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 45 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.
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.