If you’ve been following developments at the Defense Counterintelligence and Security Agency (DCSA), you may have seen the November 27, 2024 announcement at their website about “its new role in supporting DoD reform of due process and appeals” that became effective on December 8, 2024. This announcement was echoed in a December 2, 2024 news item posted at ExecutiveGov.com website entitled: “DCSA to Handle DoD Security Review Process.”
If you only read the ExecutiveGov news item, you’d have the impression the new procedure only affected due process and appeals for denial/revocation of Sensitive Compartment Information (SCI) access eligibility and DCSA had not previously handled such matters. The DCSA announcement was a little clearer. It said that DCSA “will implement DoD reforms for security review proceedings in support of due process and appeals” for military servicemembers and DoD civilians. It will also support due process and appeals for “contractor personnel whose eligibility for access to Sensitive Compartmented Information (SCI) is adjudicated by DCSA.” But again, it was not mentioned that DCSA already does this.
What’s Important About the Due Process Change
The important news was in the DCSA announcement where it said, these applicants “will also be able to have a personal appearance [hearing] with an adjudicator, prior to a decision by DCSA on the denial or revocation action.” Cleared contractor personnel who are adjudicated for collateral (non-SCI) access eligibility are not affected by this change, because they are referred to the Defense Office of Hearings and Appeals (DOHA) where they already have a right to due process hearings and appeals in accordance with DoD Directive 5220.6, “Defense Industrial Personnel Security Clearance Review Program.”
Why is this important? Some applicants are much better at presenting information orally than in writing. The DCSA Senior Adjudicator (Hearing Officer), who presides over the Personal Appearance (PA) can question the applicant and their questions may elicit information about mitigating or extenuating conditions that the applicant failed to include in their written response to the Statement of Reasons (SOR). During a PA, a Hearing Officer can also make a personal assessment of the applicant’s character and credibility. In cases decided by DOHA, applicants who present their cases at a hearing do about 33% better than those that have their cases decided solely on the written record.
Prior to December 8, 2024, the due process and appeal procedures for DoD civilians, military servicemembers, and SCI contractor personnel administered by DCSA did not include a hearing or a PA prior to a final clearance determination by DCSA. DoD civilians and military servicemembers were entitled to a PA before a DOHA Administrative Judge (AJ) as part of their appeal process after there was a final decision to deny or revoke their clearance by DCSA. The DOHA PA is very similar to a DOHA hearing. The main differences are 1) a DOHA PA results in a “recommended decision” by the AJ, which is forwarded to the cognizant Personnel Security Appeals Board (PSAB) for the actual decision on appeal, and 2) there might not be a Government attorney (Department Counsel) present at the PA to argue the Government’s side of the case.
According to a DCSA Security Review Proceedings FAQ, DCSA is now offering DoD civilians, military servicemembers, and SCI contractor personnel administered by DCSA an option for a PA when they submit a written answer to the Statement of Reasons (SOR) that accompanies a letter of intent to deny or revoke clearance. The PA is held before a DCSA Senior Adjudicator (Hearing Officer) in a virtual format (video teleconference) and unlike a DOHA hearing, it is not adversarial in nature. The applicant will be questioned by the Hearing Officer as needed and the applicant can be accompanied by “legal counsel,” who may provide the applicant advice and guidance. Before a final decision is made regarding clearance denial or revocation, the PA will afford an applicant an opportunity to present oral and documentary information, in addition to that previously submitted in their written SOR response.
All of this was mandated by an April 2023 memorandum from the Under Secretary of Defense for Intelligence & Security (USD(I&S)). This memo has not been made publicly available, so it’s not possible to know exactly what was mandated. It’s fair to assume that it rescinded the January 14, 2021 USD(I&S) memorandum, “Simplifying, Centralizing, and Unifying the Established Administrative Process for Unfavorable Security Clearance Eligibility Hearings and Appeals, Including National Industrial Security Program (NIS) Contractor Employee Unfavorable Sensitive Compartmented Information Eligibility Hearings and Appeals.” The January 2021 memo directed the transfer of responsibility for all DoD security clearance due process hearings and appeals, including those administered by the Defense Intelligence Components (DIA, NSA, NRO, NGA), to DOHA no later than September 30, 2022.
At this point it’s unclear whether the DCSA PA will be conducted in the same manner as a DOHA PA. Can applicants only be accompanied by “legal counsel” or can they be accompanied by “other representative” as allowed by Presidential Executive Order (E.O.) 12968, Access To Classified Information? For the moment DoD Manual 5200.02, Procedures for the DoD Personnel Security Program (PSP), continues to provide these applicants the option of a PA at DOHA as part of the appeal process following a final clearance denial/revocation by DCSA. So, they will be entitled to two PAs—one at DCSA and one at DOHA. The DCSA website has a flow chart of the new process, but it doesn’t show an option for PA at DOHA as part of the appeal to one of the Military Department PSABs or to the Washington Headquarters Services PSAB. DCSA states that they “will provide additional information for individuals and security offices to explain the revised process through direct outreach to security managers, both in government and industry.” They will also “continue to post additional information on DCSA.mil.”
Previously, non-SCI security clearance due process and appeals for DoD civilians and servicemembers was spelled out in DoD Manual 5200.02. Appeal procedures for denial or revocation of SCI eligibility of DoD civilians, servicemembers, and contractor personnel was contained in DoDM 5105.21, Volume 3, “Sensitive Compartmented Information (SCI) Administrative Security Manual: Administration of Personnel Security, Industrial Security, and Special Activities.” The appeal procedures in DoDM 5105.21 v3 are essentially the same as in Intelligence Community Policy Guidance 704.3 (ICPG 704.3), “Denial or Revocation of Access to Sensitive Compartmented Information, Other Controlled Access Program Information, and Appeals Processes.” These three directives implement the provisions of E.O. 12968; whereas, DoD Directive 5220.6 flows from E.O. 10865, “Safeguarding Classified Information Within Industry.” DoD 5105.21 v3 does not apply to NRO, NGA, and NSA, but these agencies are required to comply with ICPG 704.3.
