I think I can confidently say that no one enjoys having their background investigated. Even if you’ve lived an incredibly vanilla life or this is your umpteenth re-investigation, it’s only natural to worry about “what ifs”.

Like what if the investigator contacts a vindictive ex-girlfriend or boyfriend? What if a former supervisor has unfavorable things to say about your work? What if the neighbors overheard a recent domestic dispute or unload over some perceived slight?

Contacting References Ahead of TIme

Those fears of the unknown lead a lot of security clearance applicants to try to control the controllable. One of the ways I’ve seen that play out over the years is through the applicant proactively contacting potential references like friends, neighbors, and work colleagues and asking them to “say good things” or “give me a good reference”.

Most of the time, it’s not an overt effort to sway testimony; rather, it comes in the guise of “just calling to let you know you might be contacted by a background investigator.” If that was where things ended, there would be no issue. But they often don’t end there. The “FYI” is followed with the pitch of “help a brother out,” or an even more direct ask like “can you just forget about that time you saw me snorting coke?”

If your background investigator is doing his or her job, they’ll talk with a number of people besides those you’ve listed on your SF-86. These are called “developed references”, with the intent being precisely to dig up any dirt an applicant is attempting to paper over.

This Has a Legal Term

Either way, there is a legal term for pressuring a witness into “saying good things”, “forgetting” something, or otherwise influencing their testimony: witness tampering. That might sound extreme in this context, but federal agencies take it very seriously if caught. And the problem for you, the applicant, is that you don’t know which one of your seemingly agreeable references just might have a change of heart when staring down a badge and government credentials.

I’ve seen a handful of cases over the years where someone had a security clearance denied or revoked explicitly because of witness tampering. It’s not a common fact-pattern that comes across my desk, but it’s also a challenging case to mount a defense. The perception – even if the request was lighthearted and innocent – is that the applicant was trying to cheat the system, trying to hide something, or both. Granted, if it’s one witness making the claim, it’s also a s/he said – s/he said. But if it’s more than one witness alleging that they were pressured regarding their testimony, that is likely a lost cause.

The bottom line? I recommend sticking to merely an advance notification of the background investigation (if you feel so compelled); or, better yet, simply saying nothing and letting the process play out as intended.

 

 

This article is intended as general information only and should not be construed as legal advice. Although the information is believed to be accurate as of the publication date, no guarantee or warranty is offered or implied.  Laws and government policies are subject to change, and the information provided herein may not provide a complete or current analysis of the topic or other pertinent considerations. Consult an attorney regarding your specific situation. 

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Attorney Sean M. Bigley represents clients worldwide in security clearance denials, revocations, and the security clearance application process. He is a former investigator for the Defense Counterintelligence and Security Agency (then-U.S. Office of Personnel Management). For more information, please visit www.bigleylaw.com. Readers will also find a low-cost, self-help option for obtaining copies of their security clearance background investigations and DISS/Scattered Castles records at www.bigleylaw.com/security-clearance-investigation-records.