AILSA CHANG, HOST:
The intelligence community is still on edge nearly a week after President Trump revoked the security clearance of former CIA Director John Brennan. Many are wondering who might be next. Trump also threatened to revoke the clearances of former Director of National Intelligence James Clapper, former director of the National Security Agency Michael Hayden and former national security adviser Susan Rice. The latest question is, what's Brennan's next move? Yesterday he told NBC's "Meet The Press" he might sue, prompting several prominent lawyers to volunteer their services.
Mark Zaid is one of those lawyers. He used to go head to head in court with Brennan when he led - when Brennan led the CIA. Welcome.
MARK ZAID: Thank you.
CHANG: So I want to ask you about the merits of a possible case here. How much cause or - and how much warning does the White House need to give before just unilaterally revoking someone's security clearance?
ZAID: So Brennan does have an action to force a procedural process. The executive order that governs security clearances, which - the current one dates back to the Clinton administration - requires that administrative due process be given. So he's supposed to be given written notification, a list of details, have access to some of the underlying records or information, have an attorney at his own cost as well as have an opportunity to submit in writing and have a personal appearance before the agency that would take action. If he sued on that...
CHANG: Right.
ZAID: ...I think he would win because right now, as far as we know publicly, he hasn't been afforded any type of due process.
CHANG: Any notice or any opportunity to respond. But courts have traditionally shown the president a lot of deference in matters of national security. Why should this case be an exception? Or if he confines it just to due process, it would be an easy case.
ZAID: On the due process side, the courts have said from a procedural standpoint, we can - we the courts can force an agency to abide by its own rules. And the agencies do have these rules in place. When you start to go to the substantive nature challenging why Brennan's clearance was revoked if it was in fact revoked - it's a little unclear, quite frankly, besides being terminated perhaps - then the courts for the last 30 years - in a case, Department of Navy v. Egan - even though this case frankly doesn't deal with the posture that it does - that it's been interpreted to stand for, the courts have said that they are unwilling, that they do not have the expertise to counter or even adjudicate what an administrative branch official or executive branch official says no matter what.
CHANG: So even if John Brennan won on the due process claim, the procedural claim, substantively the White House does, at least courts observe, have the right to revoke security clearances even if there isn't cause articulated.
ZAID: Well, I mean, that's where part of the problem is. So far it's always been individual cases. And if it just stands as Brennan's case, then the court is likely loath to get involved. If he starts - if he the president starts to go down the line and revoke others and if he goes to where we're all concerned - what if we say all registered Democrats or anyone who didn't vote for me the president will lose their security clearance? One would hope the courts would step into that type of constitutional crisis. But it's frankly unclear because like much with this administration, it's never happened before.
CHANG: Well, let me just push a little back at you. Why shouldn't a president be able to revoke high-level security clearances for people who vocally oppose him as John Brennan has done many, many times? I mean, what's unreasonable about that?
ZAID: Yeah. And this is unique in its own stance. How Brennan has handled himself - and some of the others, but predominantly Brennan - we've not seen that before I think since perhaps Ramsey Clark, the former attorney general back in the 1960s. Now, what the president should have done or maybe even still can is just terminate Brennan's access. He still retains his eligibility, but administratively the president can say, you know what? You, John Brennan, no longer have a need to know, and I'm terminating your access.
CHANG: Mark Zaid is an attorney in Washington, D.C., who focuses on national security law. Thank you very much.
ZAID: Thank you. Transcript provided by NPR, Copyright NPR.