Security clearance policies don’t change often – that’s why even clarifications from the government on gray areas are significant. In December the Office of the Director of National Intelligence (ODNI) issued clarifying guidance on the security clearance process and marijuana topics, including drug use, CBD products, and marijuana investments.
“There was a lot of interest from folks in the marijuana industry with the assumption this was going to be heralding some big shift in policy….Really, it didn’t change a lot,” said Sean Bigley, security clearance attorney and regular ClearanceJobs contributor.
Bigley emphasized that the policy simply ‘codified common sense advice’ around a lot of the drug issues that have come up in clearance denials or revocations, or been presented by security clearance holders, particularly those in states where recreational marijuana use is legal.
The biggest factor for security clearance holders is language concerning past marijuana use, and while that may be relevant, it’s no longer ‘outcome determinant.’ But while it has changed that guidance, what it doesn’t change is the Bond Amendment. The Bond Amendment of 2008 prohibits federal agencies from renewing security clearances for individuals who are unlawful drug users.
“This is one of the few black and white areas in clearance law,” said Bigley. And as the Bond Amendment is interpreted, 12 months of abstinence should still be the standard for security clearance applicants, in order to ensure the hurdle of not being considered a drug user at the time of application.
Can Agencies Have Tougher Suitability Criteria?
The process of obtaining a security clearance is just one aspect of a government career however. Confusingly, there is a separate suitability process, which is different than a security clearance determination. The criteria applied to suitability and security clearance determinations is similar, but the processes are different, noted Bigley. Practically, that means agencies have more ‘wiggle room’ when it comes to recency of drug use.
Drug use as evaluated under the suitability criteria is not likely to be more stringent than the process applied for security clearance determinations. One could also be denied suitability by a government agency (for a variety of factors), and still be able to obtain a security clearance.
CBD Products and Positive Drug Tests
The final aspect of ODNI’s clarifying guidance is CBD products and marijuana investments. Anyone hoping for more wiggle room around those topics will be disappointed – the guidance paves the way for individuals who test positive in a drug test to lose their clearance regardless of the substance – claiming it was a CBD product won’t help
“This memorandum does nothing to change how those folks will be treated,” warns Bigley. “I say proceed at your own risk.”
Same for marijuana investments. The policy clarifies that some aspect of drug business in an investment portfolio is one thing – a direct investment is another.
“The adjudicative guidelines don’t talk about drug use, they talk about drug involvement…there are a lot of other ways that you can be involved with drugs,” said Bigley.
