A Security Clearance is a Department of Defense Directive which authorizes the United States government to grant people access to information which the government deems to be classified or otherwise needs to be protected from countries, companies or foreign persons. A Security Clearance attorney can help you through the process.
The types of Security Clearances designations include:
- Top Secret
- Q Clearance (TS//RD)
- L Clearance (S//FRD)
Additionally, certain types of Top Secret information is further compartmentalized and require an additional SCI or SAP designation
The repercussions for not being able to get a clearance, or having a clearance revoked can significantly affect your employment career, oftentimes resulting in a loss of a job or an inability to secure a vetted position.
As such, applicants for a security clearance should take the process very seriously, and of course, be truthful. Nevertheless, there are specific strategies which should be utilized by the applicant during the process. If there are issues or concerns regarding an individual’s background, a consultant or an experienced attorney should be utilized. There are specific techniques that should be used when presenting an adverse fact, as well as a specific process to help you determine just how much to divulge. For instances, divulging information unnecessarily may lead to other thought-provoking questions which can raise issues of integrity, character or risk, which in turn enhances your risk to the government. Indeed, when it comes to granting or not granting a security clearance, the government tends to significantly side with caution. Things like what is on an individual’s credit report, bankruptcies, foreclosures, prior employment history including evaluations and discipline, play a significant role in determining the risk that an individual poses to the government. Indeed, during the adjudication process, the government utilizes what is known as the whole-person concept, meaning, utilizing the person’s life history to make discretionary judgments as to the person’s reliability and trustworthiness.
In ascertaining whether the individual as a whole is worthy of a security clearance, the government has established the following guidelines:
- Personal Conduct
- Financial Considerations
- Alcohol Consumption
- Drug Involvement
- Psychological Conditions
- Criminal Conduct
- Handling Protected Information
- Outside Activities
- Use of Information Technology Systems
- Sexual Behavior
- Foreign Preference
- Foreign Influence
- Allegiance to the United States
Security Clearance Attorneys and consultants can add the most value to an individual during the investigative stage of the process. Once the interviews are completed, a security clearance attorney can help you through the appeal process, including representing you at a hearing with a Judicial Administrator. However, at this hearing, due process only gives you an opportunity to explain the findings or mitigate a particular circumstance. However, how things were answered, or what was divulged, cannot be changed or altered.
The law treats a security clearance as a property interest belonging to the Government. This means that individuals do not have a property right to a security clearance and in effect, the government has wide discretion to grant or not grant a security clearance for any non-prejudicial, non-capricious reason(s). In essence, an individual is granted due process during the security clearance process. However, the individual bears the burden of showing that “the granting of the security clearance is clearly consistent with the national interest.”
The due process entitles the individual to the following:
- A fair and impartial proceeding.
- Notice of specific reasons for proposed action
- Notice of right to a hearing.
- During the hearing, an opportunity to cross-examine persons providing information adverse to the applicant.
- Opportunity to present evidence on his or her own behalf.
- The right to be represented by an attorney.
- Written notice of final clearance decisions
- Notice of appeal procedures.
At the hearing, the Federal Rules of Evidence controls, witnesses can be examined and cross-examined, and exhibits can be placed in the record to substantiate a position. The government is usually represented by a licensed attorney who is very familiar with the process and who certainly does not have your interests at heart. It is better to have an attorney who is also comfortable with the process to represent exclusively your interests. While your lawyer can help you organize your case, refute inaccurate facts and present mitigation support pursuant to the established guidelines, it is nonetheless a discretionary process wherein, after you have been given an opportunity to present your version of events, the ultimate decision maker gives every benefit of the doubt to the government, and in close call cases, will deny the clearance in the name of national security. If a security clearance is denied, the applicant may reapply for another security clearance after one year from the denial or revocation.
The security clearance attorneys at Arcadier and Associates have extensive experience in DOAH and JA hearings (both, at the application /interview level and hearings/appeals) and we can help to place you in the best position possible to maintain or acquire the security clearance you need.