Is Continuous Evaluation Working?

Security Clearance

One of the inherent problems with government is an institutional resistance to change. My experience has been that when change does occur, it is often merely a repackaging of prior failed efforts (example: the notorious ‘rebranding’ of OPM’s Federal Investigative Service to the “National Background Investigations Bureau”).

So, it was with great surprise (and skepticism) that I read 2016’s news about continuous evaluation. As the security powers-that-be told it then, the government’s intent was to finally recalibrate its background investigation model from a static, predictably-timed series of re-investigations to a continuous evaluation platform. It was a bold and long-discussed goal, but one that I was quite confident someone, somewhere within the national security bureaucracy would torpedo.

As it turns out, continuous evaluation (CE) has been quietly rolled out across key sectors of the government during 2017 – and it continues to march forward despite concerns, particularly from the Departments of State and Justice, over the completeness of criminal records coverage. (The Departments correctly point out in a recent GAO report that some local criminal records databases remain inaccessible to automated record check systems). This unresolved issue is a serious hole in the CE program’s effectiveness, but not a fatal one in light of the overlap of periodic reinvestigations by human investigators, which will apparently continue for the near future and presumably until all automation gaps are filled. In that respect, CE is being wisely phased in as a supplement to existing reinvestigation standards – even though it will likely and ultimately replace them.

To those spearheading this charge, I believe that credit should be given where credit is due. Implementing CE even to this point cannot have been a small feat, and changing what has been widely acknowledged to be a broken system has to start somewhere. What the government now seems to be learning, however, is what a massive undertaking they’ve actually assumed.

We’ve seen a trickle of CE cases in our practice during 2017, usually involving public records situations. For example, a clearance-holder declares bankruptcy or is sued by a creditor and fails to promptly self-report that information. In those cases, the CE program has flagged the information with impressive speed and resulted in the issuance of an inquiry to our client via the Joint Personnel Adjudication System (JPAS) or their agency’s security office. Ultimately, that can lead to the issuance of a Statement of Reasons and the subsequent revocation of security clearance. But many of these initial inquiries appear rushed or sloppy, likely an indicator of an already overworked personnel security apparatus or a lack of training. And, those inquiries to which we have responded have disappeared into a veritable black hole without any apparent action, raising questions about the point of issuing the inquiry in the first place.

From my perspective as a defense attorney, the system does appear to be technologically effective in the sense that it is catching issues that would have otherwise been unknown to the government for potentially 5 or more years (i.e. until the next regularly scheduled re-investigation) absent earlier self-reporting by the clearance-holder. Yet fundamental questions remain as to whether the federal government has adequate manpower and resources to adequately process and adjudicate the information it is taking in, as demonstrated by the lack of action on current CE inquiries.

In this author’s opinion, the merits of the CE program are many, but are being currently usurped by the deep and longstanding logistical flaws in the government’s investigative and adjudicative processes writ large. It remains to be seen whether more recent announcements, such as DoD’s impending move to “re-claim” it’s background investigations program from OPM, will solve these fundamental problems – or simply constitute another re-branding.

 

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

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