Substantial evidence is the standard of proof used for security clearance eligibility determinations. Like other standards of proof, it isn’t well defined. Most people have heard of the criminal standard of proof, “beyond a reasonable doubt” and the lower, civil standard of “preponderance of the evidence.” Substantial evidence is a lower standard of proof than a preponderance of the evidence. The Ninth U.S. Circuit Court of Appeals stated:
Substantial evidence means more than a mere scintilla; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if it is possible to draw contrary conclusions from the evidence.
Although the substantial evidence standard is applicable to all potentially disqualifying issues in security clearance cases; it’s particularly important to understand how it applies to criminal conduct. Many clearance applicants believe a criminal charge that was dismissed, nolle prossed, or resulted in being found not guilty, will not negatively affect their clearance eligibility. Just because an applicant wasn’t convicted of a crime, doesn’t mean they were innocent. It only means there wasn’t evidence “beyond a reasonable doubt” that they did it. But security clearance adjudicators use the lower standard of “substantial evidence” to determine if there was misconduct serious enough to be potentially disqualifying for security clearance eligibility.
Example 1: A 190 pound clearance Applicant admitted he drank four beers at a tavern with coworkers over a two hour period after work and was arrested for drunk driving on his way home. At court the case was dismissed because there was no video recording of his field sobriety test and the breathalyzer used to test the applicant had not been properly calibrated. A security clearance adjudicator considered the arrest report and Applicant’s oral admission as substantial evidence of drunk driving, even though the charge was dismissed. Since there was another drunk driving arrest four years earlier, a letter of intent to deny clearance was issued.
Example 2: A clearance Applicant and his wife had a domestic dispute during which Applicant wrapped his arms around his wife, fell backwards onto the floor, and held her for about a minute until she broke free. She called 911, police arrived at the house, and both of them made oral statements to the police. The police arrested applicant for false imprisonment and battery/domestic violence. After applicant’s arraignment but before his trial, the prosecutor entered a Nolle Prosequi; the court accepted it and dismissed the charge. The case was nolle prossed because between the time of the arrest and the trial date, the couple sought marital counseling and applicant’s wife decided not to testify against him. Applicant had previously received probation before judgment (also known as deferred adjudication) for his involvement in a barroom brawl. These facts resulted in a letter of intent to deny clearance.
You don’t have to be charged with an offense. A potentially disqualifying condition can exist under Guideline J (Criminal Conduct) of the National Security Adjudicative Guidelines, when there is:
[E]vidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the individual was formally charged, prosecuted, or convicted.
Being arrested by the police, but not charged, is usually sufficient to raise a “Criminal Conduct” security concern, because arrests are based on “probable cause,” a standard of proof similar to substantial evidence. For a variety of reasons not all arrests result in criminal charges—many of these reasons have nothing to do with guilt or innocence:
- Prosecutor sees the defendant as a good person who made a dumb mistake.
- Police officer violated the arrestee’s right against unreasonable search or self-incrimination.
- Due to limited resources, a prosecutor’s office can’t pursue some types of minor offenses.
- In some jurisdictions minor, nonviolent cases are diverted to mediation.
- Victim asks the prosecutor that no charges be brought or refuses to cooperate.
- A deal is made not to charge one defendant for his testimony against another defendant.
Undetected criminal conduct can also be a potentially disqualifying condition for security clearance eligibility. During “Lifestyle” polygraph examinations, applicants sometimes disclose that they engaged in criminal conduct that did not result in a citation or arrest, such as solicitation of prostitution. This can also surface during a security clearance applicant interview (Enhanced Subject Interview) when asked about unlawful sexual conduct or about conduct that could make the applicant susceptible to blackmail.
Why is such a low standard of proof used for denying security clearances as compared to convictions in criminal cases? Because, as stated in Presidential Executive Order 12968, security clearances are granted only when it is clearly consistent with the national security interests of the United States, and any doubts must be resolved in favor of the national security. In criminal cases suspects are presumed innocent until proven guilty beyond a reasonable doubt. There is no presumption in favor of granting or continuing a security clearance.
Once the Government has unmitigated substantial evidence of a potentially disqualifying condition for a security clearance, a letter of intent to deny clearance with a statement of reason (SOR) can be issued. The burden of proof then shifts to the applicant to disprove or mitigate the allegations and the applicant has the ultimate burden of persuasion to obtain a favorable clearance decision.
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