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Adam Lovinger’s security clearance case unusual at Pentagon

August 26, 2018

The yearlong move to strip Trump-supporting 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. He did not participate in the adjudication of Lovering’s incident report, which was committed entirely to the discretion of certified adjudicators. ... I can tell you that she does not have a role and has not been involved in the adjudication of this case.”

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