Should I request a hearing? This is usually one of the first questions our clients ask when facing a Statement of Reasons (SOR). And, for many, it’s a daunting question. Who in their right mind would volunteer to be questioned by a government lawyer in front of an administrative judge? If you have received a Statement of Reasons and you’re serious about keeping your clearance, the answer is: probably you.
Two Reasons to Request a DOHA hearing
There are two main reasons why requesting a hearing is, in most cases, important.
1. Credibility Assessment
First, a hearing gives the judge a chance to assess your credibility. Your written response to the SOR may be a perfectly crafted testament to your reliability, trustworthiness, and good judgment, but in many cases, it will take more than your John Hancock to convince the judge to trust you with our nation’s secrets. Facing concerns of foreign influence because of your family in another country? The judge needs to trust that you would resolve any conflict in favor of U.S. interests. Facing concerns of prior marijuana use? The judge needs to trust that your prior use is not an indication of a general disregard for rules and regulations and that you will not use illegal drugs in the future. Facing concerns related to infidelity? The judge needs to trust, among other things, that your spouse is aware of the issue, and it could not be the source of blackmail. The list goes on, but what is identical in all of these situations is that you must convince the judge that you are honest and trustworthy, and the best way to do that is to appear before them.
2. Clarifying Questions
Second, a hearing gives the judge a chance to ask any questions they may have. At hearing, it is not only the attorneys asking you questions. The judge also may ask questions of any witness, including you, regarding facts that may impact their decision. For example, in a few recent unfavorable decisions, the judges pointed out that they could not ask the applicant about issues like rehabilitation related to criminal conduct, the status of debts at the time of the hearing, and the circumstances that led to debts that raised concerns. The key here is understanding that, while you may believe you have given the judge all of the information they need for you to “win,” you cannot predict what the judge will be thinking or how they will interpret your written submission. Making yourself available to answer those questions is crucial.
SOR = Ball in Your Court
I know what you’re thinking: if a hearing is so important, then why isn’t it required? From time to time, applicants make similar arguments to no avail. In a recent case, the judge issued an unfavorable decision and noted that she was unable to assess the applicant’s sincerity or demeanor because he waived his right to a hearing. The applicant appealed and argued that he was unaware of a government preference for a hearing. The Appeals Board was unpersuaded and concluded that: 1) the government does not have a “preference” for hearings; 2) the Board has long held that when an applicant waives their right to a hearing, a judge can’t observe the applicant’s demeanor to assess their credibility; and 3) applicants are generally responsible for the consequences of their decisions, even if they did not have the benefit of an attorney.
Think of it this way—if you receive an SOR, the government has already decided that it has unresolved concerns with granting you access to classified or sensitive information. At that point, the proverbial ball is in your court. If you are unable to persuade the government that they are wrong, they move on to the next applicant and the adjudicators can sleep soundly knowing that they did not take an unnecessary risk. The hearing is a right and a benefit, but not an automatic obligation (although the government attorney may also request a hearing).
There Are Exceptions to the Rule
There are, of course, some cases where a hearing may not be the best option based on individual circumstances. These are rare and case-specific, but there is one very straightforward reason to pass on a hearing: if you do not intend to testify honestly. If your plan is to win the judge over with your charm and to whisper sweet, fabricated nothings on the stand, you are better off staying home. First, your testimony at hearing will be under oath and any knowingly false statements would be perjury. Second, judges and agency counsel literally make a living assessing applicants’ credibility. The only thing worse than an adverse decision is an adverse decision that also concludes that the applicant was untruthful at hearing.
Finally, requesting a hearing doesn’t mean you give up your chance to receive a favorable decision based on your written response to the SOR alone. In some cases, the right sworn statements and other documentation may be enough. Requesting a hearing just means that, should the government need more information, you are making sure you have the chance to give it to them.
The above content is not legal advice and does not create an attorney-client relationship. The handling and outcome of any legal matter depends on varying factors unique to each matter, and results cannot be predicted or guaranteed. Do not act upon information without seeking legal counsel.
