By John V. Berry, www.berrylegal.com
We are often asked by federal employees and government contractors about the use of witnesses in security clearance proceedings. Because each federal agency generally has their own internal security clearance adjudication process, the use and availability of witnesses is not uniform through all federal agencies. However, where applicable, the use of witnesses to support a security clearance appeal is recommended. Many federal agencies permit witnesses at hearing or during personal appearances.
Reasons to Have Witnesses
Typically, a security clearance hearing or personal appearance centers on the testimony of the clearance holder. This is obviously the most important testimony that will be taken at the hearing or personal appearance. However, there can be situations where it can be very helpful to have other witnesses testify. There is also a balance that needs to be struck as to the number of witnesses to be called. For example, at a typical hearing before the Defense Office of Hearings and Appeals (DOHA), the usual number of witnesses we traditionally call ranges from 2 to 4. It is important not to attempt to bring too many witnesses to a hearing if their testimony is duplicative. If this occurs, the judge may be less inclined to hear all of them, or may attempt to eliminate testimony that is not relevant.
The guidance typically given for the use of witnesses before DOHA, which is typical of the process used by many federal agencies is as follows:
“Each party is expected to be prepared to present at the hearing whatever evidence (testimonial or documentary, or both) that party intends to offer. In this regard, it should be noted that the Administrative Judge is not empowered by law to issue a subpoena. Thus, the appearance of witnesses or production of documents is purely voluntary, and is the sole responsibility oft he person intending to offer that evidence. The costs associated with the attendance of witnesses is also the sole responsibility of the party calling that witness. . . .
Witnesses will be sequestered (kept out of the hearing room while other witnesses are testifying) during the hearing, with the exception of the Applicant and any expert witnesses. The parties may have the assistance of any expert witness, selected and paid for by the party wishing to call the witness, during the course of the hearing. . . .
All witnesses are subject to cross-examination, or questioning, by the other party. The scope of cross-examination is not limited to the scope of the witness's direct examination. However, any cross-examination must cover issues that are material and relevant to the issues in the case or the witness's credibility. As a general rule, the parties will be allowed an opportunity to conduct one redirect examination and one recross-examination of a witness. The Administrative Judge may, in his or her discretion, question any witness."
Types of Witnesses for Security Clearance Hearings
There are generally 3 types of witnesses for use in a security clearance hearing or personal appearance. The first type is a witness familiar with the underlying facts of one of the security concerns. Obviously, if there is a witness available that can support a clearance holder’s version of events, it is important to attempt to bring them to the hearing or personal appearance. For example, suppose a security concern involves the allegation that the individual had been previously fired from his former employer and had not disclosed the information on the SF-86. If a clearance holder is able to call his former supervisor to dispute this allegation it can go a long way towards mitigating the security concern.
The second and more common type of witness is the character witness. These types of witnesses can be used for different purposes. Typically, in these types of clearance hearings it is important to call supervisors who may have had the opportunity to observe the clearance holder or applicant perform work in the past. Supervisors can testify (among other areas) as to an individual’s loyalty, ability to follow rules, work performance or ability to manage classified information. Other witnesses who have known the clearance holder or applicant for a long period of time, who can testify as to their character can be helpful as well. For instance, a longtime friend that has known the clearance holder or applicant a long time might be able to testify to their character (whole person concept), background or other potential mitigating information. For example, we have called former military colleagues of a clearance holder to testify about the individual's loyalty and ability to maintain classified information.
Third, an individual may decide to call an expert witness. An expert witness can be useful, for instance, if there is a medical concern. For example, there could a security concern involving a psychological condition that an expert witness (like a highly qualified medical expert) could address to support the clearance holder’s position that his medical condition does not disqualify him or her from holding a security clearance.
When an individual is engaged in the security clearance hearing or personal appearance process, it is important to have legal representation. Our law firm represents 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 https://www.facebook.com/BerryBerryPllc.