By John V. Berry, Esq.,www.berrylegal.com
Our law firm consults with federal employees who have questions about potential issues with their security clearance, either in obtaining one or in keeping it. We advise and represent federal employees at all stages of the clearance process. A prospective client often has many questions about the timing of hiring a security clearance lawyer in the federal sector process. In sum, we usually advise federal employees that the earlier an attorney experienced in the federal employee security clearance process is consulted, the better. Typically, when an issue is evaluated and addressed, head on by a federal employee, it can help to provide a better potential outcome.
We have often consulted with prospective clients only to find that they have gone too far in the clearance process before consulting counsel and that there is not enough time to resolve the issues that have developed. The old adage that an ounce of prevention is worth a pound of cure is appropriate here. Early preparation for the security clearance process by federal employees, when security concerns arise can avoid more expensive and problematic outcomes later in many cases.
What Can a Security Clearance Lawyer do for a Federal Employee?
We are often asked about how an attorney can assist a federal employee in the security clearance process. Our common response is that there are many ways that an experienced security clearance attorney 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 federal employees have a good sense as to whether or not they may have a security concern (e.g. a recent arrest, marriage to a foreign national, drug use, financial / debt issues) as they apply for positions or when they fill out security clearance forms like the e-QIP, SF-86 and/or different various of the SF-85. Sometimes federal employees don’t fully consider how much a potential security issue can affect their ability to obtain or retain a clearance. Having a security clearance lawyer advise a federal employee about the potential issues and outcomes of a security clearance issue can be invaluable.
Early Evaluation for Federal Employees
When a federal employee understands that they may have a potential security issue, consulting with a security clearance lawyer can help them get ahead of the potential security clearance concerns. One of the major problems that we see in the clearance process is where a federal employee comes to us too late in the process to alter a negative clearance outcome that could have been addressed earlier. We have seen individuals that could have likely obtained or retained their security clearance, but did not seek legal advice early enough in the process. Sometimes, we have met with federal employees who have had financial issues which could have been explained or mitigated, but the individual did not realize what type of information was needed for their response and then are left with few options for an appeal. On other occasions, individuals have security concerns but have not listed them because they did not feel they were important or relevant (i.e. a previous arrest or termination from employment). This can cause federal employees to run into truthfulness issues later on in the clearance process. Getting advice on these issues early is the key.
When consulting with a federal employee, a security clearance lawyer can get a 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. They can sometimes help to put a federal employee’s mind at ease in some cases. Further, in the case of a person who has the option to apply for a clearance, but more time might be needed to mitigate security concerns we can help the person avoid the potential of a denial. In this type of situation, we sometimes advise individuals to wait a year or a few months before applying for or taking a position that requires a security clearance. It is also not uncommon that we anticipate a serious issue with someone obtaining a security clearance, i.e. a recent criminal case, 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.
Furthermore, a security clearance lawyer can help review a federal employee’s security clearance forms to ensure that they are accurate and responsive and consult with them about what to expect. It is critical 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 honesty. We often see issues arise from the omission of required 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. Additionally, while rare, it sometimes can be important to discuss potential criminal disclosures in advance. It is not often the case that disclosures about criminal activity becomes 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 early in the process, not late.
Consulting/Representation after the Security Clearance Process Starts
It is also important for a federal employee to have the guidance of a security clearance attorney when the security clearance process has begun in full. The process has begun when the federal employee’s security clearance forms have been submitted and the individual has potential security concerns, i.e. a record of alcohol abuse or financial consideration issues and are in the process of being scheduled for an investigative interview. In such a situation, it is important to go over the security concerns with a client that are likely to come up in the interview with a security clearance lawyer.
There are often effective 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 for Federal Employees
A federal employee will definitely need a security clearance attorney if they receive a denial or proposed denial of their security clearance by a federal agency. Each federal agency is different and there are different security clearance procedures for each federal agency. This can cause some confusion with clients. The security clearance system has essentially been left by the President to each federal agency under existing Executive Order, rules and regulations. The type of federal employee 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 federal employee consult with experienced counsel where they can explain any unique issues that individual federal agencies are particularly sensitive to. For instance, the Federal Bureau of Investigation (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 / sensitive information. In other words, each federal agency can have a different different view on the same potential security concerns, which can affect a decision.
Federal Employee Responses to Denials or Proposed Denials
In general, each federal agency usually has a written and oral 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 the new DNI directive is provided here. Download SEAD4_20170608 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.
Federal Employee Written Rebuttal
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 we 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 80 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. Each federal employee’s case requires a tailored approach in the written response.
Federal Employee Personal Appearances
While it is critical for a federal employee to provide a detailed written response to security concerns and potential mitigation, it is even more important to present a thorough oral response where the opportunity to do so arises. Our lawyers usually recommend that a federal employee request a hearing or personal appearance in security clearance cases. The individual formats for these presentations vary between the different federal agencies. 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 (NSA), Defense Intelligence Agency (DIA), Central Intelligence Agency (CIA)) staffed by agency employees which hear each case. Additionally, other federal agencies appoint one adjudicator to hear informal personal appearance.
Regardless of the federal agency’s format, a security clearance attorney will prepare a client for their testimony. This means going through the documents with the client and preparing them for the questions that they will be asked by both sides (direct and cross-examination). It is also important to consider that in many forums the federal agency will be represented by their own lawyer and it is very important for a federal employee to have their own counsel in the clearance proceedings. Depending on the federal agency involved, the personal appearance, if it is through the Defense Office of Hearings and Appeals (DOHA), will be heard in a courtroom. In most other federal agencies, the personal appearance will take place in a conference room. DOHA tends to be more formal in their clearance proceedings, taking on a courtroom feel, while other agencies, like the NSA, the CIA and DIA tend to be less formal and take on the tone of a presentation and discussion.
We have found that the personal appearances have the greatest potential to attempt to mitigate negative security concerns. The ultimate appeals adjudicator, whether it is an administrative judge, an appeals panel or a hearing officer often finds the most important evidence by hearing directly from the individual involved and evaluating his or her credibility. A security clearance attorney will prepare a federal employee for the questions that may arise and the best manner to attempt to mitigate them.
When a federal employee is facing security clearance concerns or potential concerns it is important to obtain legal advice and legal representation from counsel experienced in federal employee security clearances. 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. Please visit our Facebook page.