Security Clearance Law Blog

Another Good Article on Security Clearance Incident Reports

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

This is the final part of a 3-part series on some of the interesting issues that have arisen with respect to incident reports in the Whistleblower context by Ed Ledford. Ed Ledford Article.  It is recommended reading.  

The Importance of Properly Completing Security Clearance Forms

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

When applying or re-applying for a security clearance, it is very important that one
spends enough time on their application in order to properly complete their security
clearance paperwork.  Often times, there can be many mistakes which result from not spending enough time in reviewing and completing the SF-86 / Electronic Questionnaires for Investigations Processing (e-QIP) submission paperwork.  These
mistakes can significantly delay or seriously affect an individual’s ability to obtain
or maintain a security clearance. 

The e-QIP is the electronic means in which to complete the forms for an individual’s security clearance (i.e. the SF-86).  In the past, this was completed directly
on the paper form itself.  The e-QIP process, through OPM, has changed this from a paper based application to a web-based system.  The e-QIP system allows the
individual to complete their background investigations online over a secure
Internet connection. 

Tips in Completing the SF-86 / e-QIP

One of the most frequent pieces of advice that we provide to security clearance clients is that it is important for them to be truthful in the completion of their security clearance paperwork. Often times, issues that arise that seem major are far less significant than the problems that arise when an individual is less than honest in their security clearance application paperwork.  It can be very difficult to overturn an adverse finding on truthfulness or honesty.

In addition, when the SF-86 / e-QIP is completed too quickly or without adequate preparation it is often the case that mistakes can be made.  When a mistake is made, even if not intentional, security clearance authorities (DoDCAF, CIA, NSA, etc.) can view the omission as intentional in nature which can also raise an issue of truthfulness or lack of full disclosure even if the mistake was not intentional. 

Therefore, before the SF-86 / e-QIP is completed, if there are potential issues, they should be fully reviewed with the assistance of counsel familiar with the security clearance process.  Often times, the questions asked can have more than one meaning in the context of an individual issue.  Other tips for the proper completion of the SF-86 / e-QIP include obtaining information from prior employers, contact information for friends and relatives, in addition to any documents related to information that must be disclosed (e.g. an existing tax lien or arrest record that must be disclosed). 

What to do when Issues Arise in Completing the SF-86 / e-QIP

When issues arise for an individual in the security clearance application process, it is important to obtain the advice of counsel in completing one’s security clearance paperwork.  For example, if an individual is facing their 5-year re-investigation and have had a driving under the influence charge in the interim, it is important to prepare to respond to the allegation, in advance of submitting one’s SF-86 / e-QIP given that this will be an important part of the new investigation. 

Conclusion

When security clearance issues arise it is important to obtain the advice of counsel where potential issues might arise. An individual will want to obtain legal advice if there is reason for concern regarding their completion of this security clearance paperwork. Our law firm stands ready to advise individuals on the issues involving the proper completion of security clearance forms and associated disclosures. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

Security Clearance Processing Times

By John V. Berry, www.berrylegal.com

 

In an interesting recent article, the Director of National Intelligence listed the various federal agency processing times for security clearance adjudications.  The report details the different ranges of time needed to adjudicate a security clearance based on the agency involved. The report findings show how the times varied based on the agency.  The article is recommended reading.  DNI Security Clearance Processing Times

Berry & Berry, PLLC Quoted by Security Clearance Publication on Whistleblower Issues

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

Our law firm was recently interviewed by Clearancejobs.com regarding many issues with respect to the Joint Personnel Adjudication System (JPAS) and the impact of the Whistleblower Protection Act (WPA) and the Intelligence Community Whistleblower Protection Act (ICWPA) in connection with JPAS.  This article, by Ed Ledford, illustrates some of the major developing areas in security clearance law.  We have attached the link to this article for your review.  Clearance Article with John Berry.  Mr. Ledford's earlier installment in this series is located at Ledford Clearance Article.  Both are helpful reading with respect to some important and developing areas of security clearance law.   

Retaining an attorney familiar with the issues in responding to security clearance issues is important. Our law firm represents federal employees and government contractors in security clearance matters and can be contacted at www.berrylegal.com for assistance.

Berry & Berry, PLLC quoted by Time Magazine on Security Clearance Issues in NSA Case

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

In an interesting article by Time Magazine's Andrew Katz, Berry & Berry, PLLC was quoted regarding the ongoing security clearance issues facing the federal government wiht respect to the investigation into the NSA leaks by former employee Edward Snowden. Click on the following linked article for a full discussion in the article. Time Interview with John Berry

Counterintelligence (CI) Polygraph Examination Considerations

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

We represent individuals who are scheduled for Counterintelligence (CI) polygraph examinations.  A CI Polygraph examination is the most common type of polygraph examination and is geared towards screening for issues associated with espionage, sabotage, terrorism, unauthorized disclosure of classified information, unauthorized contacts with foreign nationals and deliberate damage to or malicious misuse of a U.S. government or defense system.  This type of examination is different than a Lifestyle Polygraph examination which covers more personal issues. 

Issues that are often times examined in more detail during CI Polygraph examinations
include questions focused on espionage and on improper disclosures of classified documents. While all of the areas mentioned above are part of the process, these two areas tend to be a significant focus of the CI polygraph.  The improper disclosure of documents tends to be one of the most significant areas of examination in recent times. 

How CI Polygraph Examinations are Conducted

CI Polygraph examinations are administered by professional polygraph examiners trained in their fields.  These types of examinations generally take about 2 to 3 hours to complete in the normal process.  If you are scheduled for a CI Polygraph examination, you can decline to take one, but it could have a negative effect on one’s ability to maintain or obtain their clearance.  There are three phases to the CI Polygraph examination

Pre-Test Phase

These examinations generally begin with a pre-test phase which the polygraph examiner uses in prepared the individual for the examination.  During this phase, the individual will usually be explained about the history, rationale and legal issues associated with the polygraph examination, the nature of the questions that will be asked, and will go over pertinent concerns with the person that will be taking the polygraph.  The polygraph examiner will also usually calibrate his/her equipment during this time. 

In-Test Phase

The in-test phase for a CI Polygraph examination is the portion of the exam where the polygrapher asks the individual the questions for the areas identified above.  Some examples of potential areas of questioning include the topics of espionage, disclosure of classified information, improper storage of documentation, engaging in terrorist activities and meeting with foreign agents or governments.  

Post-Test Phase

Following the in-test phase, the polygrapher moves to the post-testing phase where the
individual is questioned about any difficult areas that came up during the examination.  It is also during this stage that the polygrapher will form their opinion as to whether or not the examination has been successful.  Typically, in addition to the polygrapher in the room, there may be a supervisor observing the polygraph examination itself. 

Followup Polygraph Examination

If, after the CI Polygraph examination, an individual does not pass they can be brought back for additional examinations. Polygraph examinations are not always easy, but it is important to be honest in the polygraph examination process.  

Conclusion

When undergoing a CI Polygraph examination, depending on the issues involved, it may be important to have an attorney.  Our law firm advises and represents individuals on the issues surrounding a CI Polygraph examination as part of their security clearance evaluation.  We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. 

 

Security Clearance Issues Related to the Sequestration Process

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

As the sequestration process in the federal government continues, it is important to note the potential effect of pending furloughs on a federal employee's security clearance. On first glance, one would think that the sequestration and potential furloughs would not significantly impact eligibility for a security clearance. However, there has been a fair amount of debate on the issue.

As many federal agencies began the furlough process, many federal employees holding security clearances may wind up in an unpaid leave status for a number of days over the next few months. Many federal employees are facing unpaid furloughs, over the next 5 months, which could amount to as much as a 20 percent pay cut. The effect of such a significant loss in pay, for some federal employees, could result in negative financial issues affecting Adjudicative Guideline F, Financial Considerations (the provision of the security clearance guidelines which discuss security concerns based on indebtedness and financial ability).   

The sequester could thereby affect federal employees that cannot afford the 20 percent cut and as a result are unable to pay their bills, meet their obligations or their credit is otherwise negatively impacted. If such a situation occurs, a federal employee should consult with an attorney familiar with security clearance matters regarding the steps that should be taken to protect an individual’s security clearance. Generally, it is important to work, in advance, with one’s creditors to attempt to resolve any financial issues, ahead of time, that may result due to the pending unpaid furloughs. 

The Department of the Navy has provided some basic guidance in this area. Navy Guidance  This guidance is helpful, but before any of the steps in this memorandum are taken it is advisable to first speak with counsel because individual circumstances require individual legal advice.  Our law firm represents federal employees and government contractors in security clearance matters and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

Filing Information Requests in Security Clearance Cases

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

When trying to uncover problem areas in a security clearance investigation for an applicant, it is recommended that they seek information related to their security investigation. There are 2 statutes in the U.S. Code that are useful for obtaining information related to a security clearance matter. These are: (1) the Privacy Act of 1974, 5 U.S.C. § 552a (Privacy Act) and (2) the Freedom of Information Act (FOIA), 5 U.S.C. § 552.

Privacy Act Requests

Filing an information request in relation to a security clearance investigation through the Privacy Act can be a valuable tool for federal employees and government contractors in attempting to respond to issues that arise in the context of a security clearance review or in later rebutting allegations related to a security clearance action that has arisen.

Privacy Act requests are used to attempt to obtain information considered “personal” to the individual involved, i.e. the security clearance investigation that was conducted on the applicant. Typically, when seeking this type of information, an individual is generally requesting copies of their own security clearance investigation file in order to determine the problem areas identified in the clearance investigation process. A request for these documents is generally sent to the Office of Personnel Management (OPM) or the Defense Manpower Data Center.

FOIA Requests

FOIA requests, as opposed to Privacy Act requests, focus on information that is not directly personal to the individual requesting the information. This type of information can be sought by the public at large. Federal employees or contractors may find a FOIA request useful to obtain information related to security clearance allegations but which is not directly related to them. For instance, if the information requested is not personal in nature, such as documents containing Agency policies (e.g. manuals, forms, policies, inspection reports) a federal employee or contractor would generally use a FOIA request to attempt to obtain these items.

Closing Thoughts

Generally, for federal employees, one can use the information to respond to allegations contained in a Statement of Reasons (SOR) against them. For current or former employees of government contractors, the information is usually sought following an initial denial of a security clearance in order to obtain information about the derogatory information listed in the prior investigation.

Retaining an attorney familiar with the issues involved in preparing Privacy Act / FOIA requests for security clearance cases is highly recommended. It is very important to do so early in the process in order to respond effectively in security clearance cases. Doing so can often make the difference between obtaining or being denied your security clearance. Our law firm represents federal employees and government contractors in these types of security clearance matters and can be contacted at www.berrylegal.com.

Responding to the Statement of Reasons in a Security Clearance Case

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

Our law firm represents many individuals in security clearance matters. In previous articles, we have written about the significance of the Statement of Reasons (SOR) in security clearance defense cases. In this article, we are going to discuss some important general issues in regards to responding to an SOR when it is received.

The Statement of Reasons

Typically, an SOR is received by a federal employee or federal contractor when it has been recommended that their security clearance be revoked. Generally, the employee or contractor will receive a notice which lists the reasons why it is believed that the individual’s holding of a security clearance is not clearly consistent with the national interest. The SOR will then typically list the security concerns applicable in a case. 

These security concerns are listed in the Adjudicative Guidelines through DoD Directive 5220.6 which also provide the basis for seeking mitigation of these security concerns. Finally, the SOR will give you a deadline for responding to the SOR.

How to Respond

1. Take the Response Deadline Seriously: First and foremost, it is very important to be timely in your response to an SOR. Typically, the response time for most SORs is 20 days from receipt of the document. It is highly recommended that an individual respond as early as possible and not wait until one gets close to the deadline. Extensions are possible, but are not always granted. 20 days is not a significant amount of time, so it is important to get started on your response right away.

2. Obtain Counsel to Assist you in your Response: When an SOR is received, it must be taken seriously and one should seek counsel to help them in responding to the security concerns raised. The consequences for not doing so can be serious harm to one’s career. Often times an experienced attorney in this area can identify potential mitigating circumstances that can help one make the argument that their security clearance should be granted.

3. Review the Security Concerns in the SOR Fully: An individual should make sure that they have read over all portions of the SOR in preparation for responding to the security concerns. They should then outline a response to the concerns that have been raised in preparation for drafting their response.

4. Respond Fully to All of the Security Concerns Listed: Take each security concern seriously and take the time to address each one in your response. Make sure that you have reviewed all mitigating factors to see which ones are potentially applicable and then include them in your SOR response. Also, it is important to attach all potentially mitigating documentation and/or statements to support your contention that the recommendation in the SOR should not be followed. When we represent individuals in responding to SORs the presentation of relevant documents and statements are a key part of the response process and should be done in most cases.

Closing Thoughts on Responding to an SOR

Retaining an attorney familiar with the issues in responding to an SOR in the security clearance process is highly recommended. It is very important to do so early in the process given that the deadlines for responding can be relatively short. Doing so can often make the difference between obtaining or being denied your security clearance. Our law firm represents federal employees and government contractors in these types of security clearance matters and can be contacted at www.berrylegal.com.

The DOD Security Clearance Process for Contractors - An Outline

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

The security clearance process for government contractors can often be confusing. The purpose of this article is to attempt to provide a better understanding of the steps involved in the security clearance process for government contractors.   

Generally, there are two types of contractor employees that enter the security clearance process: (1) those individuals with an existing security clearance and (2) those individuals without an existing security clearance. Generally, if one has an existing security clearance in place with a prior employer or the government it may be possible to transfer the clearance to a new position without a new investigation taking place. 

However, if too much time has elapsed or there are other security concerns an individual’s security clearance may not be transferred easily. For those individuals, and for those who do not have security clearances, they will have to undergo security clearance processing, which basically follows the following 4 steps.

Step 1 – Completion of Security Clearance Introductory Documentation

The first step in the process for contractors in need of a security clearance is to complete the necessary security clearance paperwork in order to begin the process. Typically, this begins with the submission of the Standard Form 86 (SF 86) using the Electronic Questionnaires for Investigations Processing (e-QIP) system. These are submitted by the individual contractor to their Facility Security Officer (FSO) (otherwise known as the contractor’s security clearance officer). These forms should be carefully reviewed and completed in order to ensure full disclosure early in the process and to avoid potential concerns that the applicant for the clearance has truthfully answered all questions. The FSO then reviews an applicant’s e-QIP application and submits it to the Defense Industrial Security Clearance Office (DISCO) and to the Office of Personnel Management (OPM).

Step 2 – The OPM Investigation Process & DISCO Review

The second step, following completion of an individual’s security clearance paperwork is for the investigator assigned to generally meet with the individual and conduct an investigation. The investigation is conducted by OPM investigators. During this process, the individual seeking the clearance will be interviewed by the assigned OPM investigator, along with other relevant individuals (i.e. friends, relatives, acquaintances). 

Following the completion of OPM’s investigation, the matter will then be sent to the DISCO for review and approval. For most individuals, approximately 90-95% of those individuals seeking a clearance, this is the end of the security clearance process and a clearance is granted. However if the DISCO adjudicator is unable to resolve an individual’s existing security concerns, the case is then sent to the Defense Office of Hearings and Appeals (DOHA) for further review.

Step 3 – Referral to DOHA

The third step in the security clearance process for government contractors, if there has not been a positive adjudication before DISCO, is for the matter to be submitted to the DOHA for further review. DOHA adjudicators then review the security clearance matter. These adjudicators can remand (send back) the case to DISCO and instruct that the individual be granted the security clearance. DOHA can also (more typically the case) issue a Letter of Intent (LOI) to deny the security clearance to the applicant, providing the individual with a Statement of Reasons (SOR). 

An SOR lists DOHA’s security concerns regarding an applicant’s attempt to obtain a security clearance. At this stage, an individual will be asked to respond to the SOR by admitting or denying the security concerns that have been raised. It is important to note that if the individual does not respond in a timely fashion to the SOR, DOHA will deny the security clearance.

Step 4 – The DOHA Hearing & the Appeal Process

The fourth step in the process is to proceed before the administrative judge assigned to hear an individual’s security clearance case. The individual will also have the opportunity to elect a hearing before an administrative judge or to instead request a review of the written record without a hearing. It is highly recommended that individuals at this stage of the process, however, elect a hearing before an administrative judge. Relying on a written decision, in our experience, tends to provide less of a chance to explain the security concerns and to mitigate them and hence a lower chance of being able to obtain the security clearance. It is very important that the contractor be represented during the hearing process. 

Otherwise, it can be very difficult to explain and to mitigate the security concerns that have been raised. During this type of administrative hearing before DOHA, there are opening statements, the examination of witnesses, the cross-examination of witnesses, the introduction of exhibits and closing statements. Following the DOHA hearing, usually 2-3 months afterwards, the contractor will receive a copy of the administrative judge’s decision. 

If the decision is favorable and the individual has mitigated all security concerns, then the security clearance will be granted. If the decision is not favorable, the security clearance is not granted and the individual can attempt to appeal the decision to the DOHA Appeal Board within 15 calendar days. Appeals can be difficult and are extremely time sensitive so it is critical to have counsel assist you in challenging a security clearance decision by appeal. 

Closing Thoughts on the Contractor Security Clearance Process

Retaining an attorney familiar with the security clearance process is highly recommended. It is very important to do so early in the process. It can make the difference between obtaining and being denied your security clearance. Our law firm represents government contractors in these types of security clearance matters and can be contacted at www.berrylegal.com.