Getting and keeping a permanent or interim security clearance may be critical to your career and livelihood. There are several different classification levels of security clearances – Confidential; Secret; Top Secret (TS); and Top Secret/Sensitive Compartmented Information (TS/SCI). These levels apply to federal government employees and individuals who work for government contractors.
Determinations of eligibility for access to classified information are based on criteria established by the President. Employees are not entitled to security clearances and the government has a strong policy, based in Executive Order, to give access to classified information only when necessary.
There are several stages involved in security clearances. First, the government determines whether, to be effective, a particular position must have access to classified information. If the position does not require access to classified information, then there is no need for the government to consider giving a clearance to the employee who holds the position. If the job requires a clearance, but the employee is not eligible for a clearance, the employee may not stay in the job.
Once the government determines that a position requires a clearance, the government will investigate and adjudicate whether the individual has demonstrated that giving them access to classified information is consistent with national security. These investigations can take years.
Sometimes, agencies give employees “interim” security clearances. There are two types of interim clearances.
First, when the employee’s eligibility has not yet been adjudicated, the government can give the employee a temporary or interim clearance while the initial investigation is underway. To receive a temporary or interim clearance, the agency must give a justification and the employee must be notified in writing that their clearance is dependent on the favorable completion of the investigation and adjudication. An interim clearance will be immediately terminated, along with any job assignment requiring a clearance, if the individual does not ultimately receive a full security clearance.
Second, after an employee has a fully adjudicated clearance, the government can give temporary access to a higher level of security clearance. In other words, an employee who has been given a “secret” clearance might receive a “top secret” clearance temporarily.
After an employee has been given a security clearance, they are allowed to keep the clearance only as long as their job requires it. Employees also have to go through periodic reinvestigations every few years to ensure that the person remains eligible for their clearance.
If the government thinks that an individual is not eligible for a security clearance, the agency will deny or revoke the security clearance by issuing a Statement of Reasons (SOR) or a Letter of Intent (LOI). Employees have only a brief opportunity to respond to a notice denying or cancelling a security clearance. It is important to talk with an experienced attorney as soon as possible. After receiving the notice, the employee can submit evidence and argument explaining why they should be allowed to have (or keep) their clearance. If this initial response fails, the employee has an additional change to seek an appeal before a high level, three-person panel, such as the Defense Office of Hearing and Appeals (DOHA). After the panel, there is no additional right or option to appeal. As a general rule, the denial or revocation of a security clearance cannot be appealed to any court, to the EEOC, to the MSPB or to the OSC.
Clearance Adjudication
Through the security clearance adjudicative process, the federal government examines relevant periods of an individual’s life and whether the person meets the criteria for a security clearance. The adjudication will consider thirteen (13) criteria. In 2017, the government issued amended the National Security Adjudicative Guidelines listing the following factors for determining eligibility to classified information:
- 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 and substance misuse
- Guideline I: Psychological Conditions
- Guideline J: Criminal Conduct
- Guideline K: Handling Protected Information
- Guideline L: Outside Activities
- Guideline M: Use of Information Technology
There are many misconceptions about how these factors are applied. One very common misperception is that if an individual seeks psychological counseling or take prescribed medication, automatically they will lose their security clearance or be denied a clearance. This is not necessarily true. The Adjudicative Guidelines state explicitly that negative inferences should not be raised solely on the basis of mental health counselling. Although emotional, mental and personality disorders may be considered, such conditions alone do not typically raise a security clearance concern. Instead, the adjudicative guidelines state that a risk may be present when an individual fails to follow appropriate medical advice regarding treatment of a condition or fails to take prescribed medication, the employee’s condition manifests in behavior that casts doubt on the employee’s judgement, stability, or trustworthiness (e.g., violent, self-harm, suicidal, or deceitful behaviors), or a mental health professional issues an opinion that the employee’s condition impairs judgment, stability, reliability, or trustworthiness.
When evaluating whether an individual should have or maintain access to classified information, the government will consider aggravating and mitigating circumstances. Each adjudicative factor identifies relevant mitigating and/or aggravating conditions.
Our attorneys have helped clients address security clearance concerns at all phases of the process. We guide clients through the application and interview process to ensure that information is correctly and properly presented. We give recommendations to minimize delays and obstacles in the processing of applications. We represent our clients when their clearances are suspended or denied and we help our clients fight to maintain their active clearances.
Persuasive presentation of an individual’s background and personal history can be instrumental to obtaining or maintaining a security clearance. We can help you take actions to ensure that you make a responsive, thorough, consistent, and persuasive reply. We can help you understand the factual allegations against you and which adjudicative guidelines are triggered. We can guide you in gathering the right evidence and make arguments on your behalf for mitigation.
If you are applying for a security clearance, have concerns about keeping your clearance, or have received a Statement of Reasons or Letter of Intent, contact us. Whether you are filing an initial application, you currently hold a clearance or interim clearance and are under review, or your clearance is in jeopardy of being suspended or rescinded, we can give you a thorough understanding of which security clearance adjudicative factors may apply to your unique situation and how to preserve and enforce your rights.
