At National Security Law Firm, we pride ourselves on defending constitutional rights, even in the most complex and controversial cases. Our recent success in the Gebert case, where we won a motion to file a second amended complaint on the grounds of vagueness and overbreadth in the U.S. District Court for the District of Columbia, marks an important development in the intersection of security clearance law and First Amendment protections.
The Case Background
Our client, Matthew Gebert, faced the revocation of his security clearance due to his alleged affiliation with white nationalist ideologies. While we unequivocally reject these beliefs, our commitment to upholding the Constitution remains steadfast. Every individual, regardless of their views, is entitled to the protection of their First Amendment rights.
The Department of State’s decision to revoke Gebert’s clearance followed a routine reinvestigation, during which he was asked vague and broad questions about his associations and potential sources of embarrassment to the Department. After an article from Hatewatch, affiliated with the Southern Poverty Law Center, linked Gebert to white nationalist groups, the Department suspended him indefinitely without pay, revoked his security clearance, and terminated his health benefits.
Gebert filed suit seeking damages, declaratory judgment, and injunctive relief, arguing that the questions posed during his reinvestigation were overly vague and broad, infringing upon his constitutional rights. The court’s decision to grant our motion to amend highlights a growing recognition that even in matters of national security, constitutional protections cannot be ignored.
The Overbroad and Vague Questions at the Heart of the Case
The three questions posed to Gebert during his reinvestigation are not standard across federal agencies and are unique to the Department of State. These questions are not part of the Standard Form 86 (SF-86), which is the federal government’s primary document for conducting background investigations for security clearances. Their deviation from established protocols and their broad, undefined scope form the crux of our constitutional challenge:
- “Do you have any association with any person, group, or business venture that could be used, even unfairly, to criticize, impugn, or attack your character or qualifications for a government position?”
- “Are you aware of any people or organizations that would criticize or oppose your employment in a government position?”
- “Is there any information regarding members of your family that would be a possible source of embarrassment to the United States Department of State?”
These questions are constitutionally problematic for several reasons:
- Overbreadth and Vagueness: The language used in these questions is inherently vague and overly broad. Terms like “could be used, even unfairly,” “criticize or oppose,” and “possible source of embarrassment” lack clear definitions and objective standards. This vagueness leaves respondents uncertain about what constitutes a disqualifying association or information, leading to arbitrary and inconsistent enforcement.
- First Amendment Concerns: These questions infringe upon First Amendment protections by chilling free speech and association. Asking whether someone has associations that “could be used” to impugn their character, even unfairly, opens the door to penalizing individuals for lawful associations or expressions. The government cannot broadly target associations or expressions without a compelling interest, and any restrictions must be narrowly tailored—something these questions fail to achieve.
- Not Narrowly Tailored: Unlike the carefully crafted questions in the SF-86, which focus on specific risks to national security (e.g., foreign contacts, criminal activity), these Department of State questions lack focus and precision. They do not serve a narrowly tailored interest in protecting national security but instead sweep in a wide range of protected activities and associations.
- Unique to the Department of State: The fact that these questions are unique to the Department of State further underscores their problematic nature. No other federal agency employs such broad and undefined questions in their security clearance processes, indicating that these questions are not essential to safeguarding national security.
Revisiting Egan: The Limits of Judicial Review
The Supreme Court’s decision in Department of the Navy v. Egan (1988) established that security clearance determinations are largely within the purview of the executive branch, limiting judicial review. However, the Gebert case underscores that Egan is not an absolute shield against court intervention, particularly when constitutional rights are at stake.
While the court reaffirmed that challenges directly tied to the revocation of a security clearance remain non-justiciable—as clarified in Lee v. Garland, No. 20-5221, 2024 WL 4596664 (D.C. Cir. Oct. 29, 2024)—it acknowledged that challenges to the process, such as the constitutionality of the interview questions, are justiciable. This distinction, supported by Nat’l Fed’n of Fed. Emps. v. Greenberg, 983 F.2d 286 (D.C. Cir. 1993), affirms that courts can scrutinize the methods used in security clearance investigations when they infringe upon constitutional rights.
The Court’s Ruling and Its Implications
The court granted our motion to amend Gebert’s complaint with respect to his First Amendment claims challenging the interview process itself—Counts VII and VIII—while denying other claims directly tied to the clearance revocation. This ruling is significant because it delineates the boundary between non-reviewable clearance decisions and reviewable procedural challenges.
This case reinforces the principle that while the executive branch has broad discretion in national security matters, this discretion does not extend to violating constitutional protections. It sets a precedent that courts can intervene when the methods used in security clearance determinations infringe upon First Amendment rights.
Why This Matters
The Gebert case is not just about one individual’s security clearance—it’s about ensuring that the government does not overreach its authority under the guise of national security. This case reinforces the idea that constitutional rights must be safeguarded, even when dealing with sensitive security issues.
For federal employees, contractors, and service members, this decision signals that there is recourse when security clearance actions infringe on constitutional protections. At National Security Law Firm, we are dedicated to defending these rights and ensuring that every client receives fair treatment under the law.
Conclusion
Our victory in the Gebert case demonstrates that the courts can and will intervene when constitutional rights are threatened, even in the realm of security clearance determinations. At National Security Law Firm, we stand ready to fight for your rights, no matter how challenging the battle.
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