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| Was It Illegal for Trump to Revoke Brennan’s Security Clearance? | Was It Illegal for Trump to Revoke Brennan’s Security Clearance? |
| (3 days later) | |
| President Trump’s unprecedented decision to revoke the security clearance of John Brennan, the former director of the Central Intelligence Agency — and his publicly stated intention to consider revoking clearances of a list of other administration critics — raises fundamental questions about national security, presidential authority and the First Amendment. | President Trump’s unprecedented decision to revoke the security clearance of John Brennan, the former director of the Central Intelligence Agency — and his publicly stated intention to consider revoking clearances of a list of other administration critics — raises fundamental questions about national security, presidential authority and the First Amendment. |
| I believe the president has grossly abused his authority and violated Mr. Brennan’s First Amendment right to speak freely. The president’s actions are therefore unconstitutional and demand a response from Congress. | I believe the president has grossly abused his authority and violated Mr. Brennan’s First Amendment right to speak freely. The president’s actions are therefore unconstitutional and demand a response from Congress. |
| Senator Daniel Patrick Moynihan foresaw the risks of unconstrained presidential authority over classified information and security clearances. In 1997 he led a commission that recommended, among other things, that Congress enact a statutory basis for the system, to ensure that information was classified only for genuine national security reasons and to provide due process for those who were not granted a clearance or had their clearance revoked. Many of the recommendations were adopted, but Congress chose not to enact a statute. | Senator Daniel Patrick Moynihan foresaw the risks of unconstrained presidential authority over classified information and security clearances. In 1997 he led a commission that recommended, among other things, that Congress enact a statutory basis for the system, to ensure that information was classified only for genuine national security reasons and to provide due process for those who were not granted a clearance or had their clearance revoked. Many of the recommendations were adopted, but Congress chose not to enact a statute. |
| Senator Moynihan could not have foreseen that a president would abuse his powers by revoking a clearance, with no process at all, solely because the individual was exercising his First Amendment right to speak freely about policy issues. And he would be horrified if, in addition, a president threatened to revoke clearances of those who oversaw an investigation of a foreign power’s interference in our elections, as President Trump recently said he might do in an interview with The Wall Street Journal. | Senator Moynihan could not have foreseen that a president would abuse his powers by revoking a clearance, with no process at all, solely because the individual was exercising his First Amendment right to speak freely about policy issues. And he would be horrified if, in addition, a president threatened to revoke clearances of those who oversaw an investigation of a foreign power’s interference in our elections, as President Trump recently said he might do in an interview with The Wall Street Journal. |
| The president’s statement on why he ordered the revocation of Mr. Brennan’s clearance is based on the assumption that the former C.I.A. director holds a security clearance only as a courtesy so that current senior officials may consult with him. That may be one reason, but it may not be the only one: For example, someone with Mr. Brennan’s experience may be employed in a position that requires a clearance. | The president’s statement on why he ordered the revocation of Mr. Brennan’s clearance is based on the assumption that the former C.I.A. director holds a security clearance only as a courtesy so that current senior officials may consult with him. That may be one reason, but it may not be the only one: For example, someone with Mr. Brennan’s experience may be employed in a position that requires a clearance. |
| Should the president revoke the former officials’ clearances merely because he doesn’t like what they say about him or his policies, they may suffer financially, but our national security will suffer more by the inability of the government and the private sector to draw upon their decades of experience and distinguished service. | Should the president revoke the former officials’ clearances merely because he doesn’t like what they say about him or his policies, they may suffer financially, but our national security will suffer more by the inability of the government and the private sector to draw upon their decades of experience and distinguished service. |
| The classification and clearance system was established by executive orders and various implementing regulations. The system is designed to ensure that information is classified properly and that the process for granting and revoking clearances is fair, including a right to appeal in case of a revocation. But nowhere in these foundational documents is authority to revoke a clearance because the individual exercised his or her First Amendment rights. | The classification and clearance system was established by executive orders and various implementing regulations. The system is designed to ensure that information is classified properly and that the process for granting and revoking clearances is fair, including a right to appeal in case of a revocation. But nowhere in these foundational documents is authority to revoke a clearance because the individual exercised his or her First Amendment rights. |
| The courts, including the Supreme Court in a 1988 case, have recognized that the president, in the absence of congressional action, has broad authority to establish and oversee the security clearance system and that no one has a “right” to a security clearance. But those cases have been decided largely on procedural grounds, and none has addressed any situation remotely like Mr. Trump’s action against Mr. Brennan. | |
| Obviously the president needs to be able to revoke security clearances, when justified: The First Amendment does not protect an individual holding a clearance who discloses properly classified information without authorization — even if done in the course of criticizing the president or his policies. Mr. Trump’s statement justifying his revocation of Mr. Brennan’s clearance makes no such allegation. | Obviously the president needs to be able to revoke security clearances, when justified: The First Amendment does not protect an individual holding a clearance who discloses properly classified information without authorization — even if done in the course of criticizing the president or his policies. Mr. Trump’s statement justifying his revocation of Mr. Brennan’s clearance makes no such allegation. |
| Free political speech is at the very apex of constitutional protections. Disagreement and dialogue are at the heart of our democracy. As Chief Justice William Rehnquist wrote in a 1988 opinion, the Supreme Court has “been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions.” | Free political speech is at the very apex of constitutional protections. Disagreement and dialogue are at the heart of our democracy. As Chief Justice William Rehnquist wrote in a 1988 opinion, the Supreme Court has “been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions.” |
| It is hard to conclude that Mr. Trump’s actions are anything other than a “sanction” to punish and intimidate Mr. Brennan and others who dare to speak out. Fear of the state’s unconstrained power is what Vladimir Putin and other autocrats use to govern. But fear is no way to govern a democracy. | It is hard to conclude that Mr. Trump’s actions are anything other than a “sanction” to punish and intimidate Mr. Brennan and others who dare to speak out. Fear of the state’s unconstrained power is what Vladimir Putin and other autocrats use to govern. But fear is no way to govern a democracy. |
| Because the individual agencies grant and “hold” the clearances of the former officers, the president’s statement directs the agencies to “implement this determination.” Before carrying out his order, the agencies should seek the advice of the Department of Justice as to whether the president’s direction is consistent with the First Amendment. | Because the individual agencies grant and “hold” the clearances of the former officers, the president’s statement directs the agencies to “implement this determination.” Before carrying out his order, the agencies should seek the advice of the Department of Justice as to whether the president’s direction is consistent with the First Amendment. |
| At the same time, Congress should look at Senator Moynihan’s recommendations and enact those that are necessary, particularly to protect against future abusive conduct by a president. Congress should leave the standards for classifying and declassifying with the president, but should enact a statute providing that the president cannot classify information for any reason other than the protection of national security. Also, as recommended by Senator Moynihan, Congress should establish an independent executive branch office to oversee the revocation of clearances that assures due process to individuals. | At the same time, Congress should look at Senator Moynihan’s recommendations and enact those that are necessary, particularly to protect against future abusive conduct by a president. Congress should leave the standards for classifying and declassifying with the president, but should enact a statute providing that the president cannot classify information for any reason other than the protection of national security. Also, as recommended by Senator Moynihan, Congress should establish an independent executive branch office to oversee the revocation of clearances that assures due process to individuals. |
| I do not know whether Mr. Brennan or others who may have their security clearance revoked by the president will choose to litigate. But if they do, it will be up to the courts to decide whether the First Amendment still matters in the age of Trump. | I do not know whether Mr. Brennan or others who may have their security clearance revoked by the president will choose to litigate. But if they do, it will be up to the courts to decide whether the First Amendment still matters in the age of Trump. |
| Jeffrey H. Smith, senior counsel at the law firm Arnold & Porter, served as the general counsel of the C.I.A. from 1994 to 1995. | Jeffrey H. Smith, senior counsel at the law firm Arnold & Porter, served as the general counsel of the C.I.A. from 1994 to 1995. |
| Follow The New York Times Opinion section on Facebook and Twitter (@NYTopinion), and sign up for the Opinion Today newsletter. | Follow The New York Times Opinion section on Facebook and Twitter (@NYTopinion), and sign up for the Opinion Today newsletter. |