Many persons employed by the military or an agency of the United States are granted security clearances that allow them access to sensitive information used in their employment. This applies whether the security clearance holder is in the armed services or works for a contracting company for the United States. Non-military employees can include those with contractors for weapons systems, aircraft, and transportation systems.
The purpose of this outline is to address issues that arise after an applicant has been given a security clearance. There are a variety of “guidelines” which are the standards by which the clearance holder must conduct himself/herself. If these standards are not kept during employment, the United States may seek a revocation of the security clearance.
The office for administrative hearings will allege violations of the person’s security clearance, making allegations based upon the clearance holder’s foreign influence, drug involvement, gambling addiction, financial issues, behavior making him/her susceptible to influence, etc.
The security clearance holder is entitled to a hearing before an administrative law judge to determine whether or not the clearance should be revoked.
The privilege of a Security Clearance
The purpose of a security clearance is to have access to sensitive or classified information. Thus, a revocation hearing is to decide if the employee who holds the security clearance is suitable to continue to access classified information.
No person has the “right” to a security clearance. This is well-defined in the U.S. Supreme Court’s note in Department of Navy v. Egan, 484 U.S. 518, 528 (1988), that “the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials.”
Under Egan and the directives governing a security clearance, any doubt about whether the person should be allowed continued access to classified information should be resolved in favor of protecting national security.
Department of Defense Directives
Security clearance revocation hearings are governed by a Department of Defense (“DoD”) directive. The DoD Directive contains a variety of guidelines to determine the eligibility for continued access to classified information. These “guidelines” are categorized as follows:
- Allegiance to the United States;
- Foreign Influence;
- Foreign Preference;
- Sexual Behavior;
- Personal Conduct;
- Financial Considerations;
- Alcohol Consumption;
- Drug Involvement;
- Psychological Conditions;
- Criminal Conduct;
- Handling Protected Information;
- Outside Activities; and
- Use of Information Technology Systems.
The DoD Directive applies also to other federal agencies.
Government’s Role in Security Clearance Revocations
Using the Department of Defense as an example (many if not most of the security clearance revocations are within the Department of Defense), it Defense Office of Hearings and Appeals attorneys represent the Department by advocating the revocation of the clearance. These government attorneys bring the allegations based upon supposed violations of the guidelines listed above.
For example, if a security clearance holder is charged with a crime, either a felony or a misdemeanor, the DoD attorneys can allege Criminal Conduct pursuant to Guideline J. If a clearance holder had old tax liens, the government may allege violations of Guideline F, Financial Conditions and/or Guideline E, Personal Conduct.
The government attorneys will present evidence in the form of records, including statements of the accused, and documents of the supposed conduct, such as criminal judgments, financial status, bankruptcy filings, medication reports, contacts with foreign nationals, etc.
The parties will prepare and proceed with a security clearance revocation hearing as if the matter were a trial in a criminal case or an administrative matter. The parties can make opening statements, present exhibits and testimony, and make closing arguments. Prior to the hearing, the attorney for a security clearance holder may submit a brief outlining the issues favorably to the client. This brief is an important document that should be submitted prior to the hearing, as it provides the judge your responses to the government, and other favorable information.
The government has the burden of presenting evidence to establish facts alleged in their “Statements of Reasons” that contain the formal allegations. However, the clearance holder has the ultimate burden of persuasion to obtain a favorable clearance decision.
Evidence / Factors Considered
The court will consider two (2) types of conditions that are reflected in the evidence presented. One type is disqualifying conditions, which are the allegations and the evidence the government presents to support them. The second type of condition is mitigating conditions, which refute or attempt to refute the allegations presented by the government.
Factors the judge can consider include:
- The nature, extent, and seriousness of the conduct;
- The circumstances surrounding the conduct;
- The frequency of the conduct;
- The individual’s age at the time of the conduct;
- Whether the participation is voluntary;
- Rehabilitation and other behavioral changes;
- The motivation for the conduct;
- The potential for pressure, coercion, exploitation; and
- The likelihood of recurrence of the conduct.
A person who is granted access to classified information enters into a contractual relationship with the government. So, there is no presumption in favor of granting or continuing access to classified information.
A favorable clearance decision allows the clearance holder to continue to access classified information, and an unfavorable decision revokes the existing security clearance, which prevents access to classified information at any level.
Contact Attorney John R. Teakell
If you received a revocation notice, or if you are under investigation, contact former federal prosecutor John Teakell. Mr. Teakell will use his experience to work to keep your security clearance, regardless of the allegation. Fill out a contact form here.