Sec. 401 Exclusivity, consistency, and transparency in security clearance procedures, and right to appeal
“(c) Exclusivity—Except as provided in subsection (b) and subject to sections 801A and 801B, the procedures established pursuant to subsection (a) and promulgated and set forth under subpart A of title 32, Code of Federal Regulations, or successor regulations, shall be the exclusive procedures by which decisions about eligibility for access to classified information are governed.”
“(d) Publication
“(1) In general—Not later than 180 days after the date of the enactment of this subsection, the President shall—
“(A) publish in the Federal Register the procedures established pursuant to subsection (a); or
“(B) submit to Congress a certification that the procedures currently in effect that govern access to classified information as described in subsection (a)—
“(i) are published in the Federal Register; and
“(ii) comply with the requirements of 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.”
“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 regarding 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 head 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, ethnicity, color, religion, sex, national origin, age, or handicap;
“(3) is not carrying out—
“(A) retaliation for political activities or beliefs; or
“(B) 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)).”
“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 in, 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 with a contractual or personnel obligation to an agency.
“(D) 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) Reciprocity of clearance—The term reciprocity of clearance, with respect to a denial by an agency, means that the agency, with respect to a covered person—
“(A) failed to accept a security clearance background investigation as required by paragraph (1) of section 3001(d) of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 3341(d));
“(B) failed to accept a transferred security clearance background investigation required by paragraph (2) of such section;
“(C) subjected the covered person to an additional investigative or adjudicative requirement in violation of paragraph (3) of such section; or
“(D) conducted an investigation in violation of paragraph (4) of such section.
“(6) Security Executive Agent—The term Security Executive Agent means the officer serving as the Security Executive Agent pursuant to section 803.
“(b) Agency review
“(1) In general—Not later than 180 days after the date of the enactment of the Intelligence Authorization Act for Fiscal Year 2021, each head of an agency shall, consistent with the interest of national security, establish and publish in the Federal Register a process by which a covered person to whom eligibility for access to classified information was denied or revoked by the agency or for whom reciprocity of clearance was denied 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 or reciprocity of clearance 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 the 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 of any 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 a panel to hear and review appeals under this subsection.
“(B) Membership
“(i) Composition—Each 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 agency head, two of whom shall not be members of the security field.
“(ii) Terms—A term of service on a 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) Overturn—The head of an agency may overturn a decision of the panel if, not later than 30 days after the date on which the panel issues the decision, the agency head personally exercises the authority granted by this clause to overturn such decision.
“(iv) Finality—Each decision of a panel established under subparagraph (A) or overturned pursuant to clause (iii) of this subparagraph 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 agency 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) Representation by counsel
“(A) In general—Each head of an agency shall ensure that, under this subsection, a covered person appealing a decision of the head's agency under this subsection 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 a covered person appealing a decision of an agency under this subsection and a showing that the ability to review classified information is essential to the resolution of the appeal under this subsection, the head of the agency shall sponsor an application by the counsel or other representation retained under this paragraph 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.
“(5) 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 agency 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.
“(6) 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 personally identifiable information and sensitive program information; and
“(iii) made available on a website that is searchable by members of the public.
“(c) Higher level review
“(1) Panel
“(A) Establishment—Not later than 180 days after the date of the enactment of the Intelligence Authorization Act for Fiscal Year 2021, 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—After the initial review to verify grounds for appeal, 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 the 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 sponsor an application by the counsel or other representation retained under this paragraph 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.
“(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 Agent shall each publish the decision, consistent with the interests of national security.
“(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 personally identifiable information and sensitive program information; 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 appeals 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) Waiver of availability of procedures for national security interest
“(1) In general—If the head of an agency determines that a procedure established under subsection (b) cannot be made available to a covered person in an exceptional case without damaging a national security interest of the United States by revealing classified information, such procedure shall not be made available to such covered person.
“(2) Finality—A determination under paragraph (1) shall be final and conclusive and may not be reviewed by any other official or by any court.
“(3) Reporting
“(A) Case-by-case
“(i) In general—In each case in which the head of an agency determines under paragraph (1) that a procedure established under subsection (b) cannot be made available to a covered person, the agency head shall, not later than 30 days after the date on which the agency head makes such determination, submit to the Security Executive Agent and to the congressional intelligence committees a report stating the reasons for the determination.
“(ii) Form—A report submitted under clause (i) may be submitted in classified form as necessary.
“(B) Annual reports
“(i) In general—Not less frequently than once each fiscal year, the Security Executive Agent shall submit to the congressional intelligence committees a report on the determinations made under paragraph (1) during the previous fiscal year.
“(ii) Contents—Each report submitted under clause (i) shall include, for the period covered by the report, the following:
“(I) The number of cases and reasons for determinations made under paragraph (1), disaggregated by agency.
“(II) Such other matters as the Security Executive Agent considers appropriate.
“(f) Denials and revocations under other provisions of law
“(1) Rule of construction—Nothing in this section shall be construed to limit or affect the responsibility and power of the head of an agency to deny or revoke eligibility for access to classified information or to deny reciprocity of clearance in the interest of national security.
“(2) Denials and revocation—The power and responsibility to deny or revoke eligibility for access to classified information or to deny reciprocity of clearance pursuant to any other provision of law or Executive order may be exercised only when the head of an agency determines that an applicable process established under this section cannot be invoked in a manner that is consistent with national security.
“(3) Finality—A determination under paragraph (2) shall be final and conclusive and may not be reviewed by any other official or by any court.
“(4) Reporting
“(A) Case-by-case
“(i) In general—In each case in which the head of an agency determines under paragraph (2) that a determination relating to a denial or revocation of eligibility for access to classified information or denial of reciprocity of clearance could not be made pursuant to a process established under this section, the agency head shall, not later than 30 days after the date on which the agency head makes such a determination under paragraph (2), submit to the Security Executive Agent and to the congressional intelligence committees a report stating the reasons for the determination.
“(ii) Form—A report submitted under clause (i) may be submitted in classified form as necessary.
“(B) Annual reports
“(i) In general—Not less frequently than once each fiscal year, the Security Executive Agent shall submit to the congressional intelligence committees a report on the determinations made under paragraph (2) during the previous fiscal year.
“(ii) Contents—Each report submitted under clause (i) shall include, for the period covered by the report, the following:
“(I) The number of cases and reasons for determinations made under paragraph (2), disaggregated by agency.
“(II) Such other matters as the Security Executive Agent considers appropriate.
“(g) 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 or a denial of reciprocity of clearance.
“(h) 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.
“(i) Rule of construction relating to certain other provisions of law—This section and the processes and procedures established under this section shall not be construed to apply to paragraphs (6) and (7) of section 3001(j) of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 3341(j)).”