It’s more difficult now than it has ever been to obtain – and to hold onto – a security clearance. Obtaining a government security clearance for a facility or for an individual employee can often be quite a challenge. It is imperative to have knowledgeable legal counsel and experienced representation – preferably a Washington, D.C. security clearance attorney – when you deal with any security clearance matter.
Essentially, a security clearance is a determination by the United States Government that an individual or a business can be trusted with classified information. The term “eligibility for access” means the same thing as “security clearance,” and the term appears in some official documents. The United States grants two types of security clearances: Personnel Security Clearances (PCLs) and Facility Security Clearances (FCLs).
A number of federal agencies issue security clearances: the Department of Homeland Security, the Department of Defense, the Department of Justice, the Department of Energy, and the Central Intelligence Agency. The Department of Defense issues more than 80 percent of all clearances. Except for the Department of Energy, the agencies have three levels of security clearances: Confidential, Secret, and Top Secret. The Department of Energy’s “L” and “Q” access levels are more-or-less comparable to the Secret and Top Secret levels.
WHAT DO THEY LOOK FOR WHEN YOU SEEK A SECURITY CLEARANCE?
The guidelines listed here have been implemented for everyone who requires access to classified information. Thirteen areas of a person’s life are carefully considered when someone applies for a security clearance or seeks continuing eligibility to hold a security clearance. Those thirteen considerations (“A” through “M”) are:
- Allegiance to the United States: Any individual seeking a security clearance must have unquestioned allegiance to the United States.
- Impact of Foreign Influence: Having close relationships with persons who are not U.S. citizens could create a possibility of foreign influence that could lead to the compromise of classified material or create a risk of exploitation, pressure, or coercion.
- A Foreign Preference: Does the person requesting a security clearance behave in a way that might indicate a preference for a foreign nation over the United States?
- Sexual Behavior: Does the person requesting a security clearance have sexual behavior that indicates criminality or emotional disorders or leaves the person open to potential coercion or blackmail?
- Personal Conduct: Has the person requesting a security clearance cooperated fully with the process? Has any information been concealed or misrepresented?
- Financial Considerations: Is the person requesting a security clearance financially overextended? That presents the potential risk of having to engage in illegal acts to generate funds.
- Alcohol Consumption: Does the person requesting a security clearance consume alcohol excessively? Excessive alcohol use can lead to questionable judgment, increasing the possibility of an unauthorized disclosure of classified information.
- Drug Involvement: Does the person requesting a security clearance use illegal drugs or associate with known users? Substance abuse may impair social or occupational functioning, increasing the possibility of an unauthorized disclosure of classified information.
- Emotional, Mental, and Personality Disorders: Does the person requesting a security clearance have any emotional, mental, or personality disorder? Such a disorder may cause a substantial deficit in an individual’s psychological, social, and occupational functioning, increasing the possibility of an unauthorized disclosure of classified information.
- Criminal Behavior and Criminal Record: A record or pattern of criminal behavior raises doubts about an individual’s reliability, discernment, and trustworthiness.
- Security Violations: Any previous noncompliance with security regulations raises doubts about an individual’s willingness, trustworthiness, and ability to protect classified material.
- “Outside” Activities: Certain types of outside employment or outside activities could create a heightened risk of the unauthorized disclosure of classified information.
- Misuse or Abuse of Governmental Systems: Any failure to comply with the rules, regulations, procedures, or guidelines pertaining to governmental information technology systems may raise concerns about an individual’s ability to properly protect classified systems, networks, and information.
The Office of the Director of National Intelligence recently established a policy allowing federal agencies to consider publicly available social media information when someone applies for a security clearance. This policy lets investigators scrutinize an applicant’s history on Twitter, Facebook, Instagram, and similar social media sites. Federal agencies cannot, however, force anyone to hand over the password for a private account.
FOR HOW LONG IS A SECURITY CLEARANCE GOOD?
Generally speaking, as long as the person holding a security clearance remains employed by a cleared contractor or a government agency, and as long as the individual is reasonably expected to need continuing access to classified material, his or her personnel security clearance will remain in effect, provided the individual remains in compliance with the periodic reinvestigation requirements.
A security clearance is typically terminated when the person holding it permanently leaves the position for which the clearance was granted. Cleared individuals who no longer require access and do not anticipate needing future access can have security clearances downgraded or withdrawn until they require access again. The security clearance can be administratively restored in such cases.
WHAT ABOUT SECURITY CLEARANCE REVOCATIONS?
The standard of evidence needed to deny a security clearance is much lower than the standard in a criminal prosecution and even lower than the standard in a civil case. Even when someone is granted a security clearance, there’s no guarantee that the person can hold it indefinitely. If a security clearance is revoked, should you hire an attorney? William H. Henderson is a retired federal clearance investigator and is president of the Federal Clearance Assistance Service. He reviewed five hundred security clearance cases decided by Administrative Judges at the Defense Office of Hearings and Appeals between March and October of 2012.
Mr. Henderson determined that those with attorneys were granted clearances 60 percent more often than those who represented themselves. Yet only 20 percent of those appearing before the Defense Office of Hearings and Appeals chose to be represented by an attorney. Many applicants and clearance holders who pay an attorney to write a response to a “Letter of Intent” to deny or revoke a clearance are granted the clearance based solely on the attorney’s written response.
Don’t try to save by responding to a Letter of Intent by yourself and then having an attorney represent you later at your hearing. Much of the work an attorney does to prepare your case for a hearing is the same work he or she would do to answer the Letter of Intent on your behalf. Additionally, your lawyer will have to fix any mistakes you made in your response to the Letter of Intent – mistakes that can be used against you.
An experienced Washington, D.C. security clearance attorney can obtain the best possible resolution to a security clearance matter. If you need – or need to retain – a security clearance for yourself and/or your business, you should understand that security clearance matters can get extraordinarily complicated. What you’ve read here is only the briefest introduction, so do not hesitate to discuss your own circumstances with an experienced security clearance attorney who knows what it takes to obtain and keep your clearance.
Posted in: Security Clearance