U.S. Customs and Border Protection has lowered the marijuana use lookback period for Border Patrol recruits from two years to 90 days, according to a recent letter from Oklahoma Senator James Langford to Acting CBP Commissioner Troy Miller.
The April 7 letter, which received scant attention outside the Washington, D.C. beltway, followed a briefing by CBP to the Senator, who serves as the Ranking Member of the chamber’s Subcommittee on Government Operations and Border Management. In the briefing, CBP apparently reported that the new policy was designed to incentivize additional recruits and address confusion between federal and state law in states where marijuana has been legalized.
Senator Lankford expressed “[grave concerns] that this policy undermines the security and integrity of the Border Patrol workforce” and asked that it be rescinded. He also inquired about the justification, extent of legal review, and the degree to which this change has impacted polygraph passage rates at an agency where they have been notoriously low.
CBP’s response remains to be seen. However, the impetus of the policy change is clear given the White House’s recent government-wide changes to personnel vetting forms that similarly separates marijuana from other drugs and reduces the period of inquiry from seven years to 90 days.
The policy changes have been cheered by marijuana advocates. But the legal implications appear ill-considered. For example, the Bond Amendment – which denies security clearances to current users of any illegal substance, and which has been interpreted by federal agencies for many years to mean “any use within the last year” – remains on the books. By merely changing the scope of the question, the government is creating a “don’t ask, don’t tell” policy for marijuana use.
But what happens if someone – an applicant, applicant’s friend, applicant’s colleague, or anyone else interviewed as a reference during the background investigation – does tell? Will agencies deny the clearance on that basis while granting clearances to other applicants who similarly used marijuana recently but kept it discreet? And what of applicants who used marijuana daily for, say, the last 10 years but stopped 91 days ago? Is that really sufficient passage of time to deem the individual fully rehabilitated and no longer a “current” user?
These sorts of thorny questions are not just hypotheticals. I encountered similar scenarios regularly over a decade representing individuals in the security clearance application and appeals process. Whatever one’s feelings on the policy changes, the murkiness of it all is not unlike the status of marijuana legalization itself. Few people would claim that, with all its confusion and legal landmines, as reflective of good governance. And yet, the federal government is now effectively doing the same thing as states that have legalized marijuana: ignoring federal law instead of seeking to change it.
It is difficult not to find irony in that when one of the justifications for the policy change is confusion between federal and state law. And, as I cautioned applicants previously, policy changes without legal changes are just as easily reversed by a subsequent Administration. Applicants should continue to tread carefully on this issue and refrain from using marijuana or any marijuana derivatives (e.g., CBD) for as long as possible before applying for a security clearance.
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.
