ASK 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.
Unless you have actually applied to the FBI, Secret Service, or another federal law enforcement agency authorized to conduct its own background investigations, I can guarantee you this: a phone call from federal law enforcement agents is definitely not about your security clearance eligibility.
This may seem like an absurd or obvious statement to readers sophisticated in federal personnel security matters. But those who are unfamiliar with the security clearance background investigation process often don’t understand the distinction between a federal law enforcement agency like the FBI and a background investigations agency like the NBIB (formerly OPM-FISD). They may assume that the investigators with whom they have met previously for standard reinvestigations are FBI agents (or NCIS, CID, or OSI agents for the military service branches) and may not think twice about a request by the FBI for a meeting. That ignorance is precisely what federal law enforcement is counting on.
The reality is that federal law enforcement couldn’t care less about your security clearance, unless you’ve applied to their agency and they are authorized by law to conduct their own background investigations. What they do care about, however, is whether you are using your security clearance in a manner inimical to the national security (e.g. recklessly mishandling classified information) or whether you are engaged in other illegal activities that would subject you to prosecution. Law enforcement agents may use your security clearance investigation as a pretext for getting information that they need to prosecute you – even if it involves blatantly lying about the purpose of the questioning. Alternatively, they can ask questions designed to elicit a material false statement which, in and of itself, is grounds for prosecution.
Your Security Clearance – An Excuse to Prosecute?
Not to be an alarmist, but I raise this issue for the simple fact that I have people calling my office with some regularity to inquire about legal representation in a “security clearance meeting” with a federal law enforcement agency. In some cases, the inquiry involves whether or not the security clearance holder should allow federal agents to search their home. When I tell these prospective clients that they would be better served by a criminal defense attorney, you can almost hear the oxygen being sucked out of their lungs. I actually had someone once reply with confidence that such arrangements would not be necessary, as “the FBI is not legally allowed to lie to a suspect.” That one was good for a hearty laugh.
It is with increasing regularity that we are seeing federal law enforcement use security clearance background investigations as a pretext for developing criminal cases. Sometimes these cases arise from information that has been reported or developed during the security clearance process; often, they do not. Either way, security clearance holders need to understand that a request for a meeting by federal law enforcement agents is not a normal part of the security clearance background investigation process unless the individual is a job applicant with that particular agency. If you receive such a contact, the best thing you can do for yourself is not to make any statements, authorize any searches, or otherwise cooperate in any manner until and unless you have retained a competent criminal defense attorney for counsel. Whatever ramifications there may be to your security clearance are far outweighed by the potential ramifications to your freedom.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.