Transferring Responsibility for Background Investigations to the Department of Defense

Overview

Objective and Scope

Executive Order 13869, signed by President Donald Trump on April 24, 2019, seeks to shift the responsibility for conducting background investigations of federal employees and contractors from the Office of Personnel Management (OPM) to the Department of Defense (DoD). This order is largely in response to directives laid out in Section 925 of the National Defense Authorization Act (NDAA) for Fiscal Year 2018. The principal aim is to consolidate and streamline the vetting process while enhancing national security and operational efficiency. By transitioning these responsibilities to the DoD, the administration seeks to leverage the department's capabilities and infrastructure to address an overwhelming backlog of pending investigations concerning the security clearances vital to national defense.

Administrative Changes

The order mandates the establishment of the Defense Counterintelligence and Security Agency (DCSA) as the primary federal entity for conducting background checks government-wide. This initiative includes renaming and repurposing the Defense Security Service (DSS) to DCSA, thereby creating a centralized body within the DoD responsible for various security programs, including continuous vetting and insider threat detection. Moreover, the order establishes expectations concerning the transition timeline, specifying that the transfer of functions should be completed by the end of the fiscal year 2019.

Operational Impact

By consolidating these processes within the DoD, the executive order aims to ensure that background investigations and security clearances are conducted more expeditiously and securely. This restructuring is intended to mitigate risks associated with delay, inefficiency, and overlapping responsibilities between federal agencies that affect nationwide security operations. Additionally, this order intends to employ cutting-edge technology and review practices for enhancing data protection and interoperability across all federal personnel vetting systems.

Legal and Policy Implications

Statutory Reconfigurations

This executive order brings about significant statutory changes, primarily modifying and complementing existing laws necessitated by the NDAA for Fiscal Year 2018. It integrates amendments to Executive Order 13467, originally intended to unify the standards for assessing the suitability of federal employees and contractors. Furthermore, it revises Executive Order 12171 by expanding DCSA’s purview and excluding the agency from federal labor-management relations rules under Title 5 due to its primary focus on intelligence and national security functions.

Policy Overhaul

The transition of background investigation responsibilities to the DoD signifies a considerable policy shift. This move reflects an emphasis on enhancing national security protocols amidst evolving global threats. By reformulating the administrative focus onto a defense-led entity, the presidential directive seeks to establish a fortified approach towards determining the suitability and fitness for classified national security information roles. The policy realignment signifies prioritization of national security, serving as a prelude to a broader recalibration of government processes to ensure swift and reliable performing standards.

Constitutional Considerations

While there is no direct violation of constitutional parameters, the order may invoke questions about the centralization of considerable authority within a military-centric agency. This arrangement, although designed to enhance coordination and control, might trigger concerns regarding the balance between civilian and defense oversight in federal employment matters. Critics may argue that such structural modifications require rigorous oversight mechanisms to prevent potential overreach and ensure accountability.

Who Benefits

Defense Sector Benefits

One of the primary beneficiaries of this executive order is undoubtedly the Department of Defense. By centralizing background investigations within the DCSA, the DoD is positioned to gain increased control over the vetting procedures crucial to operational readiness and national security missions. This framework enables the department to swiftly apply defense-specific standards for personnel clearance, thereby enhancing security management across military operations.

Efficiency in Federal Security Operations

The order aims to benefit the efficiency and effectiveness of federal security operations by reducing duplication and delay in background checks. Agencies relying on timely clearance processes stand to benefit from decreased backlogs and improved response times. This operational efficiency translates to better service delivery across federal domains, reinforcing efforts to counter emerging threats both domestically and internationally.

Technology Vendors and Contractors

The order potentially benefits technology vendors and contractors involved in modernizing and securing the DoD's information technology systems. As the DCSA undertakes the design and deployment of state-of-the-art IT systems to support personnel vetting processes, opportunities arise for commercial entities specializing in technology solutions, cybersecurity, and systems integration to contribute to these modernization efforts.

Who Suffers

Office of Personnel Management

As the responsibility for conducting background investigations shifts to the DoD, the Office of Personnel Management is likely to lose a substantial mandate and associated resources. This transfer could lead to potential downsizing and organizational restructuring as responsibilities delegate away from OPM, which may indirectly affect its broader mission and operational budget.

Labor Relations Concerns

The exemption of the DCSA from federal labor-management relations rules under Title 5 introduces potential challenges for employees reallocated to the new agency. The exclusion, justified by national security imperatives, suggests a reduction in traditional labor protections and bargaining rights for the affected workforce, which may lead to dissent and concern among civilian personnel apprehensive about changes in their employment conditions and compensation packages.

Civilian Oversight and Advocacy Groups

Advocates for civilian oversight and transparency may view the centralization within the DoD with skepticism, especially considering the potential implications for privacy and civil liberties. The consolidation of wide-ranging powers within a defense-centric entity presents concerns over the militarization of functions traditionally managed within a civilian-led agency, potentially leading to limited external scrutiny and transparency.

Historical Context

Broader Security Realignment

Executive Order 13869 reflects broader trends within the Trump administration toward enhancing national security through operational realignments and consolidations. The administration's emphasis on rapid response and efficiency aligns with a more aggressive and centralized approach to dealing with security-related functions under a singular Defense Department’s umbrella. It marks a continuation of efforts to streamline federal operations and reduce bureaucratic bottlenecks that had long been criticized for hindering governmental efficiency.

Background Investigation Backlogs

The order was, in part, a response to criticism and challenges faced by the OPM in managing a significant backlog of pending security clearances. The establishment of the DCSA represents a move to improve the systemic delays that were impacting the federal government's ability to appoint personnel to sensitive and crucial roles. It aligns with historical efforts to restructure and enhance background investigation capabilities to better support national and defense priorities.

Prevailing Security Landscape

In an era marked by heightened security challenges, including cyber threats and geopolitical tensions, this policy initiative fits within a broader paradigm of implementing rigorous and effective security measures. By integrating security functions within the DoD, the administration aims to better shield the country from sophisticated and evolving threats, reaffirming its commitment to safeguarding classified information and reinforcing national defense strategies.

Potential Controversies or Challenges

Legal Challenges

The executive order opens avenues for possible legal challenges, particularly around the unprecedented transfer of responsibilities from a civilian entity to a military-affiliated organization. Opponents might contest whether such a transfer is in compliance with existing statutes governing federal employment and security clearances. Questions concerning civilian oversight and accountability might become focal points in any legal disputes that emerge from this restructuring.

Congressional Pushback

Additionally, there is potential for congressional scrutiny or resistance, especially from committees and members of Congress concerned with checks and balances, and oversight of the executive branch. The shift in authority might give rise to debates about the adequacy of legislative oversight over newly consolidated functions, raising questions about whether such responsibilities should remain within civilian agencies to guard against overreach and potential administrative missteps.

Implementation Concerns

The transition may face practical implementation challenges, including organizational, technical, and personnel-based hurdles. Issues surrounding the integration of IT systems, data protection, and safeguarding of sensitive information during the transfer between agencies could present significant operational risks. Ensuring that the DCSA functions seamlessly from its inception is critical, and any missteps could undermine the purpose of the order by slowing down vetting processes and reducing the efficacy of national security measures.