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.
Besides the JFK assassination and Big Foot, perhaps few other issues provide fodder for urban legends like security clearances. Not all the rumors are outlandish, but they are pervasive. Here are a few of the ones my office deals with regularly:
“My Background Disqualifies Me for ‘TOP SECRET,’ But I Can Still Get ‘SECRET,’ Right?”
Wrong. Contrary to conventional wisdom, the only real difference between levels of collateral clearance (i.e. anything short of SCI access) is the intensity of the background investigation. The adjudicative criteria apply uniformly to all levels of collateral clearance. Thus, something that would result in denial of a Top Secret clearance would also result in denial of a Secret clearance.
“The Government Will Read My Emails and Listen to My Phone Calls as Part of the Background Investigation Process.”
Fortunately, no. Although you do, as a security clearance applicant, sign away much of your privacy during the background investigation, you do not sign a search warrant waiver. The government would need such a search warrant to read your emails and/or listen to your phone calls (although interestingly they do not need a warrant to see who you called and view your bank account information – neither of which they will do in a background investigation). Even if the government wanted to go to such great lengths to investigate you, they simply do not have the resources to perform this kind of investigation on all security clearance applicants.
“I Already Addressed This On My Last Background Investigation. It Won’t Be An Issue Again.”
You may be thinking of the “double jeopardy” principle that prohibits a person from being tried twice for the same crime. But “double jeopardy” applies only to criminal cases – and there are some surprising exceptions even in that realm. Although it is unlikely that a previous favorably adjudicated issue would later become a problem in the same agency, nothing legally prevents this from happening. In addition, it is entirely possible that an issue favorably adjudicated by one agency (e.g. DOD) would be unfavorably adjudicated by another (e.g. CIA). We see the latter happen quite frequently.
“My Friend/Neighbor/Relative Had the Same Issue in His or Her Background. It Wasn’t a Problem for Them, So it Won’t Be a Problem for Me.”
Unfortunately, what may appear to be identical cases are rarely so. Security clearance adjudicators use a “whole person” analysis when evaluating cases. An issue for someone else may not an issue for you (and vice versa). The rumors surrounding this area seem to most commonly arise in financial debt cases, where the circumstances leading up to the debt and how the applicant acted to resolve them are of critical importance. The fact that an applicant has paid off the debt or the debt is uncollectible due to a Statute of Limitations is only part of the equation.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.