The Fundamentals of Applying for and Obtaining a Security Clearance
- 1. The Fundamentals of Applying for and Obtaining a Security Clearance
- 2. Disclaimer ✤ The legal information contained in this document is of a general nature and is subject to change; it is not meant to serve as legal advice in any particular situation. The law is in a constant state of change as Congress amends statutes or passes new statutes, Federal agencies issue new regulations, and courts issue new interpretations of the law. The Jeffrey Law Group, PLLC, does not guarantee the accuracy of the legal information in this document. The Jeffrey Law Group, PLLC, recommends you consult a licensed attorney who is knowledgeable about the area of law in question before you take action to address a legal matter.!
- 3. Why am I Here? ✤ If you are planning to apply for a federal government internship or job, chances are that you may be required to have a security clearance.! ✤ If you understand what is required of you now, the process of applying for and obtaining a clearance may be easier in the future.!
- 4. Two key concepts: ! 1. No one has the right to a security clearance – it is a privilege and not a right; and 2. All concerns will be resolved in the favor of national security. See Dept. of the Navy v. Egan, 484 U.S. 518 (1988). Ultimately, the Federal Executive Branch controls who receives and retains a national security clearance. ! ! !
- 5. Process Overview ! 1.Complete Application Form;! ! 2. Investigation;! ! 3. Adjudication (varies by Agency); and! ! 4. If your clearance is denied, you will be provided with a written explanation, and you may exercise your appeal rights.! ! See Executive Order (E.O.) 12968; Dept. of the Navy v. Egan, 484 U.S. 518 (1988).! ! !
- 6. Application Process ✤ Standard Form (SF) 85 - Questionnaire for Non-Sensitive Positions;! ✤ SF 85-P and SF 85-P-S - Questionnaires for Public Trust Positions; and! ✤ SF-86 - Questionnaire for National Security Positions.!
- 7. Application Process ✤ Prior to beginning the application process, visit www.opm.gov/forms to review the forms needed for your internship or employment and to determine whether you may have an issue or concern that will preclude you from access to classified information.!
- 8. “Whole Person Concept” After submitting your application, the Agency will begin what is known as the “Adjudicative Process.” In this process, the Agency weighs a set of variables known as the “whole-person concept,” through 13 adjudicative guidelines.!
- 9. Adjudicative Process Guidelines ✤ The overriding purpose of the 13 adjudicative guidelines is to evaluate a candidate for a security clearance based on that person’s trustworthiness, reliability, and allegiance to the United States. See DOD Directive 5220.6 (1992).!
- 10. What do you mean by my “qualities”? Qualities associated with trustworthiness, reliability, and being an overall good security risk:! ✤ A strong sense of social responsibility;! ✤ Self-control; and! ✤ The ability to maintain personal or job commitments over time.! !
- 11. Factors Considered ✤ The circumstances surrounding the conduct, to include knowledgeable participation; ! ✤ The nature, extent, and seriousness of the conduct;! ✤ The frequency and recency of the conduct;! ✤ The individual’s age and maturity at the time of the conduct;! ✤ The presence or absence of rehabilitation and other permanent behavioral changes;! ✤ The potential for duress, coercion, or exploitation; and! ✤ The likelihood of continuation or recurrence. !
- 12. The Adjudicative Guidelines ✤ Alcohol Consumption! ✤ Drug Involvement ! ✤ Financial Considerations! ✤ Foreign Preference/Influence! ✤ Use of Information Technology! ✤ Personal Conduct !
- 13. Mitigating Factors ✤ Voluntarily reported the information;! ✤ Was truthful and complete;! ✤ Sought assistance and followed guidance, where appropriate;! ✤ Resolved or appears to be able to favorably resolve the concern; or ! ✤ Has demonstrated positive changes in behavior and employment. !
- 14. Denials/Revocations ✤ Applicants and employees who are determined not to meet the standards to classified information are entitled to at a minimum:! ✤ A comprehensive detailed written explanation of the basis for that determination;! ✤ The material relied upon in reaching that determination;! ✤ Counsel or other representative at the applicant/employee’s expense;! ✤ Opportunity to reply in writing, and to request review of the determination;! ✤ Opportunity to appear personally before an adjudicative authority.!
- 15. Alcohol Consumption ✤ Security concerns: DUIs, disturbing the peace, binge drinking, diagnosis of alcohol abuse, other alcohol related offenses.! ✤ Mitigating factors: time, counseling and rehabilitation!
- 16. Alcohol Consumption Nat’l Security Questionnaire ✤ In the last seven (7) years has your use of alcohol had a negative impact on your work performance, your professional or personal relationships, your finances, or resulted in intervention by law enforcement/public safety personnel?! ✤ Have you EVER been ordered, advised, or asked to seek counseling or treatment as a result of your use of alcohol?! ✤ Have you EVER voluntarily sought counseling or treatment as a result of your use of alcohol?!
- 17. Drug Involvement ✤ Security concerns: drug abuse, testing positive for illegal drug use, illegal drug possession and/or other drug crimes.! ✤ Mitigating factors: disassociation from drug-using contacts, changing environment, successful completion of counseling.!
- 18. BUT WHAT ABOUT MY “SKI” TRIP TO COLORADO? Marijuana use, even where allowed under State law, is still a Schedule 1 controlled substance subject to Federal criminal prosecution. Thus, because marijuana use is still a Federal crime, it is still a security concern. Further, marijuana use, along with many other controlled substances, is flatly prohibited for all military members. Accordingly, if you used marijuana while a member of any branch of the US military, you have violated Federal law and engaged in misconduct, thereby giving rise to a security concern. The security concern that follows from the recreational use of marijuana APPLIES EQUALLY TO MEDICAL MARIJUANA. See ISCR Case No. 10-08217 (Oct. 24, 2011); ISCR Case No. 08-08257 (Sept. 10, 2009).! !
- 19. Drug Involvement Nat’l Security Questionnaire ✤ In the last seven (7) years, have you illegally used any drugs or controlled substances? Use of a drug or controlled substance includes injecting, snorting, inhaling, swallowing, experimenting with or otherwise consuming any drug or controlled substance.! ✤ In the last seven (7) years, have you been involved in the illegal purchase, manufacture, cultivation, trafficking, production, transfer, shipping, receiving, handling or sale of any drug or controlled substance?! ✤ In the last seven (7) years have you intentionally engaged in the misuse of prescription drugs, regardless of whether or not the drugs were prescribed for you or someone else?!
- 20. Foreign Contact! ✤ Security concerns: Possession of foreign passport, military service for a foreign country, action to acquire foreign citizenship.! ✤ Affiliation or affection with a foreign national. ! ✤ Mitigating factors: dual citizenship based on birth or parent’s citizenship, willingness to renounce foreign citizenship.!
- 21. Foreign Contact A concern regarding clearance eligibility arises when the applicant has contact with foreign countries.! These cases typically involve both:! !Foreign Influence: Concern about the ability of a foreign country to !manipulate the employee; and! !Foreign Preference: Concern that the employee would favor !another country if asked to take sides.!
- 22. Foreign Contacts Nat’l Security Questionnaire! ✤ Do you now or have you EVER held dual/multiple citizenships?! ✤ Have you EVER been issued a passport (or identity card for travel) by a country other than the U.S.?! ✤ Do you have, or have you had, close and/or continuing contact with a foreign national within the last 7 years with whom you, or your spouse, or cohabitant are bound by affection, influence, common interests, and/or obligation?!
- 23. Financial Considerations ✤ Security concerns: inability or unwilling to satisfy debts, irresponsible spending, poor credit history, failing to file taxes, compulsive gambling.! ✤ Mitigating factors: time, counseling, conditions related from a financial situation beyond the individual’s control.!
- 24. Financial Considerations Nat’l Security Questionnaire ✤ In the past seven (7) years, have you experienced: Repossession and/or foreclosure; loan default; collection agencies; credit cards suspending, charged off, cancelled for failure to pay as agreed; evictions; garnishments; more than 120 days delinquent (currently or in last 7 yrs)? !
- 25. Use of IT Systems ✤ Security concerns: illegal or unauthorized use of IT systems, illegal destruction or manipulation of software, negligence in handling sensitive technology.! ✤ Mitigating factors: time, misuse was minor, conduct was unintentional and individual took steps to correct the situation.!
- 26. Use of IT Systems Nat’l Security Questionnaire In the last seven (7) years have you introduced, removed, or used hardware, software, or media in connection with any information technology system without authorization, when specifically prohibited by rules, procedures, guidelines, or regulations or attempted any of the above?!
- 27. Personal Conduct ✤ Security concerns: conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules. (LYING ON YOUR APPLICATION)! ✤ Mitigating factors: prompt, good-faith effort to correct any falsifications, offense is very minor, etc.!
- 29. Case No. 13-00423 November 26, 2013 ✤ Applicant had two in-laws and two friends living in Pakistan.! ✤ Judge took administrative notice that, among other things, leaders of the Taliban, extremists from the Pakistani Taliban, and Al Qaida openly operate in Pakistan and their financing has been traced from Pakistan to Afghanistan; Pakistan’s record for dealing with militants has been mixed; several areas of Pakistan are terrorist safe havens; several American citizens in Pakistan have been kidnapped; and the human rights situation in Pakistan remains poor.! ✤ Applicant’s connection to his two friends living in Pakistan was via internet/ Facebook and he prior to hearing had “unfriended” both.! ✤ His relationships with residents of Pakistan create a concern about Applicant’s “obligation to protect sensitive information or technology” and his desire to help his relatives and friends who are in Pakistan. ! ✤ CLEARANCE DENIED!
- 30. Case No. 10-10379 September 30, 2011 ✤ 29-year-old Applicant illegally used marijuana from 2006-2010, which he disclosed in his clearance application. His marijuana use was primarily social (i.e., at college parties), but used marijuana 3-4 times post-college.! ✤ Despite his youth and honesty in his application, there was not enough evidence that he had made a true lifestyle change to mitigate the security concern.! ✤ CLEARANCE DENIED.!
- 31. Case No. 09-07217 December 13, 2010 ✤ Applicant is a 19-year-old dual citizen of the U.S. and Canada. Applicant was unwilling to renounce his Canadian citizenship or Canadian passport.! ✤ CLEARANCE DENIED! ✤ “Applicant’s application, receipt, and continuing use of a passport from a country other than the United States, raises foreign preference concerns…”!
- 32. Case No. 09-07674 October 10, 2010 ✤ 26-year-old applicant used marijuana while in high school, which she admitted on her application. However, during her hearing, she denied using marijuana. Applicant also tested positive for marijuana in 2006 as part of an employment application. Applicant claimed she tested positive in 2006 as a result of second-hand marijuana smoke from her friends.! ✤ Applicant provided several letters demonstrating good character, and provided the results of a 2010 drug test, which were negative.!
- 33. Clearance Denied! ✤ Administrative Judge determined that the applicant failed to mitigate the security concerns arising from her past drug use. While her poor choices could be partially attributed to her youth, her explanations for her marijuana use and discrepancies in her investigation were not believable. ! DO NOT LIE!!
- 34. Case No. 10-10170 August 31, 2011 ✤ Applicant, a 23-year-old engineer, began smoking marijuana in college. He smoked almost daily from 2007-2010, and also used ecstasy, mushrooms, vicodin, oxycodone, cocaine, opium, and ketamine on numerous occasions from 2007-2010.! ✤ After receiving an internship offer in his junior year of college, applicant stopped using drugs and passed a drug test in the summer of 2009. Applicant graduated magna cum laude from college in May 2010.! ✤ Applicant was honest and candid about his illegal drug use throughout the investigative process. He regrets his prior drug use, but still associates with some of the people he used to do drugs with. He tested negative for drugs in June 2011. He has never received treatment.!
- 35. Case No. 10-10170 August 31, 2011 ✤ While the Administrative Judge did not doubt the sincerity of the Applicant in his lifestyle change, because his drug use was so extensive, and because he had only been abstinent for 1 year, his clearance was denied.!
- 36. Case No. 09-02925 April 23, 2010 ✤ Applicant attended college from 2004-2008; abused drugs alcohol; cited by college police for alcohol use; suspended for possession of drug paraphernalia; ordered by college to complete course on alcohol use and abuse; drunk driving arrest resulted in mandatory course as well. ! ✤ Regarding his marijuana use, he told the investigator, “I would not be surprised if I did use it at some point in my life -- just no time soon.”! !
- 37. Case No. 09-02925 April 23, 2010 ✤ CLEARANCE DENIED:! ✤ Judge noted that the Applicant’s repeated violations of college rules and regulations, his abuse of a number of illegal drugs, and his stated intention to use marijuana in the future are misconduct that is criminal and reckless and demonstrates unreliability and untrustworthiness.! !
- 38. Case No. 05-13515 Jan. 25, 2007 ✤ Applicant hacked DirectTV while in college. He knew it was wrong when he did it, he did it several times/frequently hacked into it, and he was slow to correct his wrongdoing.!
- 39. Case No. 05-13515 Jan. 25, 2007 ✤ CLEARANCE DENIED; Judge considering frequency of conduct, knowledge of wrongdoing, and slowness in correcting conduct.!
- 40. Case 08-05034 March 10, 2009 ✤ 61- year old mother had a model 29-year career, and held a clearance for 25 years; she received impeccable assessments of her work and her character by supervisors and co-workers;! ✤ She married a native U.S citizen in 1976, has lived in the U.S. since 1979, and became a naturalized U.S. citizen in 1984. Her daughter is married to a U.S. Navy officer serving abroad.! ✤ She had formerly worked for the Israeli government, and in the Israel defense industry. All five of her siblings live in Israel, three of whom work for the Israeli government, one in defense. She owns an Israeli bank account worth about $10,000. She spends a few weeks there about once every other year.!
- 41. Case 08-05034 March 10, 2009 ✤ CLEARANCE DENIED! ✤ She had formerly worked for the Israeli government, and in the Israel defense industry. All five of her siblings live in Israel, three of whom work for the Israeli government, one in defense. She owns an Israeli bank account worth about $10,000. She spends a few weeks there about once every other year.!
- 42. Closing Principles ✤ There is no right to a security clearance. All questions will be resolved in favor of national security.! ✤ NEVER LIE ON YOUR APPLICATION!!
- 43. Questions?!
- 44. Have questions or need help? Contact: ! The Jeffrey Law Group, PLLC The Federal Employee's Law Firm ® 1906 Sunderland Place, NW Washington, DC 20036 202-312-7100 www.jeffreylawgroup.com !