If you follow international news, you may have heard about how totalitarian states like North Korea punish political dissent.  The process usually involves rounding up the offender plus all his family members and summarily executing them.  The lucky ones get shipped off to prison camps for “re-education.”

‘He’s not a criminal, he’s my brother’

Fortunately, such guilt by association doesn’t exist in the American criminal justice system.  Our constitution bars even less extreme government practices – like threatening to arrest a family member of the accused (without probable cause) in order to obtain an admission of guilt.  But guilt by association is a thriving practice in security clearance adjudications.  If you hold a security clearance and have a bad apple in the family, as far as the government is concerned you might as well be in the mob.  “Just when you think you are out, you get pulled back in.”

From a legal standpoint, the difference between guilt by association in criminal vs. security clearance cases is clear: the former is a deprivation of a constitutional right (liberty), while the latter is a privilege entirely within the government’s discretion to grant.  You aren’t going to get very far arguing the constitutionality of guilt by association in a security clearance denial case.  Fortunately, even if you do have some bad apples in the family, the cause is not lost.

Unless you really are a member of a mafia family, no security clearance adjudicator will expect you to disown your family because of your brother’s drug habit, your parents’ under-the-table business transactions, or your cousin’s gang membership.  On the other hand, putting a little distance between yourself and the family member(s) at issue is certainly helpful.  There is a big difference between “I see him sometimes at family functions” and “he crashes on my futon a couple nights a week.”  Make sure you’re not living with or otherwise supporting in any manner the family member in question.

Check your judgment and your loyalty

Familial bonds can sometimes cloud judgment – one of the key reasons why guilt by association is such an issue in security clearance cases.  Don’t allow a family member to store anything illegal at your home, don’t provide financial support that is likely being used for illegal reasons, and don’t allow a questionable, vagabond family member to use your home as a mailing address (a surprisingly common way in which your address might wind-up in law enforcement databases).  If these sound like oddly specific suggestions, it is because I’ve seen them all actually happen.

Ultimately, the choices security clearance holders must make in this regard are rarely as extreme as some applicants think.  Common sense goes a long way in avoiding security clearance problems.  And if you’re worried about backlash from the family member in question, just blame it on “the man.”  They’ll probably empathize with you.

 

This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation. 

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Sean M. Bigley retired from the practice of law in 2023, after a decade representing clients in the security clearance process. He was previously an investigator for the Defense Counterintelligence and Security Agency (then-U.S. Office of Personnel Management) and served from 2020-2024 as a presidentially-appointed member of the National Security Education Board. For security clearance assistance, readers may wish to consider Attorney John Berry, who is available to advise and represent clients in all phases of the security clearance process, including pre-application counseling, denials, revocations, and appeals. Mr. Berry can be found at https://www.berrylegal.com/.