The Adjudicative Guidelines for Determining Eligibility for Access to Classified Information needs to specifically address the medical use of marijuana. Although some believe there is enough ambiguity in the Adjudicative Guidelines to permit the granting or continuing of a security clearance for a medical marijuana user under certain conditions; the absence of national guidance regarding this subject places security clearance adjudicators in the position of making either legally unsupportable or morally unconscionable decisions.
The first medical marijuana law was passed in California in 1996. Currently 17 states and the District of Columbia have legalized medical marijuana. Eleven other states have legislation pending to legalize medical marijuana. However, in July 2011 the US Drug Enforcement Administration (DEA) reaffirmed that marijuana is a Schedule I drug in the same category as heroin under the Controlled Substance Act with no accepted medical use. The decision was in response to an October 2002 petition requesting reclassification of marijuana. Therefore marijuana, including its medical use, remains illegal under federal law. This is the third time that petitions to reclassify marijuana have been denied. The first was filed in 1972 and denied in 1989. The second was filed in 1995 and denied in 2001. Both decisions were appealed, but the courts sided with the federal government. Advocates for the medical use of marijuana criticized the recent ruling, but they are now able to appeal to the federal courts again and hope to obtain a favorable ruling this time.
There are probably federal security clearance adjudicators who are sympathetic to those who use marijuana as recommended by a physician for medical reasons, and there may be cases where the clearance of a medical marijuana user was granted or continued. If this has occurred, the decision was made before the case reached the administrative hearing stage of adjudication, because there have been no published security clearance decisions regarding the use of marijuana as recommended by a physician.* In a case involving a medical marijuana user, an adjudicator would have to use some clever legal acrobatics to reach a favorable clearance decision. The rationale that security concerns regarding medical marijuana use can be mitigated when it is legally prescribed, ignores the fact that physicians cannot legally prescribe marijuana. This is why most state laws say that a doctor’s “recommendation” is needed to legally have and use marijuana. Even when legal under state law, it’s illegal under federal law.
The US Supreme Court ruled in United States v. Oakland Cannabis Buyers’ Coop (2001) and in Gonzales v. Raich (2005) that the federal government has a right to regulate and criminalize marijuana, even for medical purposes. A person can therefore be prosecuted for a marijuana-related crime, even if it is medical marijuana legally obtained according to state law. The Supremacy Clause in the U.S. Constitution requires that federal law be followed when a conflict arises between federal law and state law. The US Department of Justice has chosen not to enforce federal law in states that have laws permitting the medical use of marijuana, but non-enforcement is not the same as legality.
The Bond Amendment states, “After January 1, 2008, the head of . . . a Federal agency may not grant or renew a security clearance for a covered person who is an unlawful user of a controlled substance or an addict.” There is no provision for a waiver for this requirement as there are for other portions of the Bond Amendment. Additionally under the Criminal Conduct criterion (Guideline J) of the Adjudicative Guidelines, an “allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted” is a disqualifying condition.
A compelling situation for medical marijuana use is that of cancer patients undergoing chemotherapy where their nausea cannot be controlled as effectively by other drugs. It can be argued that Marinol (dronabinol), a capsule that contains tetrahydrocannabinol (the principal psychoactive constituent of marijuana), and nabilone, a substance chemically related to marijuana, were approved by the US Food and Drug Administration and available for treatment of nausea and vomiting associated chemotherapy. One of the main concerns about patients smoking marijuana is the harmful drug-delivery system, but medical marijuana patients can use vaporizers, where the essential marijuana compounds are extracted and inhaled. Edible marijuana in various baked goods is also available and has demonstrated longer lasting effects. If you’re the patient and your oncologist has included marijuana as a treatment option, it’s reasonable that you would want to try different options and use the drug that works the best for you. If it happens to be marijuana and you happen to have a security clearance, should you deny yourself this option because of possible clearance revocation, employment termination, and loss of health insurance?
If some security clearance adjudicators or even some Central Adjudication Facilities (CAFs) have taken the position that medical marijuana under certain circumstance is not a disqualifying condition for a security clearance, it’s of little value if their position is not made known to the public. Patients will decide for or against the medical use of marijuana based on the assumption that it will be a disqualifying condition.
The Adjudicative Guidelines were created to increase consistency in clearance decisions across all federal agencies. The failure to address this issue undermines consistency. National guidance is needed that definitively states whether a physician’s recommendation for medical marijuana is a mitigating condition under both the “Drug Involvement” and the “Criminal Conduct” criteria of the Adjudicative Guidelines. If it is a mitigating condition, the guidance should specify whether a physician’s recommendation for medical marijuana can be a mitigating condition for all or only some medical disorders. For example, the California law covers patients diagnosed with any debilitating illness where the medical use of marijuana has been “deemed appropriate and has been recommended by a physician.” Without guidance in this area CAFs will be inclined to substitute their judgment for the judgment of a physician regarding the medical propriety of recommending marijuana for certain disorders. In cases involving long term treatment with marijuana, adjudicators will need to know whether they should consider the possible impair of a patient’s judgment or reliability.
* Only the Department of Defense Office of Hearings and Appeals and the Department of Energy Office of Hearings and Appeals publish security clearance decisions. There have been cases related to medical marijuana, but they involved applicants who fraudulently obtained a physician’s recommendation for marijuana or had a history of marijuana use and lived with a medical marijuana user.
William H. Henderson is a retired federal clearance investigator, a personnel security consultant, and the author of Security Clearance Manual and Issue Mitigation Handbook. He is a regular contributor to ClearanceJobs.com.
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