Security Clearance Law Blog

Security Clearance Holders Duty to Report Incidents

By John V. Berry, www.berrylegal.com

Security clearance holders who occupy and who have access to classified information are expected to self-report security changes or incidents that may impact their security clearances. Security Executive Agent Directive (SEAD) 4 is a good guide for clearance holders to determine whether a new incident or development triggers a duty to self-report. Self-reporting is mandatory. Furthermore, it is much better to be proactive in disclosing reportable events than for them to be discovered later. Disclosing these issues prior to them being discovered can be considered to be a mitigating factor should these issue become of concern to security clearance adjudicators.

Security Clearance Holders Should Avoid Investments in Marijuana Companies

By John V. Berry, Esq., www.berrylegal.com

If you are a security clearance holder and you own or work in the ever-growing marijuana industry, you could have difficulties obtaining or keeping a security clearance. We have been counseling clients about this issue since at least 2010. This article discusses the current federal government view on investments in the marijuana industry at present.

The Whole-Person Concept in Security Clearance Matters

By John V. Berry, www.berrylegal.com

The "Whole-Person Concept" in security clearance cases is not well understood. As background, in security clearance cases, there are generally two parts to a clearance appeal: (1) responding to the security concerns at issue (individual disqualifying and mitigating factors) and (2) overall mitigation. Overall mitigation is most often used when the security issues are true or partially true, but an individual is arguing that the concerns should not bar them from the ability to retain or obtain a security clearance.

What is the Whole-Person Concept?

General mitigation is usually referred to as the Whole-Person Concept in security clearance cases. This Whole-Person Concept evaluation focuses on whether the individual, even with security concerns, is an acceptable security risk. The determination calls for determination based on the all of the facts relevant to the person at issue.  Under the Whole-Person Concept, a clearance adjudicator (the government official reviewing the security clearance case) evaluates an individual’s eligibility for a security clearance by considering the “totality” of his or her conduct and all relevant circumstances. There are 9 factors that are reviewed based on the Department of Defense (DoD) Adjudicative Guidelines:
 
1. the nature, extent, and seriousness of the conduct; 
2. the circumstances surrounding the conduct, to include knowledgeable participation; 
3. the frequency and recency of the conduct; 
4. the individual’s age and maturity at the time of the conduct;
5. the extent to which participation is voluntary; 
6. the presence or absence of rehabilitation and other permanent behavioral changes; 
7. the motivation for the conduct; 
8. the potential for pressure, coercion, exploitation, or duress; and 
9. the likelihood of continuation or recurrence.
 
Under these Adjudicative Guidelines, the final determination of whether to grant eligibility for a security clearance is “an overall commonsense judgment” based on both the merits of the security issues and a review of the Whole-Person Concept. While only 9 factors are mentioned in the cases (e.g. at page 8) other factors are also considered but not mentioned. We find that the Whole-Person Concept is often best used to describe the individual’s character, positive work history and record, community involvement and other factors that help to show that the individual’s record merits a commonsense judgment for keeping or retaining his or her security clearance. Many of these generalizes concerns can fall under Factor 9.  

Example

As an example, take the case of an individual who holds a Secret security clearance and has been convicted of a minor criminal offense (i.e. assault). As a result of the issue, security concerns are then raised and the individual’s security clearance is potentially placed at risk. In addition to addressing the issues involving the criminal charge, the person would likely need to present evidence of good character (e.g., letters from supervisors, friends, and family), good or outstanding performance at work, military service, and/or community/charity involvement.  Evidence of prior public service, accomplishments or commendations can also be helpful under the Whole-Person Concept. Generally, we find that security clearance holders are not provided information from the government or security officers about how to use the Whole-Person Concept to assist them in resolving security clearance concerns.

Conclusion

In sum, the Whole-Person Concept is the part of the security clearance case where an individual gets to argue that notwithstanding the security issues that the person is still an acceptable security risk based on their life and record.

Social Media Incorporated into the Security Clearance Process by the Government

By John V. Berry, Esq., www.berrylegal.com

On May 12, 2016, the Director of National Intelligence James Clapper issued the first government policy on the federal government’s use of social media when evaluating background investigations and security clearances for federal employees and government contractors.  The policy is known as Security Executive Agent Directive 5, which will have a major impact on the review of social media information in the context of security clearance investigations.

Security Executive Agent Directive 5 

Security Executive Agent Directive 5 does not require that security clearance decisions necessarily consider social media information, but instead permits the collection of “publicly” available social media information if an agency official determines it to be a useful tool for security clearance investigations. From experience, it is extremely likely that most, if not all, agency officials will find such information to be a necessary tool for security clearance investigations in the future given how significant social media has become in our society. While the new policy does not require the collection of non-publicly available social media information, it is possible that such information could be required in future policies governing security clearance investigations, especially for individuals with top secret clearances or special access.  For now, however, security clearance investigators are only reviewing publicly available social media information under the new policy. Information that is protected by appropriate privacy settings will not be reviewed by security clearance investigators.

Furthermore, unless there is a national security concern or an additional criminal reporting requirement, information uncovered as a result of a review of an applicant’s publicly available social media information that involves other individuals or groups will not be pursued. Security clearance investigators are also restricted from requesting or requiring individuals to provide their social media passwords or requiring individuals to log on to their private social media accounts to disclose non-publicly available information. The new policy also bars security clearance investigators or agencies from creating or using social media accounts to “Friend” or “Follow” the individual who is under investigation.  The new directive is the first major policy by the government in incorporating social media into security clearance investigations, but it is likely that the scope of the information sought will increase in future policies.

Conclusion

We represent individuals in security clearance matters. If you need assistance with a security clearance matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

Financial Considerations: Reducing the Risks to Losing a Security Clearance

By John V. Berry, Esq., www.berrylegal.com

Financial considerations security concerns are the most common issues that can result in the loss of, or inability to obtain, a security clearance. It is critical that when an individual runs into financial issues that they have counsel to assist and advise them with respect to the security clearance process.  In security clearance cases,  financial issues are generally referred to as Guideline F cases. In Guideline F cases,  the government’s concern is generally focused on how a person has handled his or her finances and/or his or her vulnerability to financial manipulation given a pattern of overspending or debt.  In one of our most recent articles, we mentioned that 3/4 of recent security clearance cases involving a financial consideration issue.  

The following are some 7 tips to help minimize the risk of losing a security  clearance involving financial considerations:

1. Pay your bills. Most security clearance clients seek our assistance when they have multiple bills that are past due, delinquent, in collections, or have been charged off. In Guideline F cases, the existence of multiple, unpaid debts seems to be the most typical reason for the loss or denial of a security clearance.  It is important to gain control of your finances in such situations in order to attempt to keep your security clearance.  

2. Pay/File your taxes. Individuals in tax trouble or who fail to pay and/or file their taxes risk losing their clearance. These tax issues tend to be viewed as more significant for security clearance purposes than regular debts. If outstanding taxes or tax liens are too much for the individual to pay off all at once, it is important to try to work out a plan with the IRS or state tax agency and show good faith towards resolving these debts in order to keep or obtain a security clearance.  The government takes a very skeptical view of a clearance holder or applicant that has not resolved their taxes.  

3. Monitor your credit report. Often times, an individual has encountered difficulties in the security clearance process because incorrect information is listed on his or her credit reports. In our experience, errors can be common, but can also lead to security clearance issues raised by the Government. It is important for an individual applying for or holding a security clearance to keep a close eye on his or her credit report for errors and potential problems.  If a debt is inaccurate, it is important for an individual to dispute the debt as soon as possible and keep records of all disputes and efforts to demonstrate that a debt does not belong to an individual.  

4. Do not run up significant debts and/or live beyond your means. Having too many debts can put an individual at risk of losing a security clearance. To the government, this can indicate that the individual is living beyond his or her means.

5. Work with creditors to attempt to resolve unpaid debts. It is always better for an individual to get ahead of his or her credit problems than to wait until he or she receives notice of a possible denial of a security clearance. An individual who recognizes a debt problem and works towards resolving it early and before a clearance issue is raised tends to be given more credit towards the granting of the clearance as opposed to an individual who starts the process after he or she receives notice of the potential loss of the clearance.  Even if a creditor is non-responsive, it is important to try multiple times to communicate with the creditor in an effort to resolve these issues.  

6. Consider credit counseling/ credit classes. If an individual falls behind in his or her debts, it is  still important to show how that individual is working to get back on a healthy financial track in order to alleviate concerns about the individual’s ability to hold a security clearance. Taking meaningful credit classes or engaging in credit counseling can help mitigate security concerns by showing affirmative steps taken by an individual to get better control over his or her finances.  

7. Report potential issues to security officer/investigator.  If and when major financial issues arise, it can be important to report them, in advance, to an individual's security officer. Doing so in appropriate situations can be evidence of mitigation for security concerns.  

When facing financial consideration security concerns it is important to have the assistance and advice of counsel.  We represent individuals in security clearance and other employment matters. If you need assistance with a security clearance issue, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on our Facebook page.

DoD CAF Hosts New Website for Security Clearances

By John V. Berry, www.berrylegal.com

 

The Department of Defense Consolidated Adjudications Facility (DoD CAF) has launched a relatively new website for federal employees and government contractors seeking information about how the DoD CAF process security clearances.  The new website can be found at www.dodcaf.whs.mil//  The new website contains helpful information on security clearance adjudications, appeals and how to request documentation relevant to such cases.  

When an individual is engaged in the security clearance 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.

Use of Medical Professionals in Security Clearance Cases

By John V. Berry, Esq., www.berrylegal.com

When federal employees or government contractors face security clearance issues it can be helpful for them to have support from a medical professional, depending on the issues involved.  In our security clearance practice, where appropriate, we often recommend that individuals consult with medical professionals (if they have not done so already) where medical or medical-related security concerns are under review.

Types of Security Concerns Involving Medical Professionals

In general, there are a variety of security concerns where a seasoned medical professional may be of assistance in a security clearance case.  For example, we often find medical professionals helpful in cases where psychological conditions under Guideline I of the security clearance adjudication guidelines are involved.  We also find medical professionals to be of assistance where a clearance applicant or holder has security concerns involving drug usage (Guideline H) and/or alcohol-related traffic matters (Guidelines E and J). These are just examples of the more frequent types of clearance cases where a medical professional or expert may be useful.  Depending on the facts of a security clearance case, there can be other situations (other than those above), where the use of a medical professional would be helpful to a security clearance holder.  

Use of Medical Professional in Security Clearance Matters

Where a security clearance is at issue, it can be very helpful to obtain a medical professional’s review of the underlying issues.  The clearance authority, whether it is DoD CAF or any of the other clearance adjudication agencies (FBI, NRO, DoE, etc.) when such situations arise, will ask whether there are mitigating factors present regarding the security concerns at issue.  When this occurs, it can be important to have a medical professional, if a regular physician is not available meet with the individual to attempt to mitigate the security concerns at issue.  A few examples where medical professionals can be of help, follow:

Example A: Clearance holder has had 2 arrests for driving while intoxicated over the past 4 years.  In such a situation, it would be important to have a medical professional evaluate, counsel and respond to the types of security concerns involved.  It is often the case that a medical professional can outline all treatment options available to the individual, analyze the efforts undertaken by the individual to address any alcohol concerns or treatment.  A seasoned medical professional can also render a medical opinion as to whether or not such issues are likely to re-occur in the future and can outline the best methods for an individual to avoid such issues in the future.  Clearance authorities take reasoned medical opinions into account when considering whether or not to permit an individual to obtain or retain their security clearance. 

Example B: Clearance holder has a significant mental health disorder and a clearance authority needs to determine whether the medical condition would affect the individual’s ability to hold access to classified information.  In such situations, it is important to ensure that a medical professional provides a reasoned medical opinion as to whether the mental health condition will be an impediment to retaining a security clearance.  The medical professional, in such a case, can evaluate the individual's medical history, treatment undertaken for the medical issues and also issue an opinion as to how the medical condition will likely affect the clearance holder in the future.  

General Thoughts on the Use of Medical Professionals

Medical professionals are often asked to complete security clearance paperwork forms for clearance applicants and holders.  They are often also asked to meet with clearance investigators and discuss the individual's medical condition.  In many security clearance cases medical professionals also provide detailed medical evaluations and even testify during security clearance administrative hearings.  The effective use of a medical professional, in appropriate cases, can make a significant impact on whether or not the individual retains, is granted or loses their security clearance.  I have attached a link to a nice article completed by Brian Crowley, MD, about the role of the psychiatrist in the security clearance process.  The article is published in the Washington Psychiatrist, on pages 11-12. The Psychiatrist in the Security Clearance Process. 

Conclusion

When security clearance issues are of concern, especially those related to serious medical conditions, it is important to obtain the advice of counsel as early in the process as possible. 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 Berry & Berry PLLC Facebook Page.

Changes to Security Clearance Process Approved by Senate Committee

By John V. Berry, Esq., www.berrylegal.com

Proposed Changes to Security Clearance Process

A new Senate Bill, S.434, the Security Clearance Accountability, Reform, and Enhancement Act of 2015 was introduced by Senator Jon Tester of Montana. The new proposed law would subject federal employees to mandatory removal for certain types of misconduct related to security clearance investigations.  The new legislation was approved by the Senate Homeland Security and Governmental Affairs Committee and advances to the full Senate.  It is uncertain whether or not the new bill will be passed by the full Senate and House and ultimately signed into law, but the bill has made it out of committee, which is a significant step.

The new bill, if it became law would modify the existing security clearance process for both federal employees and government contractors.  The provision would require federal agencies to remove (or place on administrative leave) any federal employee found to have engaged in misconduct involving the security clearance process (e.g. federal employee found to have falsified their clearance application).  The new law, if passed, would also prohibit government contractors involved in similar misconduct from performing background investigations.  Finally, among other provisions, the new law would require government contractors to report violations by their employees to government agencies. A full copy of S.434 is provided here.

Conclusion

Our law firm advises federal employees and government contractors 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.

Facebook, Twitter and your Security Clearance

By John V. Berry, Esq., www.berrylegal.com 

We live in a digital age.  It seems that almost everyone these days uses Facebook or Twitter, Instagram, etc. to communicate with the world.  The question being raised, these days, is to what extent (and how often) will security clearance authorities review the social media accounts of security clearance applicants and holders in the future as part of the government’s current upgrades to the security clearance review process.  Right now, these questions are being debated by the government.

Experimentation by the DNI with Social Media in Clearance Reviews

Reviewing the possibility of including social media reviews as part of security clearance processing is the Office of the Director for National Intelligence (DNI).  According to a number of news accounts, National Counterintelligence Executive Bill Evanina has undertaken to review the feasibility of including social media evaluations as part of the security clearance process.  One consideration being given consideration by Mr. Evanina’s office is whether or not it this type of review is realistic and would be useful.  

There have been ongoing trials of social media review with volunteers by the DNI to see how such a system would function and whether it would work in the real world.  The trial apparently includes a review of all public entries in social media by volunteer clearance holders.  For instance, the trial review includes essentially a Google search into publicly available information online by a security clearance holder to see if the information gives rise to security concerns.  According to one news account, by Mark Rockwell of The Business of Federal Technology, the social media trial caused a deeper investigation into 28% of the clearance holders.  FCW Article

How Social Media Might Impact a Security Clearance

If social media reviews are ultimately incorporated into the security clearance process, a number of questions come to mind as attorneys that represent security clearance applicants and holders.  These include: (1) will individuals just be checked for public social media entries?; (2) will the government eventually attempt to ask clearance holders for their password and credentials?; and (3) how often will such checks be conducted (continually, annually, every 5 years, etc.)?

The issues that could arise from social media reviews in the context of holding a security clearance could be significant.  For instance, could having too many friends on Facebook from foreign countries cause a foreign influence concern?  Could having a friend on Facebook who is engaged or associated with criminal or improper activities reflect poorly on a clearance decision? Could a statement by a clearance holder made on Twitter be taken out of context and form the basis for general personal conduct issue?  While the process is far off, and may not come to fruition in the final government upgrade, these are legitimate questions to ask.  

In the interim, clearance holders might be advised to be careful on their social media accounts.  In the end, the DNI might not decide to move forward with such a system, but it is important to keep abreast of such developments as pending changes to the security clearance process continue.  

Conclusion

When an individual is facing security clearance issues 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

Reporting Criminal Violations in the Security Clearance Process

By John V. Berry, Esq., www.berrylegal.com 

There are times when an individual is potentially facing security clearance issues related to criminal law violations.  There was a time when the reporting of potential criminal violations may have put a security clearance at risk, but generally did not expose an individual to potential criminal liability.  Absent some specific exceptions, federal agencies did not seem to significantly report such issues to law enforcement.  

Today, however, it seems that federal agencies are giving more consideration to disclosing criminal violations to law enforcement authroities when they come across these issues in the security clearance process.  When such a situation arises, it is important to have the guidance of counsel as early in the security clearance process as possible to determine the best course of action.  Typically, criminal law disclosures occurr during the interview process or during a polygraph examination.  

More Common Criminal Disclosures 

Some of the more common situations that we have come across with respect to the reporting of criminal issues involve individuals reporting prior drug use, minor theft (e.g. shoplifting) and other relatively minor criminal violations.  These more common situations are generally not reported to law enforcement authorities by security clearance authorities.  

However, reporting serious crimes during a security clearance interview and/or polygraph examination has now become a significant issue which requires additional though prior to responding.  Serious crimes that may be reported can potentially include crimes or abuse involving children, major theft and the distribution of narcotics.

Subtle Changes in How Criminal Issues are Reported

There have been some subtle changes in how federal agencies deal with criminal issues disclosed during the security clearance process.  In the past, some intelligence agencies took the position that there was no legal obligation to report most federal criminal law violations to the Department of Justice.  However, these agencies have now also taken the view that nothing prevents them from disclosing such information to law enforcement either.  In other words, this leaves a fair amount of discretion to these agencies in what they decide to report.  

Intelligence agencies have been focused mostly on the reporting of federal criminal violations, as opposed to those involving state criminal law violations.  Some federal agencies have implemented new policies to determine whether state law violations should be reported.  One agency has indicated that they will report state criminal issues where the crime involves an imminent threat or serious bodily injury to another human being.  

The move to report additional criminal activities to law enforcement seems to have only increased with media reporting of security clearance related criminal activities, such as the Navy Yard shooting and the Edward Snowden disclosure issues.  These high profile security clearance related matters have made clearance investigators somewhat more likely to report serious crimes disclosed during the clearance process which have not previously been reviewed by law enforcement authorities.  There have also been some recent congressional investigations into the failure of some federal agencies to report serious crimes disclosed during the clearance process.  

However, given the high volume of reported minor criminal issues (i.e. past drug use) that occurs during the security clearance process the likelihood is that federal agencies are unlikely to refer more than the most serious crimes uncovered in the security clearance process.  

The Best Course of Action - Obtain Legal Advice

When evaluating one’s risks in reporting security clearance issues  involving possible criminal conduct, it is important to obtain legal advice as early as possible.  An attorney familiar with this area of law can help advise you as to whether it is appropriate to continue in the security clearance process and potential risks with respect to criminal issues which are disclosed to security clearance investigators, polygraphers, etc.  

Conclusion

When an individual is facing security clearance issues in the context of potential reportable criminal behavior, 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