By John V. Berry, Esq., www.berrylegal.com
Our law firm represents government contractors that hold or are seeking security clearances with the Central Intelligence Agency (CIA). This article outlines some thoughts on the security clearance process for government contractors facing the appeals process at the CIA.
The Clearance Process at the CIA for Government Contractors
The security clearance process at the CIA is very unique when compared to the ones used by other federal agencies (e.g., DoD, DoE, DoJ) or even other intelligence community agencies. This is true, despite the fact that every federal agency follows the same Security Executive Agent Directive 4 (SEAD 4) and Executive Order 12968. It is helpful to know this up front. For obvious reasons, many contractors are aware that they have been put in for a security clearance, but not necessarily that they have been put in for a security clearance with the CIA. We often have individuals come to our office who are unaware of who holds or will be holding their security clearance.
The following are some of the usual steps in the security clearance review process for government contractors seeking to obtain or retain a CIA security clearance when faced with security concerns. The CIA security clearance process is managed by their Office of Security. However, if a government contractor has an issue in obtaining a security clearance, it is difficult to obtain information on the process of responding to an appeal from the CIA. It can definitely help to have counsel advise you.
First Step: Receipt of the Notification of Security Disapproval
When a clearance holder has a security clearance issue with the CIA, they will receive a notification of disapproval letter, almost always sent on generic letterhead which does not identify the CIA, listing the security concerns at issue (in some cases) and other rights in a Memorandum. I will say that it clearly varies, on a case by case basis, as to just how many details are provided in the disapproval letter. For Guideline E (personal misconduct) cases you may receive more information than you would for a Guideline B (foreign influence) case. Foreign influence concerns are typically redacted significantly.
Second Step: Elect Your Options
The second step in the process, once a government contractor has received their disapproval letter is to elect which options to take regarding their security clearance disapproval. A contractor can: (1) seek a copy of the investigative file; (2) file a written appeal only; (3) request a personal appearance; and/or (4) accept the findings. We generally recommend that the individual immediately request their investigative file and request a personal appearance. There are times when a different approach might be appropriate.
The specificity of the security concerns at issue varies, so it is important to obtain additional information maintained by the CIA. 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 the deadline (i.e. number of days) specified by the CIA 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 their representatives). An individual can also respond solely in writing and waive their right to a personal appearance. However, when an appeal must be pursued, it is usually recommended to elect a personal appearance.
Third Step: Receipt of the Investigative File
Assuming that the investigative file has been requested from the CIA, the individual will ultimately be provided with some varying level of the documentation relied upon by the agency in denying the request for security approval. Many portions of the file are likely to be redacted, but an individual can usually discern the security concerns that may be at issue. As noted, a lot will depend on the type of security concerns. When the investigative file is received it is important to prepare to respond with a written response and to prepare for the personal appearance at the CIA. It can take 4-8 months to receive this file, so an individual should keep this in mind.
Fourth Step: Responding to Security Concerns Prior to the Personal Appearance
Upon receipt of the investigative file, the individual may want to provide a written reply in preparation for the personal appearance. It is usually important to provide supporting documents, in advance, to give the adjudicator or their representatives the time to review them in advance of the personal appearance. However, that is not always the case and documents can typically be presented after the personal appearance as well in most cases.
Fifth Step: The Personal Appearance
The next step in the CIA security clearance process for government contractors is for the employee to present their response during their personal appearance. This response is typically held in Northern Virginia. There can be a significant wait in time from the initial request for the personal appearance to the date of the personal appearance. When the CIA scheduler contacts the government contractor or their counsel for a hearing date, the individual is likely 3-7 weeks away from the Personal Appearance date. These estimates, however, are always changing.
It is important to prepare for the personal appearance in advance. That usually requires meeting with counsel and preparing for the presentation and potential areas of clarification that might be needed. Usually, personal appearances are attended by 2-4 individuals from the Office of Security who take notes and clarify issues for the ultimate adjudicator who is most likely not in the room during the personal appearance. The length of the hearing is usually an hour or more.
During the personal appearance, a government contractor’s attorney can speak on their behalf. It is often helpful to have both the attorney and the individual involved speak. Some issues are best explained by an individual as they are questioned by their own counsel. During or after the presentation, sometimes there will be follow up questions by the Office of Security staff which may require clarification.
By the time that the Office of Security has received scheduled the personal appearance, it may be over a year from the original disapproval. If so, there may be some thought given as to responding fully to the security concerns that are known and potentially withdrawing from the clearance process in order to re-apply. In such cases, the CIA will keep records of all responses even if you ultimately withdraw from the security clearance response due to the length of time it takes for a decision to be heard.
One reason for taking this approach is that a government contractor cannot re-apply for a clearance with the CIA and potentially other federal agencies while a government contractor remains in the security clearance process. There are a number of strategies that should be discussed with counsel in these types of CIA clearance appeals.
Sixth Step: Second Level Appeal
Generally, the attempt most likely to overturn a CIA Office of Security disapproval is at the initial stage (written response or personal appearance). Secondary appeals have low rates of success. However, in some cases it is important for the individual to appeal the first stage adverse appeal decision. If a government contractor elects to do so, then will have the chance to argue, in writing, that the adverse first step decision be overturned. Taking this step can also take additional time to obtain a final ruling.
Seventh Step: Reversal or Re-Application
If the disapproval decision is ultimately reversed, it does not automatically mean that the government contractor will be immediately granted their clearance from the CIA. They will still need to be sponsored and have a need for the clearance at that time. There are multiple strategies for attempting to reverse an adverse CIA security clearance decision or in seeking re-application for a government contractor. It is important to speak to counsel about such issues.
When a government contractor is facing security clearance issues before 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 to schedule a meeting to go over individual issues and potential representation.