Taking someone’s security clearance away has almost been a stereotypical action by many agencies in DoD as a part of the “deal with the whistleblower” strategy. Trumped up justifications are too easy for them to throw together, and although they are trumped up, are very difficult to fight. It is difficult to get one’s clearance back, particularly in a timely manner. And most DoD employees must have their clearance in good standing in order to perform their jobs, and in many cases even report to their offices to work each day. This is a hopeful ruling.
Judge Says Army Must Answer For Denying Security Clearance to Whistleblower Bunny Greenhouse
Washington, D.C. July 28, 2009. U.S. District Judge Emmet G. Sullivan ordered yesterday that the Army Corps of Engineers must answer for its decision to withhold top-secret security clearance from whistleblower Bunnatine (Bunny) H. Greenhouse. “This decision sets a new precedent for the protection of national security whistleblowers,” said Michael D. Kohn, President of the National Whistleblowers Center and Greenhouse’s attorney.
Bunny Greenhouse was the Corps’ top procurement executive when she objected to the terms and legality of a no-bid contract the Bush Administration was about to award to Halliburton subsidiary KBR a contract just before the Iraq War commenced, known as Restore Iraqi Oil (“RIO”). Greenhouse’s concerns were ignored and the no-bid, cost plus contract, worth up to $7 Billion, was secretly awarded to KBR to run Iraqi oil fields after the invasion. When Greenhouse was scheduled to testify before a Congressional Committee during the Bush Administration, the Army Corps’ then acting General Counsel personally advised Greenhouse it would not be in her best interest to do so and she was swiftly removed as the Army Corps’ Procurement Executive when she ignored that warning. Greenhouse alleged that the Corps further retaliated against her by refusing to renew her top-secret security clearance (TSSC) on grounds that her new job did not require any clearance.
Greenhouse filed a lawsuit to get her old job back. In a ruling yesterday, Judge Sullivan overruled the government’s motion to dismiss Greenhouse’s claim for her TSSC.
Judge Sullivan acknowledged that existing case law establishes that “an adverse employment action based on denial or revocation of a security clearance is not actionable” if it would “require the court to assess the merits of the decision to deny the clearance – precisely the assessment prohibited by the Supreme Court’s holding” in Department of the Navy v. Egan, 484 U.S. 518 (1988).” Judge Sullivan establish new precedent, holding that “the decision to strip Greenhouse of her security clearance was based on the Corp’s claim that Greenhouse didn’t need it any more based on the jobs they intended her to perform” thereby making it “entirely unrelated to any security-sensitive considerations.”
A copy of the decision is attached here.