News that the Trump Administration is gearing up to strip the security clearances of more Obama-era intelligence officials may have you contemplating your legal rights regarding your own security clearance. As commander-in-chief, President Trump might have the ability to unilaterally revoke security clearances (although a concurrence from a timely D.C. Circuit decision just opened the window to challenge that). But even if you’re not a headline-generating official in the president’s crosshairs, you may still face hurdles in obtaining or maintaining your security clearance.
When can the government revoke your security clearance?
The federal government has broad discretion when it comes to determining who gets—and gets to keep—a security clearance. This is reflected by the thirteen “adjudicative guidelines,” which provide the criteria for eligibility for a security clearance.
The guidelines are: (A) allegiance to the United States, (B) foreign influence, (C) foreign preference, (D) sexual behavior, (E) personal conduct, (F) financial considerations, (G) alcohol consumption, (H) drug involvement and substance abuse, (I) psychological conditions, (J) criminal conduct, (K) handling protected information, (L) outside activities, and (M) use of information technology.
The guidelines give the government substantial leeway. For example, mere “consistent spending beyond one’s means or frivolous or irresponsible spending” can raise a security concern under the government’s favorite guideline, “financial considerations.” And failure to disclose adverse facts—particularly facts adverse to any of these guidelines—can trigger a security concern as “personal conduct,” another popular government choice.
What steps can you take to avoid a security clearance revocation?
A security clearance is a prerequisite for a wide variety of federal government, military, and contractor jobs. Losing a security clearance often means losing your livelihood.
Recognizing this, executive orders 12968 and 10865, which govern the personnel security clearance revocation process, provide some procedural protections for individuals at risk of losing their security clearance. The exact protections afforded vary by agency and type of employee. At a minimum however, the government must: notify you in writing of its proposed revocation and provide an explanation why; provide you with an opportunity to respond to the notice in writing and to be represented by counsel at your own expense; provide you with a written decision; and provide you with an opportunity to appeal the decision. For some agencies, you may be entitled to two levels of appeals.
Once it begins, the process moves fast. You typically have between 15 and 30 days to respond to the initial notice, and a similar amount of time to appeal the decision.
Most agencies allow for a personal appearance at some point in the process. Depending on the agency and your role there, you may also be entitled to cross-examine persons who have made adverse oral or written statements, subject to certain exceptions.
Your goal in your response is to mitigate the security concerns raised by the government. A list of mitigating factors is included for each of the thirteen adjudicative guidelines. For example, an individual may mitigate “foreign influence” concerns by demonstrating that they have “such deep and longstanding relationships and loyalties in the United States” that they “can be expected to resolve any conflict of interest in favor of the U.S. interest.” So if your entire immediate family has been residing in America for two decades, the government may treat that as a mitigating factor.
In reaching their decision regarding the revocation of your security clearance, the decision-maker is required to weigh all relevant factors regarding you and your circumstances, under a process known as the “whole-person concept,” so don’t shy away from mentioning facts in your favor.
Or better yet, call us and let us do the talking!