Unexpected Clearance Defenses

This is Sean Bigley and Lindy Kyzer of ClearanceJobs.com. And we’re talking this segment about thinking outside the box when it comes to fighting a security clearance denial or revocation. And Lindy, I mean, this is obviously a pretty wonky topic that maybe doesn’t apply even to the majority of our listeners, but for those who it does apply to, it really applies and it’s something that I think is, or should I guess, generate a lot of interest on the part of those folks who are actively dealing with this or think they may be dealing with it in the future. So I want to pick up a little bit here on a 2017 article that I wrote for clearance jobs about how a burial plot won a security clearance case. And another article I wrote about why hiring a professional organizer is sometimes a smart move for clearance holders.

(01:21)
Both of those things, when I wrote them, I remember some of my colleagues sort of saying, this seems a little offbeat. Like, huh, that’s weird, but there is a reason. And the reason is sometimes life happens. Clearance holders have some sort of weird circumstances that come up and it results in perception that they’re unreliable or untrustworthy or maybe some sort of security risk due to foreign connections or something like that. And the question becomes, how do we solve this? How do we address it in a way that satisfies the government’s concerns but does so in a way that doesn’t tie the clearance holder in knots and risk having them be accused of falsification or something along those lines. I’m curious to get your take on this. I see you smiling at me. The wheels must be turning.

I can’t comment more until we find out more about the burial plot case. I do remember this one. It is like six years ago now. I mean, I refuse to be buried. I’ve already told my kids that I would like to be cremated, mixed with glitter, and mailed to my enemies and clapped at. But now I’m concerned because will people question my allegiance to the United States or my love of this country because I don’t want my dead body put into the ground? So you have to tell me what happened in that case and how you leveraged that.

Well, funny you ask. So I will tell you and our listeners about this one. This was a really interesting case and the gist of it was there was a gentleman who was a naturalized US citizen. He was being sort of accused, accused is a strong word, but there was some insinuation on the part of the government that perhaps the fact that this person had a significant number of relatives still living in a foreign country might place them in a position of being potentially subject to divided allegiance or pressured, manipulated by, for example, a hostile foreign government saying, we’re going to imprison grandma unless you agree to spy for us. Which as farfetched as that may sound, that is ultimately one of the primary concerns in all foreign influence cases. And there are many of them every year across the government. So in this case, we were really struggling because the person had decided that they wanted to live their life in the United States.

(03:46)
They were a naturalized US citizen. They had been doing everything right, but we still had this sort of looming issue hanging over him of a lot of relatives in a somewhat hostile foreign country. And some lingering questions given the perceived lack of other ties here in the United States. And so we were racking our brains saying, is there anything else that we can use to show that this person isn’t going anywhere? Their heart is in the United States. And I just remember we were kind of asking just questions, throwing darts at a dartboard, is there anything else? And they sort of blurted out in the context of talking about finances, about how they had prepaid for a burial plot in the United States. And lo and behold, that wound up becoming kind of the centerpiece of the case. And it worked. And the reason why it worked is because we were able to say, look, what more definitive evidence do you need that this person’s loyalties lie exclusively with the United States where you want to lie for your final resting place?

(04:48)
Says a lot about where your allegiance is. And it wasn’t overseas, it was here. And so regardless of whether grandma and aunts and uncles or whatever are in that country, this person is here and this is where they want to be. They’re here by choice and they’re not going anywhere. And that ultimately was a very compelling case to be made. It carried the day. Similarly, these cases with professional organizers, this was a somewhat more common theme because as you know, lots and lots and lots of people are denied every year because of finances. And of those people, a significant portion of them are people who just can’t get their act together. And it’s not that they can’t pay, it’s just that they’re disorganized, they’re frazzled, they’ve got paperwork all over the place, and it’s just a lack of organization really more than anything. And so in those cases, you have to be able to show not just that the debt’s been paid, but what’s changed, what is going to demonstrate to a reasonable ordinary person that this is not going to happen again.

(05:52)
And so this is one of the things that was sort of offbeat that we would use from time. Time that was enough of a kind of attention grabber, if you will, from the adjudicator or the administrative judge where they would go, okay, I’ll buy that and it would work. And so those are the type of things that you sometimes had to trot out in these cases where the adjudicators were used to hearing the same excuses over and over and the same, I promise I’ll do better next time I’ve paid the debt. Okay, well that’s nice. What about next month or things like that? Now that I’ve shared these with you and our listeners, anything that comes to mind that you’ve seen or heard in terms of really outside the box, maybe even wacky things that worked?

It’s not wonky or outside the box, but I do always feel like reading those DOHA cases is like an exploratory exercise and you just find that a lot of interesting nuggets of information gets shared. And I do think the process does favor folks who are willing to be strategically transparent around the issues that the government is asking about. So I kind of put this around in that bucket. Some of the examples that came to mind were just folks who discussed aspects of their personal life and how it tied into the specific issue that the government found. And I think that’s why I always talk about the whole person concept and saying, the government wants to look at the totality of your circumstances and why there may be a risk and how you are able to mitigate that risk in the process. Because once it reaches the point of a DOHA appeal and somebody like me is just reading it from a very public standpoint, you’ve received the initial denial or intent to revoke your security clearance.

(07:37)
And so what you have then is a case to build back from there. And again, just I find on both sides of the spectrum, people who have overshared information and clearly have no chances of actually obtaining the security clearance. And I’m like, you just should have cut and run because now I’m really glad I don’t see your name on there, but once this gets public, this is just very interesting. And then folks, again, from the other standpoint, it’s going to ask your age, it’s going to ask your personal relationship status. I’ve seen folks reveal a lot of very interesting relationship information in an attempt to mitigate that. But what I find is sometimes that helps and sometimes it does not because ultimately you are still on the hook for your behavior. And I think that’s why the example you gave of the professional organizer is a great one because it shows proactive steps. I think what we see as interesting examples or non-interesting. What kind of sets the successful applicant apart as someone who is being proactive about whether it’s their financial issues or mental health issues, any other issue that might become something that the government would be concerned about if you display as an applicant that you are actually proactive around that you can mitigate. I mean, I want to say almost anything.

Well, I mean it’s true. And to me, this is very similar to the old adage that if you make a cop laugh, you’re going to get out of a ticket. If you make an adjudicator laugh or you make an adjudicator, at least think like, oh, all right, haven’t seen that before. That’s really creative. That’s interesting. This person is really trying. That’s oftentimes nine-tenths of the battle. To your point, I think proactivity is clearly the name of the game. That’s something we’ve talked about in a lot of different contexts. But also just being able to have some introspection and some humility and to be able to come in and say, look, I understand I messed up. I’m not a perfect person. The security clearance process is not expecting you, by the way, to be a perfect person. They are expecting you to act reasonably under the circumstances.

(09:41)
And so if the circumstances are bizarre and the circumstances merit explanation like, Hey, I bought myself a burial plot in the United States because I love this country and I couldn’t imagine living anywhere else, it’s probably worth mentioning and it’s probably worth hanging your hat on in some cases. There are also situations where people overshare, and that happens a lot as well. And I think the fine line between the two can sometimes be blurry. I would encourage anybody in that situation to get competent legal counsel because an attorney who deals with these things regularly can tell you, yeah, you know what? That sounds good in theory, but I’ve seen it backfire on people. Or You know what? That’s actually really creative and let’s run with that, but here’s how we would maybe package that story. A lot of this is kind of fact management, and we would sometimes joke when I was in law practice that a lot of our job was fact and personality management.

(10:37)
You’re dealing with a lot of facts. Some of them good, some of them not so good. You’re dealing with a wide range of personalities. Some people who are just despondent, some people who are angry and self-righteous, and how dare anybody question my ability to get a clearance. And so the ability to manage those two was very important as a part of my law practice. But anybody I think who’s contemplating, applying and concerned about something in their background, I would ultimately want the takeaway to be this, whatever you’re worried about more often than not, somebody else going before you has had the same issue. And so it’s not going to be the first time the investigator or the adjudicator is dealing with this. It’s not like they’re going to be looking at you like, Ew, this person’s gross, or this person’s whatever. And frankly, if they are, who cares?

(11:26)
I mean, you don’t know them, they don’t know you. It’s not like it’s going to get out. But also, more often than not, those people who have gone before you with these same issues, they’ve been able to successfully clear the bar and get the clearance. And so these cases where somebody is denied, they really are an outlier, even though there are a lot of them, and we look at them all the time, we talk about them, there’s thousands of them a year. It’s not to minimize that there aren’t people having clearances denied or revoked. I mean, heck, I made a whole law practice off of it for 10 years, so there’s plenty of ’em out there. But in the grand scheme of things, you compare that to the millions of people who go through the process. It’s a very, very tiny percentage of the population. So I think a lot of people who worry about these things needlessly.