Security Clearance Law Blog

When to Hire a Security Clearance Lawyer?

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

We often meet with federal employees and government contractors facing security concerns or potential security concerns in obtaining or applying for a security clearance. They often ask our attorneys at what point they should retain a security clearance attorney to assist, advise or represent them.

The quick answer is that an individual with potential security issues should consult with experienced security clearance counsel as soon as possible. In our experience, the earlier that an individual with potential security concerns consults with a knowledgeable security clearance lawyer, the better the chances to avert a negative outcome.  We also find that it is less expensive to address a problem early before it gets more difficult to defend or respond to.  

Security Clearance Law and Family Law: How They Intersect

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

There is a major intersection between family law and security clearance law issues which can arise where one of the spouses is a security clearance holder. It is important understand how they connect. This article talks briefly about this intersection and some of the issues associated with these connections. The major issues that often arises between individuals holding security clearances in the context of family law usually has to do with divorce, custody and domestic violence issues. I will take each of these in turn in this article. 

The Importance of Character Letters in Security Clearance Cases

 

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

We often meet with federal employees and government contractors who are faced with security concerns or potential security concerns in obtaining, applying for or retaining a security clearance. These employees often ask for us assistance in responding to a security clearance denial or revocation. No matter the security concerns at issue, we find that it is always important and helpful for the individual to respond with character letters which help define the character of the clearance holder or applicant to the adjudicator.  This article focuses on the benefit of character letters in the security clearance process.

Foreign Influence and Security Clearance Issues

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

We often represent individuals who have issues with respect to foreign influence issues under Guideline B. This article examines how the Adjudicative Guidelines for Foreign Influence apply to security clearance cases. Foreign Influence has always been a major concern because security risks can exist when an individual’s family or close friends are subject to potential duress and influence. Along those lines, foreign Influence issues have long been considerations in determining whether to grant or renew a security clearance. 

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 Basics of SCI Access and Appeals

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

We are often asked about Sensitive Compartmented Information (SCI) access, the SCI appeals process and how SCI decisions impact an existing security clearance.  This is an abbreviated description of the SCI process and appeals considerations. SCI access is granted in situations where access to intelligence agency information is needed.  In other words, SCI access is required where the individual needs access to federal intelligence sources, process or methods.

Step 1: Request for SCI Access by Employer

Typically, the employer will seek upgraded access to SCI for an otherwise cleared employee.  The employee presumably will usually have a Top Secret clearance (or possibly lower level clearance) and the employer will seek SCI access for that employee.  

Step 2: Review of Employee for SCI Access

Next, the agency granting SCI access will make an eligibility and adjudicative decision about whether or not to grant access to SCI to the employee. These determinations will be made under Intelligence Community Directive 704 and Intelligence Community Policy Guidance 704.2.  Keep in mind that if an individual had or has become subject to potential security concerns, they will want to consider carefully whether to apply for SCI access. In some cases, an individual with the same security concerns could qualify for a secret or top security clearance, but not SCI access. This is because SCI access approval is more difficult to obtain than for other clearances even with the same security concerns.  In addition, the individual may be subject to a polygraph examination. All of these concerns should be considered in applying.   

Step 3: If SCI Access is Disapproved, Appeal

If SCI access is granted, then everything has resolved favorably for the applicant.  However, if SCI Access is disapproved, it is important to appeal the negative decision. Most agencies (NSA, CIA, DIA, etc) provide for appeals to SCI access denials.  Typically, there is a written response stage and a personal appearance stage, but the processes can differ slightly. It is critical to obtain as much mitigating information as possible in presenting an appeal to overturn the disapproval.  The goal for an SCI access appeal is to clarify any existing security concerns or to demonstrate mitigation for the security concerns in order to obtain SCI access. 

Step 4: If SCI Access is Disapproved Following Appeal, then Normal Clearance Could be at Risk

If SCI access is denied and an appeal is either not filed or is denied, the negative adjudication could have a negative effect on an employee's existing security clearance.  For example, the Department of Defense Consolidated Adjudications Facility (DoD CAF) is usually notified when there is adverse information uncovered in connection with an SCI access request. The notification can cause one's existing security clearance to be suspended subject to adjudication. DoD CAF, in that case, will then make a separate determination as to whether or not the negative SCI access decision and information at issue impacts an individual's existing security clearance. In other words, if one is unsuccessful at obtaining SCI access, there could be a negative domino effect as to that individual's existing security clearance.  

Conclusion

When an individual is facing security clearance issues regarding SCI access or an appeal before a federal agency 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. 

Security Clearance Upgrade Denials

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

We often represent employees in security clearance denials, revocations and other clearance related matters. One issue that we often run across involves the issue of employers submitting an employee’s information to a different security clearance agency or to the same agency for the purpose of upgrading an individual’s security clearance (e.g. from Secret to Top Secret). Sometimes the employee is made aware of the requested clearance upgrade and sometimes they are not. The issue is that a person can be approved for a lower level security clearance, but when they are submitted for the clearance upgrade they can be denied, even if there are no new security concerns at issue. The denial can then potentially impact their existing security clearance.

The Clearance Upgrade Issue

When a person is submitted for a security clearance upgrade, any previously existing security concerns are scrutinized more thoroughly. For instance, if a person has been previously approved for a Secret level clearance, and is then submitted for a Top Secret level clearance, they could be denied based on the same concerns that existed when they were approved for a Secret clearance. This more often comes up where the person holds a Top Secret clearance but is applying for Sensitive Compartmented Information (SCI) access, “TS/SCI.”

For example, suppose an individual is approved for a Top Secret security clearance by the Department of Defense, after mitigating some security concerns about past due debts or bad credit, but is then submitted for SCI access at an intelligence agency. The intelligence agency may consider those debts more serious than the agency that adjudicated the underlying security clearance and then deny access to SCI based on the same financial issues that were first resolved favorably when the person applied for their Top Secret clearance. This denial can potentially have significant consequences.

Upgrade Denial Can Impact Current Clearance

The result of a security clearance upgrade denial will be that the individual will likely have to list this denial in future clearance applications.  Additionally, the denial could potentially cause the individual to lose (or have to defend) their existing security clearance. Depending on the employer and federal agency involved, there are appeals processes to challenge the upgrade denial, but it is something for an individual to seriously consider if there are security concerns in one’s background and a clearance upgrade is proposed or considered.  It is often the case that seeking a clearance upgrade is optional for an employee. Thus, serious consideration should be given to whether or not any older security concerns were an issue during the individual's last clearance investigation or if new security issues have since arisen when considering whether to take the next step in pursuing a clearance upgrade. Taking time to consider these issues, in advance, can be very important.  

Conclusion

It is important to consider the impact of upgrading a security clearance or security access before applying when there are previous security concerns at issue. An individual should consult with a security clearance attorney if they have any security concerns at issue that could pose potential issues. 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 or on Twitter.

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.

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.

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.