In January 2025, I wrote an article about the new “Due Process and Appeal” procedures at the Defense Counterintelligence and Security Agency (DCSA). What’s new about the procedure is the option to have a “Personal Appearance” (PA) before a final decision is made to deny or revoke a security clearance by DCSA. The PA is supposed to be similar to a hearing. This article is about the DCSA PA and how it will be conducted.
When I wrote the January article, I didn’t have a copy of the 6 April 2023 Undersecretary of Defense for Intelligence & Security (USD(I&S)) memorandum that directed the implementation of the new procedure and cancelled the 14 January 2021 memorandum on the same subject. The 6 April 2023 memorandum leaves some open questions, particularly about cases involving Sensitive Compartmented Information (SCI) access for contractor personnel. Nevertheless, DCSA chose to include that group of cases in its new PA procedure, along with all military and DoD civilian clearances adjudicated by DCSA. The new procedure doesn’t affect DoD contractor personnel who are applicants for collateral clearances or any applicant whose clearance is adjudicated by DIA, NSA, NRO, or NGA.
As they promised in December 2024, DCSA recently posted additional information about the PA process by replacing the original FAQ1 at its website with an expanded FAQ.2 They also updated their “Appeal an Investigation Decision” webpage3 and updated it again on about March 14 and again on March 17.
The second update corrected a mistake about post-denial appeal rights, including the option to have a PA at the Defense Office of Hearings and Appeals (DOHA), regardless of whether an individual participated in a DCSA PA.
The third update added that Applicants, who chose not to respond to the Statement of Reasons (SOR) that accompanies a letter of intent to deny or revoke clearance, also have the option of appealing to their Personnel Security Appeals Board (PSAB) with or without a PA at DOHA. In other words, all Applicants who have their clearances denied or revoked by DCSA can choose to have a PA at DOHA regardless of whether they choose to have a PA at DCSA, choose to respond only in writing, or choose not to respond at all to a DCSA SOR.
These corrections bring the information at the webpage in line with DoD Manual 5200.02, Procedures for the DoD Personnel Security Program (PSP), which provides all DoD civilians and military personnel the option of a PA at DOHA as part of the post-denial appeal process. It also conforms with Presidential Executive Order (E.O.) 12968 at § 5.2(a)(7) which states that one of the required processes for denials or revocations is that an individual be “provided an opportunity to appear personally and to present relevant documents, materials, and information at some point in the process before an adjudicative or other authority, other than the investigating entity. . . .” Because DCSA is both the investigative and adjudicative agency, a PA at DCSA may not fully satisfy the intent of the personal appearance provision in E.O. 12968.
The flow chart4 of the new process that was posted at the DCSA website in December 2024 does not yet show an option for PA at DOHA as part of a post-denial appeal to a DoD PSAB.
The other main takeaways from the DCSA PA FAQ webpage are:
- All DCSA PAs will be conducted “virtually” by video teleconference (MS Teams).
- Applicants may have one “guest” attend the virtual PA for support and guidance only. The guest may be an attorney or other advisor, who can serve only in an advisory capacity for the applicant and will not be permitted to present facts, arguments, or documents. However, the guest may make limited comments in support of the Applicant’s statements and documents at the conclusion of the DCSA PA.
- DCSA attorneys or representatives from legal, behavioral health, and/or other subject matter experts may be present during the PA. Presumably these individuals will be there to argue on behalf of the government’s preliminary decision to deny/revoke clearance or to present testimony as witnesses for the government.
- The Applicant or their “guest” will not be allowed to present witnesses or cross-examine government witnesses. Applicants will not have the opportunity to question government witnesses or assess the basis of any expert opinions presented.
- The PA will not be recorded, but an MS Teams transcription of the PA will be made. The transcription will be converted into a written summary for review, revision, and approval by the Senior Adjudicator, who presided over the PA. The Applicant can request a copy of the written summary after a final clearance determination is made. The Applicant is prohibited from recording or making a transcription of the PA.
- The Applicant will not be allowed to engage in discovery of documents beyond existing rights under the Privacy Act or Freedom of Information Act. Nothing is said about giving the Applicant advance notice of any government witnesses who will appear at the PA.
The upshot is that since an Applicant cannot be questioned by his/her own legal counsel (guest), the Applicant will only be allowed to recite or read a prepared statement or speak extemporaneously at the PA. The DCSA “Senior Adjudicator,” and possibly a DCSA attorney, will be able to cross-examine the Applicant, but an Applicant’s “guest” will not be able to question the Applicant to elicit further clarifying information, which normally occurs during re-direct examination at a hearing. It might be possible for an Applicant’s “guest” to make a closing statement or summation, but if an Applicant wants to make an opening statement, the Applicant will have to do it themselves, presumably at the beginning of their prepared statement. Instead of a verbatim transcript from a recording, a written summary of the PA will be made, and the Senior Adjudicator will be allowed to make revisions. While the policy allows the Senior Adjudicator to revise the written summary, greater accuracy could be achieved by having transcripts prepared and finalized by an independent party.
In their original FAQ, DCSA claimed their new PA “is not a trial proceeding; nor is it adversarial in nature. The personal appearance affords an opportunity for individuals to present oral and documentary information. . . .”
If the process is truly intended to be non-adversarial, the presence of a DCSA attorney may raise questions about the nature and balance of the proceeding.
Both FAQs state that the Applicant is permitted to bring legal counsel to the PA, but the DCSA PA procedures significantly limit the role of counsel, preventing them from actively advocating on behalf of their client during the proceeding.
E.O. 12968 and DoDM 5200.02 confer upon Applicants, who are being denied security clearance, the right to be represented by counsel or other representative. DoDM 5200.02 also states that “No unfavorable national security eligibility determination will be made without first . . . [p]roviding the individual an opportunity to appear in person and present relevant witnesses, documents, materials, and information.” When DCSA denies or revokes a security clearance, it is an “unfavorable national security eligibility determination” within the meaning of DoDM 5200.02, even though that determination can be appealed to a PSAB. Limiting the ability of an Applicant’s “guest” to speak at a DCSA PA, diminishes the Applicant’s “right to be represented by counsel or other representative,” as provided in E.O. 12968 and DoDM 5200.02.
Since September 2019, a single agency is doing both the investigation and the adjudication, which now includes what is essentially a hearing. Previously, and for good reason, these activities were performed by distinctly separate organizations. Hopefully, the Senior Adjudicator who presides over a DCSA PA is someone who had no involvement in the adjudication that resulted in the SOR being issued to the Applicant.
The DCSA’s PA process raises concerns about the depth of procedural due process it affords. Its limitations recall elements of earlier-era security clearance reviews that lacked the full protections now considered standard. As currently described on the website, DCSA PAs offer a more restricted format—different from the kind of hearing envisioned by Executive Order 10865, which unfortunately does not apply to DoD civilians or military personnel. The absence of more robust procedures may discourage some Applicants from pursuing a post-denial appeal PA at DOHA, where greater due process is available, including the ability to present witnesses, cross-examine government testimony, and receive a verbatim transcript prepared by an independent court reporter. Had it been implemented, the 14 January 2021 USD(I&S) memorandum might have provided a more comprehensive and consistent policy framework.
1 Downloaded on December 11, 2024 from the DCSA website, https://www.dcsa.mil/Personnel-Security/Background-Investigations-for-Applicants/Appeal-an-Investigation-Decision/Security-Review-Proceedings-FAQ/
2 Accessed on March 12, 2025 at https://www.dcsa.mil/Personnel-Security/Adjudications/Appeal-an-Investigation-Decision/Security-Review-Proceedings-FAQ/
3 Accessed on December 11, 2024, March 12, 2025 at https://www.dcsa.mil/Personnel-Security/Background-Investigations-for-Applicants/Appeal-an-Investigation-Decision/ and on March 15, 2025 and March 18, 2025 at https://www.dcsa.mil/Personnel-Security/Adjudications/Appeal-an-Investigation-Decision/
4 Accessed on December 11, 2024 and March 15, 2025 at https://www.dcsa.mil/Portals/128/Documents/pv/PS-ADJ-flow-chart.pdf
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