7 Chapter 7 Security Clearances and Background Investigations 7 Chapter 7 Security Clearances and Background Investigations
Security clearances are a prerequisite for serving in senior positions in the Executive Branch. Several million Americans have security clearances; hundreds of thousands have security clearances at the highest level.
While formally grounded in the national security authority of the President, recent clearance adjudications have suggested that the traditional norms governing security clearances may be under stress. Security clearances began as a system of protecting access to classified information, but clearances have now become “suitability” filters for Executive Branch appointees. Background investigations as part of the clearance process involve extensive disclosure and related due diligence, and inquiries as part of the determination as to whether to grant clearances probe many areas that are only tangentially related to access to classified information.
Clearance decisions are guided by Executive Order 12968 and other Executive orders, the SF-86 process, and agency regulations. In practice, clearance determinations are often opaque, discretionary, and difficult to challenge, turning on assessments of judgement, reliability, and character. Drug use functions as a key screening factor, reflecting a broader institutional emphasis on rule-following and risk mitigation.
This discretionary framework received firm constitutional support in Navy v. Egan, where the Supreme Court affirmed the President’s Article II authority over classified information and the grant or revocation of security clearances and confirmed that this is an area of limited judicial oversight. The more nuanced approach to Executive Branch authority in Greene v. McElroy has received almost no attention. More recent cases growing out of sanctions against law firms may add to the law in this area.
This deferrence has led to many concerns that seemingly extraneous factors—political views, social affiliations, past clients—may be impacting security clearance determinations. In recent Executive actions, clearance revocations have been employed to punish attorneys, civil servants, or appointees. The use of clearance powers for such purposes implicates concerns about First Amendment protections, professional independence, and the integrity of our legal process. Recent court decisions in reaction to those Executive actions suggest that unfettered presidential authority in this area may be challenged when clearance decisions are used to retaliate against lawful activity or political speech.
7.1 Summary 7.1 Summary
Security Clearances and Government Ethics
Security clearances are a prerequisite for serving in senior positions in the Executive Branch. While formally grounded in the national security authority of the President, recent clearance adjudications have suggested that the traditional norms governing security clearances may be under stress. Security clearances began as a system of protecting access to classified information, but clearances have now become “suitability” filters for Executive Branch appointees. Background investigations as part of the clearance process involve extensive disclosure and related due diligence, and inquiries as part of the determination as to whether to grant clearances probe many areas that are only tangentially related to access to classified information.
Clearance decisions are guided by Executive Order 12968 and other Executive orders, the SF-86 process, and agency regulations. In practice, clearance determinations are often opaque, discretionary, and difficult to challenge, turning on assessments of judgement, reliability, and character. Drug use functions as a key screening factor, reflecting a broader institutional emphasis on rule-following and risk mitigation. This discretionary framework received firm constitutional support in Navy v. Egan, where the Supreme Court affirmed the President’s Article II authority over classified information and the grant or revocation of security clearances and confirmed that this is an area of limited judicial oversight.
This defense has led to many concerns that seemingly extraneous factors—political views, social affiliations, past clients—may be impacting security clearance determinations. In recent Executive actions, clearance revocations have been employed to punish attorneys, civil servants, or appointees. The use of clearance powers for such purposes implicates concerns about First Amendment protections, professional independence, and the integrity of our legal process. Recent court decisions in reaction to those Executive actions suggest that unfettered presidential authority in this area may be challenged when clearance decisions are used to retaliate against lawful activity or political speech.
Class 6 examines the normative tension between genuine national security interests and the use of clearance decisions to shape the composition of the federal workforce and whether existing law offers any meaningful limitations or recourse.
7.2. Standard Form (SF) 86 (National Security Questionnaire)
7.3 Personnel Vetting Questionnaire -- Status 7.3 Personnel Vetting Questionnaire -- Status
The PVQ is supposed to replace the SF-86 and has been in the works for several years. According to the most recent AI search:
- Approved but not implemented: The form and its policies have been approved, but the technology needed to process it is still under development.
- Implementation delayed: The original implementation timeline has been extended, with a new estimated rollout around mid-2027.
7.4. SF 86 Supplement for Administrations of George W. Bush, Obama and Trump
7.5. 32 CFR part 147 (Adjudicative Guidelines for Determining Eligibility for Access to Classified Information)
7.6. Department of the Navy v. Egan, 484 U.S. 518 (1988)
7.7. Greene v. McElroy, 360 U.S. 474 (1959)
7.8. Memorandum Opinion, Jenner & Block v. Department of Justice, Civil Action No. 25-916 (JDB), May 23, 2025
7.9 R. Rizzi and C. Borden, “Security Clearances and the Regulation of National and Domestic Security Personnel,” Centre for Analysis of Risk and Regulation (CARR), London School of Economics (2016) 7.9 R. Rizzi and C. Borden, “Security Clearances and the Regulation of National and Domestic Security Personnel,” Centre for Analysis of Risk and Regulation (CARR), London School of Economics (2016)
In recent years, Western security establishments have been subject to a number of significant security break- downs, with individuals obtaining and widely disseminating massive amounts of classified information.
These breakdowns have highlighted some of the limits of the current security process, both in terms of how information is classified, and the process by which governments determine who may have access to classified information.
In the US, and elsewhere, the core component of the process by which a person is provided access to certain categories of classified information is the ‘security clearance’. Initially developed during the second world war, and greatly expanded in the early years of the Cold War, the security clearance process rests on a ‘certification model’ – at prescribed points in time, an assessment is made of an individual’s suitability to receive classified information, and the individual is either ‘certified’ and receives clearance or is denied. The process focuses on the government’s national security interest with little weight given to the individual’s personal interest – the ability of an applicant to appeal a denial of a security clearance is fairly limited. This approach, however, has begun to show strains, as the changing nature of both government and information has created new challenges for which the current security clearance system is not optimally designed.
In particular, the expansion in the size of government and the increasing use of private contractors in national security-related activities, coupled with rapid changes in information and communications technology, has resulted in a clearance process that is both too broad and insufficiently reliable. The number of government and government-related positions that require security clearances has exploded over the past couple of decades, despite questions about whether and to what extent many of these positions are likely to encounter classified information. This explosion in the number of security clearances that need to be processed has in turn stretched the resources of those agencies responsible for administering the security clearance regime. At the same time, the computer and communications revolution has expanded the volume of classified information exponentially during the same period, making the consequences of a security breach potentially far more wide-reaching than they were in the past. Put simply, under the current security clearance process, significant resources have to be expended on certifying security clearances for individuals and positions that pose little security risk, and at the same time the risks associated with a potential breach have increased substantially.
Moreover, security clearances have taken on a regulatory role that extends well beyond their original purpose of protecting sensitive information. In effect, the security clearance assessment has become less an inquiry into whether a person is capable of handling specific types of sensitive information and more a determination of whether a person should be allowed to work in government or government-related professions. As a practical matter, the failure to obtain a security clearance can end or significantly damage a person’s career, and therefore the individual economic stakes for applicants are substantial. Yet, the present security clearance process provides individuals with little ability to challenge a negative security clearance determination.
A Changing Landscape
Although the security clearance process has broadly remained unchanged since the 1950s, the landscape in which it operates has changed sig- nificantly. The growth in the size of the US government, coupled with an increased tendency to designate posi- tions as requiring a security clearance even where there is little likelihood that they will encounter classified information, has led to a massive increase in the number of security clearance reviews that are performed every year. Indeed, it is estimated that in 2014, 5.1 million individuals, primarily Americans, had security clearances granted by the US government (Fung 2014), including roughly 1.5 million at the Top Secret level, and that the cost of ‘vetting’ those individuals was approximately $6 billion (ibid). Moreover, attachment of a security clearance to a particular individual increasingly has become a form of government franchise or licence. This licence determines whether or not the individual can serve in a wide range of government positions, as well as in private sector positions that have quasi-governmental functions, regardless of whether the position will require contact with classified information (Rizzi et al., 2015: 24-27). This trend has made a security clearance, especially at the higher levels such as Top Secret, a ‘bankable’ qualification, and a requirement for working in a large number of fields that may be only tangentially related to national security.
Challenges
The current system has created a one-way ratchet in terms of requiring clearances, and of the corresponding scope of clearance investigations. The result has been delays in performing background checks and the use of third-party contractors to conduct investigations, with a predictable impact on quality. Comprehensive monitoring of individuals with access to classified information is limited, and in some spectacular cases, has proved to be inadequate.
Because a security clearance is required for a range of positions, a denial or revocation of a clearance constitutes a de facto regulatory bar to public service. The American system has developed an elaborate process of implementing denials and revocations of security clearances, using terminology borrowed from the legal sphere. For example, security clearance denials for private contractors are ‘adjudicated’ before ‘administrative judges’ as part of ‘hearings and appeals’. But, in fact, the current review system in many respects bears only a superficial resemblance to due process. As the scale of the security clearance process has expanded, and as the holding of a clearance has increasingly become a prerequisite for government jobs and contracts, there has not been a commensurate increase in the protections afforded to individuals in connection with granting or revoking their clear- ances. Indeed, the rights of affected individuals with respect to clearance determinations have, if anything, been reduced as a result of deferential judicial doctrines.
A major structural flaw in the current security clearance system is its reliance upon a certification model. Under the original 1953 regulatory scheme, as slightly modernized in the 1995 Executive Order, the scheme depends almost entirely upon standardized procedures to determine whether an individual can be ‘cleared’ for access to classified information and, if answered in the affirmative, the clearance certifies the individual can have such access going forward, even though neither the government nor the individual knows precisely what information will be involved in the future. Moreover, certification systems generally operate on a ‘snapshot’ in time, often failing to take into ac- count changes in the certified person or his or her circumstances over time.
As with any certification system, the current approach purports to provide assurance, and to create a presumption of continued validity, once the certificate is issued. Many of the spectacular examples of failures of the system involve individuals who may have at one point been deemed sufficiently trustworthy, but became dangerously unreliable, as the result of a variety of changing factors, such as financial distress.
Risk-based reforms?
One possible approach to reforming the current security clearance system would be to rely upon a risk-based personnel evaluation system, which would emphasize ongoing compliance and monitoring, rather than a single certification. A risk-based approach would provide a more comprehensive set of categories of individuals with contact with classified information to replace the three basic categories now used. Such an approach would concentrate resources on those positions as to which individuals would be most likely to handle, or be exposed to, classified information, particularly classi- fied information that creates significant national security risk, and would focus on comprehensively mitigating that risk. In practice, this approach would mean reversing the one-way ratchet, with fewer positions requiring any form of clearance, and with those positions requiring clearance being risk-weighted at the outset. In implementing this approach, it should be possible to measure actual and probable contact between the individual’s position and classified information, and to apply more rigorous standards to those with greater access. For example, an individual acting as a systems administrator or maintenance worker with broad access to classified information through highly sensitive IT systems would be subject to the most rigorous standards, regardless of title or seniority. The risk assessment thus would be based on current and probable future activities of the individual, rather than seniority of position.
Furthermore, a reformed compliance and monitoring model could modify or replace a half-century old certification system. Especially for positions that have access to particularly sensitive information, frequent and random reporting and responses to selected inquiries (for example, questions con- cerning unusual changes in financial holdings or transactions) could provide deterrence from inappropriate conduct with respect to such information. Similar models have been developed in the past to address analogous conduct risks, for example, testing regimes for restricted substances and drugs (for recipients of government licences and airline pilots), and for mon- itoring potential financial conflicts of interest. These regimes also tend to create and reinforce norms of conduct that reinforce the regulatory regime, because of the periodic reminders that the individual is subject to a special set of rules.
7.10. CARR Article (PDF Version)
7.11. Haberman et al., “Advisers Propose That Trump Give Security Clearances Without F.B.I. Vetting,” NY Times (Oct. 27, 2024)
7.12. Appeal Board Decision, Case No. 12-04780.a2 (Nov. 13, 2013)
7.13. Appeal Board Decision, Case No. 22-02236 (July 31, 2023)
7.14. Appeal Board Decision, Case No. 22-02225 (July 27, 2023)
7.15 Federal Records Act, 44 U.S.C. § § 3101, 3105, 3106 7.15 Federal Records Act, 44 U.S.C. § § 3101, 3105, 3106
§3101. Records Management by Agency Heads
The head of each Federal agency shall make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency's activities.
(Pub. L. 90–620, Oct. 22, 1968, 82 Stat. 1297.)
§3105. Safeguards
The head of each Federal agency shall establish safeguards against the removal or loss of records the head of such agency determines to be necessary and required by regulations of the Archivist. Safeguards shall include making it known to officials and employees of the agency—
(1) that records in the custody of the agency are not to be alienated or destroyed except in accordance with sections 3301–3314 of this title, and
(2) the penalties provided by law for the unlawful removal or destruction of records.
(Pub. L. 90–620, Oct. 22, 1968, 82 Stat. 1298; Pub. L. 98–497, title I, §107(b)(22), Oct. 19, 1984, 98 Stat. 2290; Pub. L. 113–187, §8(11), Nov. 26, 2014, 128 Stat. 2012.)
§3106. Unlawful Removal, Destruction of Records
(a) Federal Agency Notification.—The head of each Federal agency shall notify the Archivist of any actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction of records in the custody of the agency, and with the assistance of the Archivist shall initiate action through the Attorney General for the recovery of records the head of the Federal agency knows or has reason to believe have been unlawfully removed from that agency, or from another Federal agency whose records have been transferred to the legal custody of that Federal agency.
(b) Archivist Notification.—In any case in which the head of a Federal agency does not initiate an action for such recovery or other redress within a reasonable period of time after being notified of any such unlawful action described in subsection (a), or is participating in, or believed to be participating in any such unlawful action, the Archivist shall request the Attorney General to initiate such an action, and shall notify the Congress when such a request has been made.
(Pub. L. 90–620, Oct. 22, 1968, 82 Stat. 1298; Pub. L. 98–497, title I, §107(b)(21), title II, §203(b), Oct. 19, 1984, 98 Stat. 2290, 2294; Pub. L. 113–187, §4, Nov. 26, 2014, 128 Stat. 2009.)
7.16. Presidential Records Act, 44 U.S. Code Chapter 22
7.17 Executive Order 10450 (Apr. 27, 1953): Security Requirements for Government Employment 7.17 Executive Order 10450 (Apr. 27, 1953): Security Requirements for Government Employment
WHEREAS the interests of the national security require that all persons privileged to be employed in the departments and agencies of the Government, shall be reliable, trustworthy, of good conduct and character, and of complete and unswerving loyalty to the United States; and
WHEREAS the American tradition that all persons should receive fair, impartial, and equitable treatment at the hands of the Government requires that all persons seeking the privilege of employment or privileged to be employed in the departments and agencies of the Government be adjudged by mutually consistent and no less than minimum standards and procedures among the departments and agencies governing the employment and retention in employment of persons in the Federal service:
NOW, THEREFORE, by virtue of the authority vested in me by the Constitution and statutes of the United States, including section 1753 of the Revised Statutes of the United States (5 U.S.C. 631); the Civil Service Act of 1883 (22 Stat. 403; 5 U.S.C. 632, et seq.); section 9A of the act of August 2, 1939, 53 Stat. 1148 (5 U.S.C. 118j); and the act of August 26, 1950, 64 Stat. 476 (5 U.S.C. 22-1, et seq.), and as President of the United States, and deeming such action necessary in the best interests of the national security, it is hereby ordered as follows:
Section 1.
In addition to the departments and agencies specified in the said act of August 26, 1950, and Executive Order No. 10237 of April 26, 1951, the provisions of that act shall apply to all other departments and agencies of the Government.1
Sec. 2.
The head of each department and agency of the Government shall be responsible for establishing and maintaining within his department or agency an effective program to insure that the employment and retention in employment of any civilian officer or employee within the department or agency is clearly consistent with the interests of the national security.
Sec. 3.
(a) The appointment of each civilian officer or employee in any department or agency of the Government shall be made subject to investigation. The scope of the investigation shall be determined in the first instance according to the degree of adverse effect the occupant of the position sought to be filled could bring about, by virtue of the nature of the position, on the national security, but in no event shall the investigation include less than a national agency check (including a check of the fingerprint files of the Federal Bureau of Investigation), and written inquiries to appropriate local law-enforcement agencies, former employers and supervisors, references, and schools attended by the person under investigation: Provided, that upon request of the head of the department or agency concerned, the Office of Personnel Management may, in its discretion, authorize such less investigation as may meet the requirements of the national security with respect to per-diem, intermittent, temporary, or seasonal employees, or aliens employed outside the United States. Should there develop at any stage of investigation information indicating that the employment of any such person may not be clearly consistent with the interests of the national security, there shall be conducted with respect to such person a full field investigation, or such less investigation as shall be sufficient to enable the head of the department or agency concerned to determine whether retention of such person is clearly consistent with the interests of the national security.
(b) The head of any department or agency shall designate, or cause to be designated, any position within his department or agency the occupant of which could bring about, by virtue of the nature of the position, a material adverse effect on the national security as a sensitive position. Any position so designated shall be filled or occupied only by a person with respect to whom a full field investigation has been conducted: Provided, that a person occupying a sensitive position at the time it is designated as such may continue to occupy such position pending the completion of a full field investigation, subject to the other provisions of this order: And provided further, that in case of emergency a sensitive position may be filled for a limited period by a person with respect to whom a full field pre-appointment investigation has not been completed if the head of the department or agency concerned finds that such action is necessary in the national interest, which finding shall be made a part of the records of such department or agency.
[Sec. 3 amended by EO 12107 of Dec. 28, 1978, 44 FR 1055, 3 CFR, 1978 Comp., p. 264]
Sec. 4.
The head of each department and agency shall review, or cause to be reviewed, the cases of all civilian officers and employees with respect to whom there has been conducted a full field investigation under Executive Order No. 9835 of March 21, 1947, and, after such further investigation as may be appropriate, shall re-adjudicate, or cause to be re-adjudicated, in accordance with the said act of August 26, 1950, such of those cases as have not been adjudicated under a security standard commensurate with that established under this order.
Sec. 5.
Whenever there is developed or received by any department or agency information indicating that the retention in employment of any officer or employee of the Government may not be clearly consistent with the interests of the national security, such information shall be forwarded to the head of the employing department or agency or his representative, who, after such investigation as may be appropriate, shall review, or cause to be reviewed, and, where necessary, re-adjudicate, or cause to be re-adjudicated, in accordance with the said act of August 26, 1950, the case of such officer or employee.
Sec. 6.
Should there develop at any stage of investigation information indicating that the employment of any officer or employee of the Government may not be clearly consistent with the interests of the national security, the head of the department or agency concerned or his representative shall immediately suspend the employment of the person involved if he deems such suspension necessary in the interests of the national security and, following such investigation and review as he deems necessary, the head of the department or agency concerned shall terminate the employment of such suspended officer or employee whenever he shall determine such termination necessary or advisable in the interests of the national security, in accordance with the said act of August 26, 1950.
Sec. 7.
Any person whose employment is suspended or terminated under the authority granted to heads of departments and agencies by or in accordance with the said act of August 26, 1950, or pursuant to the said Executive Order No. 9835 or any other security or loyalty program relating to officers or employees of the Government, shall not be reinstated or restored to duty or reemployed in the same department or agency and shall not be reemployed in any other department or agency, unless the head of the department or agency concerned finds that such reinstatement, restoration, or reemployment is clearly consistent with the interests of the national security, which finding shall be made a part of the records of such department or agency: Provided, that no person whose employment has been terminated under such authority thereafter may be employed by any other department or agency except after a determination by the Office of Personnel Management that such person is eligible for such employment.
[Sec. 7 amended by EO 12107 of Dec. 28, 1978, 44 FR 1055, 3 CFR, 1978 Comp., p. 264]
-
Sec. 8.
- (a) The investigations conducted pursuant to this order shall be designed to develop information as to whether the employment or retention in employment in the Federal service of the person being investigated is clearly consistent with the interests of the national security. Such information shall relate, but shall not be limited, to the following:
-
- (1) Depending on the relation of the Government employment to the national security:
- (i) Any behavior, activities, or associations which tend to show that the individual is not reliable or trustworthy.
- (ii) Any deliberate misrepresentations, falsifications, or omissions of material facts.
- (iii) Any criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, habitual use of intoxicants to excess, drug addiction, sexual perversion.
- (iv) Any illness, including any mental condition, of a nature which in the opinion of competent medical authority may cause significant defect in the judgment or reliability of the employee, with due regard to the transient or continuing effect of the illness and the medical findings in such case.
- (v) Any facts which furnish reason to believe that the individual may be subjected to coercion, influence, or pressure which may cause him to act contrary to the best interests of the national security.
(2) Commission of any act of sabotage, espionage, treason, or sedition, or attempts thereat or preparation therefore, or conspiring with, or aiding or abetting, another to commit or attempt to commit any act of sabotage, espionage, treason, or sedition.(3) Establishing or continuing a sympathetic association with a saboteur, spy, traitor, seditionist, anarchist, or revolutionist, or with an espionage or other secret agent or representative of a foreign nation, or any representative of a foreign nation whose interests may be inimical to the interests of the United States, or with any person who advocates the use of force or violence to overthrow the government of the United States or the alteration of the form of government of the United States by unconstitutional means.(4) Advocacy of use of force or violence to overthrow the government of the United States, or of the alteration of the form of government of the United States by unconstitutional means.(5) Knowing membership with the specific intent of furthering the aims of, or adherence to and active participation in, any foreign or domestic organization, association, movement, group, or combination of persons (hereinafter referred to as organizations) which unlawfully advocates or practices the commission of acts of force or violence to prevent others from exercising their rights under the Constitution or laws of the United States or of any State, or which seeks to overthrow the Government of the United States or any State or subdivision thereof by unlawful means.(6) Intentional, unauthorized disclosure to any person of security information, or of other information disclosure of which is prohibited by law, or willful violation or disregard of security regulations.(7) Performing or attempting to perform his duties, or otherwise acting, so as to serve the interests of another government in preference to the interests of the United States.(8) Refusal by the individual, upon the ground of constitutional privilege against self-incrimination, to testify before a congressional committee regarding charges of his alleged disloyalty or other misconduct.(b) The investigation of persons entering or employed in the competitive service shall primarily be the responsibility of the Office of Personnel Management, except in cases in which the head of a department or agency assumes that responsibility pursuant to law or by agreement with the Office. The Office shall furnish a full investigative report to the department or agency concerned.(c) The investigation of persons (including consultants, however employed), entering employment of, or employed by, the Government other than in the competitive service shall primarily be the responsibility of the employing department or agency. Departments and agencies without investigative facilities may use the investigative facilities of the Office of Personnel Management, and other departments and agencies may use such facilities under agreement with the Office.(d) There shall be referred promptly to the Federal Bureau of Investigation all investigations being conducted by any other agencies which develop information indicating that an individual may have been subjected to coercion, influence, or pressure to act contrary to the interests of the national security, or information relating to any of the matters described in subdivisions (2) through (8) of subsection (a) of this section. In cases so referred to it, the Federal Bureau of Investigation shall make a full field investigation.
[Sec. 8 amended by EO 10491 of Oct. 13, 1953, 18 FR 6583, 3 CFR, 1949-1953 Comp., p. 973; EO 10531 of May 27, 1954, 19 FR 3069, 3 CFR, 1954-1958 Comp., p. 193; EO 10548 of Aug. 2, 1954, 19 FR 4871, 3 CFR, 1954-1958 Comp., p. 200; EO 11785 of June 4, 1974, 39 FR 20053, 3 CFR, 1971-1975 Comp., p. 874; EO 12107 of Dec. 28, 1978, 44 FR 1055, 3 CFR, 1978 Comp., p. 264]
Sec. 9.
(a) There shall be established and maintained in the Office of Personnel Management a security-investigations index covering all persons as to whom security investigations have been conducted by any department or agency of the Government under this order. The central index established and maintained by the Office under Executive Order No. 9835 of March 21, 1947, shall be made a part of the security-investigations index. The security-investigations index shall contain the name of each person investigated, adequate identifying information concerning each such person, and a reference to each department and agency which has conducted an investigation concerning the person involved or has suspended or terminated the employment of such person under the authority granted to heads of departments and agencies by or in accordance with the said act of August 26, 1950.
(b) The heads of all departments and agencies shall furnish promptly to the Office of Personnel Management information appropriate for the establishment and maintenance of the security-investigations index.
(c) The reports and other investigative material and information developed by investigations conducted pursuant to any statute, order, or program described in section 7 of this order shall remain the property of the investigative agencies conducting the investigations, but may, subject to considerations of the national security, be retained by the department or agency concerned. Such reports and other investigative material and information shall be maintained in confidence, and no access shall be given thereto except, with the consent of the investigative agency concerned, to other departments and agencies conducting security programs under the authority granted by or in accordance with the said act of August 26, 1950, as may be required for the efficient conduct of Government business.
[Sec. 9 amended by EO 12107 of Dec. 28, 1978, 44 FR 1055, 3 CFR, 1978 Comp., p. 264]
Sec. 10.
Nothing in this order shall be construed as eliminating or modifying in any way the requirement for any investigation or any determination as to security which may be required by law.
Sec. 11.
On and after the effective date of this order the Loyalty Review Board established by Executive Order No. 9835 of March 21, 1947, shall not accept agency findings for review, upon appeal or otherwise. Appeals pending before the Loyalty Review Board on such date shall be heard to final determination in accordance with the provisions of the said Executive Order No. 9835, as amended. Agency determinations favorable to the officer or employee concerned pending before the Loyalty Review Board on such date shall be acted upon by such Board, and whenever the Board is not in agreement with such favorable determination the case shall be remanded to the department or agency concerned for determination in accordance with the standards and procedures established pursuant to this order. Cases pending before the regional loyalty boards of the Office of Personnel Management on which hearings have not been initiated on such date shall be referred to the department or agency concerned. Cases being heard by regional loyalty boards on such date shall be heard to conclusion and the determination of the board shall be forwarded to the head of the department or agency concerned: Provided, that if no specific department or agency is involved, the case shall be dismissed without prejudice to the applicant. Investigations pending in the Federal Bureau of Investigation or the Office of Personnel Management on such date shall be completed, and the reports thereon shall be made to the appropriate department or agency.
[Sec. 11 amended by EO 12107 of Dec. 28, 1978, 44 FR 1055, 3 CFR, 1978 Comp., p. 264]
Sec. 12.
Executive Order No. 9835 of March 21, 1947, as amended, is hereby revoked.
[Sec. 12 amended by EO 11785 of June 4, 1974, 39 FR 20053, 3 CFR, 1971-1975 Comp., p. 874]
Sec. 13.
The Attorney General is requested to render to the heads of departments and agencies such advice as may be requisite to enable them to establish and maintain an appropriate employee-security program.
-
Sec. 14.
- (a) The Office of Personnel Management, with the continuing advice and collaboration of representatives of such departments and agencies as the National Security Council may designate, shall make a continuing study of the manner in which this order is being implemented by the departments and agencies of the Government for the purpose of determining:
- (1) Deficiencies in the department and agency security programs established under this order which are inconsistent with the interests of, or directly or indirectly weaken, the national security.
- (2) Tendencies in such programs to deny to individual employees fair, impartial, and equitable treatment at the hands of the Government, or rights under the Constitution and laws of the United States or this order.
- Information affecting any department or agency developed or received during the course of such continuing study shall be furnished immediately to the head of the department or agency concerned. The Office of Personnel Management shall report to the National Security Council, at least semiannually, on the results of such study, shall recommend means to correct any such deficiencies or tendencies, and shall inform the National Security Council immediately of any deficiency which is deemed to be of major importance.
- (b) All departments and agencies of the Government are directed to cooperate with the Office of Personnel Management to facilitate the accomplishment of the responsibilities assigned to it by subsection (a) of this section.
- (c) To assist the Office of Personnel Management in discharging its responsibilities under this order, the head of each department and agency shall, as soon as possible and in no event later than ninety days after receipt of the final investigative report on a civilian officer or employee subject to a full field investigation under the provisions of this order, advise the Office as to the action taken with respect to such officer or employee. The information furnished by the heads of departments and agencies pursuant to this section shall be included in the reports which the Office of Personnel Management is required to submit to the National Security Council in accordance with subsection (a) of this section. Such reports shall set forth any deficiencies on the part of the heads of departments and agencies in taking timely action under this order, and shall mention specifically any instances of noncompliance with this subsection.
[Sec. 14 amended by EO 10550 of Aug. 5, 1954, 19 FR 4981, 3 CFR, 1954-1958 Comp., p. 200; EO 12107 of Dec. 28, 1978, 44 FR 1055, 3 CFR, 1978 Comp., p. 264]
Sec. 15.
This order shall become effective thirty days after the date hereof.