Posted at 09:11 PM | Permalink
By John V. Berry, Esq.,www.berrylegal.com
We often meet with federal employees and government contractors who are faced with security concerns or potential security concerns in obtaining, applying for or retaining a security clearance. These employees often ask for us assistance in responding to a security clearance denial or revocation. No matter the security concerns at issue, we find that it is always important and helpful for the individual to respond with character letters which help define the character of the clearance holder or applicant to the adjudicator. This article focuses on the benefit of character letters in the security clearance process.
By John V. Berry, Esq., www.berrylegal.com
This article outlines the security clearance appeals process for those applying for clearances with the National Reconnaissance Office (NRO). As we have discussed in other blog articles, the U.S. Government security clearance process is not run by one federal agency. The clearance appeals process is governed by Executive Order 12698, which delegates the clearance process to the different federal agencies. The clearance appeals processes generally falls into 2 main groups, those run by the Intelligence Community (IC) and those run by the Department of Defense (DoD) and other non-intelligence gathering agencies. With that background, it is important to note that each federal agency maintains their own internal security clearance process with their own unique procedures.
In addition to security clearances processed by the NRO, many other federal agencies maintain their own procedures and personnel that process their own security clearance decisions for federal employees and government contractors (e.g. DOD, NGA, CIA, DOJ, etc). It is important to be familiar with each process when appealing an adverse security clearance decision. This article focuses on security clearance appeals for government contractors at the NRO.
By John V. Berry, Esq., www.berrylegal.com
We often represent individuals who have issues with respect to foreign influence issues under Guideline B. This article examines how the Adjudicative Guidelines for Foreign Influence apply to security clearance cases. Foreign Influence has always been a major concern because security risks can exist when an individual’s family or close friends are subject to potential duress and influence. Along those lines, foreign Influence issues have long been considerations in determining whether to grant or renew a security clearance.
By John V. Berry, Esq., www.berrylegal.com
The former Director of National Intelligence (DNI), James Clapper, issued new adjudicative guidelines for all federal agencies to follow on December 10, 2016. These guidelines, known as Security Executive Agent Directive 4 (SEAD 4) have been in effect since June 8, 2017. The Adjudicative Guidelines explain the security concerns that may arise and potentially applicable mitigating factors. I have attached two versions to this post, a PDF copy of Download Security Executive Agent Directive 4 here and a text version which follows and which may have some typographical errors based on PDF conversion. The document contains 3 major portions: (1) the adjudication process; (2) the new adjudicative guidelines A-M, and (3) potential exemptions for individuals that meet certain criteria. When an individual is facing actual security clearance concerns or potential concerns it is important to obtain legal advice and legal representation. Our law firm advises individuals in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Please visit our Facebook page.
By John V. Berry, Esq.,www.berrylegal.com
We often meet with federal employees and government contractors who are faced with security concerns or potential security concerns in obtaining or applying for a security clearance. They often ask our attorneys at what point they should retain a security clearance attorney to assist, advise or represent them.
The short answer is that an individual with potential security issues should consult with experienced security clearance counsel as soon as possible. In our experience, the earlier that an individual with security concerns or potential security concerns consults with a knowledgeable security clearance lawyer, the better the chances to avert a negative outcome. We also find that it is less expensive to address a problem early before it gets more difficult to defend or respond to.
What Can a Security Clearance Lawyer Do?
Many times we are asked about how a lawyer can assist a person in the security clearance process. The answer is that there are many ways that an experienced lawyer in security clearance law can help when there are security concerns. A lawyer experienced in the security clearance process can advise an individual before a security clearance problem develops. We have found that most individuals have a good sense as to whether or not they may have a security concern (e.g. a recent arrest, drug use, financial issues) as they apply for positions or when they fill out security clearance forms like the e-QIP, SF-86 and/or different various of the SF-85. Sometimes individuals don’t weigh (or really plan out) how much a potential security issue can affect their ability to obtain a clearance. Having a security clearance lawyer advise a person about the process can be invaluable.
Consulting Before the Clearance Process Begins
When an individual understands that they may have a security issue, consulting with a security clearance lawyer can help them get ahead of potential security clearance concerns. One of the major problems that we see in the clearance process is when an individual comes to us too late in the process to alter a negative clearance outcome. We have seen individuals that could have likely obtained or retained their security clearance, but did not seek legal advice early enough in the process. Sometimes, individuals have had financial issues which could have been explained, but the individual did not realize what type of information was needed for their response and then are left with few options for an appeal. On other occasions, individuals have security concerns but have not listed them because they did not feel they were important (i.e. a previous arrest or termination). Getting advice on these issues early is the key.
When consulting with an individual, a security clearance lawyer can get a good idea as to the seriousness of the security concerns at issue and what level of risk is involved in the person applying for a security clearance. In the case of a person who has the option to apply for a clearance, but more time might be needed to mitigate security concerns we can help the person avoid the potential of a denial. In this type of situation, we sometimes advise individuals to wait a year or a few months before applying for or taking a position that requires a security clearance. It is also not uncommon that we anticipate a serious issue with someone obtaining a security clearance, i.e. recent criminal charges, which helps them avoid the embarrassment of applying for a position that they may get only to be removed later when their clearance is not approved. A security clearance lawyer can also help to put an applicant’s mind at ease if the risk they are concerned about is not as significant as it seems.
Additionally, a security clearance lawyer can help review an individual’s security clearance forms to ensure that they are accurate and responsive and consult with them about what to expect. It is critical to disclose all potential information, accurately, on these forms. Not doing so can form the basis for a denial based on a lack of candor or honesty. We often see issues arise from the omission of key information that may not seem to be important (or remembered) at the time the security clearance forms were prepared but later becomes the basis of a clearance denial. Furthermore, while rare, it sometimes can be important to discuss potential criminal disclosures in advance. It is not often the case that disclosures about criminal activity becomes the basis for a criminal prosecution, but sometimes these questions need to be asked before completing a clearance submission. In other words, if an individual has a potential security concern it is key to get legal advice early in the process, not late.
Consulting/Representation once the Security Clearance Process Begins
It is also important to have the guidance of a security clearance attorney when the security clearance process has begun. The security clearance forms in such a case have been submitted and the individual has potential security concerns, i.e. a record of arrests or financial issues and are in the process of being scheduled for an investigative interview. In such a situation, it is important to go over the areas of concern with a client that are likely to come up in the interview with a security clearance attorney. There are often ways of responding during an interview that can clear up any misperceptions by the investigator or perhaps mitigate these concerns in advance. Again, it is extremely important to be honest and accurate during the clearance interview process and sometimes to even disclose concerns before the interview begins in certain cases. An experienced security clearance lawyer can help advise an individual about these issues and disclosures before they are interviewed. We often review such concerns with clients in advance of security clearance interviews and help them in explaining the security concerns, in advance, so that all goes as smoothly as possible during the interview or re-interview process.
Representation in Clearance Denials or Proposed Denials
An individual will definitely need a security clearance attorney if they receive a denial or proposed denial of their security clearance. Each federal agency is different and there are different security clearance processes for each federal agency. This causes some confusion with clients. The security clearance system has been left to each federal agency under existing rules. The type of response needed will also differ based upon which federal agency is processing the clearance review. This is the case even though all federal agencies fall under the same Executive Order 12968. It is also important that the individual consult with experienced counsel where they can explain any issues that individual federal agencies are particularly sensitive to. For instance, the FBI is more sensitive to prior drug use by applicants or employees and many intelligence agencies are sensitive to the misuse or careless handling of classified or otherwise sensitive information. In other words, each federal agency has a different process and a different view on security concerns.
In general, each federal agency usually has a written and oral response stage for those who need to appeal a denial or proposed denial in the security clearance appeals process. While different, each federal agency will provide some form of a Statement of Reasons (SOR) or notice which explains the nature of the security concern at issue. Furthermore, while the procedures and vantage points of a security clearance appeal are different between agencies, they follow the guidelines issues by the Director of National Intelligence (DNI), which became effective June 8, 2017. The DNI issued new adjudicative guidelines entitled Security Executive Agency Directive 4 (SEAD 4) which provides a list of potential security concerns and mitigation. A copy of the new DNI directive is provided here. Download SEAD4_20170608 A security clearance lawyer will be versed in the latest regulations governing such appeals (both federal government-wide and federal agency-specific) before the individual agency involved and will be able to assist a person in navigating the type of appeal to present.
The typical first step in the security clearance process is to provide a written response to the security concerns to the clearance review authority. To do so, an experienced security clearance attorney will obtain a complete fact set from the individual regarding the security concerns at issue and work to determine the best possible methods of rebutting and/or mitigating these security concerns. There is also a whole-person concept evaluation, which counsel can assist with by explaining the positive attributes about the individual’s character and/or background which can also help to mitigate clearance issues. To this end, we also often we often ask a potential client about their employment performance, community involvement and/or whether or not they can obtain letters of recommendation or reference for use in mitigation.
The written response usually takes the form of a written submission by counsel, exhibits, and attaches an affidavit or sworn declaration. It is not uncommon for such responses to be 10 to 70 pages in length, with exhibits. The length of a submission depends on the security concerns at issue and the type of mitigating documents that are available for a case.
Personal Appearance or Oral Response Stage
While it is very important to provide a detailed written response to security clearance issues, it is even more important to present a thorough oral presentation where the opportunity to do so arises. We almost always recommend that an individual elect a hearing or personal appearance in security clearance cases. Again, the format for these presentations differ. Some federal agencies conduct formal hearings with an administrative judge (Department of Defense, Department of Energy) and other agencies have appeals panels (National Security Agency, Central Intelligence Agency) staffed by agency employees which hear each case. Additionally, other federal agencies appoint one adjudicator to hear informal appeals. To this end, each federal agency is different.
Regardless of format, a security clearance lawyer will prepare a client for their testimony and will prepare witnesses for their supporting testimony and potential cross-examination or questioning (where the forum permits in person witnesses). It is also important to note that in many forums the government will be represented by their own attorney and it is very important for an individual to have their own counsel in the proceedings. We have found that the personal appearances have the greatest potential to reverse negative findings. The ultimate appeals officer, whether it is an administrative judge, an appeals panel or a hearing officer often finds the most important evidence by hearing directly from the individual involved. A security clearance attorney will prepare a client for the questions that may arise and the best manner in which to rebut or mitigate them.
When an individual is facing security clearance concerns it is important to obtain legal advice and legal representation. Our law firm advises individuals in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Please visit our Facebook page.
By John V. Berry, Esq., www.berrylegal.com
We are often asked about Sensitive Compartmented Information (SCI) access, the SCI appeals process and how SCI decisions impact an existing security clearance. This is an abbreviated description of the SCI process and appeals considerations. SCI access is granted in situations where access to intelligence agency information is needed. In other words, SCI access is required where the individual needs access to federal intelligence sources, process or methods.
Step 1: Request for SCI Access by Employer
Typically, the employer will seek upgraded access to SCI for an otherwise cleared employee. The employee presumably will usually have a Top Secret clearance (or possibly lower level clearance) and the employer will seek SCI access for that employee.
Step 2: Review of Employee for SCI Access
Next, the agency granting SCI access will make an eligibility and adjudicative decision about whether or not to grant access to SCI to the employee. These determinations will be made under Intelligence Community Directive 704 and Intelligence Community Policy Guidance 704.2. Keep in mind that if an individual had or has become subject to potential security concerns, they will want to consider carefully whether to apply for SCI access. In some cases, an individual with the same security concerns could qualify for a secret or top security clearance, but not SCI access. This is because SCI access approval is more difficult to obtain than for other clearances even with the same security concerns. In addition, the individual may be subject to a polygraph examination. All of these concerns should be considered in applying.
Step 3: If SCI Access is Disapproved, Appeal
If SCI access is granted, then everything has resolved favorably for the applicant. However, if SCI Access is disapproved, it is important to appeal the negative decision. Most agencies (NSA, CIA, DIA, etc) provide for appeals to SCI access denials. Typically, there is a written response stage and a personal appearance stage, but the processes can differ slightly. It is critical to obtain as much mitigating information as possible in presenting an appeal to overturn the disapproval. The goal for an SCI access appeal is to clarify any existing security concerns or to demonstrate mitigation for the security concerns in order to obtain SCI access.
Step 4: If SCI Access is Disapproved Following Appeal, then Normal Clearance Could be at Risk
If SCI access is denied and an appeal is either not filed or is denied, the negative adjudication could have a negative effect on an employee's existing security clearance. For example, the Department of Defense Consolidated Adjudications Facility (DoD CAF) is usually notified when there is adverse information uncovered in connection with an SCI access request. The notification can cause one's existing security clearance to be suspended subject to adjudication. DoD CAF, in that case, will then make a separate determination as to whether or not the negative SCI access decision and information at issue impacts an individual's existing security clearance. In other words, if one is unsuccessful at obtaining SCI access, there could be a negative domino effect as to that individual's existing security clearance.
When an individual is facing security clearance issues regarding SCI access or an appeal before a federal agency it is important to obtain legal advice and legal representation. Our law firm advises individuals in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Please visit our Facebook page.
By John V. Berry, Esq., www.berrylegal.com
This article outlines the security clearance appeals process for those applying for clearances with the Central Intelligence Agency (CIA). As we have discussed in other blog articles, the U.S. Government security clearance process is not run by one federal agency. The clearance appeals process generally falls into 2 main groups, those run by the Intelligence Community (IC) and those run by the Department of Defense (DoD). That said, each federal agency has their own internal security clearance process with its own nuances.
In addition to security clearances processed by the CIA, many other federal agencies maintain their own procedures and personnel that process their own security clearance decisions for federal employees (e.g. DOD, NGA, NRO, DOJ, etc). It is important to be familiar with each process when appealing an adverse security clearance decision. This article focuses on security clearance appeals for government contractors at the CIA.
The Clearance Process at the CIA for Contractors
The security clearance process at the CIA is fairly different than the one utilized for DoD employees, but based on the same underlying clearance principles. The following are the normal steps in the security clearance review process for those seeking to obtain or retain a CIA security clearance when faced with security concerns. The CIA security clearance process is managed by their clearance appeals office. Employees have the right to counsel before the CIA during the stages of the security clearance appeals process.
Step 1: Notification of Security Disapproval
When a clearance holder has a security clearance issue with the CIA, they will receive a notification of disapproval letter, usually sent on generic letterhead, listing the security concerns at issue and other rights in a Memorandum. The specificity of the security concerns at issue varies, so it is important to obtain additional information. Review rights generally include the ability to obtain documents (i.e the right to request the Investigative File) upon which the revocation or denial is based within 45 days and the ability to request a personal appearance during that timeframe. A personal appearance is an administrative hearing before a panel of clearance adjudicators (or a single adjudicator). An individual can also respond solely in writing and waive the personal appearance. A personal appearance is highly recommended.
Step 2: Receipt of the Investigative File
If the Investigative File has been requested from the CIA, the individual will be provided with the documentation relied upon by the agency in denying the request for security access. Many portions of the file may be redacted, but one can usually discern the issues that need to be addressed. When the Investigative File is received it is important to prepare to respond with a written response and to prepare for the personal appearance at the CIA.
Step 3: Responding to the Security Concerns in Advance of the Personal Appearance
Upon receipt of the Investigative File, the individual will generally want to provide a written reply in preparation for the personal appearance. It is usually important to provide supporting documents, in advance, to give the adjudicator(s) time to review them in advance of the personal appearance. The documents usually need to be provided 2 weeks prior to the scheduled appearance. The CIA follows the Adjudicative Guidelines set forth by the Directive of National Intelligence in ICPG 704.2 when reviewing security clearance matters.
Step 4: The Personal Appearance
The next step in the CIA security clearance process is for the employee to present their response to the adjudicator(s) during their personal appearance. This should be done with the assistance of an attorney. These types of presentations typically take about an hour in length. The individual seeking to overturn the initial should be prepared to respond to the concerns at issue and also for potential questions by the adjudicators.
Step 5: Further Appeals
Generally, the best attempt to overturn the disapproval is at the initial stage. However, in some cases it is important for the individual to appeal the initial decision (either an adverse decision from a written response or an adverse decision issued after the personal appearance). The appeal, if filed, should be filed within 30 days of receipt of the initial unfavorable decision.
When an individual is facing security clearance issues at the CIA or before another federal agency it is important to obtain legal advice and potential legal representation. Our law firm advises individuals in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Please visit our Facebook page.
By John V. Berry, Esq., www.berrylegal.com
As we have noted in other articles, the U.S. Government security clearance process is not run by one agency. Each federal agency maintains their own procedures and personnel for processing their own security clearance decisions for federal employees (e.g. Treasury, Commerce, DoD, DoE, NRO, DOJ, etc). The DoS is one of those agencies. This article addresses the security clearance process at the DoS for federal employees and applicants.
The Clearance Process at DoS
The security clearance process at the DoS is somewhat similar to the procedures for Department of Defense employees, but there are some differences. The following are the normal steps in the security clearance review process for DoS clearance holders when they are facing security clearance issues. The DoS security clearance process is managed by the DoS Office of Personnel Security and Suitability (PSS). It is important to note that employees have the right to counsel before DoS at all stages of the clearance process. The Personnel Security process is governed by 12 FAM 230, Personnel Security.
Step 1: Notification Letter
When a federal employee or applicant has a security clearance issue with DoS, they will receive a notification letter from the Director of the Diplomatic Security Service/PSS, listing the security concerns at issue in granting or continuing the clearance and other rights in a Memorandum. These rights generally include the ability to obtain any documents (investigative file) upon which the revocation or denial is based within 10 days. Upon receipt of the information from DoS, the individual generally has 30 days in which to provide a written reply. In this reply, the individual will be given an opportunity in which to respond to the security concerns in an effort to mitigate them. DoS follows the Adjudicative Guidelines when reviewing security clearance matters, so it is important to be knowledgeable about them.
Step 2: Responding to the Notification Letter/Memorandum
Following a review of the investigative file, at this stage, the individual responds to the Notification Letter and all of the materials in the investigative file from DoS. A response should address the security concerns at issue directly, e.g. Guideline F, Financial Considerations, or other issues and focus on the potential mitigation of the security concerns. This response should be comprehensive and cover both the security concerns, mitigation and the whole-person concept. It is critical to provide a full and fully-documented response.
Step 3: Decision by Assistant Secretary for Diplomatic Security
Once the response by the individual is received, DoS Assistant Secretary for Diplomatic Security will review the Director's decision, the file and also the individual’s reply and will issue a decision as to whether or not the security concerns have been resolved. If so, the matter is then resolved favorably for the federal employee. If not, the individual will have an opportunity to further appeal the denial or revocation.
Step 4: Review by DoS Security Appeals Panel
The next step in the DoS security clearance process is for the employee to appeal to the DoS Security Appeals Panel within 30 days of the adverse decision in Step 3. Generally, the individual has 2 weeks prior to the Security Appeals Panel’s meeting to submit additional documents the they want included in the review. The individual can, and is recommended to exercise his/her right for an in person appeal before the panel. This should be done with the assistance of counsel. These types of presentations typically take between 45 minutes to an hour. The Security Appeals Panel can ask for additional information from an individual if it feels it needs additional information in order to make an informed decision.
Step 5: DoS Appeals Panel Decision
Following the personal appearance, the DoS Security Appeals Panel issues a decision, either granting the clearance or access at issue or a denial. The decision is final, but the individual may re-apply after a waiting period.
When an individual is facing security clearance issues at the DoS or in another federal agency it is important to obtain legal advice and potential representation. Our law firm advises individuals in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located here.