By John V. Berry, Esq., www.berrylegal.com
This article outlines the security clearance appeals process for those applying for clearances with the National Reconnaissance Office (NRO). As we have discussed in other blog articles, the U.S. Government security clearance process is not run by one federal agency. The clearance appeals process is governed by Executive Order 12698, which delegates the clearance process to the different federal agencies. The clearance appeals processes generally falls into 2 main groups, those run by the Intelligence Community (IC) and those run by the Department of Defense (DoD) and other non-intelligence gathering agencies. With that background, it is important to note that each federal agency maintains their own internal security clearance process with their own unique procedures.
In addition to security clearances processed by the NRO, many other federal agencies maintain their own procedures and personnel that process their own security clearance decisions for federal employees and government contractors (e.g. DOD, NGA, CIA, DOJ, etc). It is important to be familiar with each process when appealing an adverse security clearance decision. This article focuses on security clearance appeals for government contractors at the NRO.
The Clearance Process at the NRO
The security clearance process at the NRO is a hybrid of the process used by the DOD for DoD employees, but based on the same underlying clearance adjudication principles known as the adjudicative guidelines. The following are the normal steps in the security clearance review process for those seeking to obtain or retain a NRO security clearance when faced with security concerns. It is important to keep in mind that the NRO security clearance process is managed by their internal clearance appeals office. It is also important to understand that employees have the right to counsel before the NRO during the stages of the security clearance appeals process.
The following are the most common steps in the NRO contractor security clearance process.
Step 1: Notification of Revocation of Security Clearance
When a clearance holder or applicant has a security clearance issue with the NRO, they will receive a notice of revocation letter, usually sent by the NRO security staff, listing the security concerns at issue and other rights in a Memorandum. The security concerns will be usually set forth in paragraph form. The rights on review are set forth in some detail in the documents. Review rights generally include the ability to obtain documents (i.e the right to request the Investigative File) upon which the revocation or denial is based within 45 days and the ability to request a personal appearance with an adjudicator during that timeframe. A personal appearance is an administrative hearing before an adjudicator. An individual can also respond solely in writing and waive the personal appearance. In just about every case, a personal appearance is highly recommended.
Step 2: Receipt of the Investigative File
If the Investigative File has been requested from the NRO, the individual will usually be provided with the documentation relied upon by the agency in denying the request for security access. With that response, will come the documentation relied upon in making the adverse clearance determination and a notice usually providing 30 days in which to provide additional documentation and/or schedule a personal appearance. Some portions of the file may be redacted, but one can usually discern the issues that need to be addressed. When the Investigative File is received it is important to prepare to respond with a written response and to prepare for the personal appearance at the NRO.
Step 3: Responding to the Security Concerns in Advance of the Personal Appearance
Upon receipt of the Investigative File, the individual will generally want to provide a written reply in preparation for the personal appearance within the aforementioned 30 day period. It is usually important to provide supporting documents, in advance, to give the adjudicator time to review them in advance of the personal appearance which mitigate the concerns at issue. The documents usually need to be provided within a sufficient time prior to the scheduled appearance. The NRO follows the Adjudicative Guidelines set forth by the Directive of National Intelligence in ICPG 704.2 when reviewing security clearance matters.
Step 4: The Personal Appearance
The next step in the NRO security clearance process is for the employee to present their response to the adjudicator during their personal appearance at the NRO. This should be done with the assistance of a security clearance attorney. These types of presentations typically take about an hour in length. The individual seeking to overturn the initial decision should be prepared to respond to the concerns at issue and also for potential questions by the adjudicator. The meeting will usually take place at the NRO Visitor's Center or at another specified location and may usually last for an hour.
Step 5: Clearance Decision & Further Appeals
Following the meeting with the adjudicator, a decision is made and issued by the NRO. If the decision is adverse, the individual has the opportunity to appeal, in writing, to the next level to a panel which consists of senior security officers. Alternatively, depending on timing, the individual can withdraw from further appeals and re-apply within a 1-year period from the denial, which could be a potential option to consider. If the decision overturns the earlier security concerns the clearance is granted and no further issues remain.
When an individual is facing security clearance issues at the NRO or before another federal agency it is important to obtain legal advice and potential 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.