The 2008 Security Clearance Year in Review

January – Smith Amendment (10 USC 986) was repealed and replaced by Bond Amendment (50 USC 435b, Section 3002) prohibiting all federal agencies from granting or renewing any security clearance for a current user of illegal drugs. The new law further prohibits all federal agencies from granting or renewing special access authorizations (i.e. SCI, SAP, and Restricted Data) for anyone (without a waiver) who has been: 1) convicted of a crime and incarcerated for a term exceeding one year, 2) discharged or dismissed from the Armed Forces under dishonorable conditions, or 3) found to be mentally incompetent. The Smith Amendment applied only to people affiliated with the Department of Defense (DoD), whereas the new law applies to everyone.

February – President Bush issued a memorandum to all executive branch departments and agencies directing that DoD, Director of National Intelligence (DNI), Office of Personnel Management (OPM), Office of Management and Budget (OMB) and assistant to the President for National Security Affairs submit a proposal by April 30, 2008 to modernize, standardize, and integrate comprehensive credentialing, security clearance, and suitability processes.

The Security Clearance Oversight Group (SCOG) issued it’s 2008 report to Congress regarding compliance with Title III of the Intelligence Reform and Terrorism Prevention Act (IRTPA). The report when read together with OPM’s testimony before Congress presented a relatively complete picture of the progress made during the past year. OPM reported significant improvement in turnaround times for initial clearance investigations received during Fiscal Year 2007.

March – Congress sent a request to the Government Accountability Office (GAO) asking for a formal evaluation of Intelligence Community security clearance processes and the DNI’s pilot project for security clearance reform. The request was submitted by Representative Anna Eshoo (D-CA), Chairwoman of the Subcommittee on Intelligence Community Management, and Representative Silvestre Reyes (D-TX), Chairman of the House Intelligence Committee.

April – The Information Technology Association of America (ITAA) and the National Defense Industrial Association surveyed more than 100 contractors that provide security-cleared labor to federal agencies. The companies identified several complaints about the current clearance system. An article in the Washington Business Journal on April 25, 2008 reported information from a survey.

The Joint Security and Suitability Reform Team (JSSRT) issued its “Initial Report” in response to the President’s February memorandum on Security Clearances. The President’s memo directed a proposal to not only modernize the security clearance process, but to also integrate the clearance processes for national security, employment suitability, and access to federally controlled facilities. The Initial Report presented a reform proposal that outlined reform concepts and strategies.

A DoD memorandum announced that Question #21 regarding mental health on Standard Form 86 (Questionnaire for National Security Positions) was changed. The announced change allows an applicant to answer “no” to the question regarding mental health counseling or treatment, if the counseling or treatment (including hospitalization) was not court-ordered and was for: 1) strictly marital, family, grief not related to violence by you, or 2) strictly related to adjustments from service in a military combat environment. The memorandum was applicable only to personnel affiliated with DoD.

May – OPM issued Federal Investigations Notice No. 08-01 promulating the same instructions regarding Question #21 of Standard Form 86 announced in the April DoD memorandum (see above), clearly making the change applicable to all clearance applicants, not just DoD personnel.

A presentation on the activities of the JSSRT was given by John Fitzpatrick, Director of the Office of the DNI Special Security Center, at the Information Technology Association of America “Security Clearance Reform” meeting in Arlington, VA. The most significant part of Fitzpatrick’s presentation was a list of reform activitiy milestones.

Testimony before the Senate Homeland Security and Governmental Affairs Subcommittee by representatives of OMB, OPM, DNI and DoD regarding progress in improving the security clearance process included more retoric about reform and updated statistics on investigative elapse times.

June – President Bush issued Executive Order 13467 (Reforming Processes Related to Suitability for Government Employment, Fitness for Contractor Employees, and Eligibility for Access to Classified National Security Information). It could be the most significant E.O. regarding the federal government’s personnel security program in over a decade, if the DNI uses the broad new authority granted to him to create a logical monolithic process out of the current morass of incongruent policies and practices.

July – GAO presented testimony (GAO-08-1050T) before the House Subcommittee on Intelligence Community Management on “Personnel Security Clearances: Preliminary Observations on Joint Reform Efforts to Improve the Governmentwide Clearance Eligibility Process.” GAO’s observations and recommendation were based on the recently issued JSSRT Initial Plan and E.O. 13467. GAO’s review was generally laudatory, but identified four areas that the executive order and the Initial Plan failed to properly address.

August – Defense Intelligence Agency’s (DIA) intention to use contractors to conduct polygraph examinations for security clearances was reported in the Washington Post on August 23, 2008. The AP story stated, “An unclassified DIA document describing the new effort says the contractor hired to perform the exams will conduct a minimum of 4,550 a year in 13 new polygraph studios. Those 13 new studios would be added to the eight now manned by DIA polygraphers. All would be overseen by DIA personnel.”

OPM posted a new version of the Standard Form 86 (Questionnaire for National Security Positions) on the public portion of its website. The new form, which is 21 pages long (including general instructions and releases), is 8 pages longer than the previous version of the form. A new section on “Use of Information Technology Systems” was added and the sections on “Foreign Contacts,” “Foreign Activities,” “Financial Record,” “Use of Alcohol,” and “Association Record” were expanded. The wording of many question and their specific instructions changed and new data fields have been added throughout the form.

September – OPM issued Federal Investigations Notice No. 08-04 establishing new prices for their investigations in Fiscal Year 2009. The costs of the most common investigations increased between 4.5% and 6.1%. Government agencies requesting investigations pay OPM for the vast majority of these investigations. Only a few federal contractors are required to pay OPM for the investigations on their personnel.

OPM presented updated statistical data to the House Subcommittee on Intelligence Community Management. In written remarks Kathy Dillaman, OPM Associate Director Federal Investigative Services Division (FISD) provided data on investigative elapse times that showed very little change between Fiscal Year 2007 and the third quarter of Fiscal Year 2008.

In their written remarks to the House Subcommittee on Intelligence Community Management, John Fitzpatrick, Acting Assistant Deputy Director of National Intelligence for Security and Elizabeth McGrath, Principal Deputy Under Secretary of Defense for Business Transformation reported that “Automated Clearance Adjudication” (eAdjudication) of clean cases for Secret clearances will begin at selected adjudication facilities by the end of the year. About 25% of Secret clearances will be eligible for eAdjudication. This is expected to speed up the process by allowing adjudicators to spend their time on more complex cases.

October – DNI issued new standards for SCI eligibility by promulgating Intelligence Community Directive (ICD) Number 704, “Personnel Security Standards And Procedures Governing Eligibility For Access To Sensitive Compartmented Information And Other Controlled Access Program Information.” ICD 704 recinded DCID 6/4, which previously governed SCI eligibility. Additionally DNI issued 5 related Intelligence Community Policy Guidance (ICPG 704.1 thru ICPG 704.5) documents that provide instructions for implementing ICD 704.

Department of Navy issued a policy letter that their Central Adjudication Facility will adjudicate investigations of Navy contractor personnel who are US citizens and are being considered for public trust positions that do not require a security clearance. DISCO/DOHA previously adjudicated these cases.

The Security Clearance Oversight and Accountability Act (H.R. 7259) was introduced in the US House of Representatives. The bill would require the Presedent to submit a quadrennial audit of how agencies determine the need for security clearances. It also would require annual reports on the total number of existing clearances, the number of clearance issued during the previous year, and the number and age of pending investigations, as well as standards and quality metrics for adjudication, investigation, and reciprocity. (H.R. 7259 was reintroduced in the 111th Congress as H.R. 639.)

November – The House Permanent Select Committee on Intelligence issued House Report 110-916, “Security Clearance Reform—Upgrading the Gateway to the National Security Community.” The report measured the government’s compliance with the IRTPA in seven areas. The overall tone of the report was critical, stating, “progress over the past five years has been disappointing.” Even in the areas where the Administration was found to have met the IRTPA requirements, the report complained of missed deadlines and creative interpretation of IRTPA wording.

December – A preliminary assessment of the timeliness and quality of the DoD personnel security clearance program presented in a report by GAO found that in fiscal year 2008 OPM completed 80% of all initial clearance investigations in 87 days. Although this represented a significant improvement over prior years, the existing clearance process may not be able to meet the December 2009 IRTPA requirement of 90% in 60 days. GAO also found that an estimated 87% of the OPM investigations in July 2008 for Top Secret clearances were missing at least one investigative element required by federal standards.

DNI and OPM approved new 3-tier investigative standards for suitability and security clearance investigations. The new investigative standards were described in the JSSRT December 2008 follow up report on process reform. The implementation plan for the new investigative standards is scheduled to be finalized in March 2009 with incremental implementation thereafter and full implementation by late summer 2010. The JSSRT report provided details on reform effort accomplishments and dates for implementation of various other components of the new process, including eApplication, Automated Record Checks, eAdjudication, and Continuous Evaluation.

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William H. Henderson is a retired federal clearance investigator, President of Federal Clearance Assistance Service (FEDCAS), author of Security Clearance Manual, Issue Mitigation Handbook, and a regular contributor to and