Late Tuesday the DoD issued guidance “simplifying, centralizing, and unifying” the administrative process for appealing unfavorable security clearances. In practice, this means the DoD will now give its employees and contractors the same rights when appealing a denied clearance. The reforms are due in part to a Freedom of Information Act (FOIA) lawsuit filed on my behalf by Kel McClanahan, a lawyer who deals in security clearance matters.
HOW CLEARANCE APPEALS WORKED FOR CONTRACTORS
The old system worked like this: Employees and contractors, who were outside the Intelligence Community (IC) components of the DoD and were the subject of an adverse denial or revocation of their security clearances were allowed to file an administrative appeal of that determination. They could appear personally in support of that appeal before an administrative judge of the Defense Office of Hearings and Appeals (DOHA). They could offer witnesses, testimony, and cross-examine the government’s case.
When that was finished, things got complicated. For non-IC DoD contractors, the administrative judge would write an opinion either affirming or reversing the clearance decision. If there were multiple allegations, the administrative judge would affirm or reverse for each of the allegations. Even a single affirmation would mean the loss of a clearance. In the years ahead, if a contractor again sought a clearance, he or she (and his or her lawyer) would know precisely what the obstacles were. The process was transparent and fair. Afterward, the opinions of the administrative decisions would be sanitized of personal information and made publicly available. In addition, an administrative judge’s decision could be appealed to a DOHA review board.
EMPLOYEES WERE A DIFFERENT STORY
For DoD employees, however, it was a different story. In their case, the administrative judge would not issue an opinion, but rather, offer a recommended decision to Personnel Security Appeals Boards (PSABs). There were different PSABs for the different branches (an Army PSAB, a Navy PSAB, and so on). And these PSABs, behind closed doors, would either affirm or reverse the security clearance revocation. And that was that—no explanations or rationales. Moreover, not even the opinions of administrative judges would be released to the public. And there was no appeals process. The PSAB ruling was final.
“For many, many years,” says McClanahan, “many of us on the inside and the outside tried to fix this, and there was tremendous institutional pushback from military departments that basically boiled down to: We don’t want our clearance decisions to be dictated by administrative judges in the Defense Office of Hearings and Appeals.” The PSABs wanted the right to substitute their own judgments—as opposed to the judgments of the administrative judges—based on whatever criteria they chose to apply over the process.
McClanahan couldn’t think of a single example where the administrative judge affirmed a security clearance revocation or denial, and then a PSAB reversed that decision. Rather, the influence of PSAB seemed to exclusively go the other way: An administrative judge might recommend reversing the revocation, and the PSAB would ignore that recommendation, affirming it.
A NEW PROCESS FOR APPEALING A DENIED CLEARANCE
It was a bad system with double standards, and it is dead now. The new system gives administrative judges of the DOHA final say in the matter. Whether you are a DoD contractor or non-IC employee, PSABs no longer apply. But the new system goes far beyond even that. Now, even contractors for IC components of the DoD—the National Security Agency, the National Geospatial-Intelligence Agency, and others—fall under the DOHA process. (DoD IC employees still go through their respective agencies for appeals, which isn’t great, but the system is a hell of a lot better than it was before.)
But wait, there’s more: The DOHA now has authority over all levels of clearance, including SCI.
WHAT OUR LAWSUIT SOUGHT
Our lawsuit sought records from the DoD that would allow us to perform a quantitative analysis of government employee appeals. No publicly available statistics regarding such appeals existed, which meant it was impossible to determine the percentage of DOHA decisions affirmed or rejected by the PSABs. Moreover, it was impossible to determine which service components tended to affirm or reject the decisions of administrative judges. Consequently, it was impossible to determine what, if any, correlations existed between specific guidelines and decisions to adopt or reject those decisions.
“One of the reasons they were allowed to continue to do this for so long is that nobody—and I mean nobody—had adequate data on what the PSAB was doing,” says McClanahan. Not even the DOHA knew what happened to all of their administrative judges’ opinions after they reached the PSABs. “They didn’t know what their success rate was, and the public definitely didn’t know what the success rate was.” Once it became clear that the information would soon become publicly available, and that Congress and DoD leadership would see how arbitrary the system was, the writing was on the wall. Data was going to do the PSAB system in; they could either reform themselves or be reformed. They chose to do it gracefully.
CLEARANCE APPEALS CHANGES WILL TAKE TIME
The new system will not be implemented overnight. DoD employees in the middle of an appeals process cannot elect to use the new process. If, however, an employee’s clearance is revoked between now and the implementation of the new process, he or she can opt to press the pause button and wait for the new system to be implemented. Agencies have until September 2022 to make the change (though they might accomplish it sooner), so if you choose to wait, it could be a while.
Sean Bigley, a security clearance attorney, has written previously about this issue for ClearanceJobs. “The security clearance process requires transparency, consistency, and accountability in decision-making if it is to be trusted,” he says. “The process that previously existed for military and civilian clearance-holders—and the process for clearance-holders at DoD-IC components—had none of those characteristics.” This, he says, led to questionable decisions and occasional abuses. “This is a great day for all security clearance-holders and applicants at the Department of Defense.”
McClanahan says, “This is going to be a fundamental change, and ideally, this is not the end. Rather, this is an amazing and necessary first step toward getting an equitable and fair security clearance process across the entire government. This was the step that was needed in order to make anything else happen.”