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
If you have been denied a security clearance, you should know that you are entitled to avail yourself of a well-established system of due process in challenging that denial. Normally, the term “due process” is used within a constitutional law context – namely, those legal rights guaranteed under the 5th and 14th Amendments. But that is not the case in the security clearance world.
Rather, because the U.S. Supreme Court has held that no one has a “right” to a security clearance, the only process due is that which is proscribed by the President. Fortunately, there are a variety of Executive Orders and regulations that have established a framework for aggrieved federal employees and contractors to have their proverbial day in court. In other words, denied security clearance applicants receive a system of administrative due process.
The administrative due process framework means that every federal agency is supposed to generally follow the same procedural process in hearing challenges to their security decisions. In practice, however, there is just enough ambiguity in the governing orders and regulations to result in a variety of different interpretations. We find in our law practice that most agencies are substantially compliant with the spirit of the rules: they understand that careers are on the line and they are reasonably fair, objective, and transparent in reaching decisions. Chief among these agencies is the Department of Defense – one of only two agencies (besides DOE) to actually publish their security clearance decisions.
There are, however, three agencies that stand out for their obvious disdain of applicant due process rights. We collectively groan when their cases come in the door because we know that we are in for a fight just to get our clients their most basic rights. Applicants would thus be wise to know the identities of these agencies.
Agency: Central Intelligence Agency / Office of the DNI
Violation: The Right to a Reasonably Timely Process
While it is true that nothing in the orders or regulations that govern security clearance due process requires adjudication within a certain timeframe, any reasonable observer would read in a timeliness requirement. After all, justice delayed is justice denied. What is the point of an appeals process if it takes years to obtain a decision?
We have asked this question repeatedly at the CIA / ODNI only to be repeatedly ignored. A typical adjudication takes two (2) years there, during which time an applicant is left to ponder what exactly the Agency’s security appeals staff spends its days doing? Moreover, the Agency habitually fails to meet the one timeliness requirement they do have: a 30-day window mandated by Executive Order 12968 to provide a complete copy of the applicant’s security file. Thus, the applicant is forced to substantively respond to the government’s allegations without first reviewing the government’s evidence. It’s not exactly a recipe for fairness.
Agency: National Geospatial Intelligence Agency
Violation: The Right to Counsel
Denied security clearance applicants are entitled to be represented in their appeal by an attorney of their choosing – at their own expense. Under current law and longstanding legal tradition, once legal representation has been established in any case in which the government is a party, the government is prohibited from directly contacting the opposing party on the matter of the representation. All communications are supposed to flow through legal counsel and for good reason. The attorney is best-situated to defend the client when s/he is acting as an intermediary.
For reasons that can only be a hostility toward attorneys, NGA has apparently decided that the rules don’t apply to them. Not only does the agency provide no point of contact for legal counsel, they categorically refuse to engage with attorneys or provide attorneys with applicant security files on the grounds that, as their security official recently pronounced to me, they won’t do a “data dump.” Instead, the agency communicates directly with the applicant, creating a telephone tag-like situation in which the attorney is reliant on his or her client’s interpretation of the conversation and the client’s claim that s/he forwarded all documentation provided by the agency. Do problems arise as a result? Absolutely.
Agency: U.S. Secret Service
Violation: The Right to an Impartial Trier of Fact
As numerous congressional inquiries have made public, the atmosphere at the Secret Service is essentially one of an overgrown frat house. If you are part of the Good Old Boys club, you’re Teflon: nothing sticks. If you’re not, don’t let the door hit you on the way out.
The problems at the Secret Service are deep, endemic, and disturbing. We have seen multiple cases where the security clearance process is essentially weaponized as a means of discarding those employees who would dare challenge the system. One of those cases is currently under investigation by the DHS Office of Inspector General for illegal whistleblower retaliation against our client. No matter how compelling the evidence we present in our client’s cases, it is insufficient to mitigate the questionable allegations, or simply ignored. We have literally argued cases in which the allegations against our client are demonstrably false – only to receive a decision that regurgitates the now disproven allegations and makes no mention of the evidence we submitted. Nothing says “fairness” like a refusal to acknowledge proven facts.
Ultimately, employees and contractors at most federal agencies can be confident that they will receive fundamental fairness if they are denied a security clearance. We see it play out every day. Yet a few bad apple agencies remain – and only public or congressional pressure will force a change in the status quo.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.