(CN) – The Department of Energy does not have to explain its decisions to revoke a Muslim nuclear physicist’s security clearance and fire him based on “conflicting allegiances,” the 3rd Circuit ruled.
Dr. Abdel Moniem Ali El-Ganayni, an Egyptian native who has lived in the United States since the 1980s, may never find out why he lost his clearance and was fired in 2007 from his longtime position working on nuclear submarines at Bettis Laboratory.
The three-judge panel in Philadelphia found that El-Ganayni’s claim “could never be meaningfully litigated” and that the “outcome is pre-ordained” due to the broad national security powers given to the Executive Branch.
The 3rd Circuit upheld a lower court decision dismissing the scientist’s lawsuit accusing the DOE of violating his constitutional rights and the Administrative Procedure Act in revoking his clearance.
El-Ganayni said he was investigated and eventually fired because he spoke out against the FBI, the war in Iraq and U.S. foreign policy in Pittsburgh-area mosques, and worked as an Imam at a prison where he ran afoul of officials for distributing Muslim literature.
He says that in 2007 he was grilled by the Bettis Laboratory security manager and then the FBI after he passed out copies of a Muslim religious tract called “The Miracle in the Ant.” Investigators suggested that some of the scientific information contained in the work, specifically that some ants can burst their bodies open and secrete a deadly substance as a defense mechanism, could be construed as an apology for suicide bombing, El-Ganayni claimed.
Soon after the interviews, the DOE revoked El-Ganayni’s clearance and fired him without providing specifics, saying in a letter only that it believed El-Ganayni “may be subject to pressure, coercion, exploitation, or duress which may cause you to act contrary to the best interests of national security. Specifically, the circumstances or conduct involve conflicting allegiances.”
In his suit against the DOE, El-Ganayni did not try to overturn the security revocation, but rather sought only a hearing and the opportunity to contest the decision.
But such a hearing is not available to the scientist, as was established in the 1988 case Department of the Navy v. Egan, Judge D. Brooks Smith wrote.
In that case, the U.S. Supreme Court ruled that while agency action is presumptively reviewable, that presumption is limited when it comes to national security issues.
“The legal framework applicable to that claim would demand from the DOE an explanation of its decision to revoke El-Ganayni’s clearance, and allow a factfinder to weigh the DOE’s arguments in support of that decision,” Smith wrote. “Egan forbids both.”