Does the President Have Security Clearance?

Wed Oct 22 14:26:32 PDT 2008

Whatever the scope of inherent power of the President under Article II,
Congress has given the President the power (and duty) to establish
procedures to govern access to classified information and to personally
make exceptions to the need to conduct a background investigation.  50 USC
435.

I think that this statute, reasonably read, implies that the President
needs no such clearance.  (Perhaps if a hyperformalist were to insist on
it, a President could simply state, by executive order and pursuant to this
statute, that he gives himself access to all classified information without
a background investigation.)

Here's the relevant text:

     Access to Classified Information
     § 435. Procedures

       (a) Not later than 180 days after October 14, 1994, the President
       shall, by Executive order or regulation, establish procedures to
       govern access to classified information which shall be binding upon
       all departments, agencies, and offices of the executive branch of
       Government. Such procedures shall, at a minimum--

        (1) provide that, except as may be permitted by the President, no
        employee in the executive branch of Government may be given access
        to classified information by any department, agency, or office of
        the executive branch of Government unless, based upon an
        appropriate background investigation, such access is determined to
        be clearly consistent with the national security interests of the
        United States; . . .

As for judges, the Classified Information Procedures Act calls on the Chief
Justice to prescribe rules for the handling of classified information in
the custody of federal courts.  18 USC Appendix 3, section 9.  The rules
promulgated by Chief Justice Burger provide that "a security clearance for
justices and judges is not required, but such clearance shall be provided
upon the request of any judicial officer who desires to be cleared."

The views of at least one earlier Chief Justice cast some doubt on the
notion that a judge has inherent security clearance under Article III.
Chief Justice Chase once wrote, "In times of rebellion and civil war it may
often happen, indeed, that judges and marshals will be in active sympathy
with the rebels, and courts their most efficient allies." Ex parte
Milligan, 72 US 141 (1866) (Chase, C.J., joined by three other Justices,
concurring in the judgment).

Edward A. Hartnett
Richard J. Hughes Professor
     for Constitutional and Public Law and Service
Seton Hall University School of Law
One Newark Center
Newark, NJ 07102-5210
973-642-8842
hartneed at shu.edu
SSRN author page: http://ssrn.com/author=253335

             "Sisk, Gregory                                                
             C."                                                           
             <GCSISK at stthomas.                                          To 
             edu>                      <RJLipkin at aol.com>,                 
             Sent by:                  <CONLAWPROF at lists.ucla.edu>         
             conlawprof-bounce                                          cc 
             s at lists.ucla.edu                                              
                                                                   Subject 
                                       RE: Does the President Have         
             10/22/2008 04:35          Security Clearance?                 
             PM                                                            

When I was clerking for a federal court of appeals judge and national
security related matters would come before the court sometimes accompanied
by classified materials under seal, we clerks needed to obtain a security
clearance if we were to have any access to the materials.  But the judge
did not.  He’d always say with a smile that his security clearance was
conferred by Article III of the Constitution.  Likewise, I would assume
that the President automatically has access to any materials, classified,
law enforcement related, etc., by virtue of his role as Chief Executive and
Commander in Chief under Article II.

Gregory Sisk

Orestes A. Brownson Professor of Law

Universityof St. Thomas School of Law(Minnesota)

MSL 400, 1000 LaSalle Avenue

Minneapolis, MN  55403-2005

651-962-4923

gcsisk at stthomas.edu

http://personal2.stthomas.edu/GCSISK/sisk.html

Publications:  http://ssrn.com/author=44545

From:conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of RJLipkin at aol.com
Sent: Wednesday, October 22, 2008 3:04 PM
To: CONLAWPROF at lists.ucla.edu
Subject: Does the President Have Security Clearance?

        I just received a call from a local radio talk show host asking me
just how a president gets security clearance permitting him or her to have
access to classified intelligence.  Let me be perfectly clear. I did not
make up this question. So if anyone knows the process, I'd be grateful to
hear about it. Off-Line replies are fine.

Bobby

Robert Justin Lipkin
Distinguished Professor of Law
Widener University School of Law
Delaware

Ratio Juris, Contributor: http://ratiojuris.blogspot.com/
Essentially Contested America, Editor-In-Chief
http://www.essentiallycontestedamerica.org/

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