The National Geospatial-Intelligence Agency should not face claims related to the revoked security clearance of a man whose wife attended the Islamic Saudi Academy, the 4th Circuit ruled.
Mahmoud Hegab sued the agency and its director Letitia Long in 2011, alleging they discriminated against him and violated his First Amendment rights by using familial association to essentially can him.
A federal judge dismissed the case for lack of subject matter jurisdiction, and a three-judge panel of the Fourth Circuit affirmed Thursday.
"We conclude that Hegab's speculative and conclusory allegations of constitutional violations were essentially recharacterizations of his challenge to the merits of the NGA's security clearance determination and that we do not have jurisdiction to review such a determination," Judge Paul Niemeyer wrote for the panel. "Accordingly, we affirm."
Hegab said in his complaint that the agency revoked his clearance after he married Bushra Nusairat, a graduate of the Fairfax County-based, but Saudi government-funded, Islamic Saudi Academy.
The agency also claimed that Nusairat was involved, or had been involved, with groups that are organized around their non-U.S. origin and advocacy of foreign political issues.
Ultimately cumulative factors led the agency to have a concern of foreign influence, according to the ruling.
In addition to Nusairat's background, the agency also considered that Hegab and his immediate family's are dual citizens with the United States and Egypt, and that he still possesses an Egyptian passport, which would increase the potential of being monitored by foreign intelligence services if he gets rid of it. He also reported that he has contact with multiple foreign nationals, including relatives in and outside of the country.
The NGA gave Hegab a statement of reasons upon the revocation of his clearance, stating that his information presented "an elevated foreign influence risk that is problematic and unacceptable to the national security of the United States," according to the ruling.
Despite the agency's concerns, Hegab said his wife "is a U.S. citizen residing in the U.S. who has never been accused of any illegal activity or being associated with any illegal activity."
His constitutional claims failed, however, to persuade both the District Court and the Court of Appeals.
"Hegab's constitutional allegations are conclusory only, resting on his disagreement with the NGA's decision on the merits," Niemeyer wrote.
Though Judge Andre Davis concurred in Neimeyer's opinion, he wrote separately to argue that "Hegab has stated cognizable claims of unconstitutional adverse action by a governmental agency."
"There is an impenetrable barrier, however, to the possibility that Hegab's claims might proceed past the pleading stage," Davis added. "Specifically, Hegab's claims raise a non-justiciable political question - i.e., whether the agency revoked his security clearance on legitimate national security grounds, or whether the decision 'was based solely on [Hegab's] wife's religion, Islam[;] her constitutionally protected speech[;] and her [mere] association with, and employment by, an Islamic faith-based organization.'"
Judge Diana Motz, who did not join the majority ruling, picked up this theme in a separate opinion.
"I join in holding that we lack jurisdiction to review the [NGA's] revocation of Mahmoud Hegab's security clearance," Motz wrote. "Like Judge Davis, however, I believe Hegab's complaint states a colorable constitutional claim; such is now the holding of the court."