By John V. Berry, Esq., www.berrylegal.com
This article discusses the security clearance appeals process for government contractors applying for clearances (or attempting to keep them) with the Central Intelligence Agency (CIA). As we have discussed in other articles, the U.S. Government security clearance process is not administered by one federal agency, but individually by each one. The clearance appeals process generally falls into 2 main groups of federal agencies (with some exceptions), one run by the Intelligence Community (IC) and those run by the Department of Defense (DoD). That said, each federal agency has their own internal security clearance process with their own variations. The CIA is one of those federal agencies with its own, very unique, security clearance process.
As noted above, in addition to security clearances processed by the CIA, many other federal agencies maintain their own procedures and personnel that process their own security clearance decisions for federal employees (e.g. NGA, DIA, DOD, NRO, DOJ, etc). It is important to be familiar with each process when appealing an adverse security clearance decision from that particular agency. This article, as noted above, focuses on security clearance appeals for government contractors at the CIA.
The Clearance Process at the CIA for Contractors
The security clearance process at the CIA for government contractors is different than the one utilized for DoD employees, but based on many of the same underlying clearance principles and the same Executive Order (EO 12968). The following illustrate the usual steps in the security clearance review process for those seeking to obtain or retain a CIA security clearance when they are faced with security clearance concerns. The CIA security clearance process is managed by their clearance appeals office. Contractors have the right to counsel before the CIA during the different stages of the security clearance appeals process.
First Step: Notification of Security Disapproval
When a clearance holder has a security clearance issue with the CIA, they will normally receive a notification of disapproval letter, usually sent on blank letterhead, listing the security concerns at issue and other rights in a Memorandum. The specificity of the security concerns at issue varies at this agency, so it is important to obtain as much information as possible in order to address the concerns.
Review rights generally include the ability to obtain documents (i.e the right to request the Investigative File) upon which the revocation or denial is based within 45 days and the ability to request a personal appearance during that timeframe. A personal appearance is an administrative hearing before a panel of clearance adjudicators (or a single adjudicator). An individual can also respond solely in writing and waive the personal appearance. A personal appearance is highly recommended in most types of cases before the CIA. When a personal appearance is requested, the contractor is placed in line for the hearing process, which can take a bit of time.
Second Step: Receipt and Review of the Investigative File
If the individual has requested the Investigative File from the CIA, the individual will be provided with the documentation relied upon by the agency in denying the request for security access. Many portions of the file may be redacted (in some cases there will be many redactions) but one can usually understand the issues that need to be addressed. When the Investigative File is finally received, it is important to prepare to respond with a written response and to start considering the issues for the personal appearance at the CIA as the time for the presentation occurs.
Third Step: Responding to the Security Concerns in Advance of the Personal Appearance
When the Investigative File is finally received, the individual will generally want to provide a written response in preparation for the personal appearance. It is usually important to provide supporting documents, in advance, to give the adjudicator(s) time to review them in advance of the personal appearance. The documents usually need to be provided 2 weeks prior to the scheduled appearance. The CIA follows the Adjudicative Guidelines set forth by the Directive of National Intelligence in ICPG 704.2 and Security Executive Agent Directive (SEAD) 4 when reviewing security clearance matters. Generally, the focus of the appeal should be on information that disputes the events listed that existed, but was not known, at the time of the clearance denial.
Fourth Step: The Personal Appearance Meeting
The next step in the CIA security clearance appeals process is for the individual to present their response to the adjudicator(s) during their personal appearance, typically held at agency facilities. When the CIA decides to hear the personal appearance, the individual or their counsel will be contacted by a CIA attorney or other representative in advance to schedule the presentation. The personal appearance should be done with the assistance of an attorney. These types of presentations typically take about an hour in length and are usually attended by 3 adjudicators or a panel of 3 individuals, with one of these individuals serving as the adjudicator.
It is usually important to arrive early to ensure that the individual is able to make it to the meeting room in time. The individual seeking to overturn the initial decision should be prepared to respond to the concerns at issue and also for potential questions by the adjudicators. The adjudicator(s) will introduce themselves at the start of the hearing, explain the process and then permit the individual and/or their attorney to present the personal appearance. The adjudicator(s) then take notes and makes a record of the response for the agency’s later review and consideration and for the individual’s permanent security record. It is important to make a full record in the written response and at the personal appearance for both the immediate appeal and also for future security clearance applications.
Fifth Step: Second Step Appeal
Generally, the best attempt to overturn the disapproval is at the initial stage. However, in some cases it is important for the individual to appeal an initial adverse decision (either an adverse decision from a written response or an adverse decision issued after the personal appearance) to the next step of the clearance process. The appeal, if filed, should generally be filed within 30 days of receipt of the initial unfavorable decision. The odds on appeal are typically less than during the initial stage, so it is important to address clearance issues as early as possible.
Sixth Step: Reapplication After a Year
If a security clearance by the CIA is denied, then the individual usually has to wait a 1-year period from the final decision in which to re-apply. Not all security issues can be resolved or mitigated in a year, and can take more time, but the reapplication process can ultimately lead to obtaining a CIA security clearance if previously denied. It is important to keep in mind that an individual contractor cannot re-apply for a new security clearance with the CIA while still in the appeals process and may have to withdraw the appeal in order to re-apply. It is important to consult with counsel on this issue.
When an individual is facing security clearance issues at the CIA or before another federal agency it is important to obtain legal advice and potential legal 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. Please visit our Facebook page.