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

Can Your Politics Get You Denied A Security Clearance?

In this rowdy campaign season, a question I have been asked now a couple times is whether one’s vocal, strident political views can ever be used as reason for a security clearance denial. I will admit that the first time I heard this my immediate reaction was to ask the questioner whether there was a second shooter on the grassy knoll or if we did, in fact, ever land on the moon. After all, the question has a bit of a conspiracy theorist ring to it.

Yet after further contemplation and a dialing back on the sarcasm, I will concede that the question may merit reflection. Indeed, the Supreme Court has held that security clearance determinations are entirely within the discretion of the Executive Branch – and absolute power corrupts absolutely.

At least in theory, security clearance determinations are supposed to be made by non-partisan, career employees at the various federal agencies. Of course, if you’ve ever worked in a federal agency and seen your colleagues sporting campaign materials in the workplace (read: Hatch Act violations), you know that federal employees follow politics too. Just like their private sector counterparts, feds care deeply about their jobs, the security thereof, and the future of the country. So while it is unlikely that someone who is “Feeling the Bern” or looking to “Make America Great Again” is going to find the security clearance process being used against them as a weapon, it is certainly conceivable that someone with more anarchist or violent political designs may encounter problems.

Question 29 – Are you trying to overthrow the government?

The place on the SF-86 where such anarchist or violent “topple the government” types may initially hit a wall is question 29 and its progeny. Early in my days as a security clearance investigator, and then an attorney, I often wondered whether anyone actually answered “yes” to those absurd questions. I mean, if you’ve “ever [tried to] overthrow the U.S. government by force”, I doubt there is some “see the light” moment where you suddenly decide to switch teams with gusto. Yet again, nothing surprises me anymore.

A “yes” answer to question 29 or any of its sub-parts would most likely be the end of a security clearance application. I think it is probably safe to say that most of us are quite comfortable with that. But even if your politics are entirely “mainstream” – whatever that is – maybe there is still a good reason to ask questions, apply scrutiny, and ensure the Executive Branch bureaucracy is held accountable for its decisions? In a legal sense, public scrutiny really is the only thing preventing the security clearance process from becoming politicized, however unlikely that may seem.

I think a healthy dose of skepticism is a good thing, especially where there exists the potential for abuse in the form of political retribution. That is why I am publicly calling on all federal agencies to follow the lead of the Departments of Defense and Energy in publishing their security clearance decisions for public consumption.[1] Sunshine is truly the best disinfectant.

If you’ve never reviewed the DoD or DOE cases, they make for fascinating reading and excellent case studies in how to avoid problems as a security clearance holder. You can access them here and here, respectively.

I applaud those two agencies for holding themselves accountable. Shouldn’t we demand the same from the rest of the government?

 

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

[1] DoD publishes only its contractor security clearance cases. Members of the military – whose careers can be seriously impacted by politics and command influence – deserve the same protections. Thus, even that department has some work to do.

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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