Monday, September 23, 2013

A “Civil Right” to be a Mass Murderer?

In the wake of yet another mass shooting in a “gun-free zone”, and after a feint at gun-control, the media seems to have settled into a new narrative.  From, for instance, the Washington Post:

Military’s background check system failed to block gunman with a history of arrests

So already we’re off to a bad start.  WaPo writers ought to know perfectly well (and probably do) that the purpose of the security clearance system isn’t to “block gunmen”.  It’s to protect the unauthorized disclosure of classified information, the release of which would damage national security.  This is not a defense; obviously, the security clearance system failed to prevent Edward Snowden’s activities.  But it wasn’t designed to prevent Aaron Alexis’.

Should it be the purpose?  Protecting classified information is arguably a function unique to the government.  I stress arguably; in fact, many private-sector positions may require protecting lawfully-held proprietary information from unauthorized disclosure, and it seems reasonable that companies would screen such employees much as the government does.  But let’s put that aside, for the moment, because what isn’t arguable is that denying access of potential mass-murderers to the rest of its workforce is a potential interest of any organization that might choose to address it.  Contra Judy Woodruff, government employees have no greater “right to safety” than any other employee of any other firm, nor should they.

Which brings me to a connection I have seen literally nobody in the media make:  Eric Holder’s justice department is at this very moment busy suing companies who use criminal background checks to screen job applicants.  As usual, its legal reasoning isn’t solicitude for ex-convicts (which might have some merit – reintegrating convicts into society is a tricky problem).  Rather it is disparate impact:  blacks commit felonies at greater rates than whites, and thus suffer more from private industry’s disinclination to bear the elevated risk posed by employees with a history of anti-social behavior and poor decision making. 

So it will be somewhat hypocritical for the same government filing these lawsuits to turn around and tighten its own background checks because it doesn’t want to bear the risk posed by employees with a history of anti-social behavior and poor decision making.

Let’s return to the WaPo article:

It is unclear why the Defense Department approved Alexis’s security clearance after his 2004 arrest in Seattle for shooting out the tires of a car. Thomas Richards, a spokesman for the Office of Personnel Management, said the office conducted only one security review of Alexis, in 2007, and that it turned up his 2004 arrest in Seattle.

He maintained his clearance despite more recent brushes with the law and a pattern of misconduct that preceded his discharge from the Navy. Alexis was arrested on charges of disorderly conduct in DeKalb County, Ga., in 2008, and after he fired a shot into his apartment ceiling in Texas in 2010.

From other reporting, Alexis was never charged in connection with the two firearm-related arrests.  I would be willing to let the 2010 episode slide:  an accidental discharge could happen once to anyone.  But I agree with Steve:  Alexis should have been prosecuted for shooting out someone’s car tires in an “anger-fueled blackout”.  Why he wasn’t has never been adequately explained, but it represents one of two bona-fide failures in the way the process is supposed to work.  But that failure rests with Seattle, not the DoD.

A Defense Department official said that lower-level clearances such as the one granted to Alexis are typically good for 10 years. Former military employees who become private-sector contractors can also maintain their clearance during that time.

The official said a person can keep a clearance “in the absence of unadjudicated derogatory information.”

“Adjudication” in this context means that some negative information was found, and the clearing agency has to make an individualized determination about whether the individual is trustworthy.  I don’t actually know whether a felony conviction could have been adjudicated favorably.

The agency did not conduct a new background check either last year, when Alexis was first hired as a military contractor, or this summer, when Alexis was seeking a second stint with the contracting firm, people familiar with his hiring said. Instead, the company hired an approved background screening firm that confirmed with the Defense Department that Alexis’s security clearance remained valid.

That’s the way it works.  A clearance is portable during the ten years.

A secret-level clearance requires far less-intensive digging than one for top-secret clearance, and involves only a check of the FBI database, military records and data from law enforcement agencies where an applicant has lived, worked or attended school during the past five years. It does not require interviews with family members, co-workers or employers.

All this is correct.  Only the Top Secret clearance is good for five years between investigations, and only Top Secret clearance investigations require interviews.  This makes them time consuming and expensive in the best of circumstances.  Clean-living can help; my TS investigation took less than six months, but I know people who waited over a year.

And it doesn’t help that the TS periodic re-investigations have a backlog; they are supposed to occur ever five years, but my two didn’t occur until the seven points.  In the mean time, the policy is, we keep doing our jobs, and this was long before the current usage of the word “sequester” had even been invented.

The reason I say all this is that before we follow the WaPo’s apparent advice and start holding all security clearance investigations to TS standards, we should be aware of the trade-offs we are making.  Everyone in the armed forces holds a Secret clearance just to get started; only a relative handful hold a TS.  We would have to put a LOT more money into the investigative process and eliminate a LOT more people, most of them minorities, from consideration for any kind of government service.

From, for instance, the LA Times:

Police in Rhode Island warned the U.S. Navy last month [August, 2013] that Aaron Alexis was hallucinating and hearing voices, and security officials at the local Navy base where he worked promised to look into the matter.

Newport Police Lt. William Fitzgerald said Wednesday that officers had faxed a copy of their report to the Newport Naval Station after Alexis told them on Aug. 7 that he was being threatened by unseen people and feared that "some sort of microwave machine" was penetrating his body.

"We faxed it to them that same day, an hour after we spoke to Mr. Alexis," Fitzgerald said. "They said they would look into it, that they would follow up on it. It was a routine thing for us to give them a heads-up."

A Navy official in Washington said Navy security agents in Newport had reviewed the allegations and decided Alexis was not a threat to the installation or to himself. He called the notification "routine" and said security personnel apparently did not interview Alexis or revoke his security clearance.

Hallucinations and “voices” only mean schizophrenia.  Now, schizophrenia can be controlled with medication, but in what universe does a police report to Navy security agents about it not become cause for a directed psychological evaluation?  This, in my opinion, is the second bona-fide failure.

Alexis went on after the August episode to purchase his Remington 870 pump-action shotgun (the one firearm outstanding on my shopping list, dammit).  The gun grabbers will make the usual hay out of this, but I’m prepared to concede at least a partial point:  while no one should be denied their constitutional rights on the strength of anything less than “due process of law”, there should be some consideration given to a process that converts the scenario described above into a hearing.  I don’t have any immediate recommendations in this regard, and I recognize that coming up with a solution is difficult when the gun grabbers are participating in bad faith.  But it ought to be looked at.


Elusive Wapiti said...

Excellent post, Dr. Phi. Just for once I'd love the media to do a sober analysis of the failures of present laws on the books before clamoring to add new ones to them.

In a way, though, the Navy Yard shooting represents progress. The Left is that much closer to having to deal with the obvious truth--it's not the gun, it's the crazy.

Also, you raise an excellent point...were the military to use background checks to screen out bad actors, not just security risks, in the way the MSM demands, it would most certainly result in disparate impact to NAMs. That's a bill that I don't think the Left is willing to pay, esp when DoJ is jacking up companies for alleged unlawful discrimination for using background checks in this manner.

Where have we seen this pattern before? Oh yeah, the subprime mortgage meltdown. Offended at banks denying loans to poor credit risks, the government sued and forced banks to do just that...with predictable catastrophic results.

Anonymous said...

Other than the really bad cases like the Navy yard guy, the problem with security clearances is that they are generally ineffective. There is simply no good way to look inside someone's head and see if they are trustworthy. Being trustworthy means not just being true to your oath. It also means a certain amount of loyalty to the institution and those loyalties to people and institutions can change.


Dr. Φ said...

Hale: well, the background investigations are obviously not stopping the insider threats remaining. But they might be blocking a lot of other threats -- although I don't really know how many applicants are flatly denied clearances -- and they might be deterring any number of people with bad motives.

The investigations seem designed mainly to catch people who could be compromised by their moral weakness. Blackmailed, seduced, vulnerable to appeals to friendship, or made desperate because of money troubles. They aren't going to stop people with good backgrounds who nonetheless have evil motives or loyalties.

I hate to say this, but I predict the investigators are eventually coming after our social networks: facebook, blogger, twitter, etc., independent of the actual people they interview who know us through these networks. Which is too bad, since I'll have to burn it all before exposing it to the government.

Anonymous said...

That is the whole point of anonymous blogging. If they start trying to tie it to identifyable data like your cell number, then I'm burning mine (again). Not that I have really gone out on a limb writing anything that should worry anyone. But the basic policy is "leave no trail".

Anonymous said...

They are good at spotting known criminals. But then they make an assumption that such people can't be trusted with classified information. They do this even though they know from their own data that the most likely reason for anyone to betray their country is ego.