Advice for Attorneys with Clients with Security Clearances

BY BRIAN G. SMITH

Security clearances are not an issue most people outside of the military and intelligence community think about in their everyday lives, until a major leak of classified information makes the news or there is a discussion of some current or former government official’s security clearance status.

There is a perception, probably thanks mostly to TV and movies, that only a few select people have security clearance, and that those elite few all know whether UFOs exist and who was *really* responsible for the Kennedy assassination. The reality is much more mundane. Approximately 4.2 million people hold a security clearance in the United States,1 in jobs ranging from janitorial staff, public affairs, program managers, accountants, engineers, IT specialists, and intelligence analysts, just to name a few.

With numerous federal agencies and defense contractors having offices in the Chicagoland area, and 23,000 sailors, recruits, contractors, and civilian government employees at Great Lakes Naval Station in North Chicago, 1 Federation of American Scientists, Fiscal

Year 2019 Annual Report on Security

Clearance Determinations, https://sgp.fas. org/othergov/intel/clear-2019.pdf, pg. 7. many attorneys in Lake County likely represent clients in legal matters that could affect their security clearances. Often, the clearance holders aren’t aware of the reporting requirements of various life events, and attorneys either aren’t aware of their client’s clearance status or don’t know how to advise their clients when it comes to resolving a case in a manner favorable Brian Smith is a partner with to their client’s clearance. This article aims to make practitioners more LaLuzerne & aware of potential issues and how to Smith, Ltd. give wise counsel to their clients.In addition to helping clients with all stages of the securiWHAT DOES IT TAKE TO GET AND STAY CLEARED? ty clearance There are three levels of nationprocess, he al security clearances: Confidential, practices in the area of DUI, traffic, and criminal defense, school law, and police and fire pension litigation. He is an Secret, and Top Secret.2 The higher the clearance, the more tightly controlled the information is, and thus intelligence officer with the United States Navy Reserve. 2 Executive Order 13526, Sec. 1.2.

the more arduous the process in obtaining that level of clearance. In the foundational case addressing security clearance litigation, the U.S. Supreme Court held that no one has a right to a security clearance, and that the grant of a clearance must be “clearly consistent with the interests of national security.”3 Any doubt concerning an individual’s eligibility for a clearance “must be resolved in favor of the national security.”4 In other words, even a seemingly minor concern with a client’s background, character, or susceptibility to coercion could result in the denial or revocation of a clearance.

A sponsoring employer must submit an applicant or employee for a clearance, and the applicant must fill out informational forms about their background (known as the SF-85 and SF86, depending on the level) to allow the government to investigate and determine if they are eligible for a clearance. Applicants must provide detailed information about places they’ve lived, worked, or attended school; any foreign connections or travel; drug and alcohol use; psychological conditions; financial issues; and legal problems they’ve encountered. Once this is done, applicants submit to an interview with a background investigator who then verifies the information submitted, including talking to neighbors, co-workers, friends, and acquaintances to determine if the requested level of clearance is appropriate. The length of this process varies depending on numerous factors, but the main delays are often due to a lack of government manpower to investigate and process the applications, and the number of issues raised in an applicant’s history. The more foreign travel or connections, legal issues, debts, substance use, or other concerns that are revealed, the longer the process can take. Currently, the average time for a Secret and Top Secret clearance application being determined is approximately 4 and 5 months, respectively.5

Until recently, security clearance holders were rein3 Dep’t of Navy v. Egan, 484 U.S. 518, 528 (1988). 4 Security Executive Agent Directive (SEAD) 4, National Security

Adjudicative Guidelines, ¶ 2(b). 5 How Long Does It Take to Get a Security Clearance? – Q2 2022 Update, Clearance Jobs, https://news.clearancejobs. com/2022/04/26/how-long-does-it-take-to-get-a-security-clearance-q2-2022-update/. vestigated periodically; every 5 years for Top Secret, 10 years for Secret, and 15 years for Confidential. While there are still formal reinvestigations at these intervals, the federal government has moved to a new process called Continuous Evaluation (CE).6 Cleared individuals are monitored between reporting periods for things like criminal offenses, unpaid

There is a perception, debts and other financial concerns, and any other probably thanks mostly issues reported by their em ployer’s security office. to TV and movies, that WHAT CAN only a few select people NEGATIVELY AFFECT A SECURITY CLEARANCE

AND HOW TO ADVISE

have security clearance, YOUR CLIENTS There are numerous and that those elite few issues that can affect a secu rity clearance. The federal all know whether UFOs government uses Adjudicative Guidelines to address arexist and who was *really* eas concerning the reliability of a cleared individual. These include allegiance to responsible for the the United States, ties with foreign countries, criminal Kennedy assassination. offenses, drug and alcohol abuse, financial problems, risky sexual behavior, misuse of computer networks or classified information, and psychological conditions.7 Often, one incident will raise concerns under multiple guidelines. A common issue is a driving under the influence arrest, which will usually invoke Guideline G (alcohol use) and either Guideline E (personal conduct) or Guideline J (criminal conduct). Cleared individuals are required to report issues affecting their clearance to their facility security officer (FSO) or other security manager. These include not only the issues that negatively affect clearance status, but major life changes such as marital status, change of address, new family members, sudden financial status changes, changed employment, and the like.8 Perhaps the worst problem a cleared individual can run into is dishonesty in their clearance application or interview with a background investigator. Many issues that would likely not bar someone from getting cleared become exponentially worse when an applicant either lies about an issue or doesn’t fully disclose the extent of a problem. The touchstone of the grant of a clearance is the honesty, integrity, and character of the person being cleared, and once 6 See Executive Orders 13467 and 13764. 7 SEAD 4, National Security Adjudicative Guidelines,, ¶ 2(c). 8 SEAD 3, Security Requirements for Personnel with Access to Classified Information or Who Hold a Sensitive Position, ¶ F-H.

the government believes a person is untrustworthy, the chance of being granted or retaining a clearance drops to near zero. The main areas of concern are financial problems, drug or alcohol misuse, and criminal conduct, with divorce being a major life change that often implicates numerous other areas of concern.

FINANCIAL PROBLEMS

Debt, in and of itself, will not raise red flags, especially after the housing crash and recession of 20072011, and the currently super-heated housing market, but circumstances that raise concerns about financial mismanagement can often become a problem. If a client has debt that far exceeds his or her ability to pay, has defaulted on any sort of credit arrangement, or declared bankruptcy, that will often cause the government to investigate. The government will not expect someone to immediately pay off all debts, but getting credit counseling and on a regular payment plan can help. A good faith effort to repay is one of the most important mitigating elements that can be applied, where the applicant does not rely on garnishment of wages or a technical legal defense against debt repayment.9 Even if debt has been charged off by a creditor, the government still considers that money owed by the clearance holder and will require documentation that the creditor has canceled the debt before considering it resolved. Large amounts of debt relative to income, a history of late or missed payments, and accounts being sent to collections will all be considered, especially if there is a long history of problems.

CRIMINAL CONDUCT

All arrests, regardless of the charge (or lack thereof) must be reported. Any criminal or traffic charge with a fine of more than $300 must be reported, which includes any misdemeanor offense, including aggravated speeding, leaving the scene of an accident, or reckless driving.

Any offense that ends up with a jail sentence of more than one year (and the person actually serves more than one year) is disqualifying under the Bond Amendment.10 While this can be overcome in certain instances,11 it is rare to see an individual with a felony conviction be granted a clearance, unless the conduct was as a juvenile, occurred many years in the past, or there is significant evidence of rehabilitation.

With the expansion of expungement and sealing laws, and more widespread use of alternative prosecution programs, there are increasing avenues where criminal defendants can get cases dismissed or hidden from public view. While this is beneficial to many areas of a client’s life, when representing a current or aspiring clearance holder, be sure to request and retain relevant documents,

9 SEAD 4, ¶20(d). 10 50 U.S.C. §3343(c)(1)(A); SEAD 4, Appendix B, ¶2(b). 11 See, e.g., United States Department of Energy Office of Hearings and Appeals Case PSH 21-0051 (July 29, 2021). such as police reports, drug, alcohol, mental health, or behavioral evaluations and treatment, plea documents, court orders, and financial receipts prior to getting a case dismissed or expunged from the record.

It is also important to note that most of the procedural protections granted to criminal defendants do not apply in the security clearance context. Simply because evidence was suppressed in a criminal case does not mean that it cannot be considered by the government in deciding on a clearance. Also, while a clearance applicant can invoke their right against self-incrimination when asked about certain conduct, doing so will likely result in the denial or revocation of a clearance.12

DRUG AND ALCOHOL USE

Any use of drugs or alcohol, whether legal or illegal, prescribed or not, where it resulted in adverse social, criminal, financial, or employment consequences is cause for concern for a clearance holder. If any issue of this sort is raised, whether from self-reporting of addiction, criminal charges, or lost work or personal relationships, the government will expect to see an applicant get professionally evaluated and attend a recognized treatment program. Proceeding independently despite such an evaluation will cast doubt on the reliability and judgment of the applicant, and likely result in a denial or revocation. Also, while “relapse is part of recovery” is axiomatic in the addiction community, it will likely cut against any mitigation offered in a clearance application.

One of the thorniest issues for federal employees generally, but especially clearance holders, is marijuana. Recreational marijuana use is currently legal in 19 states (including Illinois) and the District of Columbia, but is still illegal under federal law. (The House of Representatives recently passed a bill legalizing marijuana, but it remains in committee in the Senate.13) The Intelligence Community has released updated guidance regarding past marijuana use, in that past recreational use, while relevant, should not be a complete bar to a clearance.14 However, use while holding a clearance is almost always fatal. If a client has previously used, whether legally or not, they should be advised to state their understanding that future use would result in a clearance revocation and to disclaim any intention to use in the future.

Unless and until legalization is signed into federal law, and the relevant directives for clearance determinations are revised, this means that clearance holders cannot cultivate, sell, use, purchase, or transport marijuana, even though it may be legal for their uncleared friends and family to do so. One of the mitigating factors

12 Department of Defense Directive 5220.6, ¶ 6.2 (requiring an applicant to give “full, frank, and truthful answers to relevant and material questions” and noting that invocation of constitutional grounds to refuse to answer will prevent a clearance determination or revoke an existing clearance.). 13 H.R. 3617, https://www.congress.gov/bill/117th-congress/housebill/3617/text. 14 Director of National Intelligence Memorandum ES 2021-01529.

is disassociation with those who use drugs,15 which would arguably require clearance holders to end relationships with people who are legally using marijuana under state law. This issue will surely be the subject of much debate in the industry for years to come.

DIVORCE

While the government does not judge an applicant’s decision to get divorced (even multiple times), the process touches on numerous adjudicative guidelines. First, a change of marital status and home address are reportable events. Divorce is also a financial earthquake, with divided bank accounts, retirement accounts, and pensions, home sales, spousal maintenance, and child support all dramatically affecting an applicant’s financial status and often their ability to stay current on obligations. Allegations of domestic or child abuse are not uncommon and must be reported as well.

CONCLUSION

There are numerous other common issues that frequently trip up clearance applicants, such as computer systems and social media use, association with groups of concern (Oathkeepers, Antifa, etc.), psychological conditions, and foreign affiliation issues, but the ones discussed above are the most prevalent and likely to be

15 SEAD 4, ¶26(b). seen by practicing attorneys in other industries.

Hopefully this article has given practitioners some insight into the range of concerns facing their clients who hold or wish to apply for a national security clearance. As many issues can raise red flags during the investigative process, the best course of action is to make sure the client understands the concern expressed by the government and what to report. That will allow the attorney to counsel the client how to best prepare themselves to present the best possible explanation and documentation for events that might otherwise cause a denial or revocation of a clearance.

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