Security Clearance Law Blog

The NRO Security Clearance Process

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.

New Security Clearance Adjudicative Guidelines Put into Effect

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

The former Director of National Intelligence (DNI), James Clapper, issued new adjudicative guidelines for all federal agencies to follow on December 10, 2016.  These guidelines, known as Security Executive Agent Directive 4 (SEAD 4) have been in effect since June 8, 2017.  The Adjudicative Guidelines explain the security concerns that may arise and potentially applicable mitigating factors.  I have attached two versions to this post, a PDF copy of Download Security Executive Agent Directive 4 here and a text version which follows and which may have some typographical errors based on PDF conversion.  The document contains 3 major portions: (1) the adjudication process; (2) the new adjudicative guidelines A-M, and (3) potential exemptions for individuals that meet certain criteria. When an individual is facing actual security clearance concerns or potential concerns 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.

The CIA Security Clearance Process

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

This article outlines the security clearance appeals process for those applying for clearances with the Central Intelligence Agency (CIA). 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 generally falls into 2 main groups, those run by the Intelligence Community (IC) and those run by the Department of Defense (DoD). That said, each federal agency has their own internal security clearance process with its own nuances.

In addition to security clearances processed by the CIA, many other federal agencies maintain their own procedures and personnel that process their own security clearance decisions for federal employees (e.g. DOD, NGA, NRO, 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 CIA.

The Clearance Process at the CIA for Contractors

The security clearance process at the CIA is fairly different than the one utilized for DoD employees, but based on the same underlying clearance principles. The following are the normal steps in the security clearance review process for those seeking to obtain or retain a CIA security clearance when faced with security concerns. The CIA security clearance process is managed by their clearance appeals office. Employees have the right to counsel before the CIA during the stages of the security clearance appeals process.

Step 1: Notification of Security Disapproval

When a clearance holder has a security clearance issue with the CIA, they will receive a notification of disapproval letter, usually sent on generic letterhead, listing the security concerns at issue and other rights in a Memorandum. The specificity of the security concerns at issue varies, so it is important to obtain additional information. 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 10 days and the ability to request a personal appearance during that timeframe. A personal appearance is an administrative hearing before a panel of clearance adjudicators (or a single adjudicator). An individual can also respond solely in writing and waive the personal appearance. A personal appearance is highly recommended.

Step 2: Receipt of the Investigative File

If the Investigative File has been requested from the CIA, the individual will be provided with the documentation relied upon by the agency in denying the request for security access. Many 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 CIA.  

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. It is usually important to provide supporting documents, in advance, to give the adjudicator(s) time to review them in advance of the personal appearance. The documents usually need to be provided 2 weeks prior to the scheduled appearance. The CIA 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 CIA security clearance process is for the employee to present their response to the adjudicator(s) during their personal appearance. This should be done with the assistance of an attorney. These types of presentations typically take about an hour in length. The individual seeking to overturn the initial should be prepared to respond to the concerns at issue and also for potential questions by the adjudicators.

Step 5: Further Appeals

Generally, the best attempt to overturn the disapproval is at the initial stage. However, in some cases it is important for the individual to appeal the initial decision (either an adverse decision from a written response or an adverse decision issued after the personal appearance). The appeal, if filed, should be filed within 30 days of receipt of the initial unfavorable decision.

Conclusion

When an individual is facing security clearance issues at the CIA 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.  

NSA Security Clearance Process

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

As we have mentioned in other articles, the U.S. Government security clearance process is not centralized and varies somewhat between federal agencies.  In addition to security clearances processed by the Department of Defense (DOD), other federal agencies have their own procedures and personnel that process their own security clearance decisions for federal employees and government contractors  (e.g. DOS, DHS, DOI, NGA, DOE, NRO, CIA, etc). The National Security Agency (NSA) is an agency with its own security clearance process. This article addresses the security clearance process at the NSA for security clearances and Sensitive Compartmented Information (SCI) access.

The Clearance Process at NSA

The security clearance process at NSA is somewhat similar to the procedures for DOD employees, but there are some differences.  The NSA follows the intelligence agency policies regarding the processing of security clearances and SCI access.  These policies are referred to in the Intelligence Community Policy Guidance (ICPG).  The following are the normal steps in the security clearance review process for NSA clearance holders or applicants when they are confronted with security clearance issues.

Step 1: Revocation / Denial Letter

When a federal, military or contractor employee has a security clearance or SCI access issue with NSA, they will receive a revocation or denial letter from the NSA, listing the background and security concerns at issue.   The background will list the specific security concerns at issue.  The individual will usually then  be given 45 days in which to request a review of the security concerns and respond to the security concerns. The investigative file, upon which the denial is based, will usually be included as well to facilitate a response by the individual.  The investigative file will usually include reports and/or other items relevant to the security concerns.  

Step 2: Responding to the Revocation / Denial Letter

At this stage, the individual responds to the revocation or denial letter from the NSA. A response should address the security concerns at issues, e.g. Guideline E, Personal Conduct, or other issues and focus on the potential mitigation of the security concerns.  It is important to provide documentation, such as declarations, affidavits, and other documentation relevant to the security concerns at issue.  

Step 3: Decision by Office of Personnel Security on First Appeal Review

Once the appeal by the individual is received, the NSA Office of Security will issue a decision as to whether or not the security concerns have been dismissed or mitigated. If so, the matter is then resolved. If not, the individual will be provided a decision, usually a page or two in length, discussing the reasons why the First Appeal was denied and of the right to a final appeal.  The First Appeal may indicate that some of the items have been mitigated, but that others have not been.  

Step 4: Review by NSA Access Appeals Panel

The next step in the NSA security clearance process is for the employee to appeal to the NSA Access Appeals Panel. This is an in person appeal where the individual can be represented by counsel in presenting evidence and argument as to why the security clearance or SCI access decision should be overturned. During this personal appearance before the Access Appeals Panel, the individual can present documents in support of keeping their security clearance to the panel.  

Step 5: NSA Access Appeals Panel Decision

Following the personal appearance, the NSA Appeals Panel issues a decision, either granting the clearance or access at issue or a denial.  There is also the process of re-applying for a clearance after a waiting period following a denial.  

Conclusion

When an individual is facing security clearance issues at NSA 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.