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Rep.-elect George Santos (R-NY) has been unmasked as purveyor of so many falsehoods, it’s really hard to know where the fiction ends and the real person begins. He has also, perhaps unknowingly, walked the Republic back into a security concern it has previously failed to resolve.
In 2009, then-Rep. Jane Harman (D-CA) allegedly acted in a manner that triggered concerns of foreign influence from Israel. During the 2017 congressional oversight hearings into alleged Russian attempts to influence American elections, then-Rep. Devin Nunes (R-CA)—who was also the chair of the House Permanent Select Committee on Intelligence—was accused, and cleared, of security concerns relating to the handling of classified information.
And in 2021, Rep. Matt Gaetz (R-FL) and Sen. Josh Hawley (R-MO) acted in a manner which gave rise to accusations relating to their allegiance to the United States following the Jan. 6 attack on the U.S. Capitol.
The parameters set by Congress regarding who is eligible for access to classified information are a standard for the Republic; Americans look at congressional access and see in it permission to abide by the security regulations, or they’ll see in it permission to leak.
But while congressional staff go through a process of adjudication and investigation—not unlike executive branch service members, employees and contractors—members of Congress do not. We have no King Charles III in America; here the people are sovereign. Under the constitutional theory that the people are sovereign and Congress—under Article I of the federal Constitution—acts in their name and represents the American sovereign, an individual member of Congress is eligible for access to classified information simply due to election by a slice of the sovereign, their congressional district or state.
The voters of New York’s 3rd Congressional District have made Rep.-elect Santos eligible for access to classified information, but that’s not the end of it.
The national security community must now decide what to do with a person evidencing security concerns under Guideline E, Personal Conduct; Guideline F, Financial Considerations; Guideline I, Psychological Conditions; and Guideline J, Criminal Conduct of the Director of National Intelligence’s (DNI) Adjudicative Guidelines (SEAD-4).
While the DNI does not control congressional eligibility or access, the office’s guidelines are used throughout the federal government, and they inform whether the 17 agencies under the office’s control will brief a particular person with classified information. So that role is only in the sharing of classified information with the Congress, not a role granting access to Santos. The new Speaker of the House will ultimately decide Santos’ access, for the most part, by means of committee assignment.
A security concern could be averted by assigning him to a committee as far away from classified information as possible. But what happens if Santos is the recipient of classified information from intelligence community personnel? Should intelligence community executives seek to raise the drawbridge against the new Republican House, or favor the minority leadership in the House in response to the presence of a security concern? Middle- or lower-level intelligence personnel could bolt, taking classified information to a congressman like Santos—deemed trustworthy by the electorate, if not by the national security community. The intelligence community source would be a leaker; but the congressman would not be breaking the law.
This creates poor discipline within national security and defense circles, eroding the trust necessary to defend the Republic against its “Enemies of the State” (that is not hyperbole, it is a technical security term). And those Enemies of the State—be they Russia, China, North Korea, Iran or any number of bad international actors—seek out the weaknesses created by disorder in legislative and executive branch relations. Separation of the powers is by design; warring of the powers is not.
The House Ethics Committee must now wade into this swamp. Once Santos is sworn in next week as a member of the 118th Congress, he will fall under the jurisdiction of the House Ethics Committee. At that point, the Ethics Committee should review his actions during the campaign.
Given that House Rule X, Clause 11 lays out the process for all House committees receiving and viewing classified information in closed session, almost any congressperson serving on a committee could potentially view classified information. But, again, while the voters have deemed Santos sufficiently trustworthy, actual access through the mechanisms of the Congress comes through the Speaker—and his or her control over the committees.
Even more important, if Santos’ false statements were the product of a pathology, an illness, he needs to be assessed under Guideline I, Psychological Condition. The Enemies of the State look for unwitting fools (another technical security term). If suffering from a mental health condition enables a state of perpetual lying, Santos’ access may be limited to less classified information. He can mitigate such a diagnosis with a treatment plan, evidence of treatment, and an evaluator’s bill of health stating he has a favorable prognosis.
But to proceed without a security review runs the risk of promoting a second wave of civil strife between and within the branches of government. The Secret Service and the FBI were heavily damaged during the last period of constitutional strife. The intelligence community has only recently lowered its drawbridge and raised the portcullises of its scattered castles. A return to a rabidly divided government will endanger more agencies and see the drawbridge raised, and the portcullis lowered, once again.