Unless you are a security clearance attorney or personnel security official, chances are good that you’ve probably never read the national adjudicative guidelines for security clearances. The current guidelines can be located within Security Executive Agent Directive 4, available on the Director of National Intelligence’s website.  They’re actually quite an interesting read, and I encourage all clearance holders to take some time to peruse them.

Nonetheless, I’ve found that most security clearance holders – whether from their annual security refreshers or just general common sense – already have a pretty good idea of the basics. They know not to use illegal drugs, consume alcohol to excess, get too far behind on their debts, or get too closely involved with foreign nationals.

Incidentally, those ‘basics’ happen to correspond with the most frequent reasons why security clearances are denied or revoked.  Go figure. There are, however, some other, more obscure reasons why clearance holders get themselves into trouble (hence why I advise actually reading the guidelines). One of those reasons is perhaps most obscure of all. My office represents hundreds of security clearance holders and applicants per year, and I’ve seen it used precisely one (1) time.

That obscure, almost mythical Guideline is called “Guideline A”, and it corresponds with the concern enumerated as “Allegiance to the United States.”  The guideline has some crossover with the much more commonly-used Guideline C, but there are significant differences.  Specifically, Guideline A notes that there is:

“[N]o positive test for allegiance, but there are negative indicators. These include participation in or support for acts against the United States or placing the welfare or interests of another country above those of the United States. Finally, the failure to adhere to the laws of the United States may be relevant if the violation of law is harmful to stated U.S. interests. An individual who engages in acts against the United States or provides support or encouragement for those who do has already demonstrated willingness to compromise national security.”

Obvious examples of a Guideline A case would include direct past involvement in espionage, treason, terrorism, or sedition against the United States – all of which are explicitly mentioned in Guideline A and any of which would probably preclude the involved individual from even applying for a clearance in the first place. After all, one would first need to be hired by a federal agency or cleared contractor.

But there are some other conceivable situations which present a closer call. What about someone who, for example, has expressed support on social media for those like Bradley (now “Chelsea”) Manning, Edward Snowden, or – of particular recent relevance – Julian Assange of WikiLeaks notoriety? Guideline A includes as a potentially disqualifying factor mere “sympathy” with or “encouragement of” persons who have committed or attempted to commit acts against the United States.

From a legal perspective, there is a case to be made here for clearance denial or revocation. Security clearance is a privilege, not a right. Under current law the Executive Branch has largely unfettered discretion to grant or deny a clearance – potentially even for speech or associations that would otherwise be protected under the First Amendment.

Guideline A is interesting in that it implicates some unsettled areas of security clearance law, like precisely how far that unfettered discretion actually goes and if/how the First Amendment applies. Perhaps this is why it is so rarely used? Either way, security clearance holders interested in remaining employed are wise to read Guideline A along with all its counterparts. Surprises in the security clearance world are generally not good things.

 

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