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.