By John V. Berry, Esq., www.berrylegal.com
Pursuant to Executive Order 12968, the President of the United States has delegated security clearance determinations to each individual federal agency. As a result, each federal agency security clearance process tends to be unique but they tend to share some similarities. These different federal agencies are supposed to follow the same Executive Order and Security Executive Agent Directive (SEAD) 4.
These federal agency processes are not centralized and vary somewhat. Some federal agencies tend to focus more on foreign influence (CIA) and others more on drug usage (FBI). In addition to security clearances processed by the Department of Defense (DOD), other federal agencies have their own procedures and personnel who process their own security clearance decisions for federal employees and government contractors (e.g. DOS, DHS, DOI, NGA, DOE, NRO, CIA, etc). The National Security Agency (NSA) is an agency with its own unique security clearance process. This article addresses the security clearance process at the NSA for security clearances and Sensitive Compartmented Information (SCI) access.
The Security Clearance Process at the NSA
The security clearance appeals process at NSA is similar to the procedures for DOD employees, but there are some notable differences. The NSA follows the intelligence community (IC) policies regarding the processing of security clearances and SCI access. These policies are referred to in the Intelligence Community Policy Guidance (ICPG). The following are the usual steps in the security clearance review process for NSA clearance holders or applicants when they are confronted with security clearance issues.
First Step : Revocation / Denial Letter Issued by NSA
When a federal, military or contractor employee has a security clearance or SCI access issue with NSA, they will receive a revocation or denial letter from the NSA, listing the background and security concerns at issue. The background will list the specific security concerns at issue. The individual will usually then be given 45 days from receipt of the letter in which to request a review of the security concerns and respond to the security concerns. The investigative file, upon which the denial is based, will usually be included with the revocation letter as well to facilitate a complete response by the individual. With other intelligence agencies, an individual must usually first request this file. The investigative file will usually include documents, reports and/or other items relevant to the security concerns at issue.
Second Step: Response to the NSA Revocation / Denial Letter
If the individual elects to appeal the initial decision by the NSA, during the first stage of the clearance appeals process at the NSA, the individual will respond to the NSA revocation or denial letter. A thorough response should be prepared. A response should address the security concerns at issue, e.g. Guideline B, Foreign Influence, Guideline B, Personal Conduct, Guideline J, Criminal Conduct or other issues and focus on the potential mitigation of the security concerns. It is very important to provide documentation, such as declarations, character letters, declarations, affidavits, and other documentation relevant to the security concerns or the character of the individual. This first stage of the appeals process is critical.
Third Step: Decision by Office of Personnel Security on First Appeal Review
Once the first appeal by the individual is received by the NSA, the NSA Office of Personnel Security will issue a decision as to whether or not the security concerns have been dismissed or otherwise mitigated. If so, the matter is usually then resolved and the clearance or special access restored. If not, the individual will be provided a decision, usually a page or two in length, discussing the reasons why the first level appeal was denied and of the right to a final appeal. The first appeal may indicate that some of the items have been mitigated, but that others have not been. There is then a very short timeframe in which to request a meeting with the NSA Access Appeals Panel or otherwise submit a written appeal which is typically 15 calendar days from receipt of the initial decision.
Fourth Step: Written Appeal or Meeting and Review by NSA Access Appeals Panel
The next step in the NSA security clearance process is for an employee to meet with the NSA Access Appeals Panel or alternatively submit a written appeal. We recommend that individuals provide additional documentation where possible and also elect an in-person appeal before the NSA Access Appeals panel. This is an in-person appeal where the individual can be represented by counsel in presenting evidence and argument as to why the security clearance or SCI access decision should be overturned. During this personal appearance before the Access Appeals Panel, the individual can present documents in support of keeping their security clearance to the panel. The panel is staffed fully, normally with 6-7 people present. The panel may ask questions or sit patiently and listen to the arguments. In most cases, I have found that the panel asks a fair number of questions about the security concerns at issue.
It should be emphasized that the individual appearing before the NSA Access Appeals Panel should have obtained legal advice and/or representation. The individual should be prepared to answer difficult questions from the panel.
Fifth and Final Step: NSA Access Appeals Panel Decision
Following the personal appearance, the NSA Appeals Panel issues a decision, either granting the clearance or access at issue or a denial. The NSA tends to be one of the more efficient federal agencies at concluding the security clearance process so decisions are issued, usually within 2-3 weeks if not before. If a denial is issued, the individual may re-apply for a clearance or access a year later. The speedy process of clearance review at the NSA is distinguishable from other Intelligence Community appeals processes which can take much longer.
When an NSA employee or government contractor is facing security clearance issues at NSA it is important to obtain legal advice and potential representation. 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 here and our Twitter page here.