Pen­tagon se­cu­rity clear­ance case takes odd twists

High-level ac­tions hit Trump backer

The Washington Times Weekly - - Politics - BY ROWAN SCAR­BOR­OUGH

The year­long move to strip Trump­sup­port­ing de­fense an­a­lyst Adam Lovinger of his top-se­cret se­cu­rity clear­ance and end his ca­reer at­tracted the un­usual in­volve­ment of top-level Pen­tagon of­fi­cials, his at­tor­ney says.

Sean Bigley’s le­gal prac­tice is de­voted to se­cu­rity clear­ance cases. He has taken part in hun­dreds of pro­ceed­ings in which clients whose clear­ances are de­nied or sus­pended file ap­peals.

He told The Washington Times that, based on a pa­per trail that reaches into the of­fice of De­fense Sec­re­tary James Mat­tis, “I have never seen this in my en­tire ca­reer.”

Mr. Lovinger, a mi­dlevel an­a­lyst in the se­cre­tive of­fice of net as­sess­ment, has filed a whistle­blower com­plaint with the Pen­tagon in­spec­tor gen­eral. He claims James Baker, the of­fice’s direc­tor and an ad­viser to Mr. Mat­tis, is re­tal­i­at­ing against him.

Mr. Lovinger has won pub­lic back­ing among con­ser­va­tives who view him as a vic­tim of the “deep state.”

Mr. Bigley said Mr. Lovinger com­plained in­ter­nally about the of­fice’s awards of ques­tion­able out­side re­search con­tracts, specif­i­cally to aca­demic Ste­fan Halper, the FBI in­for­mant who spied on the Trump cam­paign. Mr. Halper re­ceived $411,000 in of­fice of net as­sess­ment awards in 2016, gov­ern­ment records show.

Af­ter Mr. Lovinger com­plained, his stel­lar Pen­tagon ca­reer fell apart. Mr. Baker ini­ti­ated an in­ves­ti­ga­tion into his han­dling of sen­si­tive ma­te­rial and filed a re­port with the depart­ment’s con­sol­i­dated ad­ju­di­ca­tion fa­cil­ity. Mr. Mat­tis’ chief of staff pulled Mr. Lovinger from de­tailed duty on Pres­i­dent Trump’s Na­tional Se­cu­rity Coun­cil staff.

The con­sol­i­dated ad­ju­di­ca­tion fa­cil­ity backed Mr. Baker, re­jected Mr. Bigley’s re­but­tal and re­voked Mr. Lovinger’s clear­ance. The next thing he knew, Mr. Lovinger was sus­pended with­out pay and now is strug­gling fi­nan­cially, his at­tor­ney said.

The con­sol­i­dated ad­ju­di­ca­tion fa­cil­ity is over­seen by Washington Head­quar­ters Ser­vices and Direc­tor Bar­bara West­gate, who won the job in the fi­nal year of the Obama ad­min­is­tra­tion.

“I have never be­fore seen where the WHS is in the mid­dle of a case like this,” Mr. Bigley said.

Sec­re­tary of de­fense

The pa­per trail be­gins on May 1, 2017, when Ms. West­gate pre­sented Mr. Lovinger with her ver­dict.

Re­tired Navy Rear Adm. Kevin M. Sweeney, Mr. Mat­tis’ chief of staff, ap­proved the removal of Mr. Lovinger from the White House. On loan from the of­fice of net as­sess­ment, Mr. Lovinger had been work­ing on a cov­eted strate­gic plan­ning as­sign­ment in the mid­dle of Trump coun­try.

Ms. West­gate also wrote that Mr. Sweeney had given her full pow­ers over his se­cu­rity clear­ance, which she promptly sus­pended.

“I have con­cerns re­gard­ing your judg­ment, trust­wor­thi­ness and re­li­a­bil­ity while car­ry­ing out your of­fi­cial du­ties, specif­i­cally re­lat­ing to your per­sonal con­duct, mis­use of in­for­ma­tion tech­nol­ogy sys­tems, out­side ac­tiv­i­ties and your im­proper han­dling and safe­guard of pro­tected in­for­ma­tion,” she said in a memo.

“Ef­fec­tive im­me­di­ately, as de­cided by the chief of staff to the sec­re­tary of de­fense, your de­tail to the Na­tional Se­cu­rity Coun­cil is can­celed,” she said.

A spokes­woman for Mr. Sweeney de­clined to com­ment to The Times, cit­ing Mr. Lovinger’s pend­ing in­spec­tor gen­eral com­plaint.

Ms. West­gate’s ac­tion shifted the next round to the con­sol­i­dated ad­ju­di­ca­tion fa­cil­ity, which de­cides se­cu­rity clear­ance is­sues for gov­ern­ment per­son­nel and con­trac­tors.

This is where Mr. Bigley con­tends that Ms. West­gate fur­ther in­flu­enced the case.

Among the doc­u­ments con­sid­ered by the con­sol­i­dated ad­ju­di­ca­tion fa­cil­ity was a four-page memo signed by Ms. West­gate. When the doc­u­ment was turned over to Mr. Bigley, it was com­pletely redacted — blank — mean­ing he has no idea what she told the fa­cil­ity that re­ports to her.

“It’s ab­so­lutely un­prece­dented,” the at­tor­ney said. “This is the only time we have ever seen this level of in­volve­ment and un­due in­flu­ence. I have never seen this in my en­tire ca­reer.

“We should be ab­so­lutely en­ti­tled to see that memo,” Mr. Bigley said. “And it clearly had an un­due in­flu­ence on the CAF be­cause what are they go­ing to tell your boss? ‘Sorry, boss, you are wrong.’”

Mr. Bigley said the memo and other doc­u­ments were turned over only a few weeks ago, well af­ter the con­sol­i­dated ad­ju­di­ca­tion fa­cil­ity had de­cided the case. The tar­di­ness, he said, pre­vented him from fully re­but­ting the al­le­ga­tions.

A Pen­tagon spokesman for Washington Head­quar­ters Ser­vices said there would be no com­ment on Mr. Bigley’s al­le­ga­tions. But the spokesman said Mr. Lovinger re­ceived full due process.

The 100 per­cent redac­tion was not the first time the ad­ju­di­ca­tion fa­cil­ity shut out Mr. Lovinger.

Mr. Bigley asked the fa­cil­ity for any emails and other elec­tronic com­mu­ni­ca­tions that men­tion Mr. Lovinger. The con­sol­i­dated ad­ju­di­ca­tion fa­cil­ity’s direc­tor, Ed­ward J. Fish, re­sponded that there are 75 such pages. But he told the Pen­tagon’s Free­dom of In­for­ma­tion Act of­fice that all pages were redacted be­cause they dealt with a pend­ing ap­peal.

In April, Mr. Lovinger re­ceived an­other memo from Ms. West­gate. This one told him that she had de­cided to sus­pend him from Pen­tagon du­ties with­out pay based on the con­sol­i­dated ad­ju­di­ca­tion fa­cil­ity’s March de­ci­sion to re­voke his clear­ance.

Mr. Bigley ap­pealed to Ms. West­gate’s su­pe­rior, the of­fice of chief man­age­ment of­fi­cer, the De­fense Depart­ment’s third-rank­ing of­fi­cial be­hind the sec­re­tary and deputy sec­re­tary. In the mean­time, he penned an op-ed in The Wall Street Jour­nal de­scrib­ing Mr. Lovinger’s case. The next day, the man­age­ment of­fice de­nied his ap­peal.

Two weeks later, Trump ap­pointee John H. Gib­son II was of­fi­cially sworn in as the Pen­tagon’s in­au­gu­ral chief man­age­ment of­fi­cer. Mr. Bigley said he sent Mr. Gib­son his ap­peal. Mr. Gib­son sent it to Washington Head­quar­ters Ser­vices.

Mr. Lovinger, a lawyer, was out of a job af­ter more than 12 years in the Pen­tagon in the gen­eral coun­sel’s of­fice and then the of­fice of net as­sess­ment. He won a civil­ian award for ex­cel­lence in 2008.

‘Make an ex­otic dancer blush’

The con­sol­i­dated ad­ju­di­ca­tion fa­cil­ity’s case against Mr. Lovinger is con­tained in a De­cem­ber “State­ment of Rea­son.”

The state­ment charges Mr. Lovinger with a series of lapses, such as view­ing a clas­si­fied doc­u­ment on a plane trip, send­ing of­fi­cial doc­u­ments to his per­sonal email ac­count, try­ing to un­der­mine the author­ity of Mr. Baker and re­fus­ing to co­op­er­ate with Mr. Baker’s in­ves­ti­ga­tors.

The con­sol­i­dated ad­ju­di­ca­tion fa­cil­ity also charges Mr. Lovinger with leak­ing con­fi­den­tial in­for­ma­tion that ended up in a news story. That charge con­tains no direct ev­i­dence. It is based largely on a wit­ness who said, “You might be in­volved in the un­of­fi­cial dis­clo­sure.” The con­sol­i­dated ad­ju­di­ca­tion fa­cil­ity con­cluded that Mr. Lovinger “more likely than not” leaked the in­for­ma­tion.

Mr. Bigley said Mr. Lovinger ve­he­mently de­nies that he played any role in the story.

In his Jan­uary 2018 re­but­tal, Mr. Bigley mocks the con­clu­sions of the con­sol­i­dated ad­ju­di­ca­tion fa­cil­ity.

“The cozy re­la­tion­ships be­tween the play­ers in this mat­ter cre­ate at least the ap­pear­ance of con­flict, but it is the ac­tions of DoD, CAF and WHS that ut­terly de­stroy any pre­sump­tion of reg­u­lar­ity,” Mr. Bigley wrote. “In their zeal­ous ef­forts to make some­thing — any­thing — ‘stick’ to Ap­pli­cant, both WHS and the CAF have twisted and con­torted them­selves in ways that would make an ex­otic dancer blush.”

He added: “The in­ves­ti­ga­tions tar­geted a litany of bizarre, pur­ported mis­con­duct that is demon­stra­bly false.”

Mr. Bigley noted that Mr. Baker rec­om­mended one of the in­ves­ti­ga­tors for pro­mo­tion two days af­ter Mr. Lovinger’s se­cu­rity clear­ance was sus­pended in May 2017.

He said Mr. Lovinger did co­op­er­ate and that the in­ves­ti­ga­tors said so in emails to him. One of the two in­ves­ti­ga­tors told Mr. Lovinger in an email that he “will be con­tacted if fur­ther in­for­ma­tion is needed from you.”

Mr. Lovinger came to be­lieve the in­ves­ti­ga­tion was rigged.

A sec­ond in­ves­ti­ga­tor, the one who was pro­moted, re­fused to al­low an of­fi­cial record­ing of their in­ter­views and tired to “trick him” into show­ing up with­out an at­tor­ney, the Bigley re­but­tal says.

Nei­ther in­ves­ti­ga­tor has any ap­par­ent le­gal or in­ves­tiga­tive train­ing what­so­ever, yet Washington Head­quar­ters Ser­vices frames their in­ves­ti­ga­tions as “na­tional se­cu­rity in­ves­ti­ga­tions — which is a to­tal joke,” Mr. Bigley said.

Mr. Bigley said Washington Head­quar­ters Ser­vices at one time was go­ing to charge Mr. Lovinger with mak­ing an unau­tho­rized trip to Is­rael to cel­e­brate his son’s bar mitz­vah. He said he quickly showed that the trip was ap­proved. That charge sud­denly dis­ap­peared.

Mr. Lovinger’s next stop is the de­fense of­fice of hear­ings and ap­peals, where an ad­min­is­tra­tive judge in­de­pen­dent of Washington Head­quar­ters Ser­vices will hear his lat­est ap­peal.

Mr. Bigley said that if he wins, a new prob­lem arises. The fi­nal ar­biter is the clear­ance ap­peals board, which takes the case right back to the Washington Head­quar­ters Ser­vices.

He has filed a com­plaint with the Pen­tagon’s top ethics of­fi­cer ask­ing that Washington Head­quar­ters Ser­vices be re­moved from fur­ther de­ci­sions. His ar­gu­ments are col­lu­sion and Washington Head­quar­ters Ser­vices’ award­ing of the con­tracts to Mr. Halper, the very point of Mr. Lovinger’s orig­i­nal com­plaints in­side the of­fice of net as­sess­ment. He didn’t know Mr. Halper was an FBI as­set at the time.

A con­sol­i­dated ad­ju­di­ca­tion fa­cil­ity of­fi­cial de­fended Ms. West­gate and Mr. Fish in an email to Mr. Bigley.

“You also as­sert per­sonal bias by Mrs. West­gate and Mr. Fish that pre­vents the fair and im­par­tial ad­ju­di­ca­tion of your client’s el­i­gi­bil­ity for ac­cess to clas­si­fied in­for­ma­tion,” the of­fi­cial said. “Mrs. West­gate, as the Direc­tor of WHS, does not par­tic­i­pate in or in­flu­ence the ad­ju­di­ca­tion of el­i­gi­bil­ity at the CAF. Sim­i­larly, Mr. Fish’s role in the ad­ju­di­ca­tion has been only as Direc­tor of the DOD CAF.”

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