Security Clearance Law Blog

DOD Security Clearance Program Removed from High Risk List

By John V. Berry, Esq., BERRY & BERRY, PLLC, www.berrylegal.com

In an area of importance to our Law Firm’s security clearance legal practice, the Government Accountability Office (GAO) announced recently that it was removing the Department of Defense’s (DOD) security clearance program from the GAO High Risk list of government programs in trouble. 

The GAO found that “improvements in timeliness and better management have led the Government Accountability Office to remove the ‘high risk’ designation from the Pentagon’s Personal Security Clearance Program, a tag the auditors give to programs they believe are subject to mismanagement, waste, fraud or abuse.”

The GAO, in their assessment of the improvements to the security clearance program, stated that they were “removing DOD’s personnel security clearance program from the High-Risk List because of the agency’s progress in timeliness and the development of tools and metrics to assess quality, as well as its commitment to sustaining progress. Importantly, continued congressional oversight and the committed leadership of the Suitability and Security Clearance Performance Accountability Council (Council)—which is responsible for overseeing security clearance reform efforts—have greatly contributed to the progress of DOD and governmentwide security clearance reform.”

As part of their decision, the GAO listed the following reasons for removing the DOD security clearance program from the High-Risk list, which were as follows:

(1) that DOD had significantly improved the timeliness of security clearances and met the IRTPA objective for processing 90 percent of initial security clearances on average within 60 days for fiscal year 2010;

(2) that DOD has worked with members of the Council to develop a strategic framework for clearance reform;

(3) that DOD has designed quality tools to evaluate completeness of clearance documentation;

(4) that DOD has issued guidance on adjudication standards; and

(5) that the DOD continued to be a prominent player in the overall security clearance reform effort, which includes entities within the Office of Management and Budget, the Office of Personnel Management, and the Office of the Director of National Intelligence.

Thoughts on the GAO Cited Improvements to the DOD Security Clearance Program

The changes noted in the GAO Report are positive in general.  In practice, our security clearance practice clients are most concerned with the timing of adjudications, soimething that has shortened with the latest review by the GAO.  Hopefully, this is a sign of future efficiency in processing security clearance matters for federal employees and contractors. 

 

DOHA Personal Appearance Tips in the Context of Security Clearance Appeals

By John V. Berry, Esq., BERRY & BERRY, PLLC, www.berrylegal.com

A topic that often comes up in our law firm’s security clearance practice involves the issue of how to best prepare for an upcoming personal appearance before the Department of Defense, Defense Office of Hearings and Appeals (DOHA).  While the topic could cover several chapters, I have assembled a few observations in the process from our practice our this area of law. 

Keep in mind that it is important to obtain an attorney familiar with security clearance practice to best assist individuals approaching a personal appearance.  Counsel can best advise an individual in how to prepare and present their cases in order to give the best possible opportunity for a successful outcome. 

THE DOHA PERSONAL APPEARANCE PROCESS

When you receive a notice that your security clearance matter has been scheduled for a personal appearance before an DOHA Administrative Judge, there are a number of immediate issues that must be addressed in order to prepare for this very important presentation.    It is important to realize that the Administrative Judge will have access to the entire case file of documents and information that was reviewed and/or considered by the Central Adjudication Facility in making their earlier adverse determinations with regards to an individual’s security clearance.

Therefore, the key in preparing for one’s personal appearance is for the individual presenting their matter before the DOHA Administrative Judge to not just repeat earlier arguments made below, but to do their best to exhaustively present any and all other materials and/or witnesses that have not yet been reviewed in order to give one the best chance of obtaining a positive result.   

SOME DOHA PERSONAL APPEARANCE BASICS

As an individual prepares for their personal appearance, it is important to understand some of the dynamics behind the personal appearance hearing.  Some of these dynamics include the following facts about the hearing:

1. Hire an attorney experienced in security clearance cases to represent you in your case;
2. The DOHA hearing may take place with or without Department attorneys present;
3. The DOHA personal appearance proceedings are transcribed by court reporter;
4. The DOHA personal appearance will begin in earnest with the questioning of witnesses brought in support of the individual seeking the security clearance;
5. Following other witnesses, the individual seeking their clearance will testify (which is why I highly recommend utilizing counsel in these types of cases);
6. Following the initial testimony of witnesses, either the DOHA Administrative Judge or the Department’s attorney may question the witnesses;
7. The individual seeking the clearance (usually their attorney) may offer a closing argument in support of their clearance;
8. Individuals may be permitted to supplement the hearing record if a witness is not available on the day of hearing; and
9. The Administrative Judge, following the closing of the record, will issue a recommended decision in support of or arguing against the granting of a security clearance. 

AN OUTLINE OF TIPS FOR THE DOHA PERSONAL APPEARANCE PROCESS

Here are some practices that we follow in our security clearance practice as we handle security clearance proceedings at DOHA.

1.         Preparation: One of the key aspects of the personal appearance is to thoroughly prepare for the hearing.  A DOHA hearing must be well planned out in advance.  If the personal appearance is not thought out and well executed, the Administrative Judge could become frustrated with the presentation which is not something that is helpful in obtaining a positive ruling.

2.         Exhibits: Exhibits to support one’s case at a personal appearance are highly recommended. It is very important to gather as much evidence and/or documents in support of your security clearance matter as possible.  If a written statement is to be submitted on behalf of an individual at a DOHA proceeding, it should be notarized where possible (or possibly in the form of a declaration) as these will be given more credence than those that are not sworn. 

3.         Witnesses:   Make sure that all witnesses for the DOHA appearance are ready and prepared to testify before the Administrative Judge.  These individuals can include co-workers, supervisors, doctors, specialists, and others whose testimony may go to the issue of granting an individual’s security clearance. 

CONCLUSIONS

In sum, DOHA personal appearances are perhaps the most important part of the security clearance review process and should be treated as such.  Despite any indications that the process can be undertaken by individuals without counsel, I have found that to be an extremely unwise course of action which can have devastating circumstances.  Anyone facing a DOHA personal appearance should make the most of the opportunity to present a strong case in favor of the granting of a security clearance. 

Security Clearance Legal Issues

By John V. Berry, Esq., www.berrylegal.com

Today, February 6, 2011, the Law Firm of Berry & Berry, PLLC, is launching this Security Clearance Law Blog in order to examine key issues involved in the Security Clearance Process.  As we move forward with articles in the days to come, we hope that you find the information posted here to be of use.