The security clearance process constitutes a strange blend of employment and security policies. With the intersection of those things comes some interesting questions – such as if you can actually refuse to furnish testimony as a part of the security clearance process. Testimony may seem formal, but it’s basically simply refusing to speak to a background investigator or security official or to provide information in a polygraph examination.
It may seem that an individual would always provide information to questions asked in the course of a background investigation. Why would you – or could you – deny a request to provide testimony?
“I’ve seen it come up on occasion, usually within the context of advice of counsel,” said Sean Bigley, attorney with the law firm Bigley Ranish and a ClearanceJobs contributor. “So, for example, if someone has a pending criminal case running concurrently with a security clearance case we always advise them to seek guidance from their criminal defense attorney first before speaking with a background investigator or security official. We also coordinate with the criminal defense attorney if we are preparing an appeal of a security clearance denial or revocation.”
Obviously the instances of an individual having pending legal action while also applying for a security clearance are minimal – but it could certainly happen. If you have some kind of legal issue – whether it’s financial or criminal – make sure to follow the advice of your attorney. But it’s also worth noting that while you have a right to remain silent in a criminal proceeding, you don’t have a right to a security clearance. Anything you say – or refuse to say – can prevent your ability to obtain a security clearance.
You May Not Need to Testify
Not everyone applying for a security clearance will be interviewed in the course of a background investigation. If your position requires a Secret clearance and an investigator doesn’t need to verify or clarify any of the information, you likely won’t be interviewed. If your Top Secret clearance requires an investigation – and for some reason you can’t provide information, your security clearance will likely be denied based on Guideline E, personal conduct issues. If you have doubts about whether or not you should respond to a question asked in the security clearance process – or you wonder about the questions you may be asked in the process – it’s important to do your research and seek out counsel or legal advice. Many individuals expect the clearance process to be more in-depth than it actually is. It isn’t an elaborate ‘gotcha’ – the questions you’re asked are directly related to the SF-86.
If you have pending criminal conduct and can’t furnish testimony in relation to the SF-86, that clearly presents clearance complications. An individual may also be tempted to refuse to provide responses to questions in a polygraph examination, but like a personnel subject interview, it’s important to remember that while a polygraph alone can’t be used to deny your clearance, failure to respond to questions that are asked may result in clearance denial – once again, due to Guideline E issues.
You have a right to remain silent, and a right to not incriminate yourself, but no one has a right to a security clearance. Your process may not require testimony, but if it does, and you refuse to testify, your security clearance will be denied.
