Security Clearance Process Consultation
Long Law Firm will explain the process and discuss any concerns or issues you may have regarding your history or status for a security clearance. For example, considerations for dual citizens or foreign nationals (Limited Access Authorization) or the possibility of obtaining an interim clearance.
Additionally, any issues regarding your financial/credit history, tax liens, drug or alcohol use, criminal history, employment, personal conduct, foreign contacts, foreign influence, information technology use, psychological conditions, sexual behavior, outside behavior, social media, etc. can be addressed during this consultation.
If you are thinking about applying for a position that requires a security clearance or you have already applied and/or been selected – you may want to consult with a security clearance expert before you initiate or complete the paperwork (SF-86) usually provided electronically via e-QIP. Companies and organizations that seek to hire or submit a non-U.S. citizen candidate for a sensitive position should contact Long Law Firm for help drafting the Letter of Justification and completion of the SF-86.
All military position are national security positions. Therefore, all service members are required to undergo a national security investigation (regardless of whether they will have access to classified information), be favorably adjudicated and are subject to continues evaluations as discussed above.
Reciprocity Consultation
You may be eligible for reciprocity if you meet all the federal requirements. If eligible, you should not have to complete a new SF-86 or undergo an investigation. Reciprocity may be applicable if you currently have a security clearance or held one within the last few years.
You will not be eligible for reciprocity if your clearance was granted on an interim or temporary basis; your last investigation is out of scope; the position requires a polygraph or a different type of polygraph (e.g. counterintelligence versus full scope); or the position requires a different level of clearance level (e.g. Top Secret or special access).
Long Law Firm can discuss whether you may be eligible for reciprocity or whether you will have to undergo additional security clearance processing.
Completing the SF-86 (Personnel Security Questionnaire)
The first step in getting a security clearance involves completing the Personnel Security Questionnaire. This may be done with a printed form, called the Standard Form-86. Or, more likely, it will involve answering questions online, using the Electronic Questionnaires for Investigations Processing, or e-QIP (https://nbib.opm.gov/e-qip-background-investigations/). The SF-86, updated in November 2016, is more than 100 pages long and is detailed and difficult.
A position may require a Confidential or Secret clearance (Non-Critical Sensitive), Top Secret clearance (Critical Sensitive) or Top Secret with Sensitive Compartmented Information (SCI) or DOE “Q” access (Special Sensitive). Access to SCI, Q or Special Access Programs ("SAP") do not require you to complete additional forms. You may also have to complete an SF-86 for designated national security sensitive positions that don’t necessarily require access to classified information.
The questionnaire requires you to provide information about:
- Where you have lived
- Your employment history
- Your personal and family history
- Criminal history
- Credit history
- Bankruptcy
- Tax Liens
- Alcohol and drug use
- Mental health history and treatment
- Foreign travel and contacts
- Involvement in Organizations/Associations
- Information Technology use
It is critical to answer these questions accurately and truthfully. You cannot misrepresent or provide incomplete answers to questions in the hope that you can clarify later. Responding incorrectly on the security form may result in a charge of falsification of a federal form which can be more damaging than if you had answered honestly in the first place. For example, a person may fear disclosing that he or she has seen a psychologist, in the mistaken belief that this will disqualify that person from getting a clearance. In truth, this alone is not a disqualifier, but answering falsely on the form will likely result in the denial of the security clearance.
Upon completion of the SF-86 you will also sign three “release forms” to authorize the general release of information, credit release, and a medical release.
If you are concerned that answers on the security form may be damaging to your eligibility for a security clearance, seek the advice of an experienced national security attorney at Long Law Firm before you complete the questionnaire.
Investigation and Interview Preparation
After you submit your SF-86, you may be scheduled for an in-person interview with an investigator. Due to the large back-up of security clearance cases, it can take months or a year before your case is assigned to an investigator and/or you are contacted for an interview. However, if the level of clearance requested is Confidential or Secret, and your job application and SF-86 contains no issues that require resolution, no interview may be required.
If your position requires a Top Secret security clearance, you will be contacted for an interview by the investigator. The investigator will usually go over every question on the SF-86 and ask additional questions on matters that may have come up during the investigation. In some cases, the investigator may contact you for a second interview as they continue the investigation and additional information comes available. While you have a right to refuse to answer questions, if you refuse to do so it will likely lead to the denial of a security clearance; and you may lose the job you are applying for or the one you are in that requires you to have or be eligible for a security clearance.
Long Law Firm can offer you advice on the investigative process and help you prepare for the interview with the investigator.
Polygraph Preparation
Federal agencies may require either a full-scope (lifestyle) polygraph or a counterintelligence polygraph for certain positions that require a security clearance. If you believe that something may come up that you either have not revealed or that may be damaging to your chances for a security clearance, contact us to discuss before your polygraph examination. An experienced attorney from the Long Law Firm can guide you through the process and educate you about what to expect during the polygraph session.
Security Clearance Denied, Suspended or Revoked
Before a Federal Agency or the Defense Security Service (DSS)/Personnel Security Management Office for Industry (PSMO-I) will grant or renew a security clearance, they must conclude that your “facts and circumstances indicate that access to classified information is clearly consistent with the national security interests” and any doubt “shall be resolved in favor of the national security.” This process is not like a criminal case, in which the defendant is considered innocent until proven guilty. The security clearance process requires the applicant to prove eligibility for a clearance, or it will be denied and you may lose your job or the position that you received an offer of employment.
If you receive an unfavorable decision and your security clearance is denied, suspended or revoked you will receive written notice regarding this status. Suspension letters are generally issued as an interim or temporary step while the government conducts an “investigation” into an issue or information about you that has been brought to the attention of security officials. If the government decides to deny or revoke your access to classified information (security clearance) you will receive a Letter of Intent or Notice of this Determination that includes a Statement of Reasons and your Rights.
Your ability and timing to respond and/or appeal these determinations is limited so you should immediately contact the Long Law Firm upon receipt of any notice of denial, suspension or revocation.
Statement of Reasons/Letter of Intent
The Statement of Reasons (SOR) is a document which outlines the reasons why the security clearance was not granted or why it is being revoked. There are specific requirements and procedures that the government must follow that allows the applicant, employee, service member or government contractor the right to review and appeal the decision. Along with the SOR, you will receive the written notice discussed above regarding the status of your clearance and your appeal rights.
As a Federal employee, your rights include being provided a “comprehensive and detailed written explanation;” an ability to request applicable documents; a right to be represented by counsel; an opportunity to reply in writing and request a review of the decision; an ability to appeal; and a personal appearance.
In some cases, the government’s issues can be mitigated with a well-written and thorough legal response to the SOR. Long Law Firm will work with you to provide a comprehensive response to the SOR.
Reviews, Hearings/Appeals & Personal Appearance
Federal employees and military personnel have the right to appear in person before an administrative judge in a hearing (or other security clearance adjudicator) and respond to the allegations in the SOR. Following your written response, hearing or personal appearance, the administrative judge or adjudicator will issue a recommended decision to the Federal Agency’s Personnel Security Appeals Board (PSAB), which will issue the final determination on the federal employee’s security clearance.
Department of Defense military and civilian personnel have their personnel security investigations adjudicated (evaluated) by the DoD Consolidated Adjudications Facility (CAF). Federal Agencies and the DoD CAF use the thirteen National Security Adjudicative Guidelines (issued in June 2017) to make a favorable or unfavorable determination. An applicant, employee or military member who receives a notice of revocation or denial of their security clearance from the DoD CAF can appeal the decision to the PSAB of the military service branch or to the Defense Office of Hearing and Appeals (DOHA). DOHA is the legal organization that manages each case. Applicants and employees that receive a notice from their Security Office appeal the decision to their agency
Government contractors in DoD cases that have either been denied or revoked have the right to a hearing before a DOHA administrative judge. In cases involving DoD government contractors, the administrative judge will issue the security clearance decision. A contractor then has a right to appeal an adverse decision to the DOHA Appeal Board which can affirm or reverse a DOHA clearance decision.
The DoD CAF does not determine the security clearance eligibility of defense Intelligence Community (IC) agencies (i.e. NSA, DIA NGA and NRO). These IC agencies have their own Clearance Adjudication Facility (or Personnel Security Office). However, the individual’s legal rights are the same; and, as of June 2017 the same National Security Adjudicative Guidelines apply to Intelligence Community employees. Long Law Firm can represent IC employees and applicants before any of the 17 Federal intelligence organizations, such as those mentioned above and including the ODNI, CIA, and elements of the Army, Navy, Marine Corps, Air Force, FBI, DEA, Energy, DHS, US Coast Guard, State Department and Treasury.
Long Law Firm can represent you throughout the process, including for personal appearances and during your Appeal whether at a Federal Agency Security Appeals Board/Panel, the DoD PSAB or DOHA.
Whistleblower Reprisal/Retaliation Impacts Security Clearance
Individuals with access to classified information that make “protected disclosures” are legally protected from retaliatory actions that may affect your eligibility for access to classified information. This includes threats, the taking of an action, or the failure to take action that impacts the individual’s access to classified information. A protected disclosure is a disclosure of information to a supervisor, chain of command, Inspector General or other someone designated to receive such a disclosure that the employee reasonably believes may be a (1) violation of any law, rule, or regulation; or (2) gross mismanagement, waste of funds, abuse of authority or danger to public health or safety.
Presidential Policy Directive-19 (PPD-19) protects all executive branch employees, to include IC employees. The Intelligence Authorization Act of FY14 amended the National Security Act of 1947 to provide statutory protections for IC employees who make lawful disclosures of fraud, waste or abuse. The IC Whistleblower Protection Act provides IC employees with the means to report to Congress, and the IC Inspector General’s statutory authorities also provide whistleblower protections for IC employees and contractors. The Military Whistleblower Protection Act (MWPA), as amended also covers revocation of access to classified information for service members.
PPD-19 sets out a two-step process for an external review – to include with the Agency Inspector General and IC IG. There are also specific procedures to follow for reporting “urgent concern” complaints or information to Congress. If you believe you have been retaliated against and it has or may impact your access to classified information, contact Long Law Firm for advice and representation.