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Screening, Interrupted: Security Clearances, the SECRET Act, and Oversight of the Investigation Adju

By Maria Stratienko

On January 24, 2019, NBC News reported that White House Senior Advisor Jared Kushner was denied a top-secret security clearance by career specialists, only for the decision to be overruled by a “quasi-political supervisor.” Citing concerns about the influence foreign operatives could have on Kushner – as has been reported in the Washington Post to include “taking advantage of his complex business arrangements, financial difficulties and lack of foreign policy experience” – the clearance adjudicator deemed Kushner’s application “unfavorable,” to which a supervisor concurred.

The recommendation was ultimately overturned by Carl Kline, the Director of the Personnel Security Office in the Executive Office of the President. Notably, Kline’s decision was one of thirty such rulings in his time with the office; in the three years prior to his tenure in the role, his predecessor granted only one such reversal. Kline recently returned to the Pentagon, where he worked prior to joining the White House in May 2017.

NBC’s reporting set off a flurry of activity, including an investigation in the House Oversight Committee and the suspension of a White House security specialist. Kushner ultimately received a top-secret clearance in late May 2018, but was not approved to review “sensitive compartmented information,” also known as SCI. SCI primarily involves intelligence sources and their methodologies of information collection; access to it is limited by the Central Intelligence Agency, though the White House security office retains the authority to independently grant a top-secret clearance after reviewing a high-ranking staffer’s FBI background investigation. Notably, the CIA officers who reviewed Kushner’s file for the SCI clearance determination reportedly “balked” at his application, with one calling over to the White House security division to ask how Kushner “got even a top-secret clearance.”

Writ large, however, the continuing saga surrounding Kushner’s clearance troubles harkened back to previous concerns about his close involvement with hostile foreign powers, including the Saudi and Chinese governments. Kushner maintains a relationship with and routinely texts Saudi Prince Mohammed bin Salman, who was recently reported to have said he would “use a bullet” on the late journalist and dissident Jamal Khashoggi; the country has also previously admitted that Khashoggi’s murder, which took place in its embassy, was “premeditated.” Kushner’s troubles also ignited continuing concerns about the importance of standardization and oversight in the screening process, particularly for those with unorthodox pasts who enter the field through the political realm.

Enter, however, the clearance backlog; common to both it and the House Oversight Committee’s investigation in the White House’s screening process is 2018’s Securely Expediting Clearances Through Reporting Transparency Act. Framed with the backlog in mind, the SECRET Act instituted routine reporting requirements for Congress to track the National Background Investigations Bureau’s progress in addressing the issue. While some small progress has been made, an interim report from GAO has been critical of the rate of change. Further, a recently-released Defense Department report found that 165 defense contractors granted initial security clearances, a commonly-utilized means of mitigating the long delay resulting from the backlog, had those clearances revoked in 2018 for failure to find prior undisclosed criminal convictions and foreign influence.

Though his wife, White House Senior Advisor Ivanka Trump, recently stated that delays in their clearances were attributable to the backlog, Kushner is not subject to it as an assistant to the President. However, section four of the SECRET Act requires the Director of the Office of Administration in the Executive Office of the President to submit a report explaining the “process for conducting and adjudicating security clearance investigations for personnel of the Executive Office of the President” – a request that goes to the heart of Kushner’s interaction with the system, Kline’s conduct, and the dozens of other White House staffers granted clearances over the protests of career screeners.

That report was due August 20, 2018. The White House has yet to provide it to Capitol Hill.


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