When President Donald Trump came into office last year he began granting White House security clearances to top aides using more lenient criteria than those of his predecessors.
He can thank — or blame — Barack Obama for that.
The Trump White House has been accused of being too generous in doling out access to the nation’s secrets. But it was Obama officials who altered the guidelines weeks before they left office in early 2017 to provide additional mitigating factors for employees seeking clearances.
The guidelines now allow staffers with dual passports, tax problems and suspicious lie detector test results to receive clearances. They may not seem like major changes. But John V. Berry, a Virginia lawyer who represents people going through the security clearance process, described them as “big,” saying they offer people more chances to receive waivers and conditional clearances than before. “They’re easier in my opinion,” he said. “I don’t think you can argue that they’re tougher.”
The White House came under fire this month for allowing Staff Secretary Rob Porter to handle the most sensitive documents seen by the president for more than 12 months using an interim clearance. That revelation came to light after both his ex-wives publicly accused him of domestic abuse and he quickly resigned.
The new guidelines have fueled suspicion that the seemingly slight changes in Obama’s final weeks — intended to broaden the pool of potential federal government employees — are being used to give clearances to White House aides who would have otherwise not been able to obtain them.
Evelyn Farkas, a former deputy assistant secretary of defense who is now a nonresident senior fellow at the Atlantic Council, said the changes were made to the guidelines to make it easier for the federal government to attract quality applicants. But the easing of rules is now a cause for concern given the number of staffers that worked in the White House with questionable backgrounds, including Porter.
“Unfortunately … these new guidelines are being interpreted by a new crew that has different ethics, a different culture,” she said. “That’s why this caught our eye.”
I see the new rules as providing a much stronger argument for granting waivers for particularly skilled or key individuals that wouldn’t otherwise be able to get or keep a clearance given their backgrounds
Lawyer John V. Berry
Dozens of other White House staffers reportedly have only interim clearances 13 months into Trump’s presidency, a sign that investigators have remaining questions, doubts or other conflicts that still require examination. In a departure from previous administrations, the Trump White House has allowed those employees to access classified information despite the administration’s own director of national intelligence urging restrictions.
The list includes Jared Kushner, Trump’s son-in-law and top adviser, who has complex finances as New York real estate developer and made mistakes on the required paperwork. Chief of Staff John Kelly announced last week that the White House will no longer allow some staffers with interim clearances — including Kushner — to have access to the most sensitive information as of Friday if their FBI background check has been pending since at least June.
Paul Pillar, former deputy chief of the intelligence community’s counterterrorism center who served nearly three decades at the CIA, said revisions are regularly made to the guidelines to reflect how American society has evolved on issues, such as downplaying marijuana use. But, he said, the Trump White House’s actions on clearances are more serious than just taking advantage of new guidelines.
“I think to the extent that there is abusive practices in the White House … it goes beyond the fine print of a regulation,” he said.
Friday is the last day the White House will allow staffers with interim clearances — including Jared Kushner — to have access to the most sensitive information if their FBI background check has been pending since at least June 2017
James Clapper, Obama’s director of national intelligence, oversaw a rewrite of the National Security Adjudicative Guidelines. The guidelines are used by the White House and all federal agencies to grant security clearances allowing employees and contractors to read and hear classified information. It was last updated August 2006.
The new guidelines, for example, allow applicants with more than one passport to keep them instead of surrendering or destroying the non-U.S. one. They offer those with tax debt the opportunity to show they have made arrangements with tax authorities to pay what is owed. And they clarify that the judgments of polygraph technicians alone should not be the basis of an adverse action, according to multiple attorneys familiar with the guidelines.
“The changes implemented in 2017 in large part are to the benefit of applicants because of mitigating factors,” said Kristan Siegwart, a Washington lawyer who represents people going through the security clearance process.
The memo did outline a series of reforms that, in the wake of the situation involving Rob Porter that we can do to ensure that the security clearance process is tightened up
White House spokesman Raj Shah
They also allow agencies to provide waivers for applicants whose hiring is deemed so important that it outweighs any national security risk and to offer conditional clearance for those with substance abuse issues if they meet certain conditions, such as counseling sessions. White House officials say Trump did not grant a waiver to Porter.
Mary Kuntz, a Washington lawyer who represents people going through the security clearance process, described the process as “more discretionary” because it allows an applicant to better explain their whole story.
But in a handful of ways, the new guidelines became more restrictive. Online sexual activities, including those on social media, gambling and inpatient hospitalization were added to the infractions that could jeopardize a clearance.
Clapper had already issued directives about some of the individual issues before the guidelines were completed in December 2016 and implemented six months later in June 2017. National security experts say lawyers disagree about when the changes were to go into effect and what some of them meant.
“They reflect the constant give and take between having overly rigid policies in this area and allowing too much discretion – both of which have been seen as problems at various times,” said Brian Egan, an attorney who worked in the White House, the National Security Council and the State and Treasury departments during the Bush and Obama administrations.
At the White House, the FBI conducts background checks for staff using the guidelines but a final determination is generally made by the Security Office, a small group of career professions. But the president can overrule any decision.
President Bill Clinton signed a 1995 executive order that created the modern security clearance system. Presidents George W. Bush and Obama made their own tweaks through executive orders. Trump has yet to act.