Obtain Legal Advice Early
As I mentioned above, it is extremely important that individuals with potential security issues consult with experienced security clearance counsel as soon as possible. In our experience, the earlier that an individual with security concerns or potential security concerns consults with a knowledgeable security clearance lawyer, the better the chances are to avert a potential negative outcome. We also find that it is less expensive to address a problem early before it gets more difficult to defend or respond to. One of the most frustrating issues that we run across in representing employees with security clearance issues is when they come to us too late to avert a negative outcome that might have otherwise been avoided.
What Does a Security Clearance Lawyer Do?
I am often asked the question of just how an attorney can assist a person in the security clearance process. The answer is that there are many ways that an experienced lawyer in security clearance law can help when there are security concerns. A lawyer experienced in the security clearance process can advise an individual before a security clearance problem develops. We have found that most individuals have a good sense as to whether or not they may have a security concern (e.g. a recent arrest, drug use, financial issues) as they apply for positions or when they fill out security clearance forms like the e-QIP, SF-86 and/or different versions of the SF-85. Sometimes individuals don’t weigh (or really plan out) how much a potential security issue can affect their ability to obtain a clearance. Having a security clearance lawyer advise a person about the process can be invaluable.
Consulting Before the Clearance Review Process Begins
When an individual understands that they may have a security concern, consulting with a security clearance attorney can help them get ahead of potential security clearance concerns. One of the major issues that we see in the clearance process is when an individual comes to us too late in the process to alter a negative clearance outcome. We have seen individuals who could have likely obtained or retained their security clearances, but did not seek legal advice early enough in the process to avoid a pitfall which ultimately caused the loss of the clearance.
Sometimes, individuals have had financial issues which could have been easily mitigated, but the person did not realize what type of information was needed for their response. They then receive a denial and are left with fewer options in the appeals process. On other occasions, individuals have security concerns but have not listed them because they did not feel they were important or that it was debatable to them whether they applied (i.e. counseling or an employment termination). Getting early legal advice on these issues (and being straightforward in the process) is often the key to success.
When consulting with an individual, a security clearance attorney can get a pretty good idea as to the seriousness of the security concerns at issue and what level of risk is involved in the person applying for a security clearance. In the case of a person who has the option to apply for a security clearance, but more time might be needed to mitigate security concerns we can help the person avoid the potential of a denial by advising them to take more time before applying. In this type of situation, we sometimes advise individuals to wait a year (or the appropriate timeframe) before applying for a position that requires a security clearance. It is also not uncommon that a security clearance lawyer can anticipate a serious issue with someone obtaining a security clearance, i.e. recent criminal charges, which helps them avoid the embarrassment of applying for a position that they may get only to be removed later when their clearance is not approved. A security clearance attorney can also help to put an applicant’s mind at ease if the risk they are concerned about is not as problematic as it seems.
Review of Accuracy of Security Clearance Forms
Additionally, a security clearance attorney can review an individual’s security clearance / federal employment forms (SF-86, SF-85, SF-85p, OF-306) to ensure that they are as accurate and responsive as possible. It is very important to disclose all potential information, accurately, on these forms. Not doing so can form the basis for a denial based on a lack of candor or alleged falsification. We often see issues arise from the unintentional omission of key information that may not seem to be important (or remembered) at the time the security clearance forms were prepared but later becomes the basis of a clearance denial. The most usual culprit in this type of situation is that the individual was not trying to be dishonest but did not put the time and thought that these forms require and simply made a mistake.
Furthermore, while rare, issues disclosed can lead to criminal concerns. As a result, it can sometimes be important to discuss potential criminal disclosures in advance. It is not often the case that disclosures about potential criminal issues become the basis for a criminal prosecution, but sometimes these questions need to be asked before completing a clearance submission. In other words, if an individual has a potential security concern it is key to get legal advice as early in the process as possible. Waiting to get advice after the security clearance process has unfolded can significantly diminish the chances of success for individuals with security concerns.
Consulting/Representation once the Security Clearance Process Begins
It is also important to have the guidance of a security clearance attorney when the security clearance process has begun. The security clearance forms in such a case have been submitted and the individual has potential security concerns, i.e. a record of arrests or financial issues and are in the process of being scheduled for an investigative interview. In such a situation, it is important to go over the areas of concern with a client that are likely to come up in the interview with a security clearance attorney. There are often ways of responding during an interview that can clear up any misperceptions by the investigator or perhaps mitigate these concerns in advance.
Again, it is extremely important to be honest and accurate during the clearance interview process and sometimes to even disclose concerns before the interview begins in certain cases. An experienced security clearance lawyer can help advise an individual about these issues and disclosures before they are interviewed. We often review such concerns with clients in advance of security clearance interviews and help them in explaining the security concerns, in advance, so that all goes as smoothly as possible during the interview or re-interview process.
Legal Representation in Clearance Denials or Proposed Denials
An individual will definitely need a security clearance attorney if they receive a denial or proposed denial of their security clearance. Each federal agency is different and there are different security clearance processes for each federal agency. This causes some confusion with clients. The security clearance system has been left to each federal agency under existing rules. The type of response needed will also differ based upon which federal agency is processing the clearance review.
This is the case even though all federal agencies fall under the same Executive Order 12968. It is also important that the individual consult with experienced counsel where they can explain any issues that individual federal agencies are particularly sensitive to. For instance, the FBI is more sensitive to prior drug use by applicants or employees and many intelligence agencies are sensitive to the misuse or careless handling of classified or otherwise sensitive information. In other words, each federal agency has slightly different views depending on the type of security concerns involved.
Response to Security Concerns
In general, each federal agency usually has a written and personal appearance response stage for those who need to appeal a denial or proposed denial in the security clearance appeals process. While different, each federal agency will provide some form of a Statement of Reasons (SOR) or notice which explains the nature of the security concern at issue. Furthermore, while the procedures and vantage points of a security clearance appeal are different between agencies, they follow the guidelines issues by the Director of National Intelligence (DNI), which became effective June 8, 2017. The DNI issued new adjudicative guidelines entitled Security Executive Agency Directive 4 (SEAD 4) which provides a list of potential security concerns and mitigation. A copy of SEAD 4 is provided here. https://www.dni.gov/files/NCSC/documents/Regulations/SEAD-4-Adjudicative-Guidelines-U.pdf. A security clearance lawyer will be versed in the latest regulations governing such appeals (both federal government-wide and federal agency-specific) before the individual agency involved and will be able to assist a person in navigating the type of appeal to present.
Written Response Stage
The typical first step in the security clearance process is to provide a written response to the security concerns to the clearance review authority. To do so, an experienced security clearance attorney will obtain a complete fact set from the individual regarding the security concerns at issue and work to determine the best possible methods of rebutting and/or mitigating these security concerns. There is also a whole-person concept evaluation, which counsel can assist with by explaining the positive attributes about the individual’s character and/or background which can also help to mitigate clearance issues. To this end, we also often ask a potential client about their employment performance, community involvement and/or whether or not they can obtain letters of recommendation or reference for use in mitigation.
The written response usually takes the form of a written submission by counsel, exhibits, and attaches an affidavit or sworn declaration. It is not uncommon for such responses to be 10 to 70 pages in length, with exhibits. The length of a submission depends on the security concerns at issue and the type of mitigating documents that are available for a case.
Personal Appearance or Oral Response Stage
While it is very important to provide a detailed written response to security clearance issues, it is even more important to present a thorough oral presentation where the opportunity to do so arises. We almost always recommend that an individual elect a hearing or personal appearance in security clearance cases. Again, the format for these presentations differ. Some federal agencies conduct formal hearings with an administrative judge (Department of Defense, Department of Energy) and other agencies have appeals panels (National Security Agency, Central Intelligence Agency) staffed by agency employees which hear each case. Additionally, other federal agencies appoint one adjudicator to hear informal appeals. To this end, each federal agency is different.
Regardless of format, a security clearance lawyer will prepare a client for their testimony and will prepare witnesses for their supporting testimony and potential cross-examination or questioning (where the forum permits in person witnesses). It is also important to note that in many forums the government will be represented by their own attorney and it is very important for an individual to have their own counsel in the proceedings. We find that personal appearances have the greatest potential to reverse negative findings. The ultimate appeals officer, whether it is an administrative judge, an appeals panel or a hearing officer often finds that the most important evidence in a case is to directly hear from the individual involved. A security clearance attorney will prepare a client for the questions that may arise and the best manner in which to rebut or mitigate them.
When a federal employee, military personnel or government contractor is facing security clearance concerns it is important to obtain legal advice and legal representation early in the process. 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.