Conditions and Waivers in the Security Clearance Process

Security Clearance

One of the more interesting – and overlooked – provisions in June’s update to the National Adjudicative Guidelines for Security Clearances is the uniform application of conditions and waiver authority across the government. Put plainly, all federal agencies and departments are now authorized to grant security clearances with conditions and to make exceptions in granting clearances where, for example, the applicant would be denied but for his critical value to the employer. Governing language further defines conditions and waivers as follows:

  • Condition: Eligibility granted or continued, despite the presence of issue information that can be partially but not completely mitigated, with the provision that additional security measures shall be required to mitigate the issue(s). Such measures include, but are not limited to, additional security monitoring, access restrictions, submission of periodic financial statements, or attendance at counseling sessions.
  • Waiver: Eligibility granted or continued despite the presence of substantial issue information that would normally preclude eligibility. Approval authorities may approve a waiver only when the benefit of initial or continued eligibility clearly outweighs any security concerns. A waiver may also require conditions for eligibility as described below.

In the past, some federal agencies had quietly exercised this authority, but the largest player – DoD – refused to apply either principle in the largest category of cases – industry – on the grounds that no such authority was expressly granted to it.

Now, it seems that the policy tide has shifted, much to the surprise of many observers, including this author. Security Executive Agent Directive (SEAD) 4 makes no mention of excluding DoD from the blanket condition and waiver authority it imparts, instead only including language that opaquely references implementation of the authorities by the various federal departments and agencies.

DoD officials, understandably fearful of opening Pandora’s box and the difficulties in monitoring conditions and waivers, have pushed back in industry cases, claiming that the authority is non-existent because DoD has yet to implement “guidance” on how to handle it.

Yet this argument, however creative, doesn’t pass muster. To start, the authority on conditions and waivers itself is outlined in narrow, plain and unambiguous language that should require no interpretation (unlike, for example, a broad statute written by Congress and left up to federal agencies to implement with regulations).

Secondly, if DoD is entitled to delay exercising condition and waiver authority until whenever it decides to get around to “interpreting” it, the likely outcome is that no such interpretation will ever be forthcoming. Such a result would give every federal agency veto authority over a directive issued by the nation’s chief security official, the Director of National Intelligence.

A DoD Double Standard

And finally, it defies logic that DoD can monitor conditions and waivers in civilian and military cases, as they have long done, but not in industry ones. DoD has claimed that “employees” are inherently easier to keep tabs on than contractors, but such an argument ignores the role of Facility Security Officers – who are already relied upon (apparently without issue) to control the classified information itself. If anything, perhaps FSO’s should receive further training on how to monitor and periodically report to DoD on condition and waiver cases under their charge.

Fundamentally, I see why DoD officials are doing everything possible to avoid using their new condition and waiver authority in industrial cases; indeed, I’m not so sure on a personal level that conditions and waivers are the best idea. But, as those same DoD officials point out routinely in denial and revocation cases, a favorable security determination depends on the applicant’s perceived ability to follow rules and regulations for the protection of classified information.

That’s a tough argument to make when security officials are twisting their own rules.

 

This article was written for general information purposes only and should not be construed as legal advice. Consult an attorney regarding the specific facts and circumstances of your case.

 

 

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