Swingers. The word alone is enough to evoke mental images of shag carpet, lava lamps, and the 1970’s. But if the vast range of federal employee and contractor cases I’ve encountered over the years is representative of ongoing societal trends, the practice is still in, well, full-swing.
How that plays out in security clearance adjudications depends largely on whether the federal government finds out about it in the first place. Indeed, sexual behavior is not a normal line of questioning in security clearance vetting, save for full-scope (“lifestyle”) polygraphs at a couple of Intelligence Community agencies that love to explore this area. So, unless a source or the applicant volunteers the information, or unless the non-marital partner happens to be a foreign national who must be reported as a contact, this issue typically wouldn’t come to the government’s attention during the applicant screening process.
That surprises a lot of folks, but the reality is that the government’s common denominator for personnel vetting – the background investigation – has some significant gaps when it comes to discovering private, consensual behavior. This includes background investigations for collateral security clearances (Top Secret or Secret), which comprise the vast majority of eligibility determinations.
When issues like swinging are discovered, however, the laissez faire impression that the government gives some applicants by not asking about the conduct quickly shows itself as a façade. Suddenly, the government does have an interest in the applicant’s sex life, and a deeply invasive one at that. It is a strange dichotomy – “we don’t ask about it, but go ballistic when we find out” – that some applicants find deeply upsetting. Nonetheless, it is worth understanding the government’s rationale. In the eyes of security officials, few things raise questions about discretion and blackmail potential quite like sexual escapades that most of society still finds taboo.
Of course, some applicants are proud of their bedroom exploits and perfectly comfortable airing them publicly. That’s not the norm, but if true (and – no joke – proven by actually sharing the information with friends and family and obtaining affidavits to that effect), it can at least mitigate the potential for blackmail.
The problem for swinging applicants remains, however, that the adjudicative guidelines are broadly written and highly subjective. Federal agency security officials are unlikely to share the applicant’s same outlook on “free love,” which renders the activity fundamentally a question of judgement. That’s a tough battle to win when the standard is that it must be “clearly consistent with the interests of national security” for officials to grant or continue the security clearance.
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.
