If you’ve held a security clearance for any measurable length of time, chances are good that cleared colleagues, neighbors, or friends have asked if they can list you as a reference or verifier on their own security clearance re-application. After all, the SF-86 not only requires the names of people who know you well, but also the names of individuals who can verify employment, residence, and education.

Most savvy individuals don’t list their shady classmate or their miscreant neighbor; so, it often falls to others in the cleared community to fill those roles. The prevailing attitude seems to be that fellow security clearance holders “know the drill” and won’t respond with the same stupid comments (“I thought it would be hilarious if I told them your favorite hobby was snorting coke”) or suspicion (“dude, who did you murder? The FBI is at my door asking about you”) that background investigations sometimes generate in the un-cleared community.

A Background Investigation Today, Consequences Tomorrow

Nonetheless, I often receive variations of the following question from even the most seasoned security clearance holders:

“Can my testimony about an applicant somehow cause problems for me down the road?”

Certainly, making knowingly false factual statements about a security clearance applicant could be grounds for criminal prosecution, a libel lawsuit, and revocation of your own clearance. For example, if you falsely and spitefully report that the applicant was arrested for robbery, that statement could easily come back to haunt you. Similarly, if you report that the applicant has, to your knowledge, never been arrested – but you were both arrested as part of the same conspiracy to commit robbery – that poses an obvious integrity issue. These are perhaps extreme examples; however, they illustrate the type of verifiable, factual statements to which I am referring.

But what if the issue is not providing derogatory information to the government, but rather favorable opinion testimony? What if you have the misfortune of giving a glowing character reference to the person who turns out to be the next Navy Yard or Fort Hood shooter?

Apart from whatever difficulty this may cause you in sleeping at night, nothing in the law creates any legal liability for a good-faith but horribly inaccurate opinion reference. No reasonable layperson can be expected to predict future behavior, nor are personal opinions on character (e.g. “do you have any reason to question the applicant’s honesty, reliability or judgment?”) actionable under legal standards for negligence or tort. An opinion is just that: a subjective opinion.

The bottom line is that an honest, good-faith character reference – or verification of facts as reasonably perceived by the verifier – is not generally a basis for legal blowback. You shouldn’t be hesitant to act as a reference for fear of some imperceptible future consequence.

 

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

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Sean M. Bigley retired from the practice of law in 2023, after a decade representing clients in the security clearance process. He was previously an investigator for the Defense Counterintelligence and Security Agency (then-U.S. Office of Personnel Management) and served from 2020-2024 as a presidentially-appointed member of the National Security Education Board. For security clearance assistance, readers may wish to consider Attorney John Berry, who is available to advise and represent clients in all phases of the security clearance process, including pre-application counseling, denials, revocations, and appeals. Mr. Berry can be found at https://www.berrylegal.com/.