One of the biggest client-relations challenges during my decade practicing security clearance law was managing expectations about burdens of proof.
The Misconception of “Beyond a Reasonable Doubt”
Too many security clearance applicants operate under the erroneous, cinema-driven belief that the government must prove its case “beyond a reasonable doubt” or clear some similarly high bar. Imagine their indignation then to receive a letter from the government denying or revoking their security clearance based solely on unproven assertions or subjective opinions.
The Reality of the Applicant’s Burden
I shared in my clients’ frustrations, but not because the government failed to meet the requisite burden of proof for a criminal, or even a civil, case. Indeed, I knew that the burden of proof in security clearance cases is on the applicant to show that a favorable determination is “clearly consistent” with the interests of national security. The government need only first demonstrate its security concerns by “substantial evidence” before that burden shifts to the applicant.[1]
When the Government Fails to Meet Its Own Standard
Rather, my frustration was because sometimes the government doesn’t attempt even that. Instead, I occasionally saw cases where allegations were made, however speculative, unsubstantiated, or dubiously relevant to the National Adjudicative Guidelines for Security Clearances, and deemed sufficient to raise a national security concern. That’s a slippery slope and a recipe for abuse.
The Role of Adjudicators and Legal Oversight
To be clear, I believe that most personnel security officials are fair-minded people doing what they believe is best for national security. However, not all federal agencies require legal review of security clearance denial or revocation decisions before they are issued. Without such review, non-attorney adjudicators sometimes struggle to apply judicially-established contours for the rules of evidence. However well-intentioned, that can result in a perception that the Adjudicative Guidelines are being used as a means to an end instead of objective standards against which to weigh facts.
The Problem with Unsubstantiated Allegations
When I encountered this, the first sign of legal insufficiency was usually found in the correspondence sent to applicants explaining the preliminary decision to deny or revoke their clearance. For example, I sometimes encountered cases where the justification for an adverse decision was a bare criminal allegation – unproven, unpursued by authorities, and utterly lacking in any evidentiary basis. The problem was particularly acute in cases of military service members and veterans, where paperwork included an allegation that a Judge Advocate General (JAG) Corps attorney “opined” that there was sufficient evidence of some crime, but failed to provide any substantive explanation of the rationale. In most of these cases, charges were dropped or never pursued. Supporting evidence (if any) was long since discarded.
Meeting the Substantial Evidence Standard
This translates into nothing more than an unsubstantiated opinion proffered by someone who happens to be an attorney. The substantial evidence standard requires more than that. It is a low standard, far lower than “proof beyond a reasonable doubt,” “more likely than not,” or even “a preponderance of the evidence.”[2] But it demands “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.”[3]
When the Burden Shifts to the Applicant
Only if substantial evidence of security significant conduct exists– i.e., what the law terms a prima facie case – does the burden then shift to the applicant to rebut or mitigate the government’s concerns. In other words, only if substantial evidence of security significant conduct exists can the government move to deny or revoke a security clearance in the first place.
How Applicants Can Push Back
Security clearance applicants faced with bare, unsubstantiated allegations can and should demand, through legal counsel, that the government comply with its legal obligations. That may mean the government providing an explanation as to why a particular accuser is deemed credible. It may mean providing supporting evidence beyond mere speculation or pronouncement to establish an allegation. Or, it may mean the government re-drafting its allegation to place the applicant on sufficient notice of the security concerns – a stand-alone requirement that is also sometimes inadvertently violated due to sloppy drafting.
The Importance of Early Action
Whatever the result of these demands, an applicant who pushes back on procedural violations early protects his or her rights on appeal. This may be critical to establishing legal error before a more senior authority or, in rare cases, before an outside tribunal. Conversely, an applicant who sleeps on his or her rights may have difficulty later reviving them.
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] Department of the Navy v. Egan, 484 U.S. 518, 531 (1988).
[2] See v. Washington Metro. Area Transit Auth., 36 F. 3d 375, 380 (4th Cir. 1994).
[3] Id.
