Thursday, February 15, 2018

Are You Entitled to Due Process When You Apply for a Security Clearance?

The answer to this question is easy: “No, you’re not,” at least, not in the constitutional sense. It is axiomatic that no one has a right to a security clearance, and “due process” under the Constitution refers to your right to have notice that the government is about to take away something you have a right to and an opportunity to change the government’s mind. (Think: social security benefits.) But even if you do not have that constitutionally-guaranteed right when you apply for – or are reinvestigated for – a clearance, you do have, under various executive orders and regulations, the right to respond to negative information that turns up in an investigation and appeal a negative decision.

Your opportunity to respond to negative information is built into the security clearance process. First, you must complete the SF-86, the standard form used to collect a wide range of information (you can see the form here). Instructions accompanying the form explain that the information provided “is evaluated on the basis of its currency, seriousness, relevance to the position and duties, and consistency with all other information about you.”

You are cautioned that “[w]ithholding, misrepresenting, or falsifying information may affect your eligibility for access to classified information, eligibility for a sensitive position, or your ability to obtain or retain Federal or contract employment.” In practice, any misrepresentation of information on – or omission from – the SF-86 will be treated very seriously by security clearance adjudicators and, unless convincingly explained, is likely to result in a clearance denial. After you sign the form, acknowledging that “a knowing and willful false statement on this form can be punished by fine or imprisonment or both (18 U.S.C. § 1001),” you then submit it, usually to the security office at your agency.

The security office looks it over and also does a criminal check of records that are available in federal and state databases. Assuming there are no red flags, you may be issued an interim clearance within a matter of days. The interim clearance is issued at the discretion of your agency security office and is temporary, although it may last until your clearance is granted. Also usually at the discretion of the agency security office (although some agencies have policies on this), your access may be restricted to lower levels of classified information than the clearance you’ve applied for, or it may allow you full access to what is needed for your job. Whether or not you received an interim clearance tells you nothing about the likelihood that your “real” clearance will be granted – that will be based on the results of the full investigation and your responses to any derogatory information that turns up.

A temporary clearance may be rescinded at any time, if the background investigation turns up negative information. Typically, as soon as serious derogatory information turns up in a background investigation, your agency security office is notified and will immediately pull your interim clearance. The background investigation – with your right to answer derogatory information – will continue, but you will be denied access to classified information (removed from your position requiring a clearance) until the investigation and adjudication (with appeals) are completed. You cannot appeal the denial of your interim clearance.

For someone going to work in the White House, the process is slightly different – and usually quicker. “Yankee White” is the term used to describe clearance screening for employees supporting the Office of the President. In addition to the extensive background check, there are likely to be additional financial forms required and there will be a check of Secret Service records. Those positions closest to the President require periodic polygraph examinations, as well. In addition, friends, acquaintances, and family members will be reviewed and possibly interviewed. These investigations are supposed to be completed in 65 days.

The National Security Adjudicative Guidelines for Determining Eligibility for Access To Classified Information or Eligibility to Hold A Sensitive Position are the standards for security clearance adjudications across the federal government. They are available here. Appendix A explains the process for adjudication of security clearances and provides thirteen guidelines for evaluation, including such categories as Guideline B: Foreign Influence, or Guideline F: Financial Considerations, or Guideline G: Alcohol Consumption. If you look at each guideline, you will see three sections: the first provides an overview justifying the concern; the second lists specific things that can raise a concern for adjudicators; the third suggests what would mitigate concerns.

In any security clearance investigation, if the background investigator turns up derogatory information, e.g., unpaid debts, an unreported arrest, a problem with alcohol -- or reported spousal abuse -- you will be asked to respond by admitting or denying the allegations, providing an explanation, or submitting evidence of mitigation. This can happen at a number of junctures, more or less formally. For example, an investigator may meet with you to ask for more information or an explanation. Or you will be asked to respond in writing to requests for more information or to the derogatory information specifically (sometimes called interrogatories). More formally, you will be notified of the reasons your clearance will not be granted and allowed a chance to respond and to appeal. The form of the appeal varies throughout the government, but the right of appeal is mandated. An opportunity, often more than one, will be given to you to respond to derogatory information.

When confronted with derogatory information or simply information that appears to contradict what you said on the SF-86, you should think about consulting an attorney and get help shaping your response. At Kalijarvi, Chuzi, Newman & Fitch, we have had many cases where a fact-based response to derogatory information results in a clearance being granted. In other cases, the facts themselves make success unlikely and we will so advise. But the opportunity to respond, to provide more information or context, is always given to the applicant. For all its flaws, the system does not lack that sort of due process.

Written by Mary Kuntz.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

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