Monday, May 18, 2015

Marijuana's Legal in My State - So May I Use It and Keep My Security Clearance?



Several states have made it legal to possess and use marijuana.  So for federal employees and contractors who hold or need security clearances, does that mean the game has changed?  The short answer is “no.”  

For security clearance holders and applicants, there are two issues: First, current drug users might compromise classified information under the influence. If their use is frequent, their use will be considered in the same way as a heavy drinker who get inebriated regularly.  Second, if purchase, possession and use are crimes, then what does that say about the person’s trustworthiness?

Drug use is also at issue for federal employees, even those who don't have or need a clearance.  Executive Order 12564, dated September 15, 1986, establishes the U.S. Government as a drug-free workplace. It declares that “persons who use illegal drugs are not suitable for federal employment.” This applies to all federal employees, not just clearance holders.  Job seekers for federal employment are not barred if they used drugs in the past, but any illegal drug use at all by a current U.S. Government employee or member of the military is a violation of this presidential order. 

While only current illegal drug use is an issue for federal employees, even past use is relevant when it comes to having a security clearance.  The government’s position is that any use - past or present - of any illegal drug raises questions about an individual’s reliability and trustworthiness. 

Possession and use of marijuana has in the past always been a crime.  Possession of small amounts has typically been a misdemeanor under various state laws and federal law; possession of larger amounts, and sale of any amount, is typically a felony.  

Why is marijuana use such an issue when it comes to security clearances? Several reasons are typically cited:

- It may indicate that the person is unwilling or unable to abide by society’s laws. Eligibility for a clearance requires individuals who respect laws and regulations, even if they don’t agree with them.  It is considered that someone who will break the law regarding illegal drugs might break the law regarding handling of classified information. 

- Someone currently using illegal drugs may use poor judgment and unintentionally compromise classified information while “under the influence.”

- Illegal drug users may engage in other kinds of irresponsible or high-risk behavior, even when not under the influence of drugs.

- Active drug users may be psychologically or physically dependent.

For these reasons, anyone who indicates an intent to continue using illegal drugs in the future will be disqualified from holding a security clearance.  For those who have used drugs in the past, and who expressly disavow any intent to use illegal drugs in the future, adjudicators will consider the identity of the drug used, the recency, frequency, and circumstances, including age at first use, whether use has been solitary or social, means of acquiring the drugs, motivation for use, and behavior under the influence. 

There is no “bright line” rule in terms of  time elapsed since last drug use.  Adjudicators look at all of the facts and circumstances and do not apply a mechanical formula.  

For example, a recent college or graduate school graduate who used marijuana infrequently while in school, but who has not used any illegal drug in the past year, will typically be able to obtain a security clearance.  Some agencies, like the FBI and the Bureau of Alcohol, Tobacco and Firearms, have stricter rules.  Someone who began experimenting with marijuana at a later age raises more questions that adjudicators will pursue, such as the reasons for this change in conduct, how the individual obtained the marijuana, whether he or she has new friends who engage in other “undesirable” behavior, and whether the person has personal or psychological problems. 

Here's how one judge viewed a 28-year-old with a masters degree and several years of work experience, who admitted to using marijuana both in school and after becoming employed, but not in the past two years:

Applicant’s most recent marijuana use occurred in July 2012. As such, his illegal drug-related behavior could be considered not recent. However, Applicant illegally used marijuana after he started working for two employers with policies against illegal drug use, and he had full knowledge of those policies. He illegally used marijuana during a period of 11 years with varying frequency. He used marijuana and prescription medication to have fun with his friends and to relax. Applicant continues to associate with his illegal drug-using friends. He failed to establish that his questionable criminal behavior is unlikely to recur.

Defense Office of Hearings and Appeals, ISCR Case No. 14-03153 (April 6, 2015)

In contrast, another 28-year-old who last used marijuana 14 months previously had made some life changes that a judge viewed more favorably:

He has disassociated himself from drug-using associates and contacts. At a wedding last November, he saw a friend who is still using marijuana. Applicant informed his friend his life was changing and he no longer used marijuana. He no longer associates with the drug-abusing friends. He has made the decision that marijuana is no longer part of his future and is incompatible with his goals. He also signed a statement of intent with automatic revocation of clearance for any violation.

Defense Office of Hearings and Appeals, ISCR Case No. 14-02143 (March 27, 2015).  

Overall, adjudicators consider that past drug use is less significant than whether the individual is willing and able to remain drug-free in the future.  They must determine whether there is strong reason to believe that subject is no longer using drugs or involved with drugs, and a high probability that the subject will not become involved in the future. In judging the likelihood of future drug use, adjudicators consider the credibility of the subject’s expressed intentions.  They will consider whether the individual has made lifestyle changes, such as moving from a college to a work environment, and whether the individual still socializes with drug-using friends.  

In contrast, current clearance holders are held to a higher standard. Any use of an illegal drug while possessing a clearance is considered an “aggravating” factor. 

Now we turn to the effect of using marijuana in a state where it is now legal.  The problem is that under the Federal Controlled Substances Act, 21 U.S.C. § 800 et seq. (“CSA”), marijuana is treated like every other controlled substance, such as cocaine and heroin. There is no federal medical marijuana law. The federal government places every controlled substance in a schedule, in principle according to its relative potential for abuse and medicinal value. Under the CSA, marijuana is classified as a Schedule I drug, which means that the federal government views marijuana as highly addictive and having no medical value.

Pursuant to 21 U.S.C. § 844, “simple possession” of marijuana can result in a fine of not less than $1,000, payment of costs, and a jail term of up to one year. “Simple possession” means that the drug was for personal use, with no intent to distribute (sell). Any quantity of marijuana can be considered as simple possession. 

Last year, when several states and the District of Columbia legalized possession of marijuana, several agencies expressed concern as to whether federal employees’ use of marijuana in those states should be treated differently.  In order to assure that there was no ambiguity, the Director of National Intelligence issued a specific directive clarifying that marijuana use is still a crime under federal law, and therefore the federal government still considers it an “illegal drug” for all purposes: 

Changes to state laws and the laws of the District of Columbia pertaining to marijuana use do not alter the existing National Security Adjudicative Guidelines... An individual’s disregard of federal law pertaining to the use, sale or manufacture of marijuana remains adjudicatively relevant in national security determinations. 

“Adherence to Federal Laws Prohibiting Marijuana Use,” Director of National Intelligence Memorandum ES 2014–00674, October 25, 2014.

So for all federal employees, and for feds and contractors applying for or holding clearances, unless and until a federal law is passed decriminalizing marijuana, the short answer is, “Just Say No.”

       - this blog post was prepared by Elizabeth L. Newman. If you have questions about drug use in employment, please contact her at enewman@kcnlaw.com.

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