Legal Commentary

Third Circuit Rejects Constitutional Challenge to Revocation of Egyptian-Born Muslim Physicist?s Security Clearance

By Eugene Volokh

The case is El-Ganayni v. U.S. Department of Energy. El-Ganayni (a U.S. citizen) alleges that his security clearance was unconstitutionally denied because of his religion and because of his criticisms of the Iraq war and of U.S. foreign policy. The Third Circuit concludes that civilian courts may not review the merits of security clearance decisions, and thus may not decide whether a decision was really based on security concerns or was instead based on constitutionally improper considerations:

El-Ganayni could easily establish that the political and religious speech that allegedly led to the revocation of his clearance was constitutionally protected. It is the second element of his prima facie case that is problematic. Proving that El-Ganayni?s political speech was ?a substantial or motivating factor? in the decision to revoke his clearance would inevitably require review of the merits of the DOE?s decision. There is simply no way to prove or disprove what was ? or perhaps more importantly for this case, what was not ? a ?substantial or motivating factor? in the decision to revoke El-Ganayni?s clearance without demanding some explanation of that decision from the DOE. It would require discovery of DOE officials and documents concerning the various ?factors? that led to the decision to revoke the clearance, and scrutiny of those factors to determine which were ?substantial? or ?motivating.? We can discern no difference between that inquiry and the review of the merits that is forbidden by Department of the Navy v. Egan, 484 U.S. 518 (1988).

Sounds right to me, both in terms of consistency with the caselaw (though I?m not an expert on that) and in terms of what the rule ought to be: The government must have very broad authority to choose the people with whom it shares its national security secrets, even when the decision is based on factors (such as religion and ideology) that would otherwise be impermissible.

Thus, for instance, I would have fully expected that during the Cold War government security clearance decisionmakers would specially scrutinize employees who were born (as I was) in the USSR. Though most Soviet emigres were distinctly anti-Soviet, there was reason to fear that some of them might have been KGB plants, and that even others could be pressured by threat of retaliation against their close relatives who still remained in the Soviet Union. Such discrimination based on a U.S. citizen?s place of birth (or in some situations even his parents? place of birth) is unfortunate, but I think justifiable where security clearances are involved. The same is true with regard to the person?s speech or religious practice; discrimination based on that can indeed powerfully deter constitutionally protected behavior by government employees and employees by government contractors, but I think that this is an unfortunate necessity.

Note also that we don?t know whether El-Ganyani was indeed denied the security clearance (1) simply because his speech coupled with his religion led the government to doubt his loyalty, (2) because his speech and religion led the government to investigate him more closely, and to uncover other facts ? e.g., the behavior of his relatives or friends, or possible though unproven behavior on his own part ? that led them to doubt his loyalty, or (3) because of a combination of both.

Full post as published by The Volokh Conspiracy on January 13, 2010 (boomark / email).