Recently, I wrote an article entitled “Security Clearance Reform Misses the Mark.” If you didn’t catch it, my basic premise was that the security clearance reforms of 2015 and 2016 are meaningless without addressing the elephant in the room: sloppy and/or ineffective background investigations.
I read countless reports of investigation (ROI’s) every month, and I would estimate that over half of them contain glaring omissions, inaccurate (or contextually detached) statements attributed to the applicant, or otherwise leave much to be desired. Casual observers might expect that it is the government and the interests of national security that are most adversely impacted by these problems. This is certainly a fair assumption. But sloppy ROI’s also create major headaches for security clearance applicants, most of whom don’t have the opportunity to correct the record until the government is already using it against them.
Here are a few examples:
- An investigator asks an applicant with prior marijuana use if the applicant is willing to disavow future use. The applicant responds with a philosophical explanation of why he thinks marijuana should be legalized, but ultimately agrees to disavow future use. The investigator hears only “I think I should be able to continue using marijuana.”
- An applicant, in response to the question “have you ever observed any pornography that made you feel uncomfortable?”, states that he sometimes feels uncomfortable when he sees a video with adult actors being purposely made to appear younger than their actual age. Investigator reports that Applicant watches child pornography.
- An investigator confirms the information an applicant reported on his SF-86 – that Applicant failed to file or pay state taxes for several years. Had the investigator asked the logical follow-up question of “why?”, the investigator would have learned that Applicant was living overseas during that period (and was not required to file or pay state income taxes because he was not a resident of any state within the meaning of the law). The Applicant did not clarify and neither the investigator nor the adjudicator made the link with Applicant’s reported residence in Japan during this period.
In case you were wondering, these are all real situations my firm has encountered in just the last several months. Obviously, there is a problem in the process – and one that will likely only be fixed with serious efforts to better professionalize the background investigator workforce. In the meantime, what, if anything, can you do if you find yourself struggling to effectively communicate with your background investigator? Here are a few tips:
- Consult with a security clearance attorney BEFORE you submit your SF-86 or meet with your investigator. Doing so will give you the opportunity to ask questions like “is this reportable?”; “how do I answer this question?”; and, “what can I say or do to help make this issue less of a concern for the government?” Most applicants find it a highly useful exercise and one which can prevent major problems down the road.
- Come prepared to your investigative interview. I typically advise security clearance applicants bring with them a list of mitigating details (i.e. context) for anything that could be an adjudicative issue. Make sure you volunteer that information to your investigator and stress that it is important to you that the information make it into his or her report. But be careful not to over-volunteer anything that could create a new adjudicative issue. (Real-life recent example: “I don’t remember snorting cocaine because I was blacked-out drunk.”) Again, consider talking with an attorney first.
- At the end of your investigative interview, ask that the investigator read back to you the portion of his or her notes that cover the “issues” in your case. Be sure that the mitigating (good) details made it into their notes along with the bad stuff.
If all else fails, you will ultimately have the opportunity to challenge any security clearance denial decision and rebut the ROI. But the idea is to avoid getting to that point unnecessarily. Its extra time, expense, and hassle that may be avoidable with a bit of investment in the process at the outset.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
