Assessment of Possible Updates to the National Security Act of 1947

Jeremy J. Grunert is an officer in the United States Air Force Judge Advocate General’s Corps, currently stationed in the United Kingdom.  He has served in Afghanistan, Qatar, and Turkey.  Divergent Options’ content does not contain information of an official nature nor does the content represent the official position of any government, any organization, or any group.

Editors Note:  This article is an entry into our 70th Anniversary Writing Contest: Options for a New U.S. National Security Act.  The author submitted this article under the contest heading of Most Able to be Implemented.


Title:  Assessment of Possible Updates to the National Security Act of 1947

Date Originally Written:  September 29, 2017.

Date Originally Published:  October 16, 2017.

Summary:  The National Security Act of 1947 played a significant role in establishing the U.S. as the global superpower it is today.  Despite the broad range of challenges facing the U.S. today, a large-scale update to the Act is likely as dangerous as it is politically infeasible.  Instead, Congress may adopt incremental changes to address threats facing our nation, beginning with the system of classification and security clearance review.

Text:  The National Security Act of 1947 (hereafter “NSA”), signed into law by President Harry Truman on July 26, 1947, is the progenitor of the U.S. intelligence and military establishment as we know it today.  The NSA created the National Security Council and the Central Intelligence Agency; established the United States Air Force as an independent military service; and merged the United States’ military services into what would become the Department of Defense, overseen by one Secretary of Defense.  The NSA’s reorganization of the defense and intelligence agencies set the stage for the United States’ post-World War II rise as, first, a military superpower, and, in the wake of the Soviet Union’s collapse, a global hegemon.

Seventy years after the passage of the NSA, the U.S. finds itself in an increasingly challenging security environment.  The lingering war in Afghanistan; the continued threat of terrorism; Russian military adventurism and cyber-meddling; a rising People’s Republic of China; and an increasingly bellicose North Korea all present significant security challenges for the U.S.  Given the solid foundation the NSA provided for the United States’ rise to global hegemony in the difficult period after World War II, is it time to update or amend the NSA to meet the challenges of the 21st Century?

Drastically altering the U.S. security framework as the original NSA did is likely as unwise as it is politically infeasible.  The wholesale creation of new intelligence and military services, or far-reaching changes to the structure of the Department of Defense, would result in confusion and bureaucratic gridlock that the U.S. can ill afford.  Instead, any updates to the NSA would be better done in an incremental fashion—focusing on areas in which changes can be made without resulting in upheaval within the existing security structure.  Two particular areas in which Congressional action can address serious security deficiencies are the realms of intelligence classification and security clearance review.

Proper intelligence classification and proper intelligence sharing—both among organizations within the U.S. national security establishment and between the U.S. and its foreign allies—is imperative to accomplish the U.S.’s strategic aims and protect its citizens.  Improper classification and over-classification, however, pose a continuing threat to the U.S.’s ability to act upon and share intelligence.  At the same time, a mind-bogglingly backlogged system for granting (and renewing) security clearances makes ensuring the proper people are accessing classified information a continuing challenge[1].

Congress has previously amended the NSA to address over-classification[2], and, in conjunction with other Congressional actions, may do so again.  First, whether within the NSA or in a new piece of legislation, Congress may examine amending portions of President Obama’s 2009 Executive Order (EO) 13526.  Specifically, Congress could mandate a reduction of the automatic declassification time for classified intelligence from 10 years to 5 years, absent an agency showing that a longer period of classification is necessary.  Additionally, Congress could amend § 102A of the NSA (codifying the responsibilities of the Director of National Intelligence, including for such things as “Intelligence Information Sharing” under § 102A(g)) by adding a paragraph giving the Director of National Intelligence the authority to create a rapid-reaction board for the speedy declassification or “step-down” of certain classified intelligence.  Chaired, perhaps, by the Principal Deputy Director of National Intelligence (who can be delegated declassification authority per EO 13526), this board would be used to quickly reach “step-down” decisions with respect to intelligence submitted to the board for release at a certain specified level of classification.  A particularly good example of this sort of request would be a petition to “step-down” certain SECRET//NOFORN (i.e. only releasable to U.S. persons) intelligence for release to U.S. allies or coalition partners.  The goal would be to have a clear method, with a fixed timeframe measured in weeks rather than months, for the review and possible “step-down” of classified information.

Congress may also attempt to address the ever-growing backlog of security clearance applications and renewals.  One way to confront this problem is to amend 50 U.S. Code § 3341(b) and update Title VIII of the NSA (“Access to Classified Information”) to decentralize the process of investigating security clearance applicants.  Section 3341(b) currently requires the President to select a single agency to “direct[] day-to-day oversight of investigations and adjudications for personnel security clearances” and to “serv[e] as the final authority to designate an authorized investigative agency or authorized adjudicative agency” for security clearances[3].  Currently, the Office of Personnel Management (OPM) conducts the vast majority of security clearance investigations for U.S. government employees.  The massive backlog of clearance investigations, however, belies the idea that a single government agency can or should be responsible for this undertaking.  Congress could also amend § 3341(b) to allow an agency chosen by the President to establish minimum standards for security clearance investigation, but permit the decentralization of investigative responsibility into the military and intelligence agencies themselves.

An update to Title VIII of the NSA would work in conjunction with an amendment to § 3341(b).  Specifically, Congress could add a paragraph to § 801(a) of the NSA requesting the President require each executive agency, at least within the Defense and Intelligence communities, to establish an investigative section responsible for conducting that agency’s security clearance investigations.  Under the aegis of the minimum standards set forth in § 3341(b), this would allow the various Defense and Intelligence agencies to develop additional standards to meet their own particular requirements, and subject potential clearance candidates to more rigorous review when necessary.  Allowing greater agency flexibility in awarding clearances may reduce the likelihood that a high-risk individual could obtain a clearance via the standard OPM vetting process.

The changes to the National Security Act of 1947 and other laws described above are small steps toward addressing significant security challenges.  Addressing the security challenges facing the United States requires incremental changes—changes which will address concrete problems without an upheaval in our Defense and Intelligence agencies.  Focusing on fixing deficiencies in the United States’ classification and security clearance review systems is an excellent place to start.


Endnotes:

[1] Riechmann, D. (2017, September 11). Security clearance backlog leads to risky interim passes. Retrieved September 21, 2017, from https://www.washingtonpost.com/world/national-security/security-clearance-backlog-leads-to-risky-interim-passes/2017/09/11/b9fb21dc-972b-11e7-af6a-6555caaeb8dc_story.html?utm_term=.e487926aac60

[2] Reducing Over-Classification Act of 2010, Pub. L. No. 111-258, 124 Stat. 2648 (2010). Retrieved September 21, 2017, from https://www.intelligence.senate.gov/laws/reducing-over-classification-act-2010

[3] 50 U.S.C. § 3341(b).  Retrieved September 22, 2017, from https://www.law.cornell.edu/uscode/text/50/3341

Assessment Papers Contest Governing Documents Jeremy J. Grunert Security Classification United States