The first article I ever wrote for ClearanceJobs was premised on a basic legal principle that many security clearance applicants fail to consider: the constitutional right against self-incrimination.
Statements a security clearance applicant makes during a background investigation can waive the applicant’s Fifth Amendment right against self-incrimination. In other words, if you committed, say, a computer crime, and didn’t get caught, it is probably not in your best interests to complete an SF-86 form and list that crime. Ditto for undiscovered drug trafficking, espionage, and tax evasion, to name a few. Of course, not listing those crimes, where applicable, constitutes the additional crime of false statements to the government. That’s no laughing matter.
I concede that some of these crimes may seem like extreme examples inapplicable to most applicants. But consider this: there are over 4,500 federal criminal statutes on the books and thousands more federal regulations that carry criminal penalties. Do you really know what you don’t know?
THE LIES THAT HAUNT CLEARED CAREERS
I encourage readers to check out my original article for a more in-depth analysis of this issue. If you have specific questions about your own case, consulting with a criminal defense attorney is worth your time. For now, however, I will address a sub-issue which we are encountering in our law practice with increasing regularity: applicants whose potential exposure to prosecution is not due to independent criminal conduct, but rather solely the result of falsifying prior SF-86 forms as they pertained to issues like foreign contacts, employment, and alcohol usage.
Had the applicants in these cases previously answered questions honestly, a security clearance denial would have been the worst case scenario. Now, however, they find themselves in the unenviable position of gambler: admit to the prior falsification and potentially risk prosecution for false statements to the government (and a security clearance revocation) or walk away from their career.
Country crooner Kenny Rogers said it best: “You’ve got to know when to hold ‘em; know when to fold ‘em.” Depending upon the exact nature and circumstances of the prior falsification, the risk may outweigh the reward – or vice versa. Common mitigating factors are: misinterpretation of a question; the applicant’s SF-86 was actually completed by a third party (e.g. military recruiter); or the falsification was minor and the applicant made a prompt good faith effort to correct it. Common aggravating factors (i.e. those that increase the risk of prosecution and/or clearance revocation) are: repeated falsifications; clear evidence of intent; falsifications regarding identity; or, omission of relationship(s) with foreign agents.
THINGS TO CONSIDER
A qualified security clearance attorney can help better frame your unique situation for you after a review of the facts. However, here are a few final – and general – words of advice:
- If you’ve been requested to undergo an interview and/or polygraph by a law enforcement agency outside of the normal context of your background investigation, you are likely the target of a criminal investigation. It’s time to get an attorney, stop talking, and walk away from the security clearance process.
- If the prior falsification was made more than 5 years ago, the likelihood of prosecution is seriously diminished due to the statute of limitations for 18 U.S.C. § 1001 (false statements). However, applicants should understand that statutes of limitations are affirmative defenses and can sometimes be nuanced in their application. Plain English: they aren’t necessarily ‘get out of jail free’ cards.
- Applicants with any military affiliation (Active, Guard, Reserve, IRR) must also take into consideration the Uniform Code of Military Justice and the applicable penalties for crimes like fraudulent enlistment.
- Finally, you can’t be charged with a false statement for not saying anything – and you DO have the right to decline to answer any questions that make you feel uncomfortable. When it doubt, refusing to answer a question is usually the right approach.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
