAL PROGRAMS AND THE FEDERAL WORKFORCE 

JON TESTER, Montana, Chairman 

MARK L. PRYOR, Arkansas 

CLAIRE MCCASKILL, Missouri 

MARK BEGICH, Alaska 

TAMMY BALDWIN, Wisconsin 

HEIDI HEITKAMP, North Dakota 

ROB PORTMAN, Ohio 

RON JOHNSON, Wisconsin 

RAND PAUL, Kentucky 

MICHAEL B. ENZI, Wyoming 

TONY MCCLAIN, Majority Staff Director 

BRENT BOMBACH, Minority Staff Director 

KELSEY STROUD, Chief Clerk 
(III) 

C O N T E N T S 

Opening statement: Page 

Senator Tester .................................................................................................. 1 

Senator Portman .............................................................................................. 16 

WITNESSES 

WEDNESDAY, NOVEMBER 20, 2013 

Brian A. Prioletti, Assistant Director, Special Security Directorate, National 

Counterintelligence Executive, Office of the Director of National Intelligence ................................................................................................................... 4 

Tim Curry, Deputy Associate Director for Partnership and Labor Relations, 

Office of Personnel Management ........................................................................ 6 

Brenda S. Farrell, Director, Defense Capabilities and Management, U.S. Government Accountability Office ............................................................................. 8 

David Borer, General Counsel, The American Federation of Government Employees ................................................................................................................... 10 

Angela Canterbury, Director of Public Policy, Project on Government Oversight ....................................................................................................................... 11

ALPHABETICAL LIST OF WITNESSES

Borer, David: 

Testimony .......................................................................................................... 10 

Prepared statement .......................................................................................... 60 

Canterbury, Angela: 

Testimony .......................................................................................................... 11 

Prepared statement .......................................................................................... 66 

Curry, Tim: 

Testimony .......................................................................................................... 6 

Prepared statement .......................................................................................... 35 

Farrell, Brenda S.: 

Testimony .......................................................................................................... 8 

Prepared statement .......................................................................................... 39 

Prioletti, Brian A.: 

Testimony .......................................................................................................... 4 

Prepared statement .......................................................................................... 29 

APPENDIX 

Statement for the Record from Colleen M. Kelley, National President, National Treasury Employees Union ...................................................................... 76 

Responses to post-hearing questions for the Record: 

Mr. Prioletti ...................................................................................................... 79 

Mr. Curry .......................................................................................................... 85 

Ms. Farrell ........................................................................................................ 278 

Mr. Borer ........................................................................................................... 282 

(1) 

SAFEGUARDING OUR NATION’S SECRETS: 

EXAMINING THE NATIONAL SECURITY 

WORKFORCE 

TUESDAY, NOVEMBER 20, 2013 

U.S. SENATE,

SUBCOMMITTEE ON THE EFFICIENCY AND EFFECTIVENESS OF

FEDERAL PROGRAMS AND THE FEDERAL WORKFORCE, 

OF THE COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS,

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:01 p.m., in room 

SD–342, Dirksen Senate Office Building, Hon. Jon Tester, Chairman of the Subcommittee, presiding. 

Present: Senators Tester and Portman. 

OPENING STATEMENT OF SENATOR TESTER 

Senator TESTER. I will call to order this hearing of the Subcommittee on Efficiency and Effectiveness of Federal Programs and 

Federal Workforce. This afternoon’s hearing is entitled, Safeguarding our Nation’s Secrets: Examining the National Security 

Workforce. 

I will say that Senator Portman is tied up. He is going to be here 

a little bit late and he is going to have to leave early, unfortunately. It is not because of the importance of this issue. It is because we have a Defense authorization bill on the floor and that 

is keeping a lot of the folks who wanted to be here today away. But 

we will do our best to get as much good information as we can on 

the record as we proceed through this so that they will have the 

ability to make good decisions with good information as those decisions arise. 

From the significant disclosures of classified information to the 

tragedy at the Washington Naval Yard, it is abundantly clear to 

the American people that the Federal Government is failing to 

properly vet the individuals who are granted access to our Nation’s 

most sensitive information and secure facilities. 

And as we all see, there are real life consequences of these failures. In looking at the lessons learned, it is obvious that there is 

no single quick fix to such a broken system. It is about incomplete, 

falsified, and ultimately, background investigations and re-investigations. It is about agencies improperly adjudicating which employees and contractors should be granted a clearance, and it is 

about pure volume. 
2 

Today there are nearly five million individuals with a security 

clearance. You heard me right. Five million. And there are no indications that number will decrease any time soon. But it only takes 

one individual to slip through the cracks, one individual who could 

do untold damage to our national security by exposing sensitive information about government actions and programs. 

One individual who, with no motive, with no warning, could kill 

12 men and women in a secure government facility on a random 

Monday morning. Now, we have to get this right because there literally is no margin for error. This hearing will focus on the designation of positions in the Federal Government as sensitive to the 

national security, as well as the requirement for government personnel to have access to classified information. 

Lacking appropriate guidance for such designations, Federal 

agencies are currently relying on a patchwork of Executive Orders 

(EO), Federal regulations, and an Office of Personnel Management 

(OPM) position designation tool that was not created to address security-related issues. 

Meanwhile, OPM and the Office of Director of National Intelligence (ODNI) are finalizing a rule they claim will provide the update and guidance sought by the agencies and called for by the 

Government Accountability Office (GAO) and Members of this 

Committee. 

But others, including some of the witnesses that are here today, 

have real concerns that the proposed guidance is inadequate and 

that it could have negative and substantial implications on taxpayers, national security, and Federal employee rights. 

These concerns are compounded by this summer’s Kaplan v. Conyers and Northover decision. This case involved two Federal employees who lost their jobs when their employing agency stripped 

them of their sensitive position status. Because the Conyers decision denied these employees their rights to due process through the 

Merit Systems Protection Board (MSPB), there is a real potential 

that tens of thousands of employees across the Federal Government 

have just lost their fundamental right to appeal a personnel decision, regardless of what drove that decision. 

With this in mind, Senator Portman and our Ranking Member 

and I wrote a letter to ODNI and OPM in September regarding 

their proposed rule. In that letter we said, ‘‘From a fiscal and security perspective, far too many questions remain unanswered about 

the implications of this proposal, and due to the seriousness of the 

concerns we share, we urge you to defer finalizing this rule until 

the matter has been fully and publicly aired, and questions about 

its true scope, including the estimated cost and number of impacted 

Federal workers are answered.’’ We are here today to get some of 

those answers. 

Now I would like to introduce our witnesses, and Senator 

Portman has an opening statement. He can do that when he gets 

here. But I want to introduce my witnesses to the panel here today 

and we want to welcome them all. This truly is a great panel of 

witnesses, very knowledgeable and distinguished in your own right. 

First we have Brian Prioletti, is Assistant Director of Special Security Directorate in the Office of the Director of National Intelligence. In that post, he is responsible for leading oversight and re-
3 

form efforts of the security clearance process. Mr. Prioletti took the 

Assistant Director position this last May after more than three decades in the Central Intelligence Agency (CIA). He testified before 

the full Committee on security clearance issues last month, and I 

want to thank you for your service, Brian, and I want to thank you 

for joining us again today. 

Tim Curry is the Deputy Associate Director for Partnership and 

Labor Relations in the Office of Personnel Management. He is responsible for OPM’s efforts to design and promulgate governmentwide programs for labor and employee relations. Prior to his current position, he served as the Executive Director of the Labor, 

Management, and Employees Relations at the Department of Defense (DOD). Tim, thank you for being here and getting through 

the traffic to be here. 

Brenda Farrell is a Director for the Defense Capabilities Management Team in the Government Accounting Office, a post that 

she has held since 2007. She is responsible for GAO oversight of 

military and civilian personnel issues and has worked extensively 

on the personnel security clearance program. She testified before 

this Subcommittee in June about the lack of clearly defined policy 

and procedures needed to consistently determine whether a position requires a security clearance. It is good to have you back, 

Brenda, and as with the previous two, we look forward to your testimony. 

David Borer is the General Counsel of The American Federation 

of Government Employees (AFGE). AFGE represents some 650,000 

Federal employees, including tens of thousands who currently occupy positions deemed sensitive to national security. He is a veteran on labor relations issues and is here today to discuss the impact of the proposed OPM/ODNI rule and its impact on Federal 

employees. Welcome. We look forward to what you have to say, 

David. 

Finally, Angela Canterbury. Angela is the Director of Public Policy for the Project on Government Oversight (POGO), where she 

has worked in that capacity since 2010. Founded in 1981, POGO 

is a non-partisan, independent watchdog that champions good government efforts. In particular, they have aggressively advocated for 

more appropriate balance between national security and Civil Service rights with similar protections and taxpayer accountability. 

Angela’s work focuses on advancing policies that help stamp out 

corruption and promote government openness and accountability. 

She is here today to help us understand how the OPM/ODNI rule 

might impact transparency and whistle-blower rights. We welcome 

you, Angela, and I want to thank you and everybody else for being 

here today. 

It is customary that we swear all witnesses in who appear before 

this Subcommittee. If you do not mind, I would ask you to stand 

and raise your right hand. 

Do you swear the testimony you will give before this Subcommittee will be the truth, the whole truth, and nothing but the 

truth, so help you, God? 

Mr. PRIOLETTI. I do. 

Mr. CURRY. I do. 

Ms. FARRELL. I do. 
4 

1The prepared statement of Mr. Prioletti appears in the Appendix on page 29. 

Mr. BORER. I do. 

Ms. CANTERBURY. I do. 

Senator TESTER. Let the record reflect that the witnesses answered in the affirmative. 

With that, we will give each of you 5 minutes for your oral testimony. Know that your entire written testimony will be a part of 

the record. We will start with you, Brian. If you want to proceed, 

please do. 

TESTIMONY OF BRIAN PRIOLETTI,1 ASSISTANT DIRECTOR, 

SPECIAL SECURITY DIRECTORATE, NATIONAL COUNTERINTELLIGENCE EXECUTIVE, OFFICE OF THE DIRECTOR OF 

NATIONAL INTELLIGENCE 

Mr. PRIOLETTI. Thank you, Senator. Chairman Tester, Ranking 

Member Portman, and distinguished Members of the Subcommittee, thank you for inviting me here today to discuss our proposed updates to the Federal Government’s position designation 

system. 

Recently, the ODNI and OPM jointly proposed changes to the existing regulations outlining the position designation process. These 

revisions, which include more detail than previous regulations, are 

geared to ensure that a consistent process is applied across the government for designating positions as sensitive or requiring a security clearance. 

This foundational step helps ensure that individuals are investigated at a level appropriate to the risks inherent to the position 

they hold, thereby mitigating risks to national security interests. 

Our proposed rule for the designation of national security positions 

was published in the Federal Register for a 30-day public comment 

in May 2013 with comments due in June. We are in the process 

of reviewing those comments and working to finalize the proposed 

regulations by February 2014. 

The events of September 11, 2001, drove a dramatic increase in 

the number of positions requiring a security clearance, a trend 

which has continued in recent years. Our office reported this year 

that about 4.9 million Federal Government and contractor employees either hold or have been determined to be eligible to hold security clearances. The potential risk to national security and costs associated with this volume of cleared individuals underscore the 

need for executive branch agencies to have a uniform and consistent process to accurately designate the sensitivity of a position 

based on the position duties and the potential impact to national 

security, and ensure that the individuals holding these positions 

are appropriately investigated and adjudicated commensurate with 

that risk. 

The concern with position designation is not a recent phenomenon. Civilian positions within the Federal Government have 

been designated as sensitive based on the duties and responsibilities for over 60 years, when Executive Order 10450 first established the requirement for the Federal employment process to consider national security interests, and charged the heads of Federal 

departments and agencies to establish effective programs to ensure 
5 

that employee hiring and retention is clearly consistent with the 

interests of national security. EO–10450 requires a position to be 

designated as sensitive if the occupant of that position could, by 

virtue of the nature of position, bring about a material adverse effect on national security. EO–12968, which was issued in 1995, establishes a uniform Federal personnel security program for individuals to have access to classified information which only may be 

granted on the basis of a demonstrated foreseeable need for that 

access. EO–12968 also makes agency heads responsible for establishing and maintaining an effective program to ensure that eligibility for access to classified information is clearly consistent with 

the interests of national security. 

The existing designation system requires revision to align with 

other recently updated aspects of the clearance reform effort, such 

as the revised Federal Investigative Standards (FIS) signed in December 2012, and to ensure a common understanding by Federal 

agencies as to how to designate positions and ensure accurate and 

consistent position designation across the U.S. Government. 

Under EO–13467, the DNI, as Security Executive Agent, and the 

Director of OPM, as the Suitability Executive Agent, both have related roles to ensure that a uniform system for position designation 

related to each, to their respective populations of authority. 

The proposed regulation is not intended to increase or decrease 

the total number of national security-sensitive positions within the 

Federal Government; but, rather, to ensure that each position is 

designated accurately. The intent is to issue national-level policy 

guidance to promote consistency in designating positions and address changed national security concerns post-9/11. This approach 

will improve consistency and the level of investigation performed 

for similar positions in other agencies; thereby, promoting efficiency and facilitating reciprocity. Additionally, the proposed regulations align with the GAO recommendations in its July report entitled, Security Clearances: Agencies Need a Clearly Defined Policy 

for Determining Civilian Position Requirements. In that report, the 

GAO noted the need for standardized and clearly defined policy for 

agencies to designate positions as sensitive, or requiring a security 

clearance and for the existing position designation tool to be updated to include such guidance. The proposed regulations also incorporate the GAO’s recommendation that the executive branch 

agencies periodically review and validate or revise designations of 

existing positions. This guidance is expected to have positive implications for both national security and the Federal workforce. 

The proposed rule and revised position designation tool will provide executive branch agencies with consistent guidance and a concrete process to accurately reassess the sensitivity level assigned to 

the current positions, and ensure future positions are designated 

accurately and consistently. 

The proposed rule will help guide agency heads in designating a 

position as sensitive with respect to national security, even if the 

position does not require access to classified information. The enhanced guidance will facilitate more uniform designations across 

agencies, which are better aligned with the actual national security 

implications and sensitivities inherent with the position. This process is expected, in some cases, to result in a re-designation of posi-
6 

1The prepared statement of Mr. Curry appears in the Appendix on page 35. 

tions to a lower sensitivity level or public trust designation, thereby 

reducing costs associated with investigations and adjudications required for the higher clearance levels. Conversely, there may be instances in which a sensitivity designation of a position increases, 

therefore requiring more extensive background investigation, depending upon that we designate its sensitivity level. If that happens, the workforce can be assured that the change is necessary, 

and based upon the measured execution of the updated guidance 

deemed necessary to protect national security interests. The new 

regulations are intended to clarify the position designation requirements and provide additional details over the previous regulations 

in order to ensure that positions are accurately designated in a 

manner that appropriately mitigates the risk. 

The Federal workforce will benefit from accurately designated 

positions and that employees will not be required to complete extensive background application paperwork or undergo investigations for positions that do not warrant it. Further, a consistent designation and investigative approach promotes clearance reciprocity, 

and therefore, personnel mobility between positions of equivalent 

position designation or between agencies. 

It is imperative that we develop a sound position sensitivity designation process because the sensitivity level of a position determines the complexity and cost of the investigation conducted on the 

individual selected to occupy its position. ODNI will continue to 

work with OPM and other executive branch agencies to ensure that 

position designation policy and procedures include requirements for 

agencies to conduct periodic reviews to validate the accuracy of the 

existing position designations. 

Thank you at this time for the opportunity to testify and this 

concludes my statement. 

Senator TESTER. Thank you, Brian. Tim, you are up next. 

TESTIMONY OF TIM F. CURRY,1 DEPUTY ASSOCIATE DIRECTOR FOR PARTNERSHIP AND LABOR RELATIONS, OFFICE OF 

PERSONNEL MANAGEMENT 

Mr. CURRY. Thank you, Senator. Mr. Chairman, Ranking Member Portman, and Members of the Subcommittee. Thank you for 

the invitation to testify on behalf of the Office of Personnel Management on regulations affecting the designation of positions in the 

Federal Government as national security-sensitive, as well as the 

Kaplan v. Conyers case. 

The obligation to designate national security positions is not a 

new authority. It is outlined in an Executive Order which was published in 1953. Additionally, the Code of Federal Regulations (CFR) 

presently requires each agency to follow established procedures to 

identify national security positions. 

In this vein, OPM and the Office of Director of National International, jointly proposed regulations in May of this year regarding 

the designation of national security positions in the competitive 

service. Similar regulations have been in effect for over 20 years. 

The proposed rule is one of a number of initiatives OPM and ODNI 

have undertaken to simplify and streamline the system of Federal 
7 

Government investigative and adjudicative processes to make them 

more efficient and equitable. OPM originally proposed amendments 

on this issue in December 2010, with a publication to the Federal 

Register. Those proposed amendments were later withdrawn and 

reissued in May 2013 by OPM and ODNI jointly, pursuant to a 

Presidential Memorandum directing OPM and ODNI to issue 

amended regulations. The Presidential Memorandum recognizes responsibility both agencies possess with respect to the relevant rulemaking authority. The current proposed rule simply reissues the 

2010 proposal under joint authority with technical modifications 

and clarifications, and provides the public an opportunity to submit 

additional comments. 

The purpose of the proposed rule, both as originally published 

and as republished, is to clarify the requirements and procedures 

agencies should observe when designating as national security positions, positions in the competitive service, positions in the excepted service where the incumbent can be non-competitively converted to the competitive service, and Senior Executive Service 

(SES) positions filled by career appointment. 

The proposed rule is not intended to increase or decrease the 

number of positions designated as national security-sensitive, but 

is intended to provide more specific guidance to agencies in order 

to enhance the efficiency, accuracy, and consistency with which 

agencies make position designations. The older regulations provide 

only general guidance. The newer proposed regulations are intended to clarify the requirements and procedures agencies should 

follow when designating national security positions by providing 

more detail and concrete examples. 

In addition, the newer proposed regulations will help agencies 

correctly determine the specific level of sensitivity for a position 

that is determined to affect national security, which in turn will 

help determine the type of background investigation that will be 

required. 

Finally, the proposed rule addresses periodic reinvestigations in 

order to better coordinate the reinvestigation requirements for national security positions with requirements already in place for security clearances. This will help ensure that the same reinvestigations can be used for multiple purposes and prevent costly duplication of effort. 

The proposed rule was published in the Federal Register on May 

28, 2013, with a comment period that closed 30 days later. OPM 

and ODNI are presently reviewing comments from members of the 

public. 

This Subcommittee also invited OPM to testify on a separate 

topic, the Kaplan v. Conyers case. As you know, the U.S. Court of 

Appeals for the Federal Circuit, in a 7–3 decision, held that the 

Merit Systems Protection Board, lacks jurisdiction to review the 

merits of executive branch risk determinations regarding eligibility 

to hold national security sensitive positions. 

Conyers examined whether the MSPB, in reviewing an appeal of 

an adverse personnel action against an employee, may review the 

merits of the Department of Defense’s predictive judgment of national security risk. On appeal of the MSPB decision, the Federal 

Circuit concluded that the MSPB can review whether DOD’s action 
8 

1The prepared statement of Ms. Farrell appears in the Appendix on page 39. 

is procedurally correct, but cannot review whether DOD correctly 

exercised its predictive judgment of national security risk. The Federal Circuit held that Congress did not give the MSPB this authority. The Federal Circuit based its decision on long-standing precedent, specifically the Supreme Court’s 1988 decision in Department 

of the Navy v. Egan, that the MSPB, in reviewing an appeal of an 

adverse action cannot review the merits of an agency decision to 

deny an employee security clearance. The Federal Circuit held that 

Egan controlled all such national security determinations, not just 

those related to access to classified information. 

Thank you again for the opportunity to testify and I look forward 

to answering any questions you may have. 

Senator TESTER. Thank you, Tim. Brenda, you may proceed. 

TESTIMONY OF BRENDA S. FARRELL,1 DIRECTOR, DEFENSE 

CAPABILITIES AND MANAGEMENT, GOVERNMENT ACCOUNTABILITY OFFICE 

Ms. FARRELL. Chairman Tester, thank you for the opportunity to 

be here today to discuss the requirements for personnel to have access to classified information. As you know, my testimony on the 

governmentwide security clearance process before your Subcommittee this past June included a discussion of our work on the 

steps that agencies use to first determine whether a Federal civilian position requires access to classified information. Today, I am 

here to elaborate on that process and report on the extent of 

progress by the agencies in implementing our recommendations 

and actions still needed. 

Over the years, GAO has conducted a broad body of work on security clearance issues that gives us a unique historical perspective. My remarks today are based primarily on our July 2012 report on defining policy and guidance for national security positions. 

My main message today is that actions are still needed to help ensure that a sound requirements process is in place to determine 

whether a position requires a security clearance for access to classified information. 

My written statement is divided into two parts. The first addresses guidance to determine if a civilian position requires a security clearance. In July 2012, we reported that the DNI, as Security 

Executive Agent, had not provided agencies clearly defined policy 

and procedures to consistently determine if a position requires a 

clearance. Absent such guidance, agencies are using an OPM tool 

to determine the sensitivity and risk levels of positions, which in 

turn informed the type of investigation needed. 

The sensitivity level is based on the potential of an occupant of 

a position to bring about a material, adverse affect on national security. OPM audits, however, found inconsistencies among agencies 

using this tool to determine the proper sensitivity level. 

For example, in an April 2012 audit, OPM assessed the sensitivity level of 39 positions and its designations differ from the agency in 26 of them. In our July 2012 report, we recommended that 

the DNI, in coordination with OPM, issue clearly defined policy 
9 

and procedures for Federal agencies to follow when first determining if a position requires a clearance. 

ODNI concurred with our recommendation and has moved forward with actions to address it. We found that in January of this 

year, the President authorized the DNI and OPM to jointly address 

revisions to the Federal regulations that are intended to provide 

guidance for the designation of national security positions. We believe that the proposed regulation is a good step toward meeting 

the intent of our recommendation. However, implementation guidance still needs to be developed and the proposed regulation recognizes that point. 

The second part of my statement addresses the guidance in place 

to periodically reassess civilian positions that require security 

clearance. We also reported in July 2012 that the DNI had not established such guidelines requiring agencies to review existing positions. 

Without such a requirement, agencies may be hiring or budgeting for initial and periodic personnel security clearance investigations using position descriptions and security clearance requirements that do not reflect current national security needs. 

Further, since such reviews are not done consistently, agencies 

cannot have assurances that they are keeping the number of positions that require clearances to a minimum, as required by Executive Order 12968. Moreover, conducting background investigations 

is costly. We found the Federal Government spent over $1 billion 

to conduct background investigations in fiscal year (FY) 2011. 

We recommended in July 2012 that the DNI, in coordination 

with OPM, issuance guidance to require agencies to periodically reassess the designation of all Federal civilian positions. ODNI and 

OPM concurred with this recommendation. The proposed regulations do not appear to require a periodic reassessment, as we have 

recommended. We still believe that this needs to be done. 

For more than a decade, GAO has emphasized the need to build 

and monitor quality throughout the personnel security clearance 

process to promote oversight and positive outcomes such as maximizing the likelihood that individuals who are security risks will 

be scrutinized more closely, the first step to ensure that a sound 

process is in place to determine whether or not positions need access to classified information. 

We will continue to monitor the outcome of the final Federal regulation, as well as other agency actions to address our remaining 

recommendations. Mr. Chairman, this concludes my remarks. I will 

be happy to take questions when you are ready. 

Senator TESTER. Well, thank you, Brenda. I appreciate your comments. David, you may proceed. 
10 

1The prepared statement of Mr. Borer appears in the Appendix on page 60. 

TESTIMONY OF DAVID A. BORER,1 GENERAL COUNSEL, 

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES 

Mr. BORER. Mr. Chairman, Senator Portman, and Members of 

the Subcommittee. On behalf of AFGE and the more than 650,000 

Federal employees we represent, including tens of thousands who 

occupy positions designated as sensitive, I thank you for the opportunity to testify today. 

AFGE has grave concerns about the recent decision issued by the 

U.S. Court of Appeals for the Federal Circuit in Kaplan v. Conyers, and about the proposed rules on the designation of positions as national security sensitive issued jointly by OPM and ODNI. 

The Conyers decision and the proposed regulations strike at the 

heart of the merit system, which for decades has been the foundation in the Federal Civil Service. Conyers eliminated the right to 

a meaningful hearing before the U.S. Merit Systems Protection 

Board. The proposed regulations exacerbate this problem by allowing agencies to pick and choose which employees will have the 

right to due process before the MSPB. Conyers and the proposed 

regulations are only the latest injustices inflicted upon Federal 

workers. 

Thanks to a 3-year pay freeze, sequestration in which over half 

of the Federal employees lost 30 percent of their take-home pay for 

6 weeks, and a 16-day furlough with the shutdown, many were left 

unsure of how or when they would be able to pay their bills. Some 

untold number fell into debt or fell deeper into debt. That additional debt now potentially exposes thousands of Federal employees 

to unfair removal from so-called sensitive positions without so 

much as a hearing before the MSPB. 

To be clear, Conyers does not pertain to individuals with security 

clearances. It is not a case about classified information. The individuals in that litigation, Rhonda Conyers and Devon Northover, 

were an accounting technician and a grocery story clerk, respectively. Both lost their eligibility because of a modest amount of delinquent debt due to circumstances beyond their control. They were 

penalized because of their credit scores, and worse, they had to face 

the loss of their jobs. 

This is deeply troubling to AFGE and it should be a real concern 

for this Committee. The implication that financial hardship equates 

to disloyalty, even for employees with no access to classified information, is unsupported and offensive. In fact, AFGE has found that 

the practice of penalizing employees based on their credit scores 

has had a disproportionate impact on employees, over 40 female 

employees, and employees of color. 

Conyers is an ill-founded extension of an earlier case involving 

security clearances. In 1988, the Supreme Court decided the Department of Navy v. Egan, holding that the MSPB could not review 

the merits of a security clearance determination in the course of 

adjudicating an adverse action. 

Later, in Conyers and Northover, the MSPB held that in the absence of a security clearance, Egan did not apply. In its Conyers’ 

decision, the Federal Circuit opened the door to arbitrary and unchecked Executive agency action. The Conyers’ ruling rejected the 
11 

1The prepared statement of Ms. Canterbury appears in the Appendix on page 66. 

text, the structure, and the history of the Civil Service Reform Act 

(CSRA), along with the plain language of Egan to hold that the 

MSPB may not review the merits of an agency determination that 

an employee is ineligible to hold a sensitive position. 

The proposed regulations provide no real oversight for agency position designation determinations. By contrast to the rule proposed 

by OPM in 2010, these new rules fail to direct the agencies that 

in order to designate a national security position, they must make 

an affirmative determination that the occupant of that position 

could cause a material, adverse effect on national security through 

neglect, action, or inaction. 

In both Conyers and the proposed regulations are allowed to 

stand, executive branch agencies will have the unreviewable power 

to deprive hundreds of thousands of employees the protections that 

Congress gave them in the CSRA. That, Senators, is likely to be 

an irresistible invitation to abuse. 

To counter this loss of due process rights, Delegate Eleanor 

Holmes Norton introduced H.R. 3278 to clarify that workers or applicants are entitled to be heard by the MSPB even if it implicates 

a sensitive position determination. AFGE strongly urges introduction of a companion bill in the Senate with the same bipartisan 

support shown in the House. 

AFGE also looks forward to working with the Members of this 

Committee to restore fairness and common sense to the due process 

protections and other rights that have historically protected the 

Federal workforce. This concludes my statement and I would be 

happy to respond to any questions. 

Senator TESTER. Thank you for your statement, David. Angela. 

TESTIMONY OF ANGELA CANTERBURY,1 DIRECTOR OF PUBLIC 

POLICY, PROJECT ON GOVERNMENT OVERSIGHT 

Ms. CANTERBURY. Chairman Tester and Ranking Member 

Portman, thank you very much for your oversight of the national 

security workforce and for inviting me to testify here today. I am 

speaking on behalf of POGO, but also on behalf of the Make it Safe 

Coalition which represents more than 50 groups and millions of 

Americans very concerned with whistleblower protections in both 

the public and the private sector. 

We are deeply concerned that the national security claims here 

and throughout the government really threaten to engulf our government and, with cruel irony, will make us less safe. In August 

of this year, this Court decision in Conyers stripped Federal employees in national security sensitive positions of their right to an 

appeal an adverse action, setting the stage to also strip due process 

rights for actions that are discriminatory or in retaliation for whistle blowing. 

This deeply flawed decision in Kaplan v. Conyers armed agencies 

with sweeping power that affects untold numbers of civil servants, 

untold because OPM cannot say exactly how many position holders 

there are. The definition under the Executive Order 10450 for personnel who may have material adverse affect on national security 

must have objective, credible boundaries. 
12 

Yet, in Conyers, the government did not provide adequate boundaries or justifications for national security sensitive designations. 

Indeed, Rhonda Conyers was an accounting technician and David 

R. Northover was a commissary stocker, and neither had any real 

credible national security role. 

While there is a need for additional screening for a very limited 

number of civilian positions with specific national security responsibilities but no access to classified information, extensive background checks should never be a predicate for denying due process 

rights. Quite the opposite. 

Congress gave the Civil Service and whistleblower protections to 

this critical workforce to foster accountability for waste, fraud, and 

abuse. These workers had, for years, been able to challenge adverse 

personnel actions at the Merit Systems Protection Board, but not 

anymore. 

Now if an agency fires a national security sensitive employee for 

having made a legally protected whistleblower disclosure, or because of that employee’s race or religion, the employee likely will 

not be able to seek justice. It is just a matter of time, as was noted 

from the bench in oral arguments in Conyers after the Egan decision removed due process rights for security clearance actions, it 

was inevitable that the Board would do the same for whistleblower 

retaliation as it did in Hesse v. Department of State. 

Because Conyers is so broad, it flouts the congressional intent of 

the Civil Service Reform Act, as well as the Whistleblower Protection Act, and the recently passed and strongly bipartisan Whistleblower Protection Enhancement Act, reforms that we worked for 

years to enact. 

Of course, even before Conyers, there was a jaw dropping lack of 

oversight of these seemingly arbitrary and overused designations. 

At the direction of the President, OPM and DNI issued a joint proposed rule to clarify the proper use. We agree, it is about time, but 

unfortunately, it does nothing to assure us that the Obama Administration plans to curb the practically unlimited discretion afforded 

to agencies, improved, efficient oversight, or protect critical rights 

for whistleblowers and Civil Service. 

In fact, the proposed rule is poised to expand the use of these 

designations to overly broad categories of positions such as senior 

managers and undefined key programs and fact finding positions. 

Before a final rule, far more needs to be known about the scope 

and cost, policy impacts, due process protections, and oversight of 

these designations. 

We would welcome a directive from the President clarifying access to the MSPB and for OPM and DNI to curb the expansive use 

of these designations and conduct proper oversight. However, we 

believe that ultimately Congress must re assert the rights it previously provided. We urge you to advance an easy legislative fix. 

Simply clarify that an employee appealing an action arising from 

an eligibility determination for a position that does not require a 

security clearance may not be denied MSPB review. This is the 

Delegate Holmes Norton legislation that was mentioned. 

We also urge you to consider the broader context of the growing 

national security State. In the wake of the Snowden disclosures, we 

caution you to guard against over reactions. Excessive secrecy un-
13 

dermines our democracy and threatens our national security by 

making it harder for us to protect our legitimate secrets. 

The evidence for the growing national security State is disturbing. As you mentioned, Chairman, we have almost five million 

security clearance holders. Approximately 20 million four-drawer 

filing cabinets could be filled with the amount of classified data accumulated every 18 months by just one international agency, according to the GAO. 

It is time for Congress to be far less deferential to the executive 

branch on claims of national security. You can begin by reining in 

the nearly unbridled power of agencies to misuse national security 

labels and make whole swaths of our government hidden and accountable. We must be able to hear from whistle-blowers. 

Thank you again for inviting me to testify today and I look forward to your questions. 

Senator TESTER. Well, thank you for your testimony, Angela, and 

I thank all of you for your testimony. We will get to the questions 

right now. Some of this is going to be repetition from what some 

of the panelists said, but this is for anybody who wants to answer 

it. 

In terms of the Conyers decision, we are talking about two Federal employees without a security clearance or any need for access 

to classified information. One was an accounting technician. I assume that is similar to a Certified Public Accountant (CPA) maybe, 

or not even at that level? 

Mr. BORER. Lower level accounting. 

Senator TESTER. Lower level accounting for the Defense Department, in that position for 20 years. One was a clerk in a commissary, which indicates to me he probably ran a cash register. Is 

that fairly accurate? 

Mr. BORER. He was a grocery store clerk, essentially, yes. He ran 

a cash register. 

Senator TESTER. And stocked shelves? 

Mr. BORER. Stocked shelves. 

Senator TESTER. And because of delinquent debts brought about 

by a divorce of one and a death in the family of another, they were 

stripped of their ability to hold a government position designated 

as sensitive to national security. The designation is consistently 

and arbitrarily applied to positions across government as Angela 

just got done saying. 

They were subsequently stripped of their rights to appeal these 

personnel decisions of the Merit Service Protection Board, a basic 

right of Federal employees. There are so many questions to be 

asked about this. I will just start with the basic one and that is, 

can somebody explain to me how these actions were carried out in 

the best interest of our national security? Do you want to jump in 

on that one? No? OK. 

So just let me ask you this. You have a position that is designated as sensitivity, and then you have a person in that position 

that does not have any level of security clearance. Correct so far? 

And yet, that person is fired because they have accrued some debt 

beyond their control. And that is deemed as being OK? That is the 

first question. No? Anybody want to talk about that? Do you want 

to tell me why that is OK? 
14 

Mr. CURRY. Senator, as you may know, AFGE has filed an appeal 

to the Supreme Court related to these issues and I may be limited 

on what I can say about the case because the Justice Department 

represents the executive branch on that. 

Senator TESTER. Sure. 

Mr. CURRY. But I guess the point I would make on this is, one, 

that under Executive Order 10450, positions could have national 

security impact whether they have access to classified information 

or not. And the reason that we have—OPM went forward on challenging the MSPB’s decision on this is the Director of OPM has authority, under the law, when it believes that MSPB has rendered 

an erroneous decision, which is—an erroneous interpretation of 

Civil Service law, rule, or regulation. 

Senator TESTER. OK. 

Mr. CURRY. And so, when the Director sought reconsideration 

from MSPB on this, the intent was to preserve the executive 

branch’s authority to make risk determinations regarding national 

security positions. 

Senator TESTER. I got it. So, I mean, let me put it on one hand. 

I get it where if you have somebody that has a high security clearance and they owe somebody some money, that could possibly compromise what is going on. These guys did not have a security clearance at all. They were working in sensitive positions, but they did 

not have a security clearance. 

And it escapes me, it totally escapes me, and we are going to get 

further down, because, I mean, you have to start here to get down 

into the real problems of this. It escapes me how a grocery store 

clerk could be put at the same level as somebody that is dealing 

in the Department of Defense with really sensitive information, or 

in the CIA with really sensitive information that owes somebody 

some money. 

I honest to God do not get it. First of all, I do not get how you 

can have a person working in a position that is deemed as sensitive 

and not have a security clearance. I do not get that at all. And second, if they do not have the security clearance, I do not understand 

why they can be fired for that reason and not have any appeal 

rights. Fired because they basically accrued debt. 

Am I on a different level here? Does this make sense to you 

guys? 

Mr. PRIOLETTI. Senator, I am not in a position to determine what 

level you are on, but I can say to you—— 

Senator TESTER. I will take that as a compliment. 

Mr. PRIOLETTI [continuing]. It was meant as a compliment, sir. 

In this particular case, it is difficult for us to speak on behalf of 

DOD, but as you mentioned, there are two points here. One, in 

fact, they were in what were deemed at that time sensitive positions. 

Senator TESTER. But they did not have a personal clearance. 

They had not been vetted. 

Mr. PRIOLETTI. There is a difference between the sensitive position and having a clearance, as we know, and the reason that the 

position was considered sensitive is not based upon whether they 

were going to have access to classified information. It was whether 

the position could cause any type of adverse impact to national se-
15 

curity. And in this particular case, if you have access to a food supply, you could, in fact, have an adverse affect to national security, 

if that food supply, in this particular case, is DOD. 

Senator TESTER. Would you think the folks down in the Dirksen 

Service Southern Buffet are in sensitive positions? They have access to food. I eat, as you can tell, more regularly than I should 

there. 

Mr. PRIOLETTI. Again, sir, I would not comment on that last 

statement, for sure. The designations are done by the individual organizations and I would leave that to the appropriate organization 

to determine. 

Senator TESTER. OK. So let us get back to where you are going, 

and that is, you are laying down—ODNI and OPM are laying down 

in concert, laying down some regulations that agencies can follow, 

right? Once those regulations are laid down, will you be able to tell 

me whether the folks down in the server will be designated as sensitive positions? 

Mr. PRIOLETTI. Once the regulation is enacted, sir, it will provide 

you much clearer guidance so that we have uniform consistency 

across the determination factors, so that when you are making a 

determination on a particular position, the guidelines and the 

standards by which the position will be judged against will be consistent across the U.S. Government. 

Senator TESTER. So regardless if you are working in the Food 

and Drug Administration (FDA) or the Small Business Administration (SBA), the same guidelines will apply, correct? 

Mr. PRIOLETTI. Well, sir, the CFR 1400 applies to the competitive 

service. But the idea is to apply that eventually across the U.S. 

Government for consistency. 

Senator TESTER. Just to get your point, I mean, once you get the 

regulations down, they will apply across State—every Federal 

agency equally, correct? 

Mr. PRIOLETTI. Yes, sir. 

Senator TESTER. OK. So who is going to make sure that the 

agency actually utilizes—and I do not want to pick on you, Brian. 

Tim, you can answer, too. Who is going to make sure that the agency actually utilizes the rules that you promulgate? 

Mr. CURRY. Senator, I echo Brian’s remarks. The idea here is, 

the current rules at 5 CFR Part 732, they provide some very general guidelines, where the proposed rule is providing concrete examples, more detail. 

Senator TESTER. Got you. 

Mr. CURRY. And so, the goal here is to allow for more precision 

in making a position sensitivity designation. So OPM and ODNI 

both have oversight roles that they can assess how agencies are implementing these rules. We expect to also develop implementing 

guidance and also update the position designation tool which will 

also provide for more consistency across the government. 

Senator TESTER. Got you. 

Mr. CURRY. And what we are trying to minimize is under designation of positions where it might impact national security and 

minimize over designation of positions which might increase costs. 

Senator TESTER. OK. Where is the oversight of the agencies to 

use the rules that you are putting down? Is it voluntary or is some-
16 

body—where is the oversight coming from? That is the question. 

The question is, you can put down the rules and if they decide not 

to use them, you do not have rules, you do not have consistency, 

you are not going to achieve the goals that I think you want to 

achieve. So the question is, who has oversight? 

Mr. PRIOLETTI. Sir, oversight is a dual role in this case. Both 

OPM from the suitability side and ODNI from the security exec 

side. 

Senator TESTER. So you are going to be—I mean, pick an agency. 

Department of Justice (DOJ), CIA, DOD. You are going to be providing oversight to see that they use those rules? 

Mr. PRIOLETTI. Yes, sir. That would be our responsibility. 

Senator TESTER. And so, we have how many sensitive positions 

do we have? I have to be quiet here. I will come back. Senator 

Portman. 

Senator PORTMAN. Thank you, Chairman. You will give them 

time to think about that question. 

Senator TESTER. Exactly. 

OPENING STATEMENT OF SENATOR PORTMAN 

Senator PORTMAN. Well, first, thanks for holding the hearing. 

This is, as you all know, maybe our second hearing we have held. 

There has also been a hearing at the full Committee level on this 

same issue. I think we have acknowledged there is a need for significant reform with regard to the security clearance process. 

This is not our last hearing, so we will continue to work on this. 

We appreciate your being here and giving us some input. Sorry I 

was a little late. This is kind of a crazy time right now with the 

budget conference I am on and so on. But I am pleased we have 

made a little progress, even in the last couple of months. 

We have a legislation that Senator Tester and I introduced that 

actually passed called the SCORE Act, and it gives some important 

oversight responsibilities on this to the Inspector General (IG) at 

OPM, Mr. Curry, as I think you are familiar with. We are actually 

working on additional legislation now that we think will also be 

able to be moved pretty quickly because this is bipartisan and I 

think it makes the system more accountable and more efficient. 

On the Defense Authorization Bill, which is on the floor this 

week, we have an amendment that asks GAO to examine quality 

metrics and reciprocity as it pertains to the process. And along 

those same lines, we asked OMB’s Performance Accountability 

Council (PAC) to examine how we can improve the processes for access to State and local law enforcement records in the background 

investigation process. 

That came out of the tragic incident at the Navy Yard with 

Aaron Alexis. Some of you may have followed that. That came up 

in one of our hearings. That again, better access to State and local 

law enforcement records would have been very helpful in that investigation, in the background investigation for him, and it would 

be a way to shortcut some of these investigations. 

Today, as we have heard, we are focusing more broadly on the 

question of who should have access to information, how much information should be classified, how can we more efficiently and effectively again go through the clearance process. I have appreciated 
17 

your testimony. I have had a chance to hear from some of you and 

look at some of your other testimony. 

I am going to focus in on over classification because I think that 

is one of our issues here. Ultimately, we are not going to be able 

to keep up with the clearance process if we continue to classify so 

much information. And so, I think we need to get back to the root 

of the problem. And then if we have time, I will also ask some more 

questions along the lines the Chairman was asking. 

But on over classification or on classification, not to have a bias 

here, we have had, in our Committee hearings, and in the full 

Committee hearing, this consistent theme come up that there is 

more information being classified. It is a concern, one, because it 

is hard for people we represent, our constituents, to have access to 

this information to understand how the government works and how 

it is conducting itself. 

And two, if everything is classified, sort of nothing is classified, 

in my view. I mean, to the extent you are not being careful about 

what you prioritize, it is tough to protect information that really 

is of national security importance. 

I think, not making that information available to the public 

might be one reason the national security sector sometimes is interested in classifying, even when it might not have a national security implication. So this Public Interest Declassification Board 

(PIDB), which was established by Congress back in 2000, has said 

that a single intelligence agency classifies one petabyte of data 

every 18 months. That is the equivalent of 20 million filing cabinets filled with text, or approximately 13 years of high-definition 

video. 

So that is a single intelligence agency classifying that much 

every year-and-a-half. And so, I guess volume should not be the 

only indication, the only metric we use, but that certainly seems 

like a lot of information that, frankly, is very tough to keep up 

with. 

So starting with this notion of how much should we be keeping 

under lock and key, I have a couple questions. And by the way, the 

cost of this is growing, too. From 2001 to 2011, that 10-year period, 

until a couple years ago, the cost went from $4.7 billion to $13.6 

billion a year. So now, $13.6—$13.4—$13.36 billion a year in simply costs associated with storing this vast amount of information. 

And by the way, that does not include the over $1 billion needed 

every year just to clear the personnel authorized to have contact 

with this information, or to work with this material. 

So maybe starting with ODNI, Mr. Prioletti, appreciate your 

being here today because I think you probably have the most expertise on the national security side to be able to talk about this. 

Do you think we are classifying too much, too little, and talk a little bit about what goes into the decisionmaking process for information to be labeled classified or sensitive? 

Mr. PRIOLETTI. Thank you, Senator. I think what we do is classify what we feel is necessary at the time. I do not believe I am 

in a position to say whether we over classify or not. The volume 

that you mentioned is epic, but there are guidelines that are set 

specifically to determine what information needs to be classified 
18 

and that set of guidelines are used to determine what information 

goes under a classification or a non-classification status. 

I think we are using those as judicially as possible. The pace of 

business and the emerging threats environment that we are working in necessitates that we look at information on a daily basis and 

make that determination using those guidelines that I referred to. 

Senator PORTMAN. And these new tools that we are talking 

about, the new regulations and so on, is for determining whether 

somebody has a position that should be designated as sensitive. 

But you have also got tools that you are using to try to determine 

whether something is classified or not. 

And do you believe that the kind of tools that you have available 

to you are appropriate to make those decisions? 

Mr. PRIOLETTI. Yes, sir, I believe they are appropriate, but they 

are evolutionary in nature and change to meet the changing environment in which we work in. 

Senator PORTMAN. So here is one of the other data points we 

have from this PIDB, which is charged with looking at, how much 

classified information we have and whether it is growing or not. 

They are the ones that have indicated that it is growing so dramatically from $4.7 billion to protect it, roughly 12 years ago, to 

over $11 billion today. 

But they say that it would take two millions employees 1 year 

to review even one petabyte of information. And as I have indicated, one petabyte of data is now being collected every 18 months 

by a single intelligence agency. So two millions employees 1 year 

to review it. So obviously we do not have the workforce to review 

that information. Is that a concern? 

Mr. PRIOLETTI. Sir, if you mean is there a concern over the numbers that you just listed, or the lack of personnel to do—— 

Senator PORTMAN. Well, I mean, it is not practical. I am sure you 

guys would like a bigger budget, but there is not going to be two 

million employees to review even this one petabyte we talked 

about. I guess, just give me a sense of whether ODNI is tackling 

this issue of declassification and trying to ensure that we have the 

classification of materials, but do not over classify. 

And if not, how can this be justified? We are not going to have 

the employees to be able to review that. It will not be useful information. So what is ODNI’s latest effort on declassification? 

Mr. PRIOLETTI. Well, sir, what we do is we provide that oversight 

and that guidance to the organizations, and as I referred to the 

standards earlier before in one of your earlier questions, that particular guidance is Executive Order 13526, which lays out the 

standards for classifying information, and basically that information is tied to two areas. 

It is tied to potential damage to national security in the event 

of an unauthorized disclosure, and what that damage would be to 

national security. And that is the overriding guidance that is provided to organizations. EO–13526 is looked at on a periodic basis 

to see if there is any need for change. And that is how we continue 

to provide oversight to the organizations. 

Senator PORTMAN. OK. Let me take you off the hot seat for a 

minute and go to Brenda Farrell, if she would comment on it, from 

a sort of oversight perspective, more general perspective. Do you 
19 

think it is a problem of over classification, and if so, do you think 

ODNI and others are doing the right things to try to de-classify information so it is more useful? 

Ms. FARRELL. GAO, as noted earlier, has looked at the area of 

what is in place for classified material, but it has been several 

years. We have just initiated work in this area and I would be 

more than happy to have that team come and explain the scope of 

that work to you or your staff if you would like. 

Senator PORTMAN. And is GAO doing a specific research project 

on this issue of classification? 

Ms. FARRELL. Yes. 

Senator PORTMAN. That would be terrific if you could provide the 

Subcommittee with that and that may be the subject of a future 

hearing. 

Ms. Canterbury, you talked about it earlier. You mentioned, as 

I recall, that you think that the legislative branch provides too 

much deference to the executive branch on classification. Can you 

tell us why you think that and what you think ought to be done? 

Ms. CANTERBURY. Well, I think it is on a range of issues. I think 

classification is one of them. I think the national security claim is 

being used in more and more contexts now, and it sounds to me 

like the executive branch itself is not conducting proper oversight. 

And I thank you very much for this hearing because this is such 

a—and the previous hearings that you have had in this area because I think it has been long overdue. 

So now, all of this congressional attention in this space, hopefully, will spur some action and create some internal controls that 

are really lacking. 

Senator PORTMAN. Thank you. My time is over. I appreciate you 

all being here today. And again, this is just another hearing in our 

attempt to try to get at this issue, not just of over classification of 

material, but also on the security clearance process and how do you 

make it more efficient and more effective to avoid the problems we 

saw at the Navy Yard. So thank you, Mr. Chairman. 

Senator TESTER. Thank you, Senator Portman. I appreciate your 

work on this issue. I know you are busy. Appreciate your being 

here while you can. So thank you. 

I am going to go back to where I left off, and that was, we were 

talking about sensitive positions. We were talking about security 

clearances for people, both those issues. This is for anybody and if 

more than one of you want to answer, you can. How many sensitive 

positions have been designated? 

Mr. CURRY. Senator, it is difficult to estimate the number of sensitive positions across the government, but I would note that the 

number of sensitive positions does not necessarily equate to the 

number of security clearances, because not only our regulations are 

dealing with competitive service employees. We also have excepted 

service in the Federal Government. And, of course, security clearances apply to excepted service employees as well as contractors. 

Senator TESTER. I got it. 

Mr. CURRY. It is difficult to estimate that right now. 

Senator TESTER. David. 

Mr. BORER. Mr. Chairman, yes, it is impossible probably to estimate, but under the proposed regulations, virtually anybody in the 
20 

Department of Defense could be designated as holding a sensitive 

position. So we are talking about hundreds of thousands of employees who are being potentially denied MSPB rights. 

Now, let me illuminate something based on what you said earlier, that the Conyers and the regulations are so insidious for two 

more reasons we have not discussed today. One is that Conyers 

and Northover were both serving in their positions for years before 

their position was suddenly re-designated as a sensitive position. 

And with that re-designation, they were suddenly scrutinized for 

their credit ratings and, summarily brought before the agency and 

action was taken that was later deemed unreviewable. So that is 

one thing which fine public servants, long service, no problem at 

all, it is invisible to the government what their credit looks like, 

who cares, and suddenly with this stroke of a pen, they are hauled 

into this process. 

Second, because it is unreviewable, we have not even been told 

to this day what it was about Mr. Northover’s or Ms. Conyers’ positions that merited this kind of treatment. The government, at some 

point in the Northover case, mumbled something to the effect that, 

Well, he might be able to tell how many sunglasses we were ordering. I fail to see, as I am sure the Chairman does, how that is a 

security risk to the Nation, unless we are rolling out an amphibious assault on the city of Seattle where the sun never shines. 

Senator TESTER. Go ahead, Brenda. 

Ms. FARRELL. Mr. Chairman, our work that we conducted in 

2011 and 2012 found that there was a lack of guidance to help determine the sensitivity. The current 732 was in place, but it was 

very broad. And, of course, in our work at DOD and DHS, we repeatedly had officials tell us that the definition was so broad that 

it could capture just about any Federal position. 

So the steps that have been taken to put some parameters 

around that is much needed. It is not to say that by itself, that 

Federal regulation can answer the mail, but it is a start. 

Senator TESTER. You are talking about the one that was initially 

put on the books, or are you talking about the one that was presented in May 2010? 

Ms. FARRELL. May 2010, which does repeat quite a bit of what 

was previously put on the books. The difference is, some of the 

problems that we discovered in 2011 and 2012 was that the ODNI 

had not taken an active involvement with OPM in this particular 

area, and that was due to their evolving roles, that they both received their respective designations which was ODNI as Security 

Executive Agent, and OPM as the Suitability Agent in 2008. 

So there was a period when they have been determining exactly 

how their roles would interrelate. 

Senator TESTER. OK. And I may not have the month right, but 

I think it was May 2010. Is that right? Or is it December 2010? 

Mr. CURRY. I can. Senator, the original regulation was proposed 

in December 2010. 

Senator TESTER. OK. Good enough. 

Mr. CURRY. And I would like to clarify a point—— 

Senator TESTER. Go ahead. 

Mr. CURRY [continuing]. With regard to every position in DOD 

being designated as sensitive. As we noted in the explanation in 
21 

the supplemental of that proposed rule in December 2010, each position designation is going to be based on a review of each individual position based on their duties and nature of their work, not 

a broad class of the employees across an agency based on their mission. 

Senator TESTER. Mr. Borer can speak for himself, but I am not 

sure that he said that. I think what he said was if you could take 

each position and designate it, you could literally designate the 

whole DOD. 

Let me get to the rule of 2010, which—and I do not want to put 

words in your mouth, Brenda—you said was not adequate. Am I 

correct? 

Ms. FARRELL. Well, it did not have the involvement of ODNI and 

the DNI is the Security Executive Agent responsible for making 

sure there is uniform policy, and now the current proposed regulation does acknowledge the DNI’s role. 

Senator TESTER. So ODNI is involved now? 

Ms. FARRELL. Yes. 

Senator TESTER. Does that make the rule—have you seen the 

rule, the February 14th, the rule that they were going to get put 

in stone? Have you seen that rule? 

Ms. FARRELL. The current proposed regulation? 

Senator TESTER. Yes. 

Ms. FARRELL. Yes. And it does—— 

Senator TESTER. Is that adequate? 

Ms. FARRELL. By itself, no. And the rule does note that implementation guidelines are the responsibility of ODNI with OPM—— 

Senator TESTER. Right. 

Ms. FARRELL [continuing]. And that is definitely what will be 

needed to make sure that there is the oversight you are talking 

about, and quality controls in place for the agencies to implement 

it. 

Senator TESTER. But ultimately in the end, is it giving the agencies the kind of guidance they need to develop some uniformity? 

Does it give them the metrics to both determine which positions 

need to be designated as sensitive? And I assume it deals with security clearances, too? 

Ms. FARRELL. It provides more detail. Some of it is very similar 

to the old rule in terms of the definition of national security positions. 

Senator TESTER. Was the old rule adequate as far as that goes? 

Ms. FARRELL. Apparently not based on the work that we conducted in 2011 and 2012 because it was so broad the agencies had 

difficulty interpreting it. 

Senator TESTER. So where are we heading here? Are we heading 

here back to the same spot? I mean, the new rule is very similar 

to the old rule and the old rule was not adequate? 

Ms. FARRELL. Well, the new rule does expand on the definition 

of national security positions. It includes some of the key positions 

that were named, but then it tweaks it and it expands much more 

so. 

Senator TESTER. Still not adequate? 

Ms. FARRELL. I do not know. I do not know because—— 
22 

Senator TESTER. I thought you said there were studies that were 

done in 2010 and 2011 that said it was not adequate. 

Ms. FARRELL. When we did our review that we issued last year, 

we found that the guidance not adequate to help the agencies determine the suitability of positions. 

Senator TESTER. OK. 

Ms. FARRELL. The 2010 proposed rule was never implemented. 

Senator TESTER. OK. David, you had something else? 

Mr. BORER. Yes, Mr. Chairman. The new rule, the new version 

of the rules that were published in 2010 omit key provisions that 

talk about what the agencies have to do in order to designate a position as a national security position. 

The 2010 rule would have required an affirmative determination 

that the occupant could cause a material, adverse effect on national 

security. That has been deleted. So there is no direction, and certainly it will be easier for the agencies if they do not have to make 

that hurdle. 

Senator TESTER. OK. 

Mr. BORER. As you talk about oversight, for our money, the oversight that is required here is MSPB review on the back end. 

Senator TESTER. Yes. Tim, you want to talk about that for a second? Why was that deleted? 

Mr. CURRY. Yes. Senator, OPM and ODNI, by these regulations 

and by our implementing guidance, will provide detail on uniformity and consistency across the government. But under the Executive Order 10450, each agency has had responsibility to make 

the position designation. 

So what we are trying to do is assist them in exercising their authority by trying to ensure uniformity across the government. 

Senator TESTER. So why would material, adverse effect be taken 

out of the rule? 

Mr. CURRY. No, sir, that is a requirement of the Executive Order. 

This rule is implementing that Executive Order. 

Senator TESTER. OK. Getting back to the part about different 

agencies, and you are right, the head makes that call. Are they 

bound by anything other than just their respect for you to utilize 

the rules that you put forth? 

Mr. CURRY. Well—— 

Senator TESTER. The agencies, yes. 

Mr. CURRY. For purposes of consistency, yes, they will apply 

these rules, but they ultimately make the designation themselves. 

Senator TESTER. Just to be clear, and this is not picking on anybody here. To be clear, the agencies can determine whether to use 

or whether to go their own way when it comes to those designations? 

Mr. CURRY. No, sir. 

Senator TESTER. They have to use your rules? 

Mr. CURRY. They have to use our rules, but they make the ultimate final decision when applying these rules. 

Senator TESTER. OK. 

Mr. CURRY. And, Senator, just for clarification, when they are applying these rules, they are in the best position to look at the positions in their agencies, the nature of those duties of that position, 
23 

and determine the adverse impact on national security if there is 

action, inaction, or neglect to duty by the person in that job. 

Senator TESTER. OK. 

Mr. BORER. Mr. Chairman. 

Senator TESTER. Yes, sir. 

Mr. BORER. Just so there is no misconception on the part of the 

Committee about the consistency and the integrity of this process, 

I would point out that in Ms. Conyers’ case, Northover’s agency reversed itself and cited, expressly cited, the pending litigation as the 

reason why they were going to drop the re-designation of her position. 

And in Mr. Northover’s case, he was later restored to this position as a result of an unrelated Equal Employment Opportunity 

(EEO) claim and has since been promoted. So we can talk about 

consistency and about applying rules and so forth. The reality is on 

a ground level at these agencies, it does not happen. These managers are manipulating the process. 

Senator TESTER. I hear you. Look, what I want to get to is I want 

to make sure that—and I think that Angela brought this up in her 

opening statement—cost oversight, due process, all those things 

need to be handled. And I am an open government guy. I think the 

more transparent government is, the better government works. 

I also understand that there are people who want to do a lot of 

harm to this country, so we have to make sure that the folks that 

really do have access to sensitive information are properly vetted. 

Why we do not know how many sensitive positions are classified 

within government is disturbing to me, and maybe I should not feel 

that way, but I do. 

I think that if we have agencies out there that are arbitrarily— 

and I know that was part of the goal for the rule, is to get rid of 

the arbitrary nature of designations, but if they can still do that 

and the only person that knows that without a doubt are you guys, 

probably everybody at the table, as a matter of fact. 

But if they can arbitrarily do what they want as far as determining which positions are sensitive, because they can find something out there that would do that—I mean, the example of food 

was a fine example because we all eat—why—I guess the question 

is, are we going to end up with another Snowden incident or another Naval Yard shooter incident, because we have so many of 

these things to do that folks end up cutting corners in the process? 

I do not mean to verbalize too much about this. Angela brought 

it up. I mean, the fact is, we have a situation where we have so 

many people out here with security clearances that corners are 

being cut now to get those clearances done. 

And a person could deny that, but the proof is in the pudding 

and look what happened with Alexis. So I guess oversight by the 

legislative branch is something that I think we ought to take back 

a lot of the power that we have to make three equal branches of 

government and hearings like this help. 

Any other suggestions that you might have, Angela, as far as 

what we could do here to make sure that the rules that ODNI and 

OPM are putting in place actually do what I think you guys want 

them to do; and yet, does not break the bank, protects due process 

of workers, and, go ahead. 
24 

Ms. CANTERBURY. Thank you very much, Chairman. First and 

most importantly, Congress is going to have to fix the law and 

make sure that these civil servants and whistleblowers have access 

to review at the Merit Systems Protection Board. That is an absolute first must. 

Second, these positions need to be better understood and categorized before a proposed rule, before a finalized rule. It should 

have been done before the proposed rule, in our estimation. I might 

suggest a process similar to that with the analogous information. 

We had all of these strange, secret markings that proliferated. 

Right? And the agencies were just marking things for official use 

only, secret but unclassified, and so, the Obama Administration put 

together a process to try to rein that in and have some rationale 

for information that is not classified, but is controlled but unclassified. 

And so, an inventory took place. I might recommend something 

along those lines for these positions. If we really want to get a handle on legitimate designations, then tell us what those are. I mean, 

I am a little confused like you. Like, if there is not a security clearance, then what are the legitimate designations for national security? Tell us, agencies, and then base a rule upon that designation. 

Senator TESTER. You are saying tell us what the metrics are for 

determining the position? 

Ms. CANTERBURY. Yes, absolutely, and which positions you are 

using now, and have a really good, thorough look at whether or not 

those can be streamlined into very narrow, very specific concrete 

categories so that the agencies do not have wiggle room. 

Then you need to have some oversight over that process. OPM 

has not been doing its job. They were given responsibility by President Eisenhower in Executive Order 10450 and they are supposed 

to be overseeing how the agencies designate these. 

I mean, what we have heard today is they are just letting them 

do whatever, and after this rule, they also will be completely deferential to the heads of these agencies. They have no plans to go 

back and check whether or not their rule will be applied properly. 

Senator TESTER. OK. I will let you respond to that, Tim. 

Mr. CURRY. Well, as I noted earlier, OPM and ODNI do have the 

joint oversight rule with regard to these rules and there will be 

oversight and assessment of how the agencies are applying these 

rules. So I would respectfully disagree with that. 

Senator TESTER. OK. And excuse me for not knowing this answer. Are there metrics within the rule? 

Mr. CURRY. OK. I am consulting with my advisor. 

Senator TESTER. That is perfectly all right. I do the same thing. 

Mr. CURRY. There are reporting requirements, so based on the 

reporting requirements, we can learn information on how they are 

implementing this, but there is no specific metrics. 

Senator TESTER. So if there are not metrics in the rule, do you 

have metrics to know that they are implementing the rule in a way 

that it is intended? 

Mr. CURRY. OK, sir. Just what we are proposing in the rule is 

to comply with process efficiency requirements. Additional data 

may be collected from agencies conducting investigations or taking 

action under this part. These collections will be identified in sepa-
25 

rate OPM guidance issued as necessary under 5 CFR 732.103, 

which is our current regulations which deal with national security 

positions. 

So there is an opportunity for us that we would collect additional 

data. 

Senator TESTER. OK. So do you feel confident that what you have 

done with the rule and your ability to collect additional data and 

you have the manpower to be able to ensure that security clearances are given to those who only absolutely need them? 

Mr. CURRY. Well, I would note that this rule is unrelated to security clearances. It is only related to position sensitivity designation, 

so I would have to defer to Mr. Prioletti on security clearances. 

Senator TESTER. That is fine. Apply it to the designation of the 

position. 

Mr. CURRY. Well, in addition to the rules and the implementing 

guidance and the updates to the position designation tool, those are 

tools that are going to help the agencies in making those designations being consistent. There will be training that is offered by our 

Federal Investigative Services and that training will be updated for 

agencies to, again, assist agencies when they are making those determinations. 

Senator TESTER. So putting that in Montana talk, do you have 

the ability then to make sure that the positions that are classified 

are positions that necessarily need to be classified? 

Mr. CURRY. Sir, I cannot answer that question right now. I think 

as we are developing implementing guidance, those are kind of—— 

Senator TESTER. Is that a goal the Department—I do not want 

to—— 

Mr. CURRY. We certainly, as part of our oversight responsibilities, would want to ensure that the proper designations are being 

made. 

Senator TESTER. OK. Brian, do you want to speak about the security clearance angle for the same group of questions as far as 

making sure that the folks who absolutely need them get them and 

folks who do not, do not? 

Mr. PRIOLETTI. Right. I agree with what Mr. Curry had mentioned. The CFR 1400 that we were originally talking about here 

was, in fact, the position designation tool, not a security clearance 

tool. 

And if I may speak to what Angela mentioned earlier, asking for 

more detail, that is exactly what the proposed rule would do. It 

would provide more detail to the organizations in terms of guidance 

on how to determine those designations of the positions. And we 

believe that this rule will get us a lot farther than we were in the 

past. 

This is not new, sir. As we mentioned in our testimony, all of us 

mentioned, designation of positions has been going on since 1953 

and it is an evolutionary process, and I think we continue to build 

and make a better product to address those issues. 

Senator TESTER. Got you. I want to talk about security clearances for people, though. OK? That is part of the other part of this, 

because we have five million of them, 1.4 million top secret. Is 

there anything being done in that realm to make sure that the peo-
26 

ple who need them have them and the folks that do not need them 

do not have them? 

I do not know about you, but five million seems like a heck of 

a lot of folks to have a security clearance, and 1.4 million top secret 

security clearances seems like a pile. That is more than live in the 

State in Montana by about 40 percent. Can you give me an idea 

on, if there is any metrics or any advice, any guidance that is being 

to agencies on that? 

Mr. PRIOLETTI. Sir, we have existing guidance under 12968 and 

13467 Executive Orders. 

Senator TESTER. How old are those rules? 

Mr. PRIOLETTI. 12968 was amended in 1995 and 13467 came out 

in 2008, so they are not quite as old as 10450. 

Senator TESTER. Right. 

Mr. PRIOLETTI. And those are the guidelines that are given to all 

organizations to determine clearance-granting for individuals. It includes your adjudicative guidelines, it includes your investigative 

guidelines, and those are what are used by all organizations to 

make a determination if a security clearance is required for an individual or not. 

Senator TESTER. In your opinion, is that adequate? Are we making sure that security clearances are going to those who absolutely 

need that access to that information to be able to do their jobs? 

Mr. PRIOLETTI. Yes, sir, I believe they are, because they are continually reviewed and revisited to ensure that they are meeting today’s environment in which we work. 

Senator TESTER. Brenda, I want to get back to the rules and 

codification of them. Do you think there is a worth in codifying the 

guidance, the updated guidance along with quality controls, periodic reviews, guidance beyond the 24 months proposed in the rule? 

Do you think codification is a good thing in this case or do you 

think it is not necessary? 

Ms. FARRELL. What we do see missing is the periodic reassessments. There will be a one-time assessment that the agencies 

would be required to conduct within 2 years after the rule is finalized. But periodic reviews are still a missing piece. We still do not 

know what the implementation guidelines will provide—which I 

agree, which should be developed after the rule. But the implementation guidelines will be critical in order to understand what the 

oversight will be and what the quality controls will be used for 

oversight. 

The rule, the proposed rule is an improvement over the current 

rule. The current rule, again, is so broad it is subject to interpretation across the board. The proposed rule does provide more information to help the agencies. But again, by itself and without proper oversight, it is still unknown whether this will increase the 

number of clearances, decrease the number of clearances, or whether there will be some other issues, as some of the panel members 

have raised. 

Senator TESTER. OK. Well, I think we will wrap this up. I want 

to thank everybody for being a part of the hearing. Look, I will just 

say this. If we are going to—hopefully, we all have the same goals 

and I think they were goals that set out that I think Angela put 

forth in her opening statement, and if she did not do maybe some-
27 

body else did that dealt with cost and due process and oversight 

and all that stuff, over classification. 

If those are not the goals, then somebody has to tell me what the 

goals are, because those ought to be the goals. I think the only way 

we are going to get to a position where, No. 1, this does not break 

the bank and that we can do a good job really classifying the positions that need to be classified, is we really laser in and give these 

agencies some directive and have oversight to make sure that they 

are following your directives. 

I am not sure that is going to happen, but I can tell you that if 

it does not happen, these kind of sessions are not going to stop; 

they are going to continue. These Committee hearings and asking 

folks to be accountable for what is going on are going to continue. 

So I would just say that if there are ideas, either from the private sector, non-profit sector, from the union groups or from the 

agencies, that we can help you with to be able to help you do your 

job to make sure that we are able to achieve what we are trying 

to get here with truly having positions that are designated sensitive that need to be designated sensitive, and not because it is 

convenient to designate them as sensitive for some other reason. 

Or the same thing with security clearances, making sure that the 

folks who have them need them and they are not just handed out 

like candy at Halloween. I think it is really going to be important. 

And so, I will offer, as Chairman of this Committee, and I know 

Senator Portman will do his level best, too, to make sure that we 

fix what I think is a very serious problem that I talked about in 

my opening remarks. 

I would just say that this will only get fixed if we work together, 

and I mean between branches on this and with the private sector. 

So I just want to thank you all for being here. This afternoon I 

am going to be introducing legislation, the Clearance Accountability and Reform Enhancement Act, along with Ranking Member 

Portman, McCaskill, and Johnson and others to bring more accountability the security clearance process. Hopefully that will help 

you do your job. 

A key part of this legislation will require an updated guidance 

to agencies, along with quality controls, from you folks, OPM and 

ODNI, who will require periodic reviews and guidance to ensure it 

is regularly updated to reflect our current requirements. 

I would argue, in fact, that there is a lack of clear guidance that 

has led us down a path where we now have five millions folks with 

security clearances and access to our Nation’s most sensitive information and facilities. Would you like to speak about that, Brian? 

Go ahead. 

Mr. PRIOLETTI. Sir, if I may? 

Senator TESTER. Sure. 

Mr. PRIOLETTI. And I do not mean to interrupt. 

Senator TESTER. No. 

Mr. PRIOLETTI. I just wanted to clarify, we are very sensitive to 

what you say about that number, and the five million number that 

you are referring to covers both people with security clearances as 

well as people eligible for access. And being sensitive to that number, as you mentioned, five million of anything is a lot. 

Senator TESTER. That is. 
28 

Mr. PRIOLETTI. And because of that, recently, and speak of the 

devil, as you mentioned, on Halloween, the DNI signed an Executive Correspondence going out to all the government agencies stating that they are required to go through their clearance lists, validate the numbers, come back with the people who are being debriefed from their clearances, and get back with us with that information. 

Senator TESTER. When will they get back to you with that information? 

Mr. PRIOLETTI. They were given 90 days, sir. 

Senator TESTER. And you did it on Halloween, OK. Well, my next 

question would be, if there are five million that either have clearances or are eligible, how many have clearances? And you will have 

that in about, what, 75 days or so? OK. That is good. Right? 

Mr. PRIOLETTI. Yes, sir. 

Senator TESTER. Would love to have that as soon as you get it. 

Anyway, I look forward to working with the folks that are on this 

panel today and I want to express my appreciation for you being 

here. I think it was a worthwhile discussion about where we are 

and, potentially, where we are going. And I look forward to working with my colleagues on this Subcommittee and throughout the 

Senate to get legislation on this done. 

I am confident that in a time of hyper-partisanship that we can 

act responsibly and put the partisanship aside and buildupon the 

passage of the SCORE Act and take further steps to improve the 

security clearance process for the security of this country. 

And so, with that, I will say this record will remain open for 15 

days for any additional comments or questions that might want to 

be submitted. Once again, thanks to the panel for being here. This 

Committee meeting is adjourned. 

[Whereupon, at 3:29 p.m., the hearing was adjourned.] 
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