By John V. Berry, Esq., www.berrylegal.com
We typically meet with many federal employees and/or government contractors who are faced with security concerns or potential security concerns in obtaining, retaining or applying for a security clearance. These individuals often ask our attorneys at what point they should retain a security clearance attorney to assist, advise or represent them. This article discusses this topic.
By John V. Berry, Esq., www.berrylegal.com
Both the Department of Energy (DoE) and the Nuclear Regulatory Commission (NRC) maintain their own security clearance procedures, as enacted into law by the Atomic Energy Act of 1954. This security clearance process for DoE employees is similar to the security clearance process for other federal employees and government contractors and is administered by the DoE Office of Hearings and Appeals. This article discusses the issues in responding to DoE security clearance issues and clearance appeals. Continue reading
By John V. Berry, Esq., www.berrylegal.com
Our law firm represents security clearance holders in security clearance investigations
and appeals. We also represent individuals that need to determine how and what to report involving new security concerns. One of the frequently misunderstood issues is a security clearance holder’s continuing duty to report on themselves for newly arising security concerns. In other words, self-reporting usually involves reporting a security incident in between the 5-10 year period for re-investigation. Federal agencies are slowly moving towards a system of continuous evaluation for clearance holders, but there is still a major duty for a clearance holder to self-report significant security concerns that arise between investigations. This can pose a problem where a person is essentially told to report on themselves. It causes many conflicts for clients.
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.
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 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 that 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 security clearance process. This article addresses the security clearance process at the NSA for security clearances and Sensitive Compartmented Information (SCI) access.
The Clearance Process at the NSA
The security clearance appeals process at NSA is similar to the procedures for DOD employees, but there are some 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 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 as well to facilitate a complete response by the individual. With other intelligence agencies, an individual must usually request this file. The investigative file will usually include documents, reports and/or other items relevant to the security concerns.
Second Step: Response to the NSA Revocation / Denial Letter
During the second stage of the clearance appeals process at the NSA, the individual will respond to the NSA revocation or denial letter. 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.
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 a short timeframe in which to appeal, typically 15 calendar days from receipt of the initial decision.
Fourth Step: Meeting and Review by NSA Access Appeals Panel
The next step in the NSA security clearance process is for the employee to meet with 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.
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. If a denial is issued, the individual may re-apply for a clearance or access a year later. Typically, a decision from the NSA has taken 2 to 6 weeks for a decision which is relatively quick for IC cases.
Conclusion
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.
By John V. Berry, Esq., www.berrylegal.com
If you are a federal employee or government contractor whose security clearance is under review (commonly referred to as the Applicant or Clearance Holder) and you are in the process of having your case heard before the Defense Office of Hearings and Appeals (DOHA), there are a number of considerations to take into account as you move forward to the hearing.
By John V. Berry, Esq., www.berrylegal.com
Guideline E of the Adjudicative Guidelines, located in Security Agent Executive Directive 4, is one of the most commonly used guidelines by the government for denying security clearance applications, renewals or upgrades. This guideline covers general misconduct. This article discusses Guideline E Personal Conduct cases in more detail.
