II 116th CONGRESS 1st Session S. 838 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. Exclusivity, consistency, and transparency in security clearance procedures and right to appeal (a) Exclusivity of procedures Section 801 of the National Security Act of 1947 ( 50 U.S.C. 3161 ) is amended by adding at the end the following: (c) Exclusivity Except as provided in subsection (b) and subject to sections 801A and 801B, the procedures established pursuant to subsection (a) shall be the exclusive procedures by which decisions about access to classified information are governed. . (b) Transparency Such section is further amended by adding at the end the following: (d) Publication (1) In general Not later than 180 days after the date of the enactment of this subsection, the President shall publish in the Federal Register the procedures established pursuant to subsection (a). (2) Updates Whenever the President makes a revision to a procedure established pursuant to subsection (a), the President shall publish such revision in the Federal Register not later than 30 days before the date on which the revision becomes effective. . (c) Consistency (1) In general Title VIII of the National Security Act of 1947 ( 50 U.S.C. 3161 et seq.) is amended by inserting after section 801 the following: 801A. Decisions relating to access to classified information (a) Definitions In this section: (1) Agency The term agency has the meaning given the term Executive agency in section 105 of title 5, United States Code. (2) Classified Information The term classified information includes sensitive compartmented information, restricted data, restricted handling information, and other compartmented information. (3) Eligibility for access to classified information The term eligibility for access to classified information has the meaning given such term in the procedures established pursuant to section 801(a). (b) In general Each head of an agency that makes a determination for eligibility for access to classified information shall ensure that in making the determination, the head of the agency or any person acting on behalf of the agency— (1) does not violate any right or protection enshrined in the Constitution of the United States, including rights articulated in the First, Fifth, and Fourteenth Amendments; (2) does not discriminate for or against an individual on the basis of race, color, religion, sex, national origin, age, or handicap; (3) is not carrying out retaliation for political activities or beliefs or a coercion or reprisal described in section 2302(b)(3) of title 5, United States Code; and (4) does not violate section 3001(j)(1) of the Intelligence Reform and Terrorism Prevention Act of 2004 ( 50 U.S.C. 3341(j)(1) ). . (2) Clerical amendment The table of contents in the matter preceding section 2 of the National Security Act of 1947 ( 50 U.S.C. 3002 ) is amended by inserting after the item relating to section 801 the following: Sec. 801A. Decisions relating to access to classified information. . (d) Right To appeal (1) In general Such title, as amended by subsection (c), is further amended by inserting after section 801A the following: 801B. Right to appeal (a) Definitions In this section: (1) Agency The term agency has the meaning given the term Executive agency in section 105 of title 5, United States Code. (2) Covered person The term covered person means a person, other than the President and Vice President, currently or formerly employed by, detailed to, assigned to, or issued an authorized conditional offer of employment for a position that requires access to classified information by an agency, including the following: (A) A member of the Armed Forces. (B) A civilian. (C) An expert or consultant to an agency. (D) Counsel or other representative retained by a covered person. (E) Any other category of person who acts for or on behalf of an agency as determined by the head of the agency. (3) Eligibility for access to classified information The term eligibility for access to classified information has the meaning given such term in the procedures established pursuant to section 801(a). (4) Need for access The term need for access has such meaning as the President may define in the procedures established pursuant to section 801(a). (5) Security executive agent The term Security Executive Agent means the Director of National Intelligence acting as the Security Executive Agent in accordance with Executive Order 13467 (73 Fed. Reg. 38103; 50 U.S.C. 3161 note; relating to reforming processes related to suitability for government employment, fitness for contractor employees, and eligibility for access to classified national security information), or as otherwise defined in a subsequent provision of law. (b) Agency review (1) In general Not later than 180 days after the date of the enactment of this section, each head of an agency shall, consistent with the interest of national security, establish and make publicly available a process by which a covered person to whom eligibility for access to classified information was denied or revoked by the agency can appeal that denial or revocation within the agency. (2) Elements The process required by paragraph (1) shall include the following: (A) In the case of a covered person to whom eligibility for access to classified information is denied or revoked by an agency, the following: (i) The head of the agency shall provide the covered person with a written— (I) detailed explanation of the basis for the denial or revocation as the head of the agency determines is consistent with the interests of national security and as permitted by other applicable provisions of law; and (II) notice of the right of the covered person to a hearing and appeal under this subsection. (ii) Not later than 30 days after receiving a request from the covered person for copies of the documents that formed the basis of the agency's decision to revoke or deny, including the investigative file, the head of an agency shall provide to the covered person copies of such documents as— (I) the head of the agency determines is consistent with the interests of national security; and (II) permitted by other applicable provisions of law, including— (aa) section 552 of title 5, United States Code (commonly known as the Freedom of Information Act ); (bb) section 552a of such title (commonly known as the Privacy Act of 1974 ); and (cc) such other provisions of law relating to the protection of confidential sources and privacy of individuals. (iii) (I) The covered person shall have the opportunity to retain counsel or other representation at the covered person’s expense. (II) Upon the request of the covered person, and a showing that the ability to review classified information is essential to the resolution of an appeal under this subsection, counsel or other representation retained under this clause shall be considered for access to classified information for the limited purposes of such appeal. (iv) (I) The head of the agency shall provide the covered person an opportunity, at a point in the process determined by the agency head— (aa) to appear personally before an adjudicative or other authority, other than the investigating entity, and to present to such authority relevant documents, materials, and information, including evidence that past problems relating to the denial or revocation have been overcome or sufficiently mitigated; and (bb) to call and cross-examine witnesses before such authority, unless the head of the agency determines that calling and cross-examining witnesses is not consistent with the interests of national security. (II) The head of the agency shall make, as part of the security record of the covered person, a written summary, transcript, or recording of any appearance under item (aa) of subclause (I) or calling or cross-examining of witnesses under item (bb) of such subclause. (v) On or before the date that is 30 days after the date on which the covered person receives copies of documents under clause (ii), the covered person may request a hearing of the decision to deny or revoke by filing a written appeal with the head of the agency. (B) A requirement that each review of a decision under this subsection is completed on average not later than 180 days after the date on which a hearing is requested under subparagraph (A)(v). (3) Agency review panels (A) In general Each head of an agency shall establish an independent panel to hear and review appeals under this subsection. (B) Membership (i) Composition Each independent panel established by the head of an agency under subparagraph (A) shall be composed of at least three employees of the agency selected by the head, two of whom shall not be members of the security field. (ii) Terms A term of service on an independent panel established by the head of an agency under subparagraph (A) shall not exceed 2 years. (C) Decisions (i) Written Each decision of a panel established under subparagraph (A) shall be in writing and contain a justification of the decision. (ii) Consistency Each head of an agency that establishes a panel under subparagraph (A) shall ensure that each decision of the panel is consistent with the interests of national security and applicable provisions of law. (iii) Finality Each decision of a panel established under subparagraph (A) shall be final but subject to appeal and review under subsection (c). (D) Access to classified information The head of an agency that establishes a panel under subparagraph (A) shall afford access to classified information to the members of the panel as the head determines— (i) necessary for the panel to hear and review an appeal under this subsection; and (ii) consistent with the interests of national security. (4) Corrective action (A) In general If, in the course of proceedings under this subsection, the head of an agency or a panel established by the head under paragraph (3) decides that a covered person's eligibility for access to classified information was improperly denied or revoked by the agency, the agency shall take corrective action to return the covered person, as nearly as practicable and reasonable, to the position such covered person would have held had the improper denial or revocation not occurred. (B) Compensation Corrective action under subparagraph (A) may include compensation, in an amount not to exceed $300,000, for any loss of wages or benefits suffered, or expenses otherwise incurred, by reason of such improper denial or revocation. (5) Publication of decisions (A) In general Each head of an agency shall publish each final decision on an appeal under this subsection. (B) Requirements In order to ensure transparency, oversight by Congress, and meaningful information for those who need to understand how the clearance process works, each publication under subparagraph (A) shall be— (i) made in a manner that is consistent with section 552 of title 5, United States Code, as amended by the Electronic Freedom of Information Act Amendments of 1996 ( Public Law 104–231 ); (ii) published to explain the facts of the case, redacting as appropriate personal identifiable information or sensitive program information; and (iii) made available on a website that is searchable by members of the public. (6) Publication of processes Each head of an agency shall publish in the Federal Register the process established by the head pursuant to paragraph (1). (c) Higher level review (1) Panel (A) Establishment Not later than 180 days after the date of the enactment of this section, the Security Executive Agent shall establish a panel to review decisions made on appeals pursuant to the processes established under subsection (b). (B) Scope of review and jurisdiction The panel established under subparagraph (A) shall review such decisions only— (i) as they relate to violations of section 801A(b); or (ii) to the extent to which an agency properly conducted a review of an appeal under subsection (b). (C) Composition The panel established pursuant to subparagraph (A) shall be composed of three individuals selected by the Security Executive Agent for purposes of the panel, of whom at least one shall be an attorney. (2) Appeals and timeliness (A) Appeals (i) Initiation On or before the date that is 30 days after the date on which a covered person receives a written decision on an appeal under subsection (b), the covered person may initiate oversight of that decision by filing a written appeal with the Security Executive Agent. (ii) Filing A written appeal filed under clause (i) relating to a decision of an agency shall be filed in such form, in such manner, and containing such information as the Security Executive Agent may require, including— (I) a description of— (aa) any alleged violations of section 801A(b) relating to the denial or revocation of the covered person's eligibility for access to classified information; and (bb) any allegations of how the decision may have been the result of the agency failing to properly conduct a review under subsection (b); and (II) supporting materials and information for the allegations described under subclause (I). (B) Timeliness The Security Executive Agent shall ensure that, on average, review of each appeal filed under this subsection is completed not later than 180 days after the date on which the appeal is filed. (3) Decisions and remands (A) In general If, in the course of reviewing under this subsection a decision of an agency under subsection (b), the panel established under paragraph (1) decides that there is sufficient evidence of a violation of section 801A(b) to merit a new hearing or decides that the decision of the agency was the result of an improperly conducted review under subsection (b), the panel shall vacate the decision made under subsection (b) and remand to the agency by which the covered person shall be eligible for a new appeal under subsection (b). (B) Written decisions Each decision of the panel established under paragraph (1) shall be in writing and contain a justification of the decision. (C) Consistency The panel under paragraph (1) shall ensure that each decision of the panel is consistent with the interests of national security and applicable provisions of law. (D) Finality (i) In general Except as provided in clause (ii), each decision of the panel established under paragraph (1) shall be final. (ii) Overturn The Security Executive Agent may overturn a decision of the panel if, not later than 30 days after the date on which the panel issues the decision, the Security Executive Agent personally exercises the authority granted by this clause to overturn such decision. (E) Nature of remands In remanding a decision under subparagraph (A), the panel established under paragraph (1) may not direct an outcome of any further appeal under subsection (b). (F) Notice of decisions For each decision of the panel established under paragraph (1) regarding a covered person, the Security Executive Agent shall provide the covered person with a written notice of the decision that includes a detailed description of the reasons for the decision, consistent with the interests of national security and applicable provisions of law. (4) Representation by counsel (A) In general The Security Executive Agent shall ensure that, under this subsection, a covered person appealing a decision under subsection (b) has an opportunity to retain counsel or other representation at the covered person’s expense. (B) Access to classified information (i) In general Upon the request of the covered person, and a showing that the ability to review classified information is essential to the resolution of an appeal under this subsection, the Security Executive Agent shall ensure the counsel or other representation retained under this paragraph is considered for access to classified information for the limited purposes of such appeal. (ii) Extent of access Counsel or another representative who is cleared for access under this subparagraph may be afforded access to relevant classified materials to the extent consistent with the interests of national security. (iii) Wrongful denial of access Wrongful denial of access of relevant materials to a counsel or other representative who is cleared for access under this subparagraph shall be reviewed, and remedied where necessary, by the panel established under paragraph (1). (5) Access to documents and employees (A) Affording access to members of panel The Security Executive Agent shall afford access to classified information to the members of the panel established under paragraph (1)(A) as the Security Executive Agent determines— (i) necessary for the panel to review a decision described in such paragraph; and (ii) consistent with the interests of national security. (B) Agency compliance with requests of panel Each head of an agency shall comply with each request by the panel for a document and each request by the panel for access to employees of the agency necessary for the review of an appeal under this subsection, to the degree that doing so is, as determined by the head of the agency and permitted by applicable provisions of law, consistent with the interests of national security. (6) Publication of decisions (A) In general For each final decision on an appeal under this subsection, the head of the agency with respect to which the appeal pertains and the Security Executive Agency shall each publish the decision. (B) Requirements In order to ensure transparency, oversight by Congress, and meaningful information for those who need to understand how the clearance process works, each publication under subparagraph (A) shall be— (i) made in a manner that is consistent with section 552 of title 5, United States Code; (ii) published in an appropriately redacted form, the facts of the appeal; and (iii) made available on a website that is searchable by members of the public. (d) Period of time for the right To appeal (1) In general Except as provided in paragraph (2), any covered person who has been the subject of a decision made by the head of an agency to deny or revoke eligibility for access to classified information shall retain all rights to appeal under this section until the conclusion of the appeal process under this section. (2) Waiver of rights (A) Persons Any covered person may voluntarily waive the covered person's right to appeal under this section and such waiver shall be conclusive. (B) Agencies The head of an agency may not require a covered person to waive the covered person's right to appeal under this section for any reason. (e) Relationship to suitability No person may use a determination of suitability under part 731 of title 5, Code of Federal Regulations, or successor regulation, for the purpose of denying a covered person the review proceedings of this section where there has been a denial or revocation of eligibility for access to classified information. (f) Preservation of roles and responsibilities under Executive Order 10865 and of the Defense Office of Hearings and Appeals Nothing in this section shall be construed to diminish or otherwise affect the procedures in effect on the day before the date of the enactment of this Act for denial and revocation procedures provided to individuals by Executive Order 10865 ( 50 U.S.C. 3161 note; relating to safeguarding classified information within industry), or successor order, including those administered through the Defense Office of Hearings and Appeals of the Department of Defense under Department of Defense Directive 5220.6, or successor directive. . (2) Clerical amendment The table of contents in the matter preceding section 2 of the National Security Act of 1947 ( 50 U.S.C. 3002 ), as amended by subsection (c), is further amended by inserting after the item relating to section 801A the following: Sec. 801B. Right to appeal. .