Many people have something in their background they’d prefer not to discuss, even in private. Maybe it’s a traumatic divorce or a substance abuse history they’d rather not relive. Maybe it is a job termination or an arrest that creates feelings of embarrassment or shame. Whatever the situation, uncomfortable questions are a fact of life for security clearance applicants being asked about all the above topics and more during a background investigation.
That leads some security clearance applicants to ask the natural question: can I simply decline to answer a particular question?
Do You Have to Answer All the Questions?
From a legal standpoint, the answer is a clear “yes.” Security clearance background investigations are voluntary; no one is forced to participate. Indeed, as I’ve written about in years past, there may be very good reasons not to answer questions, including where answering truthfully might implicate the applicant in serious, previously undiscovered criminal conduct and/or waive constitutional protections against self-incrimination.
If the applicant does choose to answer questions, he or she must do so truthfully. Providing intentionally false or misleading statements to the government is a crime punishable by imprisonment and/or fine (see 18 U.S.C. § 1001). Since lying isn’t an option, this sets up a binary choice: answer fully and truthfully, or don’t answer at all.
Factors that go into Answering Investigation Questions
But if it isn’t a “decline to answer on advice of counsel” kind of situation, the applicant has a more nuanced decision to make – one that essentially boils down to how badly he or she wants the security clearance. Is it worth the temporary feelings of embarrassment, shame, etc. to answer the question, or is it not? That’s a personal decision, but there are a few considerations worth contemplating before making it.
1. There’s nothing new under the sun.
First, background investigators and security clearance adjudicators have seen it all. Chances are decent that whatever the applicant is concerned about is small potatoes compared to the backgrounds past applicants have presented with. Many of those folks still got their security clearances – but not all of them.
2. Check with an attorney first.
Second, depending on the severity of the issue, it could preclude the applicant from obtaining a security clearance, which would be an understandably disappointing outcome after the applicant has mustered up the courage to face their fear. This is where the advice of competent, experienced legal counsel is worthwhile. A good attorney can often provide a worried applicant with a realistic assessment of their chances before applying, although without any guarantees as to outcome.
3. Consider the tradeoffs.
Finally, choosing not to answer a question – though the applicant’s legal right – is itself grounds for denial of the security clearance application on the basis of “non-cooperation.” In other words, just as an applicant isn’t required to answer questions, the government isn’t required to give the applicant a pass on cooperation simply because he or she would prefer their privacy. Security clearance applicants inherently give up some privacy for the privilege of access to classified information. That’s usually a trade-off worth making given the increased earnings potential and job security, particularly in today’s tough job market. But it is also an informed choice, and one that applicants make freely.
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.
