As a general rule of thumb, I believe that most people act with integrity and good faith when given the opportunity. That includes U.S. government officials charged with adjudicating security clearance cases and managerial officials at federal agencies and government contractors.

Nonetheless, fair-minded people must concede that in any large sample size there is the occasional bad apple. These bad apples sometimes disguise their motivations in acting outside of established policy or behavioral norms. Unfortunately, the process for denying or revoking security clearances – and the overbroad Guideline “E” I recently wrote about – is a potent vehicle for doing just that. Security clearance denial and revocation decisions aren’t appealable to the courts and the process of decision-making itself is, at many agencies, extremely opaque. Thus, where managerial officials are apparently misusing the security clearance process for ulterior motives (e.g. whistleblower reprisal, settling a personal vendetta, or subverting the employee discipline process and Merit Systems Protection Board), it is incumbent upon personnel security officials to step-in, ask hard questions, and shut down such efforts. That doesn’t always happen – especially when the manager making the allegations is a senior official or there isn’t a credible wall in place between security and management.

A Clearance Holder’s Loyalty Is to the Constitution – Not His Boss

One of the more disturbing examples of this we’ve seen recently is the claim by an agency that an employee’s purported “disloyalty” to a supervisor constituted the basis for an adverse security determination. To be sure, there are scenarios in which an individual who repeatedly refuses or fails to follow orders can be deemed a security risk. But loyalty connotates something entirely different: the false and dangerous idea that employees owe their supervisors personal allegiance.

Loyalty is what’s demanded by the leaders of gangs, mafia families, and corrupt dictatorships. Fundamentally, a U.S. government employee’s loyalty is to the Constitution, the rule of law, and U.S. taxpayers. Following the chain of command is important to a point, but there must be a line somewhere that stops short of blind obedience. Even in the military – where disobeying an order is punishable under the Uniform Code of Military Justice – exceptions exist for unlawful orders.  Indeed, “I was just following orders” isn’t a defense to war crimes or other grave misconduct. Demanding loyalty to a supervisor is just as inappropriate in the civil service as it is in the military; security clearances are not bargaining chips.

Personnel security officials must push back against obvious misapplications of law and policy to avoid irreparably tarnishing their own credibility as independent arbiters. So should the President by swiftly moving to strengthen administrative due process protections within the security clearance denial/revocation process and extending the provisions of Executive Order 10865 (administrative due process for contractors) to civil service employees and members of the military. For more on that, check out my recent article, “DoD Needs to Eliminate Current Two-Track Security Clearance Appeals System”.

 

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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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