Marijuana and Security Clearances Don’t Mix

By John V. Berry, Esq., www.berrylegal.com

There have been a number of states that have legalized marijuana over the past 10 years. This has led to a great deal of confusion by security clearance holders about the legality of marijuana usage while holding or seeking a security clearance. Many states like Colorado or California have legalized marijuana, but it remains illegal under federal law.  This can cause problems for security clearance applicants or holders. This article discusses these issues.

 

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Image from Wikipedia, By Oren neu dag, https://commons.wikimedia.org/w/index.php?curid=4085127

 

Security Clearance Rules Regarding Marijuana Usage

Security clearance holders and applicants commonly run into security clearance problems under Guideline H of the Security Clearance Guidelines (Security Executive Agent Directive 4) because they don’t realize that the use of marijuana, even in states that have legalized it, remains illegal under federal law. I suspect that these guidelines will be amended in the next 3-5 years to change the use of marijuana from a complete ban to an abuse standard, but it remains a problem today for those in the security clearance world. Additionally, the manner in which marijuana is used is of no difference (gummy, chocolate, brownie, smoking) under the guidelines. We have seen individuals that have had security clearance problems for eating a single gummy candy which contained the active ingredients in marijuana. While we believe that these rules need to be changed, it is important to understand the implication of marijuana use for clearance holders.

We have defended many security clearance clients who have engaged in the light (or even one-time) usage of marijuana, who have had difficulties in overcoming the presumption that even minor use makes one ineligible to hold or maintain a security clearance. If the usage was a long time ago, this can significantly help mitigate a security concern, but the trickiest situations arise when marijuana usage has occurred within the past year. The key in such cases is to attempt to mitigate security concerns by showing abstinence, changes in attitude, changes in associations with friends that engage in drug use and counseling, where needed.

Guideline H of the SEAD 4 states that:

GUIDELINE H: DRUG INVOLVEMENT AND SUBSTANCE MISUSE

24. The Concern.

The illegal use of controlled substances, to include the misuse of prescription and non-prescription drugs, and the use of other substances that cause physical or mental impairment or are used in a manner inconsistent with their intended purpose can raise questions about an individual’s reliability and trustworthiness, both because such behavior may lead to physical or psychological impairment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations. Controlled substance means any “controlled substance” as defined in 21 U.S.C. 802. Substance misuse is the generic term adopted in this guideline to describe any of the behaviors listed above.

25. Conditions that could raise a security concern and may be disqualifying include:

(a) any substance misuse (see above definition);

(b) testing positive for an illegal drug;

(c) illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia;

(d) diagnosis by a duly qualified medical or mental health professional (e.g., physician, clinical psychologist, psychiatrist, or licensed clinical social worker) of substance use disorder;

(e) failure to successfully complete a drug treatment program prescribed by a duly qualified medical or mental health professional;

(f) any illegal drug use while granted access to classified information or holding a sensitive position; and

(g) expressed intent to continue drug involvement and substance misuse, or failure to clearly and convincingly commit to discontinue such misuse.

Mitigating Factors for the use of marijuana can include a number of factors. Many of these are listed below in Paragraph 26 of the Adjudicative Guidelines:

26. Conditions that could mitigate security concerns include:

(a) the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment;

(b) the individual acknowledges his or her drug involvement and substance misuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence, including, but not limited to:

(1) disassociation from drug-using associates and contacts;
(2) changing or avoiding the environment where drugs were used; and
(3) providing a signed statement of intent to abstain from all drug involvement and
substance misuse, acknowledging that any future involvement or misuse is grounds for
revocation of national security eligibility;

(c) abuse of prescription drugs was after a severe or prolonged illness during which these drugs were prescribed, and abuse has since ended; and

(d) satisfactory completion of a prescribed drug treatment program, including, but not limited to, rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a duly qualified medical professional.

Recent Case Examples from 2018 Involving Marijuana Usage:

  1. Judge granted a security clearance for marijuana user where it was shown that a significant amount of time had passed since his last use of marijuana. In addition, the clearance holder was able to show that he had an exceptional career over the past few years. CASE NO: 17-02120.h1
  2. Judge denied security clearance where applicant failed to mitigate concerns raised by his history of marijuana use, purchase, and continued use after being granted public trust clearance in June 2011. The applicant was also found to have failed to mitigate personal conduct concerns raised by his drug involvement and engaged in the falsification of two personnel security questionnaires.  CASE NO: 18-00102.h1
  3. Judge denied security clearance where applicant used marijuana while holding a security clearance and after he had specifically stated that he would no longer use illegal drugs. Clearance is denied. CASE NO: 17-04198.h1
  4. Judge granted security clearance for a 27-year-old custodian of a defense contractor. She was found to have smoked marijuana and abused alcohol when she was younger. However, she since had demonstrated a clear and established pattern of modified alcohol consumption and had abstained from illegal drug use for an appropriate period. Clearance is granted. CASE NO: 18-00281.h1

Overall Thoughts

It is critical not to underestimate the stakes involved when a security clearance investigation or appeal involves even light usage of marijuana. Even light usage of marijuana can cause the loss of a security clearance. This may change in the future as the government likely moves from complete marijuana abstinence to an abuse threshold when dealing with usage, but for today the use of marijuana while seeking a clearance (or even worse while holding one) requires a strong legal defense.  Mitigation and the whole-person concept are keys to attempting to obtain or retain one’s security clearance.

Conclusion

If you are in need of assistance in the security clearance process please contact our office at (703) 668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

 

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