Security Clearance Law Blog

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.

Updated: Top Reasons Why Security Clearances Get Denied 2016

By John V. Berry, www.berrylegal.com

This article has been updated to provide the most common reasons that a security clearance might be denied in the reported government contractor decisions to date.  The information, taken from January 1, 2016 to the present (end of April, 2016), comes from the Department of Defense (DOD), Defense Office Of Hearings and Appeals (DOHA) decisions.  These are available online.  Our last article on the subject contained only about 40 decisions.  The DOHA caselaw database has since been significantly updated, providing far more decisions to include in this type of analysis.  

Security Clearance Guidelines

Keep in mind that reported DOHA decisions generally cover clearance appeals from DOD contractor employees, but the information provides a good insight into the most common reasons that an individual may have security clearance issues arise. There are several reasons why security clearances can be potentially denied, which generally fall under 13 separate categories known as the Adjudicative Guidelines. The federal government uses these 13 adjudicative guidelines to determine whether federal employees and contractors should be eligible for a security clearance to gain or maintain access to classified information. These guidelines include:

Guideline A: Allegiance to the United States

Guideline B: Foreign Influence

Guideline C: Foreign Preference

Guideline D: Sexual Behavior

Guideline E: Personal Conduct

Guideline F: Financial Considerations

Guideline G: Alcohol Consumption

Guideline H: Drug Involvement

Guideline I: Psychological Conditions

Guideline J: Criminal Conduct

Guideline K: Handling Protected Information

Guideline L: Outside Activities

Guideline M: Use of Information Technology Systems

Based on the 273 decisions issued by the Department of Defense (DoD), Defense Office of Hearings and Appeals (DOHA) from  January 1, 2016 to the end of April, 2016, by far the most common reason why a security clearance has been denied is based on Guideline F, Financial considerations. Financial consideration issues usually arise when an applicant for a security clearance has too many outstanding or delinquent debts, is facing bankruptcy, has credit report problems, or has unaddressed tax liens. The second most common reason why a security clearance has been denied in 2016 so far has been based on Guideline E, Personal Conduct. Personal conduct issues can involve a broad range of misconduct, such as information regarding an individual’s prior termination, arrest, or domestic incident, truthfulness in completing security clearance forms, or basically any other type of general wrongdoing, criminal, or otherwise.

The third most common security issue in 2016 where an individual might face a denial of a security clearance involves Guideline B, Foreign Influence.  Foreign Influence issues can involve applicants whose family has ties to another government, country or an applicant who maintains dual citizenship, among other concerns. The fourth most common reason why a security clearance has been denied in 2016 is based on Guideline H, Drug Involvement. Drug involvement or abuse is considered to be the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction (e.g., overuse of prescription pain medication).

Of the 273 cases reported thus far in 2016, the issues that have raised security concerns are as follows (in cases):

1. Financial Considerations: 205
2. Personal Conduct: 60
3. Foreign Influence: 18
4. Drug Involvement/Usage: 17
5. Criminal Conduct: 15
6. Alcohol Consumption:14
7. Foreign Preference: 8
8. Handling Protected Information: 3
9. Sexual Behavior: 3
10. Psychological Concerns: 2
11. Use of Information Technology: 2

Conclusion

It is important to note that the reported DOHA decisions generally cover security clearance appeals from DoD contractor employees, but the decisions provide good insight into common reasons why the federal government denies security clearances. When an individual is engaged in the security clearance hearing or personal appearance 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 here.

Top Reasons Why Security Clearances Get Denied - 2016

By John V. Berry, www.berrylegal.com

This article provides the most common reasons that a security clearance might be denied. The information, taken from January 1, 2016 to the present, comes from Department of Defense (DOD), Defense Office Of Hearings and Appeals (DOHA) decisions. These are available online. Keep in mind that reported DOHA decisions generally cover clearance appeals from DOD contractor employees, but the information provides a good insight into the most common reasons for having a security clearance problem arise. There are several reasons why security clearances can be potentially denied, which generally fall under 13 separate categories known as the Adjudicative Guidelines.

Top Disqualifying Security Concerns

These potential disqualifying security concerns fall under:

(1) Guideline A: Allegiance to the United States
(2) Guideline B: Foreign Influence
(3) Guideline C: Foreign Preference
(4) Guideline D: Sexual Behavior
(5) Guideline E: Personal Conduct
(6) Guideline F: Financial Considerations
(7) Guideline G: Alcohol Consumption
(8) Guideline H: Drug Involvement
(9) Guideline I: Psychological Conditions
(10) Guideline J: Criminal Conduct
(11) Guideline K: Handling Protected Information
(12) Guideline L: Outside Activities
(13) Guideline M: Use of Information Technology Systems

For 2016, of the 42 DOHA reported security clearance decisions so far, the most common reason for the potential denial of a security clearance involved individuals having trouble under Guideline F, Financial Considerations. Financial Consideration issues usually arise when an applicant for a security clearance gets into trouble for having too many debts, delinquent debts, faces bankruptcy, has a problematic credit report or tax liens. The second most common security concern involved personal conduct issues under Guideline E, Personal Conduct which involves a broad range of types of misconduct, such as information regarding an individual’s past employment, an arrest, domestic incident, untruthfulness on security clearance forms, or basically any other type of general wrongdoing, criminal or otherwise.

The next most common issue was drug abuse, falling under Guideline H, Drug Involvement. Drug abuse is considered to be the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction (e.g. overuse of prescription pain medication). The statistics for the year, to date, follow, showing the numbers of cases involving specific security clearance issues:

1. Financial Considerations: 32
2. Personal Conduct: 11
3. Drug Involvement: 6
4. Criminal Issues: 2
5. Foreign Influence: 1

Typically, there has been more variety in the issues under review for security clearance cases. However, after looking at recent statistics, there appears to be a strong emphasis right now on security clearance denials based on financial troubles that clearance holders or applicants face.

Conclusion

When an individual is engaged in the security clearance hearing or personal appearance 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 Berry & Berry PLLC Facebook Page.

 

 

Social Media Information to be Used in Security Clearance Reviews

By John V. Berry, www.berrylegal.com

Under new legislation passed by Congress in December, 2015, federal agencies will begin focusing on social media information as part of the security clearance review process.  The new provisions were placed in a 2016 Omnibus appropriations bill (see Chapter 110—Enhanced Personnel Security Programs) by Congress.  Essentially, the new law adds these new requirements and also establishes a more intensive personnel security clearance program for federal agencies.

Social Media Information Sought

One of the key provisions in the new legislation requires that clearance adjudicators consider social media as part of the security clearance process.  The legislation does not specify how federal agencies should use, gather, and/or evaluate social media data that they obtain from clearance holders.  These rules will be forthcoming in the future.  The new provisions are likely in response to cases in the media where issues that could have been identified through social media might have led to suspended security clearances had authorities been aware of this information.  The new provisions may lead cleared employees to be more careful with the information that they post on social media websites such as Facebook, Twitter or Instagram.

Other Provisions of the New Security Clearance Law

The new law also requires that federal agencies establish plans for investigation of existing security clearance holders at least twice within a 5-year period.  Not many details were provided by Congress in the legislation regarding these additional checks, but it is expected that federal agencies will conduct automated or random checks of a clearance holder within this timeframe. The rules will likely be set for this process in the coming months by the Director of National Intelligence. The goal of the new legislation seems to be in moving to a more continuing process of evaluating eligibility for security clearances. 

The new legislation also requires that agencies seek more information regarding clearance holders, including from other public sources such as commercial and consumer reporting databases.  These new sources can include, but not be limited to, criminal, credit, and/or financial, watch lists and civil legal records.  The new law requires implementation of these changes to the security clearance process within the next five years.

Conclusion

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.

Using Exhibits in Security Clearance Hearings

By John V. Berry, www.berrylegal.com

We are often asked by federal employees and government contractors about the use of exhibits in security clearance proceedings. Because each federal agency generally has their own internal security clearance process, the use and availability of exhibits is not standard in all federal agencies. That said, the use of exhibits in security clearance proceedings is generally similar throughout the different federal agencies. The use of exhibits to support a security clearance appeal is highly recommended in most cases.

Reasons to Present Exhibits During Clearance Hearing

A security clearance hearing or personal appearance centers on specific security concerns. The record that has already been established has been reviewed and without any additional information will likely result in a clearance denial. As a result, it is very important to present documents as exhibits which refute or explain the security concerns at issue and for mitigation purposes. For instance, if the security concern at issue involves an arrest, then a copy of full arrest records would potentially be important to obtain and introduce. Or, if mitigation is needed, then it might be important to obtain letters, declarations or affidavits in support of the individual’s character.

There are many reasons why exhibits are important in a security clearance case. The prehearing guidance typically given regarding the use of exhibits before the Defense Office of Hearings and Appeals (DOHA), is as follows:  

"The parties have a wide degree of discretion in deciding what order to present the evidence in their respective cases. The Federal Rules of Evidence are used as a guide. The parties should not mark any proposed exhibits. At the hearing, the Administrative Judge will mark the exhibits. Exhibits offered as evidence, but not admitted as such, will be retained by the Administrative Judge. As a general rule, photocopies of documents may be offered in lieu of the original, provided that the copies are legible. In the case of public records or business records, it is not required that the copies being offered be certified copies. However, nothing in this paragraph relieves a party from the responsibility of laying a proper foundation for a document when necessary. It is generally good practice to make sufficient photocopies of each proposed exhibit so that separate complete copies can be offered to the Administrative Judge and the opposing party. Preparation of such additional copies should take place before the scheduled hearing date, because there may not be any photocopying facilities available at the hearing location."

DOHA Prehearing Guidance Memorandum.  Most federal agencies have a less formal exhibit admission process than DOHA.  

Examples of Exhibits for Security Clearance Hearings

There are many different types of exhibits that can be used in a security clearance hearing or personal appearance which can go towards the merits of a security concern or towards mitigation. Just a few examples of potential exhibits can include:

1. Financial Considerations cases: Documents showing how any debt in question has been resolved, records of assets, salary, improving or good credit and other means showing that the individual is not subject to potential coercion based on finances.

2. Personal Conduct cases: Documents showing that an individual’s behavior has changed, declarations from individuals that demonstrate that the individual has good character, honesty or a good work record.

3. Illegal Drug use cases: Documents showing that the individual no longer uses drugs, medical documentation showing any recovery from addiction issues or underlying reasons for the illegal drug use, statements or declarations from other individuals showing that the individual has changed their lifestyle.

4. Psychological Concern cases: Documents of mental health treatment, records or expert reports on the stability and diagnosis of any mental health concerns.

5. Foreign Influence cases: Statements and records showing an individual’s loyalty to the United States and lack of association to a foreign country.

How Exhibits are Presented

Depending on the type of security clearance proceeding and federal agency involved exhibits are presented differently. For instance, if the individual’s matter is before DOHA or the Department of Energy then normally the exhibits are provided to the government attorney ahead of time and admitted or not admitted during the start of the proceedings by an administrative judge. If a security clearance matter is before a different federal agency, then they generally have a more informal procedure where you either provide exhibits ahead of time or during a personal appearance. Generally, in such proceedings, there are no significant objections to exhibits.

Conclusion

When an individual is engaged in the security clearance hearing or personal appearance 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.

Using Witnesses in Security Clearance Hearings

By John V. Berry, www.berrylegal.com

We are often asked by federal employees and government contractors about the use of witnesses in security clearance proceedings. Because each federal agency generally has their own internal security clearance adjudication process, the use and availability of witnesses is not uniform through all federal agencies.  However, where applicable, the use of witnesses to support a security clearance appeal is recommended.  Many federal agencies permit witnesses at hearing or during personal appearances. 

Reasons to Have Witnesses

Typically, a security clearance hearing or personal appearance centers on the testimony of the clearance holder.  This is obviously the most important testimony that will be taken at the hearing or personal appearance.  However, there can be situations where it can be very helpful to have other witnesses testify.  There is also a balance that needs to be struck as to the number of witnesses to be called. For example, at a typical hearing before the Defense Office of Hearings and Appeals (DOHA), the usual number of witnesses we traditionally call ranges from 2 to 4.  It is important not to attempt to bring too many witnesses to a hearing if their testimony is duplicative.  If this occurs, the judge may be less inclined to hear all of them, or may attempt to eliminate testimony that is not relevant.  

The guidance typically given for the use of witnesses before DOHA, which is typical of the process used by many federal agencies is as follows:

“Each party is expected to be prepared to present at the hearing whatever evidence (testimonial or documentary, or both) that party intends to offer. In this regard, it should be noted that the Administrative Judge is not empowered by law to issue a subpoena. Thus, the appearance of witnesses or production of documents is purely voluntary, and is the sole responsibility oft he person intending to offer that evidence. The costs associated with the attendance of witnesses is also the sole responsibility of the party calling that witness. . . .

Witnesses will be sequestered (kept out of the hearing room while other witnesses are testifying) during the hearing, with the exception of the Applicant and any expert witnesses. The parties may have the assistance of any expert witness, selected and paid for by the party wishing to call the witness, during the course of the hearing. . . .

All witnesses are subject to cross-examination, or questioning, by the other party. The scope of cross-examination is not limited to the scope of the witness's direct examination. However, any cross-examination must cover issues that are material and relevant to the issues in the case or the witness's credibility. As a general rule, the parties will be allowed an opportunity to conduct one redirect examination and one recross-examination of a witness. The Administrative Judge may, in his or her discretion, question any witness."

Prehearing Guidance for DOHA Industrial Security Clearance Cases

Types of Witnesses for Security Clearance Hearings

There are generally 3 types of witnesses for use in a security clearance hearing or personal appearance.  The first type is a witness familiar with the underlying facts of one of the security concerns. Obviously, if there is a witness available that can support a clearance holder’s version of events, it is important to attempt to bring them to the hearing or personal appearance.  For example, suppose a security concern involves the allegation that the individual had been previously fired from his former employer and had not disclosed the information on the SF-86.  If a clearance holder is able to call his former supervisor to dispute this allegation it can go a long way towards mitigating the security concern.

The second and more common type of witness is the character witness.  These types of witnesses can be used for different purposes. Typically, in these types of clearance hearings it is important to call supervisors who may have had the opportunity to observe the clearance holder or applicant perform work in the past.  Supervisors can testify (among other areas) as to an individual’s loyalty, ability to follow rules, work performance or ability to manage classified information.  Other witnesses who have known the clearance holder or applicant for a long period of time, who can testify as to their character can be helpful as well.  For instance, a longtime friend that has known the clearance holder or applicant a long time might be able to testify to their character (whole person concept), background or other potential mitigating information.  For example, we have called former military colleagues of a clearance holder to testify about the individual's loyalty and ability to maintain classified information.

Third, an individual may decide to call an expert witness.  An expert witness can be useful, for instance, if there is a medical concern.  For example, there could a security concern involving a psychological condition that an expert witness (like a highly qualified medical expert) could address to support the clearance holder’s position that his medical condition does not disqualify him or her from holding a security clearance.    

Conclusion

When an individual is engaged in the security clearance hearing or personal appearance 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.

 

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.