By John V. Berry, Esq., www.berrylegal.com
The U.S. Government security clearance process is not centralized. In addition to security clearances processed by the Department of Defense (DOD), many federal agencies have their own procedures and internal agencies that process their own security clearance decisions for federal employees (e.g. DOE, NRO, CIA, etc).
The clearance system may become more centralized in the future, but it is important for federal employees to be aware of the differences in security clearance processes at their individual agency. This article addresses the security clearance process at the Department of Homeland Security (DHS) for federal employees.
The Clearance Process at DHS
The security clearance process at DHS is somewhat similar to the procedures for DOD employees, but there are some differences. The DHS clearance procedure is governed by Chapter 6 of DHS Instruction # 121-01-007 (starting at page 28). The following are the normal steps in the security clearance review process for DHS federal employees when security concerns arise.
Step 1: Notice of Access Suspension
When a DHS employee faces a security clearance issue that arises, the usual first step is for the DHS agency component (e.g. FAM, TSA, CBP) to issue the DHS employee a Notice of Access suspension, which basically suspends the employee's access to classified information. In this letter, the DHS employee will likely be notified of the personnel security specialist handling the case and the fact that they will be notified of additional processing steps in the future when they become available.
Step 2: Notice of Determination to Revoke
Following a review by DHS, the typical next step is for DHS to issue a Notice of Determination to Revoke Access to Classified Information (Notice of Determination). This notice will list the security guidelines and basis for the clearance decision, which in form looks much like a traditional Statement of Reasons used at DOD and other federal agencies. The notice should put the employee on notice of the security concerns that should be addressed. The notice will also provide the employee with instructions for responding to the Notice of Determination and for requesting information related to the notice. If information is timely requested, the deadline for responding to the notice will normally be extended in order to provide time to obtain the documents sought prior to the next step.
Step 3: Personal Appearance
Once the information sought is obtained, if the DHS employee elects to do so, they can request and present an in person response (known as a personal appearance). During the personal appearance they can present documents in support of keeping their security clearance to the DHS hearing official. These presentations typically take between 45 minutes to an hour and 15 minutes.
Step 4: Appeal to the DHS Security Appeals Board
Following the personal appearance, the hearing official at Step 3 will issue a Notice of Review determination either upholding the clearance denial or restoring the security clearance. Following the notice of denial, the DHS employee will then be given the opportunity to provide an additional written submission to the DHS Security Appeals Board to appeal the adverse decision. The decision of the DHS Security Appeals Board is typically the final step in the process.
Conclusion
When an individual is facing security clearance issues at DHS or in another organization 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 at http://facebook.com/BerryBerryPllc
