I spent a lot of time over my decade practicing law encouraging security clearance holders not to pursue certain opportunities.
That wasn’t because I wanted to rain on anyone’s parade, but rather because an existing security clearance is already valuable. Sometimes you have to be satisfied with what you have and not overshoot the mark.
Unfortunately, I saw a lot of people do just that while applying for a security clearance they had no business applying for – often jeopardizing that current clearance and the good paycheck that came with it. Those are the folks who wished they had consulted experienced legal counsel before applying.
Clearance Cases to Avoid
But even those who did play it safe and consulted counsel weren’t always happy to hear what I had to tell them. Most of the time I had to pre-emptively deliver bad news clients were disappointed but grateful to have dodged a proverbial bullet. But other times, I’m convinced clients saw me as The Grinch, eager to snuff out all signs of joy with my lawyerly doom-and-gloom.
In fairness, we lawyers are trained to consider worst-case-scenarios; but that’s also why clients hire us. Sometimes you can’t see a looming danger because you are simply too close to it. With that in mind, and borrowing Boris Karloff’s timeless line from The Grinch, here is a non-exhaustive list of times I wouldn’t touch that clearance with a 39 ½ foot pole.
1. Previously Undiscovered Serious Criminal Activity
The SF-86 doesn’t explicitly ask about undiscovered criminal activity, but the new iteration of the form (called the PVQ) does contain some questions in areas like handling of protected information that should give applicants pause. Previously undiscovered criminal activity is also a standard line of questioning in polygraph examinations; and background investigation references have been known to drop a dime on hapless applicants.
In any of these scenarios, and depending on the severity of the crime, the information can be turned over to law enforcement authorities for investigation and potential prosecution. I wouldn’t lose sleep over admitting to past drug use, unless you’re in the military; but serious crimes that can be verified with investigation are fair game and a major risk to serve up to the feds on a silver platter. Some classic examples: possessing classified information at home, leaking classified information to the media, viewing illegal content on computers, various forms of fraud, etc.). And one that trips up a lot of applicants, even if not always criminally prosecuted: any evidence or admission of previously falsifying federal forms. That includes not just the SF-86 but also military enlistment paperwork and Form OF-306.
Remember – everyone has a constitutional right against self-incrimination. If you are concerned about admitting something that could potentially implicate yourself in a crime, you can always decline to answer outside of certain government internal affairs inquiries where the government commits not to use answers to prosecute you. Conversely, answering and lying is a crime in-and-of itself. When in doubt, talk with an attorney first.
2. Personality that Doesn’t Do Well with Confrontation or a Tendency to Over-Think Questions
Most security clearance background investigation interviews are something akin to a conversation. Polygraph examinations, used predominantly in the intelligence community agencies and for federal law enforcement positions, are a totally different story. It is difficult to generalize experiences, but applicants who don’t do well with confrontation, are uncomfortable being assertive, and may be susceptible to adopting damaging “suggested” answers should consider not pursuing clearances that require a polygraph examination. A classic example is the engineer/scientist-type who is trained to rule out all possible alternatives before confidently answering a question “yes” or “no.” That type of thinking, while perhaps valuable in those fields, does not translate well in the security environment where questions are written for the lowest common-denominator applicant. I’ve written extensively about this topic in the past, which a psychologist I used to assess clearance applicants termed “the engineer’s mindset.”
3. When Adjudicative Issues are About to Fall Out of Scope
Most questions on the SF-86 are not “EVER” questions, but rather limited in scope of reporting to a specific period of time. It is an entirely avoidable risk to apply for a clearance just before an issue is about to fall outside of the reporting scope. Instead of subjecting yourself to that, consider waiting until one day (seriously) after the reporting period expires before certifying that SF-86. Patience is a virtue for a reason.
4. When You Need to Clean-Up Some Potential Issues First
Lastly, there are plenty of issues that are mitigatable if cleaned up before submitting the SF-86 but tougher to do later – when the government will claim the only reason for the belated action is because of the pending security clearance application. The perception all applicants are going for is “good faith” – as in doing the right thing (at least in the government’s eyes) for the sake of doing the right thing, not because of an ulterior motive. The classic example here is financial issues. Many a clearance applicant could have been saved by paying off or settling delinquent debts, taking a financial education course, and establishing a budget that they stick to for a few months before submitting the SF-86. Substance abuse concerns are often similarly mitigatable, along with a few other areas. Jumping the gun and applying for a clearance before adjudicative issues are resolved is a recipe for a denial that will haunt the applicant forever and jeopardize an existing 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.
