By Mike Dorf
The Snowden case has shone a spotlight on just how many people hold top secret clearances: according to a Washington Post story, as many as 4 million, including half a million private contractors. With so many top secret clearances, it is inevitable that some people with such clearances will prove untrustworthy--absent some incredible system for issuing these clearances and probably even with one. My own experience casts doubt on the existence of any such incredible system.
From time to time, I receive a phone call or a visit from either an FBI agent or other investigator performing a background check on a former student of mine who is being considered for a job (typically as a prosecutor) that requires a security clearance. The investigator proceeds to ask a series of questions, to which nearly all of my answers are "not to my knowledge." Here are some examples: Does Jane have a gambling problem? Does Jane abuse alcohol or drugs? Does Jane harbor any prejudice against anybody on the basis of race, religion or national origin? On any other basis? Etc.
Needless to say, being a classroom instructor does not afford me much access into the private lives of my students. Sure, if a student comes to class drunk or high, I'll notice that. Likewise, if a student uses racial epithets in the course of class discussion, I'll notice that too. Presumably I would be a bit more sensitive with respect to students I have taught in seminars, or who have worked for me as research assistants, or who frequently came to office hours. But still, in 21 years of law teaching, I've never actually noticed anything untoward, even though, statistically, I must have taught at least some students who did in fact have substance abuse problems and I probably taught a handful who harbored disqualifying prejudices. Consequently, I have never had occasion to say anything remotely disqualifying about a student in one of these interviews.
So what are we to make of the background check system? We might think that the very fact that the investigators talk to someone like me--someone with virtually no possibility of knowing anything disqualifying, even for an applicant who has a secret life--means that the investigations are incredibly thorough: Maybe they're talking to just about everyone who might possibly know anything. The fact that they talk to me means they're leaving no stone unturned.
But that strikes me as very unlikely, given the number of people who must be processed for security clearances. It seems much more likely that the investigators merely talk to people who fit into particular categories: past employers; teachers; landlords; etc. And I would not be at all surprised if in most instances the investigators are getting the information about whom to contact from the applicants themselves. An applicant with a secret gambling addiction is unlikely to disclose to the investigators the name of her bookie, but she will disclose the name of her con law professor.
Of course, even if the investigators conduct their background checks with Stasi-like thoroughness and efficiency, the questions will not likely root out the sorts of people who have been at the center of the two major releases of classified information in recent years: Bradley Manning and Edward Snowden. Whatever the exact motivation of Manning or Snowden, it is easy to imagine a squeaky clean patriot who gets a security clearance and then, as a consequence of seeing what he regards as government wrongdoing, decides to expose it. Indeed, the wonder is that this sort of thing doesn't happen even more often.