By John V Berry, www.berrylegal.com
The following are 7 recommendations for federal employees and government contractors (also referred to as “applicants” when they are applying or re-applying for a security clearance) to consider when they discover that they could have problems in their security clearance application.
Usually, an applicant first discovers a potential problem area when they contemplate completing their security clearance application (e-QIP / SF-86). Concern is usually first raised when an applicant reviews the questions in the application package and finds a question that cannot be answered with a clear "no." (example: In the last seven (7) years, have you illegally used any drugs or controlled substances?). When this occurs, an applicant should consult with legal counsel early to determine the best strategy for avoiding the potential loss of an existing security clearance for a clearance holder or an initial denial for a new applicant.
The following are some general tips to consider when facing security clearance issues:
1. Obtain Legal Advice Early: An applicant has the best chance of resolving security concerns when they recognize a potential issue and seek counsel early. Doing so at the beginning of the clearance process usually maximizes the ability of an applicant to mitigate the security concerns. It is often the case that we see applicants that are seeking to appeal an adverse clearance determination, after the initial stages have been adjudicated. In many stages of the clearance appeal process, if evidence is not presented at the early determinations, an appeal may not permit additional evidence to be submitted following the denial (example: an adverse decision issued following a DOHA hearing to a government contractor). Appeals can be difficult so obtaining counsel at the early stages of the clearance process is critical.
2. Be Honest Throughout the Clearance Process: This tip may seem obvious, but it cannot be overstated. Applicants should be honest in the clearance process. When an applicant is not honest during the clearance process it not only can bar the individual from receiving a security clearance (often forever), but can raise a host of other legal issues for not being honest on the application itself. It is a lot easier for a security clearance attorney to mitigate security clearance concerns involving prior drug or alcohol usage, than it is to defend against an allegation that an applicant was not honest in their clearance application or interview about these issues. The applicant, before any such disclosures, should consult with a clearance lawyer for legal advice.
3. Proofread the SF-86 / e-QIP Carefully: There are often applicants that receive clearance denials where they did not adequately read the questions or proofread their responses on the SF-86 / e-QIP prior to submission. This is very important to understand. In some cases, if an applicant does not take the time to read the question and answers "no" when they should have answered "yes" to a particular question, a clearance investigator might conclude that the applicant was attempting to be untruthful. It is very important to carefully complete the security clearance application before it is submitted.
4. Gather Relevant Documents Prior to Completing Clearance Forms: Take the time to gather relevant documents, in advance, related to any potential security clearance problem areas. Doing so will help an applicant in 2 ways: (1) it will help an applicant remember all of the details of the potential security concern (examples: an arrest or bankruptcy filing that occurred 5 years ago) in preparation for answering questions; and (2) the documentation may help to mitigate the security concerns if it is later needed. Note: this should be discussed with an attorney prior to an investigative interview or prior to providing documents.
5. Prepare for the Investigative Interview: If an applicant knows that there is a good chance that problem areas exist in a security clearance application, he or she should expect to be asked about the areas in advance by the investigator that is assigned. These interviews can vary from 1 hour to several hours depending on whether significant security concerns exist. Preparation (and practice) for the interview can help iron out any problem areas in advance. Doing so can also provide confidence to the applicant when the time comes to meet with the investigator and to explain their responses to any security concerns.
6. Don’t React Defensively to Security Clearance Questions: When asked about problem areas in a security clearance application by an investigator, do not react defensively. It is important to be calm and positive about the issues when speaking to an investigator. This is why we generally recommendation preparing with counsel for a security clearance interview if there are significant security issues that may be raised. In addition, arguing with an investigator will never benefit an applicant in a security clearance investigation.
7. Understand the Timeline for the Security Clearance Process: When security clearance issues develop, it is important to understand that the process can either be resolved quickly (few weeks) to a number of months depending on a number of factors including: (a) whether the applicant is a federal employee or government contractor; (b) the number or significance of the security concerns; (c) delays in obtaining responses from federal agencies in seeking an investigative file; (d) the general investigative backlog; and (e) the specific employer involved. There are a multitude of other considerations that can also delay adjudication.
When security clearance issues arise for an applicant, it is important to obtain the advice of an attorney and potential representation. It is important to do so as early in the clearance process as possible. Our law firm advises individuals in the security clearance process, in addition to representing them as they proceed through the investigations process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.