One of the more unfortunate patterns I see in my law practice is clients who are erroneously instructed on how to complete their SF-86 form by a Facility Security Officer (FSO) or a recruiter. The client has some issues in their past but is told that an issue “isn’t reportable” or – in some cases – told outright to lie for expediency. Inevitably, the issue is discovered by investigators and now the client’s security clearance hangs in the balance for dishonesty.
Unfortunately, it is the client who suffers – not the FSO or the recruiter. “S/he made me do it” is no excuse in the eyes of the government, as it is the applicant who signs the SF-86 verifying accuracy and completeness under penalty of perjury. Legally, the applicant would have to show some sort of duress in signing for the “s/he made me do it” argument to fly. A fear of angering the employer is insufficient in light of the common government argument: “If your conscience is that easily swayed, why couldn’t a foreign intelligence agency be the next to exploit this weakness?”
When in doubt, seek professional counsel
On the other hand, “advice of counsel” can actually be a legitimate legal excuse for not reporting issues that fall within gray areas of uncertainty. That means that if you aren’t sure whether an issue should be reported, consulting with an attorney on the matter can shield you from penalties for your omission, whereas consulting with a non-attorney – no matter how knowledgeable that person might be – will not.
From a broader perspective, be very careful about with whom you discuss your case. Almost anything you discuss with your attorney is legally protected from disclosure to law enforcement or the government, but that same protection does not apply when speaking with friends, co-workers, your FSO or recruiter, a non-attorney consultant, or anyone else. You may be shocked to find your non-attorney confidant later being subpoenaed by the government as a witness against you.
The bottom line is that if you feel uncomfortable with the reporting instructions being provided to you by a recruiter or FSO, be sure to speak up and/or consult an attorney before your SF-86 is submitted to the government. Protecting your security clearance isn’t a responsibility to outsource. You are personally responsible for the information included, and should be absolutely certain you understand the document and your responses before you sign it.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
