SENSITIVE COMPARTMENTED INFORMATION DENIALS WORKING GROUP FINAL REPORT ON APPEALS PROCEDURES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP96M01138R000600030016-4
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 3
• Document Creation Date: December 27, 2016
• Document Release Date: July 17, 2012
• Sequence Number: 16
• Publication Date: January 9, 1979
• Content Type: MEMO

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UNITEI) STATES 'ERNMENT
Memorandum
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U-8/AGC
surBJ)crr: Sensitive Compartmented Information Denials Working Group Final
Report on Appeals Procedures
1. Your memorandum of 2 January 1979 on the same Subject, to which
this responds, deals with a subject which rests more appropriately in
the hands of the lawyers than in the operators.
2. The threshold question should not be whether appeal procedures are
desirable or even in place but rather whether the law currently requires
them. If the answer is yes then that aspect of the matter is laid to
rest. If the answer is no then the question of their desirability
should be discussed jointly because while the impact of imposing them
may be administrative in nature, the potential repercussions of not
adopting them could well be legal.
3. In discussions between your office and ours, your office has taken
the view that DoD provides such procedures in the case of denied collateral
clearances. Accepting this as being true, GC has great difficulty
drawing any meaningful distinction between collateral and compartmented
clearances since the denial of either or both can have the same or similar
consequences. Therefore logic would appear to dictate that if we have
them for one we should have them for the other.
4. Your office advises that where a person who has been denied a
compartmented clearance has yelled loud enough that the Agency has
provided the complainant with some sort of explanation and opportunity
for reclama. This procedure is not adequate to satisfy the legal
administrative due process requirements for reasons which will appear
hereinafter.
5. It is noted that in the backup documentation NSA takes the position
that such procedures are already in place. Your office disagrees pith
NSA's position on this point. We defer to your judgment as to the
accuracy of NSA's representations.
6. There are six basic elements involved in the administrative due
process concept:
h. right to present evidence
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c. right to rebut adverse evidence
d. representation by counsel
e. have the decision based solely upon the evidence introduced at
a hearing
f. be provided a copy of the record.
7. In order to have a meaningful appellate procedure there needs to be
substantial compliance with the six points noted above. In order to
satisfy a court that such procedures are in effect they should be spelled
out in an appropriate DoD document signed by an appropriate official and
published not only within DoD but also probably in the Federal Register.
By so doing an individual is apprised of his rights and the government
employees of their responsibilities.
8. Is there a need for this? CIA obviously feels that there is. DIA
may soon have a court decision right on point. DMA is currently being
sued by an employee who among other allegations maintains that he was
denied SCI clearance and as a result the opportunity to be considered
for a better paying job. Records show that DMA acted unilaterally and
that the case was never sent to DIA for adjudication. Plaintiff's
complaint about the manner in which he was being treated was ignored.
9. The following is obvious from the pending case. DMA adjudicated the
case when it did not have the authority to do so. DIA had the responsi-
bility to adjudicate the case but never was sent the file to consider.
When the employee complained about the denial he was not afforded an
opportunity to appeal either within DMA or DIA.
10. If the plaintiff should obtain a smart attorney DMA should lose this
aspect of the case. (This is not to say that the judge would say that
the man was entitled to a clearance but rather that the case must be
processed in accordance with the rules). Since DMA has handled this
case in such a cavalier fashion no one should be surprised if the judge
also requires the implementation of some sort of administrative appellate
process which would afford the plaintiff and others similarly situated
fundamental fairness.
11. The parallel between the two types of clearances and the existence
of appeal rights in the case of denial of collateral clearances if
properly exploited at trial could carry a great deal of weight with the
judge particularly on the point of need for appellate procedures for the
denial of compartmented clearances.
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12. The referenced memorandum requested specific comments with regard
to the CIA proposed Annex B to DCID 1-14. Until such time as GC can
determine whether the recommended language would satisfy the current
case law judgment must be reserved. This much can he said about the
CIA paper. The problem of language can be avoided if paragraph 5 of
Annex B' were rewritten to read as fol 1 ows :
"5. Regui'rements. Each SIO will insure the establishment of
an appellate denial procedure which complies with the require-
ments imposed by law relating to the concepts of fundamental
fairness and administrative due process."
There is no requirement that CIA go any further and this language would
allow DIA to establish that procedure which would be satisfactory for
DoD.
13. In summary it is this office's view that the denial of an appeals
procedure should prove hard to defend in court. DoD should have an
appellate procedure for compartmented denials which at least parallels
that currently in effect in the case of collateral denials. Any further
discussion with regard to the language in the proposed Annex B could be
eliminated by substituting the recommended language spelled out above.
!JOHN R. BROCK
General Counsel, DIA
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