The key to avoiding problems before they occur in the security clearance investigation or reinvestigation process is to correctly interpret and answer questions on the SF-86 form. These days, the form usually is filled out electronically.
Many applicants needlessly create expensive or even career-ending problems for themselves by not paying careful attention to the questions on this form. Even in situations where real or potential issues of security concern exist, applicants can avoid further problems and begin presenting a defense by carefully crafting narratives to embed in the SF-86 aimed at mitigating real or potential security concerns.
Security Clearance Adjudication
Upon reviewing an applicant’s SF-86 and follow-up personal interview (if the Government conducts such an interview), the Government may have security concerns, which generally center on facts in the applicant’s background regarding questionable allegiance to the U.S., foreign preference or influence, financial problems, personal conduct, alcohol or drug problems, psychological conditions, criminal activity, issues in handling protected information, and improper use of information technology systems. The Adjudicative Guidelines the Government will use to identify such security concerns can be found here.
Should the Government identify such issues in an applicant’s background, it usually will issue a “Statement of Reasons” or equivalent document outlining the Government’s reasons for making a preliminary determination to deny or revoke an applicant’s security clearance. The applicant then has the opportunity to submit a “Statement of Answers” that should be carefully drafted to specifically match the applicant’s particular mitigating circumstances, a list of which also are included in the Adjudicative Guidelines.
Part of this process may include a formal hearing before an administrative judge, together with written legal briefs by both the Government and the applicant. In some cases, a strong written brief may induce the Government to withdraw the Statement of Reasons before the hearing or a decision without a hearing by the administrative judge. In most cases, however, the applicant’s best chance for a favorable outcome is to appear before the administrative judge assigned to the applicant’s case so that the judge can “look into the applicant’s eyes” and personally judge the applicant’s trustworthiness and reliability.
In all security clearance cases, the burden of proof for a favorable outcome for the applicant is on the applicant. In cases where is any doubt, the Government’s general default position is to deny the clearance.
Appeals of Unfavorable Decisions
Under U.S. law, a security clearance is a privilege, not a right. An applicant denied a clearance, however, may have some limited rights to appeal such an unfavorable decision. Any such appeal, however, faces the high threshold of proving that the administrative judge made a relevant error of law or that due process was denied.
For more information, contact MWL Counsel Orest Jowyk.