With rare exception, intelligence community employees and contractors first learn of a security clearance denial or revocation after it has already occurred. The individual is delivered a Statement of Reasons (SOR) explaining the reason(s) for the decision and inviting an appeal.
The Department of Defense takes a different approach for non-IC component employees, service members, and contractors. These folks are first notified of a proposed denial or revocation of their clearance. Only after an unsuccessful first-level appeal of that proposed unfavorable action does the denial or revocation actually take effect.
DIA Shuns IC Approach
There are multiple IC components – including the National Security Agency, National Reconnaissance Office, National Geospatial Intelligence Agency, and Defense Intelligence Agency – housed within DoD, but only DIA shuns the IC’s “shoot first, ask questions later” approach in favor of DoD’s more due-process oriented framework.
For DIA employees, contractors, and applicants, this seemingly minor nuance can have an outsized impact on their careers. Part of the difference in approach is in the optics. Reserving final judgment until the clearance-holder or applicant has a chance to offer a defense inspires confidence that the administrative due process being provided is genuine – i.e., that the fix isn’t already in.
But a big part of the difference in approach is also substantive. At agencies that deny or revoke clearances before providing any due process, there is no incentive for the agency to move forward expeditiously in deciding appeals. The practical result of this is that the clearance-holder or applicant is left to languish on indefinite leave or with uncertain employment prospects while their case sits on an adjudicator’s desk for months, or at some agencies, for years.
Impact of a Waiting for a Security Clearance
Many people facing this situation are eventually forced to walk away and find other employment before their appeal is even heard, simply because they cannot afford to keep waiting without a paycheck. Others who ultimately win their case are so disillusioned with the process that they opt to resign or turn down the job offer (if its still available) once the unfavorable initial decision is overturned.
Most fair-minded observers can probably agree that these outcomes are not just and do nothing to advance the interests of the IC in attracting a smart, motivated workforce. That is likely part of why the then-acting Undersecretary of Defense for Intelligence, in a little-noticed January 2021 memorandum, ordered the transfer of authority for adjudicating appeals from DoD IC component agencies to DoD proper (vis a vis the Defense Office of Hearings and Appeals) commencing September 2022.
In the meantime, DIA’s approach to security clearance denials and revocations is a standout within the IC. Its unclear why one IC component has opted to follow DoD’s more robust due process framework while the rest have gone the other direction, but DIA should be applauded for recognizing that their security officials are human beings who don’t always get it right. Indeed, that’s why applicants are afforded an opportunity to appeal unfavorable decisions in the first-place.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.