I wrote in February of this year about some of the bizarre quirks that DoD and other agency security clearance holders encounter in applying to intelligence community (IC) agencies. Not the least of those quirks is a barrage of additional forms – many of them duplicative to the SF-86 – that seemingly harken back to a bygone era. It’s good to know that bureaucracy is alive and well inside the IC.
There is no doubt that the security clearance process at more “mainstream” agencies like DoD has its own share of shortcomings. But, as a general matter, adjudications are reasonably fair, predictable, and expedient. Not so at certain IC agencies.
My firm has had the privilege of representing a number of IC employees and contractors in security clearance cases. In doing so, we have learned quite a bit about the institutional shortcomings that plague each agency’s security office. Here is what you should know before you apply:
Egregious Delays. The worst offender here is, unquestionably, the CIA. “The Agency”, as it is often called, routinely takes years – that’s right, years – to process a background investigation, followed by years to review an initial denial. The delays are especially outrageous given the often grossly inaccurate information used to form the basis for an initial denial. The result is that the applicant has to wait…and wait…and wait to vindicate their rights, during which time they may be losing other jobs because of the security clearance denial on their record. To make things even more maddening, the Agency provides no telephone number, fax line, or email address via which case status inquiries may be obtained. Everything is done by snail mail (and, no, the irony is not lost on me).
Polygraphs Gone Wild. As an Attorney (and someone who has taken polygraphs), I put very little stock in a purported “science” that even the federal courts concede is “not generally accepted by the scientific community.” Nonetheless, IC agencies rely on the polygraph as the great arbiter of security-worthiness. That means that a single polygraph examiner can have an outsize influence on whether or not a security clearance is granted. Because polygraph results are so subjective, they are also very difficult and expensive to fight (although not impossible, as proven in a recent case). The worst offender here is the NSA, where we have heard a parade of clients recently – and independently – tell us about obscene misconduct by NSA polygraph examiners. That includes screaming, near-physical confrontations, and accusations of major criminal conduct (e.g. rape) essentially pulled out of thin air. If you think I am exaggerating, consider this: we recently represented a DoD security clearance holder whose clearance had been referred for revocation by NSA after an unsuccessful application to that agency. What were the horrible misdeeds that resulted in the referral? Polygraph admissions of childhood petty theft (e.g. an action figure from a comic book store) 20 years prior. The jury is still out on whether that client will lose his DoD clearance, and thus his livelihood, as a result.
Playing games. Finally, applicants should understand that certain IC agencies treat due process as an annoyance rather than a legal right. The CIA, for example, offers denied applicants a personal hearing on their case (as is required under the applicable Executive Order) – but then claims that the hearing is only to provide additional information that the applicant cannot provide in writing. This is a creative interpretation of Executive Order 12968 at best. The National Geospatial Intelligence Agency (NGA), on the other hand, really takes the cake here for reasons that I cannot fully describe in this forum.
The bottom line for current security clearance holders thinking about applying to an IC agency is that there is risk involved. IC agencies, for example, take a much harsher line on foreign influence / foreign preference cases than most “mainstream” agencies like DoD. They also often conduct surprisingly shoddy background investigations, failing to fully develop a case record before summarily issuing denials that take years and great expense to fight. Sure, there are plenty of people with clean backgrounds who can make a smooth transition. And, in fairness, there are also some lesser known agencies that are bright spots within the IC. But if you have any issues in your background – even ones that have been adjudicated in your favor by a non-IC agency – it may be worth talking to a qualified security clearance attorney before you apply.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
