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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.
The early days of the Department of Homeland Security were, as many cleared readers may recall, chaotic. It was a post-9/11 world, and the fledgling department was charged with melding together countless federal agencies, standing up new agencies, and ultimately preventing another major attack. Fortunately, the latter was accomplished successfully. The former is, to this day, still a work in progress.
In a rush to recruit, train, and deploy a new homeland security workforce, hiring standards at some DHS components were significantly relaxed. U.S. Customs and Border Protection, Immigration and Customs Enforcement, and the Transportation Security Administration, in particular, hired scores of applicants with questionable backgrounds or personal traits that are only now being addressed through standard ten-year security clearance reinvestigations (some of which have been delayed by years due to backlogs or oversight). It is not uncommon to see security clearance revocation cases at these agencies incorporate allegations of behavior that occurred as much as ten or even fifteen years ago – well before the agency hired the applicant with full knowledge of the issues.
In many of these cases, a strong legal defense can be raised on the issue of relevancy: why is something suddenly deemed a security risk now that was not an issue years ago, when the employee was hired? This is particularly true when the clearance holder has exhibited no subsequent recurrent misconduct, rendering the agency’s claims highly suspect for whistle-blower retaliation or similar illegal action.
However, there have been other cases in which the security clearance holder has continued a pattern of similar behavior, however minor, post-hire, and the agency refuses to back-off the issue of relevancy in establishing a purported national security risk. The appearance is that certain DHS components are using the security clearance process to quickly and easily dispose of employees who they regret hiring for various non-security-related reasons – reasons that are more appropriately addressed through the employee discipline process.
That’s not the purpose of a security clearance adjudication, nor is it compatible with federal civil service laws. Unfortunately, the law leaves aggrieved security clearance holders in such cases with little to no recourse besides drawing public attention to the practice.
Job Suitability vs. Security Clearance Requirements
While DHS component agencies are actively cleaning house these days, the other method of workforce integrity check being employed is to increase hiring standards for new applicants. Few Americans would argue against strong hiring standards for those who are empowered to enforce the law. But instead of focusing on robust background investigations and psychological testing, DHS components have, in recent years, taken a page from the intelligence community and bought into the faux science known as the polygraph. The results have reinforced why the federal courts generally bar polygraph evidence as unreliable: a recent Los Angeles Times expose revealed that two out of every three CBP applicants are failing that agency’s polygraph examination.
This stunningly high failure rate includes numerous prior security clearance holders, and those who have distinguished military backgrounds. Some examinations are taking as long as eight hours, a scenario which sounds more like a criminal interrogation than a pre-hiring security check. Psychological experts have pointed out that examinations of such length and intensity may result in false confessions by those whose fight-or-flight defenses take over in an effort to simply end the experience. Moreover, in a field where the foundational science is itself suspect, one must question the nature and extent of the training and oversight being provided to the examiners. These questions are heightened by rumors of ‘failure quotas’ that have circulated for years in the personnel security community.
Incidentally, the average polygraph failure rate among other law enforcement agencies surveyed by the Times was 28%. While this certainly does not render the polygraph a more legitimate exercise, it does further highlight the serious questions raised by CBP’s failure rate. I find it hard to believe that fully two thirds of CBP applicants pose a national security risk.
CBP and its DHS sister agencies should be applauded for their efforts to ensure the integrity and efficiency of our homeland security workforce. But the number of bizarre and perplexing security cases being generated by these agencies leaves a bad taste in the mouth of those of us who see the security clearance process in operation government-wide. DHS would do well to consider how far the security pendulum has swung since the Department’s inception – and whether current efforts are actually accomplishing their purpose.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.