By John V. Berry, Esq., www.berrylegal.com
There are times when an individual is potentially facing security clearance issues related to criminal law violations. There was a time when the reporting of potential criminal violations may have put a security clearance at risk, but generally did not expose an individual to potential criminal liability. Absent some specific exceptions, federal agencies did not seem to significantly report such issues to law enforcement.
Today, however, it seems that federal agencies are giving more consideration to disclosing criminal violations to law enforcement authroities when they come across these issues in the security clearance process. When such a situation arises, it is important to have the guidance of counsel as early in the security clearance process as possible to determine the best course of action. Typically, criminal law disclosures occurr during the interview process or during a polygraph examination.
More Common Criminal Disclosures
Some of the more common situations that we have come across with respect to the reporting of criminal issues involve individuals reporting prior drug use, minor theft (e.g. shoplifting) and other relatively minor criminal violations. These more common situations are generally not reported to law enforcement authorities by security clearance authorities.
However, reporting serious crimes during a security clearance interview and/or polygraph examination has now become a significant issue which requires additional though prior to responding. Serious crimes that may be reported can potentially include crimes or abuse involving children, major theft and the distribution of narcotics.
Subtle Changes in How Criminal Issues are Reported
There have been some subtle changes in how federal agencies deal with criminal issues disclosed during the security clearance process. In the past, some intelligence agencies took the position that there was no legal obligation to report most federal criminal law violations to the Department of Justice. However, these agencies have now also taken the view that nothing prevents them from disclosing such information to law enforcement either. In other words, this leaves a fair amount of discretion to these agencies in what they decide to report.
Intelligence agencies have been focused mostly on the reporting of federal criminal violations, as opposed to those involving state criminal law violations. Some federal agencies have implemented new policies to determine whether state law violations should be reported. One agency has indicated that they will report state criminal issues where the crime involves an imminent threat or serious bodily injury to another human being.
The move to report additional criminal activities to law enforcement seems to have only increased with media reporting of security clearance related criminal activities, such as the Navy Yard shooting and the Edward Snowden disclosure issues. These high profile security clearance related matters have made clearance investigators somewhat more likely to report serious crimes disclosed during the clearance process which have not previously been reviewed by law enforcement authorities. There have also been some recent congressional investigations into the failure of some federal agencies to report serious crimes disclosed during the clearance process.
However, given the high volume of reported minor criminal issues (i.e. past drug use) that occurs during the security clearance process the likelihood is that federal agencies are unlikely to refer more than the most serious crimes uncovered in the security clearance process.
The Best Course of Action - Obtain Legal Advice
When evaluating one’s risks in reporting security clearance issues involving possible criminal conduct, it is important to obtain legal advice as early as possible. An attorney familiar with this area of law can help advise you as to whether it is appropriate to continue in the security clearance process and potential risks with respect to criminal issues which are disclosed to security clearance investigators, polygraphers, etc.
When an individual is facing security clearance issues in the context of potential reportable criminal behavior, 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