An op-ed submission by Leon J. Schachter
If your security clearance is denied or revoked, nothing beats showing up in person to challenge the government’s case.
An in-the-flesh appearance allows the deciding official to think of you as a person rather than a case file, and facilitates his or her ability to assess your honesty and sincerity. This is why we almost always recommend that clients facing denial or revocation of a DoD security clearance elect their right to have a “personal appearance” before a Defense Office of Hearings and Appeals (DOHA) Administrative Judge rather than permit their case to be resolved solely on a paper submission. There are significant exceptions to the rule, which we discuss with our clients on a case-by-case basis, but the majority of the time we urge our clients not to proverbially phone it in – even if this means added cost of travel to the hearing location.
The Pandemic presents a new and broader exception to this advice. We think that the health risk of attending a hearing in-person is substantial given the close quarters encounters with others and despite the mandate that all participants wear a mask and speak from behind plexiglass barriers. DOHA is to be congratulated for insisting upon and implementing these safety precautions; but they greatly diminish the reason for being there in person in the first place. It is virtually impossible to discern the truthfulness and sincerity of a witness who is speaking from behind a mask that covers most of his or her face. Ultimately, the result is that both sides lose. The applicant is deprived of the ability to convince the Administrative judge of his or her eligibility for a security clearance with candid, compelling testimony, and the Administrative Judge is deprived of an opportunity to fairly assess the applicant’s demeanor.
DOHA could instead offer the option of conducting its hearings online with reasonable quality sound and video just like the Department of Energy and the Social Security Administration have been doing for months. Prior to the pandemic, DOHA did, in fact, have a VTC option available, but it required all parties to participate from a DoD network, and it was dated technology that frequently failed to work. That system has been inoperable for a year or more now, removing VTC as an option for hearings. When pressed as to why DOHA has decided to not use the same technology as other federal departments and agencies, DOHA officials have stated that the DoD is working on a new, remote virtual platform.
As best we can gather, DoD does not trust the security of platforms being used by other federal departments and agencies and has sought to build its own platform. Lawyers are admittedly not information technology experts; that lack of trust in existing platforms, and the resultant expense, may be entirely well-placed, given the number of clearance cases that the DoD processes and network security concerns during the pandemic especially. Nonetheless, the seeming lack of urgency in implementing a fully-functional remote video-teleconference system impacts the clearance process. With the switch to an increase in telework, a viable platform for DOHA hearings is critical, as it can help reduce delays and logistical difficulties inherent in convening hearings for applicants who are stationed overseas or in less populated areas of the United States. It will also level the playing field for these geographically remote, but often vital, applicants by eliminating the added expense required for them to simply vindicate their rights. In 2020, a security clearance applicant stationed in Germany, Korea, Afghanistan, or elsewhere overseas should be able to VTC in for a hearing instead of booking a flight to Washington, D.C.
We know that the pandemic isn’t waiting around for you to obtain or maintain your security clearance. If you are facing loss of a security clearance and you’ve been waiting months for a hearing, we suggest that you contact the DoD Office of the Chief Information Officer to ask for an update on when DoD’s new remote VTC platform will be implemented.
Mr. Schachter retired as the director of the Defense Office of Hearings and Appeals in 2013. He is currently Senior Counsel at BigleyRanish LLP where he exclusively handles cases involving of denial or revocation of security clearances needed for access to classified information or performance of sensitive duties. DOHA provides required administrative due process for such denials and revocations for persons working for the Department of Defense, military services and companies working on classified contracts with the DoD and most other federal departments and agencies. No statements in this article represent the views of DOHA or any other entity of the Federal Government.
