ADVICE FROM THE GENERAL COUNSEL
Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com.
The Department of Defense (DOD) grants roughly 80% of all security clearances issued by the federal government. Thus, it is perhaps no surprise that most questions about security clearance denials – and most of the body of information available on the internet – involve that agency. One of the unique aspects of my job, however, is the variety of federal agencies I encounter. Many of my firm’s cases originate from the intelligence agencies, and others come from places as diverse as the Postal Service, the White House, and the Forest Service.
The variety keeps things interesting. But with that variety comes a range of varying procedures, acronyms, and names. Fortunately, the basic underlying process for a security clearance denial remains consistent thanks to the largely mirror-image Executive Orders, laws, and agency-issued directives that govern. Here are a few of the notable variations:
The Intelligence Community
In DOD cases, the issuance of a Statement of Reasons (SOR) – the first step in a security clearance denial – is only a “preliminary decision” to deny or revoke a security clearance. Although failure to respond to the SOR results in the decision becoming final, applicants who do respond have the final denial or revocation decision held in abeyance until the case is heard by an impartial administrative law judge. This is not the case with the intelligence agencies. Rather, the issuance of an SOR by an intelligence community agency generally means that the applicant has already been denied the clearance and now is faced with the choice of whether to appeal. It is effectively guilty until proven innocent.
A denial decision is something that can haunt an applicant the rest of their career and become a scarlet letter for future cleared employment opportunities. The fact that such a decision can be made by a single, unaccountable bureaucrat is evidence of a disturbing lack of due process in this lawyer’s opinion. True, the applicant can appeal, but some agencies (most notoriously, the National Reconnaissance Office) explicitly advise applicants that even if the denial decision is overturned they still must indicate on future SF-86’s that they have been denied a security clearance. I am currently fighting this unfair policy administratively with NRO.
Fortunately, some of the larger intelligence agencies (e.g. CIA) have a more transparent denial process – albeit one that moves at glacial speed. In those agencies, an overturned denial or revocation decision erases the initial denial from the applicant’s record.
The Defense Intelligence Agency
“But wait,” you are probably thinking, “DIA is part of the intelligence community.” This is true. But when it comes to processing security clearance denial cases, DIA marches to their own drummer. In fact, recent cases at that agency have illuminated two interesting issues: (1) DIA has an unusually bureaucratic, cumbersome process when it comes to travel and foreign contact reporting, and (2) the agency has a bizarre adjudicative fixation on psychological issues.
With regard to the former, applicants should be prepared to go into considerable more detail than the SF-86 requires. Every foreign trip you’ve taken and every foreign contact you have must be reported on a separate form, along with details like where you stayed and who paid for the trip. Its not difficult, its just tedious, repetitive, and of questionable security value given that most of the same information is already gathered on the SF-86 or in security interviews. As for the latter, Executive Order 12968 states that the mere fact of prior mental health counseling does not, in itself, raise an inference of security risk. But DIA apparently has decided that the converse rule should apply at their agency. Applicants with even a hint of past mental health treatment should be prepared to sign over literally their entire hard copy medical history, including doctors’ notes, prescription records, and more. It is an unnecessarily invasive (and arguably illegal) process that applicants should be aware of before applying.
The Secret Service
Its no “secret” that the Secret Service has been plagued recently with major problems. One of those problems (though it lacks media appeal) is the lack of an impartial adjudicator to hear the agency’s security clearance denial and revocation cases. Unlike virtually every other agency of which I am aware, the Secret Service official charged with hearing security clearance denial cases is the Deputy Assistant Director for Human Resources and Training: the same person who is responsible for the administrative investigations that often form the basis for employment-related security clearance problems. In essence, one person at the Secret Service serves as prosecutor and judge. I’m not quite sure that comports with the spirit of due process we expect from our government.
After having represented clients before an enormous variety of federal agencies, it has become clear that there are some unusual outliers to what is otherwise a largely consistent process. Applicants should consider the differences – including what impact a security clearance denial from a different agency might have on any other clearances they hold – before applying.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.