I enjoy a good workout as much as the next guy. But exercising nude in public – or, as I now call it, getting buff in the buff – is some next level stuff.
That didn’t stop one security clearance applicant from engaging in the exhibitionist’s ultimate flex. Indeed, the applicant in Defense Office of Hearings and Appeals (DOHA) case 18-00751 was all about the full Monty. He masturbated in public four or five times per week. He sunbathed nude in a public park quarterly for a decade. He eventually began exercising there in the nude. And, he regularly walked around his house nude with the shutters open – despite (or perhaps because of) living next to a “young female neighbor.”
The facts of the case are so incredible and appalling that I included a link to the actual decision above, lest anyone think I’m making this up. Nonetheless, this applicant is far from the only exhibitionist applying for a security clearance. The DOHA decisions are replete with other cases of people who engaged in public sex activities, flashers, and the like.
That raises an interesting question: how do these extra-curricular activities come to the government’s attention outside of a criminal record? There is nothing to suggest that this applicant was ever caught in the act or investigated by law enforcement authorities for the behavior, nor is there any question on the security clearance application that implicates undiscovered criminal activity of this nature.
We can’t know with certainty here, since the Appeal Board decision doesn’t recount the hearing judge’s full findings of fact.[1] However, the implicit answer is that the applicant admitted the information to another agency (i.e., an Intelligence Community agency) during a polygraph examination.
That tracks with my experience representing folks before IC agencies and with what I’ve repeatedly warned about on these pages: the IC’s security clearance process is a very different animal from what applicants can expect elsewhere in government. It can be especially jarring for applicants who have already successfully obtained a security clearance elsewhere in government and assume they have the IC clearance in the bag.
In some respects, this can be seen as an indictment of the government’s security clearance process outside the IC. Wouldn’t other agencies also want to know if an applicant has perverted predilections? Surely, they would; the information is indisputably relevant to establishing an applicant’s judgment and mental state.
On the other hand, many experts, including this author, have criticized the IC’s reliance on the polygraph as the great arbiter of truth. Is it consistent with due process and fundamental fairness to destroy careers based on a test our own legal system derides as junk science?
As with much in life, a fair compromise arguably lies somewhere between the extremes.
Clearly, there are cases of undesirable applicants who would have slipped through the cracks and obtained a security clearance but for the IC’s more aggressive vetting process. But larger agencies like DoD, DHS, and others are required to balance investigative depth against breadth. It isn’t necessarily practical to do a polygraph and psychological examination on the roughly four-million people who hold security clearances, nor are the results of such testing immune from errors and over-zealous examiners (not to mention, real questions about the supposed science behind the polygraph, in the first place).
That’s a ‘revealing’ reminder that national security depends on people, and people are fallible. A lot of folks working in national security have overcome issues in their background to obtain the requisite security clearance. For applicants, that means many clearability concerns are overblown or can be mitigated with proactive effort. Just maybe not repeated public lewdness and exhibitionism.
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.
[1] Normally, both are posted online. However, in this case, I was only able to locate the Appeals Board decision.