Security Clearance Law Blog

Security Clearance Holders Should Avoid Investments in Marijuana Companies

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

If you are a security clearance holder and you own or work in the ever-growing marijuana industry, you could have difficulties obtaining or keeping a security clearance. We have been counseling clients about this issue since at least 2010. This article discusses the current federal government view on investments in the marijuana industry at present.

This same consideration applies to individuals that work part-time or are otherwise involved in marijuana-related businesses. Owning an investment in a marijuana company (e.g. stock) or working for a marijuana enterprise is a reportable clearance activity for security clearance holders and applicants and can lead to the loss of a security clearance or in one obtaining a clearance. The current marijuana policy comes from the Director of National Intelligence (DNI), by way of an December, 2021 memorandum which explains current government policy.

Investments in marijuana-related companies can constitute involvement in illegal drug activities. This can be the case even where the individual does not directly choose their individual stocks and even in states where marijuana businesses are completely legal. There will be varying degrees of differing factual circumstances on a case-by-case basis. The federal government’s current view is that an individual has a duty to know about their investments and to be knowledgeable about federal drug laws.

2021 Memorandum and Other Federal Directives

The 2021 memorandum is not alone.  Security Executive Agent Directive (SEAD) 4 issued in June of 2017 provides the current basis for not granting or revoking a security clearance based on drug involvement, including investments in marijuana under Guideline H:

25. Conditions that could raise a security concern and may be disqualifying include:

. . .

(c) illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia;

. . . .

Marijuana stocks have been heralded as the new Apple stock, according to the news; the urge is to get in on the ground floor for investors. However, the problem is that until the federal government changes federal drug laws or creates a caveat for marijuana businesses, individuals that invest or otherwise become involved in marijuana investments can put their security clearance (and career) in danger. Even high-profile businesspersons can risk their security clearance over such issues.

We have also seen a lot of confusion on this issue since at least 2010 when a number of states started legalizing the use of marijuana. We have represented many clearance holders and applicants who have traveled to Colorado or elsewhere, where marijuana is legal, to simply try it. In some of these cases, the experimentation has cost the individual their security clearance.

It is advisable that individuals seeking to hold or obtain a security clearance refrain from investing in marijuana stocks until federal law or policy changes. Eventually, we believe that the federal government will change their position on this issue to an abuse standard, like alcohol usage, but for the moment investing in companies or stocks that are involved in the dispensing of marijuana can cause one to lose a security clearance.

Contact Us

If you are in need of security clearance representation, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. 

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 Holders Duty to Report Incidents

By John V. Berry, www.berrylegal.com

Security clearance holders who occupy and who have access to classified information are expected to self-report security changes or incidents that may impact their security clearances. Security Executive Agent Directive (SEAD) 4 is a good guide for clearance holders to determine whether a new incident or development triggers a duty to self-report. Self-reporting is mandatory. Furthermore, it is much better to be proactive in disclosing reportable events than for them to be discovered later. Disclosing these issues prior to them being discovered can be considered to be a mitigating factor should these issue become of concern to security clearance adjudicators.

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. 

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.

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.

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.

 

 

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.