security clearance articles
by William H. Henderson, author of Security Clearance Manual
Copyright © 2007 - 2010 Last Post Publishing. All rights reserved.
2010 Security Clearance Year in Review (April 2011)
Security Violations (March 2011)
Allegiance to the United States and Security Clearances (February 2011)
The Whole-Person Concept (January 2011)
What Is My Chance of Getting a Security Clearance? (December 2010)
Understanding Federal Personnel Security Programs (November 2010)
Homeland Security Presidential Directive 12 (October 2010)
Federal Security And Suitability Process Reform (September 2010)
Security Clearances:How Long Do They Take (May 2010)
The Personal Subject Interview (October 2009)
New Federal Investigative Standards (June 2009)
A Brief History of the U.S. Personnel Security Program (May 2009)
Employment Suitability Versus Security Clearance (April 2009)
DOHA Suitability/Security Issues in FY08 (December 2008)
Rebutting and Appealing Security Clearance Denials (November 2008)
A Review of Exective Order 13467 (July 2008)
Reciprocity of Special Access Eligibility (July 2008)
Collateral Security Clearance Reinstatement & Reciprocity (June 2008)
Clearance Reform Milestones (May 2008)
DOD Changes Security Clearance Question on Mental Health (May 2008)
Bond Amendment Replaces Smith Amendment (February 2008)
December 2007 Report on DOE Polygraph Use (January 2008)
Impact of the IRTPA on Clearance Processing (October 2007)
2010 Security Clearance Year in Review (April 2011)
Annual Report on PSI-I and the NISP—The “Annual Report to Congress on Personnel Security Investigations for Industry and the National Industrial Security Program” provided statistical data for defense contractor security clearance processing during Fiscal Year (FY) 2009. Notably there was a 28% increase in the number of interim security clearances granted by the Defense Industrial Security Clearance Office (DISCO). There was a 9% increase in pending adjudications, a 15% reduction in pending initial investigations, a 41% reduction in pending Top Secret Periodic Reinvestigations, and an 18% reduction in the average end-to-end processing time for the fastest 90% of initial clearances.
DHS Inspector General’s Report—Department of Homeland Security (DHS) Inspector General’s Office released a report outlined 15 recommendations to improve the department’s implementation of Homeland Security Presidential Directive 12 (HSPD-12), Policy for a Common Identification Standard for Federal Employees and Contractors (August 2004).HSPD-12 mandated that federal agencies issue secure federal “Personal Identity Verification” cards by October 2008. As of September 2009 only 15,567 of the approximately 250,000 DHS employees and contractors had been issued PIV cards.
Security And Suitability Process Reform: Strategic Framework—The Suitability and Security Clearance Performance Accountability Council submitted its annual report to Congress in compliance with the Intelligence Reform and Terrorism Prevention Act (IRTPA). The report claimed to have met the IRTPA requirement that 90% of all security clearances be completed in an average 60 days. The report laid out 7 strategic goals and 7 process modules to achieve the overall process reform goals, but there was no mention of the previously announced revision to the investigative standards needed to properly use 5 of the process modules.
New SF86 Approved by OMB—The White House Office of Management and Budget (OMB) approved a new version of the Standard Form 86—SF86 (Questionnaire for National Security Positions). The new SF86 contains more branching questions than the previous version. The only available description of the new form is a PDF file, consisting of 453 pages of explanations and screen shots of the Electronic Questionnaire for Investigations Processing (e-QIP) version. The Office of Personnel Management (OPM) has not yet posted the new form at their website. The last revision of the SF86 was approved in July 2008. OPM did not post that version of the form on their website until October 2008, and the e-QIP version was not available for use by contractors until January 2009.
Industrial Security Clearance Processing Statistics—A Defense Security Service (DSS) presentation at the National Industrial Security Program Policy Advisory Committee (NISPPAC) March meeting included data for 1st quarter FY2010 and January 2010 on defense contractor clearance processing.Average end-to-end processing for all contractor initial security clearances was 99 days (78 days for the fastest 90%) in 1st quarter FY2010. SF86 error rejection rate for the same period was about 11% with small contractor and non-possessing facilities experiencing 29% to 52% rejection rates.
The Security Clearance and Investigation Process—OPM released this presentation, which as the title indicates gives a overview of the security clearance and investigation process. It also includes a chart on case data. During FY2009, OPM had 636,873 initial security clearance investigations, slightly less than the previous year. There was a 7 fold increase in Public Trust investigations in FY2009 as compared to FY2005.The number of basic suitability/credentialing investigations declined significantly from previous years.
Case Adjudication Tracking System (CATS)—CATS became fully operational at the Air Force Central Adjudication Facility (CAF). CATS enables Department of Defense (DOD) CAFs to electronically receive completed investigative files from OPM and eAdjudicate selected cases. CATS was previously implemented at the Defense Industrial Security Clearance Office (DISCO), Army, Navy, and Washington Headquarters Services CAFs and cut case transfer time in half. Prior to CATS, investigative files were mailed from OPM to these DOD CAFs.
Period Reinvestigations of Contractor Personnel—DSSannounced that DISCO will identify and subsequently notify National Industrial Security Program (NISP) cleared contractor facilities of cleared personnel who are due or overdue for a Periodic Reinvestigation (PR). If the contractor facility fails to submit the requested SF86 to DISCO within 60 days, clearance eligibility will be removed and the Facility Security Officer notified. Clearance eligibility will be reinstated upon submission of the required information.
Transfer of DOD Personnel Security IT Systems—The Defense Central Index of Investigations (DCII) was transferred from DSS to the Defense Manpower Data Center (DMDC). This completed the tranfer of DOD Personnel Security IT Systems from DSS to DMDC. Previously the Joint Personnel Adjudication System (JPAS), the Secure Web Fingerprint Transmission (SWFT), and the improved Investigative Records Repository (iIRR)were transferred from DSS to DMDC. These systems will eventually be integrated into the Defense Information Systems for Security (DISS) along with the Industrial Security Facility Database (ISFD) and Educational Network Registration and On-Line Learning (ENROL). DISS also provides Automated Records Check (ARC) and eAdjudication functionality and will become the single point of entry for DOD personnel security.
Automated Record Check (ARC)—ARC initial operating capability for selected populations was implemented. ARC utilizes applicant data to collect relevant information available through government and commercial databases and flag issues for investigative purposes. It is one of the seven process modules of the clearance reform effort.
New Director of National Intelligence (DNI)—James Clapper was confirmed by the Senate and assumed the position of DNI on August 9. He was previously Under Secretary of Defense for Intelligence and led the DOD clearance reform effort. Clapper replaced acting Director David C. Gompert who returned to his position as Principal Deputy Director of National Intelligence. The former DNI, Dennis C. Blair, resigned in May 2010. In addition to his primary duties of advising the President on intelligence matters, heading the 16 member Intelligence Community, and directing the National Intelligence Program, the DNI has policy and oversight authority for all executive branch security clearance processing.
Cost of Security/Suitability Investigations—OPM published new prices for their standard investigative products for FY2011. With one exception the prices of the most common investigations increased 3%. The Minimum Background Investigation (MBI), now renamed the Moderate Risk Background Investigation, increased 20% for priority handling and 27% for standard service. OPM discontinued the Limited Background Investigation (LBI), the Public Trust Special Background Investigation (PTSBI) and the Periodic Reinvestigation and Residence Coverage (PRIR), as well as various special upgrades and updates to standard investigations. The new Enhanced Subject Interview (ESI) replaced the Personal Subject Interview (PRSI), a standard component of many investigations.
Intelligence Authorization Act for Fiscal Year 2010—After resolving differences with the Senate version, the House version (HR 2701) of the 2010 Intelligence Authorization Act (IAA) was signed by the President and became Public Law No: 111-259. It establishes the Inspector General of the Intelligence Community and requires detailed annual reporting on security clearances, as well as feasibility studies on reducing the number of investigative and adjudicative agencies.(This is the first IAA to become law since 2004; others either died in Congress or were successfully vetoed.)
New Defense Security Service Director—Stanley L. Simsbecame the Director of the Defense Security Service (DSS). He replaced Acting Director Barry Sterling, who will remain with DSS in his previous capacity as the Chief Financial Officer. The former director, Kathy Watson, retired from government service in October.Mr. Sims previously held a two-year post as Director of Security in the Office of the Under Secretary of Defense for Intelligence. In that capacity, he served as the DOD senior performance goal leader for the personnel security reform effort to support requirements of the IRTPA.
Senate Subcommittee Hearing on Security Clearance Reform—The Director of National Intelligence, the Director of OPM, and representatives from DOD, OMB, and the Government Accountability Office (GAO) provided updated information on security clearance reform at a hearing before a Senate subcommittee. OPM provided the following data for initial security clearance investigations only (data do not include initiation and adjudication time):
Avg. Time For 90%
Avg. Time For All
WikiLeaks—Numerous news sources reported that OMB sent a memo to federal agencies forbidding unauthorized federal employees and contractors from accessing classified documents publicly available on WikiLeaks and other websites. Other news stories reported that university students were advised not to viewed classified information at WikiLeaks, because it could result in the denial of a security clearance in the future.
House Subcommittee Hearing on Security Clearance Reform —Testimony was heard from representatives of GAO, OMB, ODNI, DOD, and OPM. GAO’s testimony was presented in the form of a report (GAO-11-232T) entitled: “Personnel Security Clearances: Overall Progress Has Been Made to Reform the Governmentwide Security Clearance Process.” The report covered the 3 major long standing security clearance issues: a single federal database for clearance information, reciprocity, and timeliness.
Anti-Border Corruption Act of 2010—Congress passed the 2010 Anti-Border Corruption Act (S. 3243) affecting polygraph examinations and periodic reinvestigations of U.S. Customs and Border Protection (CBP) law enforcement officers (LEO).It became law on January 4, 2011 and directs the Department of Homeland Security to comply with its own regulation that requires all CBP LEO applicants to receive apolygraph examination and background investigation before hiring and a periodic reinvestigation every 5 years.In 2009 less than 15% of CBP LEO applicants received polygraph exams and as of March 2010 CBP had a backlog of approximately 10,000 periodic reinvestigations.
Rollout of New SF86—OPM announced that in February 2011 they will begin a phased implementation of the e-QIP version of the new SF86. A copy of the new SF86, which was approved in March 2010, has not yet been posted to the OPM forms website, but was to be distributed to other investigations service providers before the end of December. The last version (July 2008) of the SF86 was phased in over a period of about 5 months from September 2008 to January 2009.
Security Violations (March 2011)
Guideline K (Handling Protected Information) of the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information encompasses the handling of classified national security information, as well as sensitive but unclassified, embargoed technology, company proprietary, and privacy information. Of the approximately 1200 initial case decisions posted at the Defense Office of Hearings and Appeals (DOHA) website for the period January to November 2010, 14 cases involved Guideline K issues. Over 64% of these initial case decisions resulted in security clearance denials or revocations. One case that initially resulted in the granting of a clearance was later reversed on appeal. All of these cases also cited Guideline E: Personal Conduct and/or Guideline M: Use of Information Technology Systems as potentially disqualifying issues. These addition issues were usually directly related to the Guideline K conduct, because the conduct displayed questionable judgment and unreliable behavior and/or because the conduct involved computers.
The Adjudicative Guidelines states, “Deliberate or negligent failure to comply with rules and regulations for protecting classified or other sensitive information raises doubt about an individual's trustworthiness, judgment, reliability, or willingness and ability to safeguard such information, and is a serious security concern.” Guideline K lists 9 specific examples of potentially disqualifying conduct, some of which duplicate disqualifying conduct under Guideline E and Guideline M. These 9 examples can be reduced to 2 general types of behaviors:
1. Intentional violation of security rules.
2. Repeated negligence, carelessness, or inattention in following security rules.
Cases involving either of these 2 types of behaviors often result in a clearance denial or revocation. Clearances are usually granted or continued in cases involving a single recent unintentional violation or where only a few unintentional violations occurred more than 3 years earlier and the applicant responded favorably to remedial training. DOHA Administrative Judges (AJs) appear to impose a stricter standard when applying the most common mitigating condition of “passage of time without recurrence” to Guideline K cases.
Applying a stricter standard for mitigating security violations is judicious. With most security clearance issues (i.e. alcohol, drugs, finances, criminal conduct, etc) adjudicators try to evaluate the possibility of future recurrence of the problem, because the problem might in turn lead to deliberate or negligent compromise of classified information. Whereas, any recurrence of a security violation could by itself result in the unauthorized disclosure of classified information. In a somewhat extreme application of this stricter standard an applicant’s clearance was revoked by DOHA in 2010 because of numerous unintentional security violations spanning several years, where the last violation occurred 12 years ago.1
Another consideration for applying a stricter standard to these cases is that certain types of security violations are potential counterintelligence indicators that an individual might be disclosing protected information to unauthorized personnel. These behaviors include:
- Unauthorized removal of protected information from the office.
- Unauthorized introduction of cameras or recording devices into areas storing protected material.
- Retention of protected information obtained at a previous employment without the authorization or the knowledge of that employer.
- Unauthorized copying of protected information.
- Concealing or removing protective markings when copying protected information.
- Efforts to view or obtain protected information clearly beyond one's need-to-know.
In early December 2010 numerous news sources reported that the White House Office of Management and Budget sent a memo to federal agencies forbidding unauthorized federal government employees and contractors from accessing classified documents publicly available on WikiLeaks and other websites. Other news stories reported that university students were advised not to viewed classified information at WikiLeaks, because it could result in the denial of a security clearance in the future.
There has been some indignation regarding these warnings, but “The fact that classified information has been made public does not mean that it is automatically declassified.”2To access classified information a person must have the proper clearance and need-to-know. Guideline K specifically makes “inappropriate efforts to obtain or view classified or other protected information outside one’s need to know” a potentially disqualifying condition. However, because of the unusual circumstances involved, it’s questionable whether viewing classified information on WikiLeaks or any other public website will actually result in a security clearance denial or revocation, particularly for people who were not subject to government security regulations at the time. The most likely response will be an admonishment regarding future violations.
A literal interpretation of Guideline K suggests that it only applies to violation of security rules directly related to accessing, handling, and storing protected information. However, adjudicators use a broader interpretation of Guideline K that includes violation of rules regarding the duty to self-report potentially disqualifying conditions and comply with other security requirements. An Admininstrative Judge’s (AJ) decision to revoke a clearance in DOHA Case No.06-26489 is particularly instructive. This decision was later affirmed on appeal.
“Applicant’s failure to comply with rules and regulations for protecting classified and other sensitive information occurred in April 2005, and is not therefore recent. However, at his hearing, Applicant maintained that he was confused by the reporting requirement and, therefore, his failure to follow the instructions given to him should be excused. Applicant’s continuing refusal to acknowledge his responsibility to comply with a reporting requirement was intentional and has not been mitigated by the passage of time. He knew that he should report the [foreign] relationship and deliberately chose not to do so. He failed to demonstrate a positive attitude toward the discharge of his security responsibilities.”
Under DoD Regulation 5200.2-R (Personnel Security Program) cleared personnel must report all potentially disqualifying information listed under Guidelines A through M of the Adjudicative Guidelines, plus:
- Change in name, marital status, and citizenship.
- Change in job assignment that eliminates the need for access to classified information.
- Any situation related to actual, probable, or possible espionage, sabotage, or subversive activities directed at the United States.
- Any known or suspected security violation or vulnerability.
- Efforts by any person, regardless of nationality, to obtain illegal or unauthorized access to classified information.
Supervisors and coworkers have an equal obligation to advise appropriate security officials when they become aware of information with potentially serious security significance regarding someone with access to classified information.
Individuals with Sensitive Compartmented Information or other Special Access Program authorizations have additional reporting requirements, such as impending unofficial foreign travel and any close and/or continuing contact with a foreign national where ties of kinship, affection, influence, or obligation exist, even if the contact does not create a heightened risk of foreign exploitation.
Like all security issues, security violations can be mitigated, if they are unlikely to recur because they happened long ago or under unusual circumstances.Security violations can also be mitigated, if the applicant received improper or inadequate training and subsequently obtained the needed training.
If you commit a security violation or fail to comply with some other security requirement, report the matter to your security officer immediately and request remedial or additional training. The DefenseSecurityServiceAcademy offers a variety of security education courses for federal employees and contractors. Complete the training in a timely manner, obtain documentation that the training was completed, and insure that a copy of the documentation is placed in your security file.
1This DOHA case (No. 04-12742) appears ripe for appeal. Because of the apparently faulty logic applied by the DOHA AJ, the case if appealed will probably be reversed or at least remanded for a new hearing. The AJ held that although the applicant had passive access to classified information at briefings and meetings during the past 12 years (without any security violations), she did not actively handle classified information, and therefore the applicant has not had an opportunity to demonstrate that the lax or sloppy security habits of the past will not recur. Using this logic, anyone whose clearance is revoked due to a security violation will never receive a clearance in the future, because they will not have an opportunity to demonstrate responsible handling of classified information without a clearance.
2Paragraph 4-106, National Industrial Security Program Operating Manual, DoD 5220.22-M, February 28, 2006.
Allegiance to the United States and Security Clearances (February 2011)
For federal security clearance, Guideline A ofthe Adjudicative Guidelines for Determining Eligibility for Access to Classified Information addresses “Allegiance to the United States.” However, most issues perceived as involving “Allegiance to the United States” are actually covered under “Foreign Influence” (Guideline B) and “Foreign Preference” (Guideline C).
Guideline A concerns unlawful speech or action to influence, harm, or overthrow local, state or federal government or to prevent others from exercising their constitutional rights. Guideline A lists the following:
Conditions that could raise a security concern and may be disqualifying include:
(a) involvement in, support of, training to commit, or advocacy of any act of sabotage, espionage, treason, terrorism, or sedition against the United States of America;
(b) association or sympathy with persons who are attempting to commit, or who are committing, any of the above acts;
(c) association or sympathy with persons or organizations that advocate, threaten, or use force or violence, or use any other illegal or unconstitutional means, in an effort to:
(1) overthrow or influence the government of the United States or any state or local government;
(2) prevent Federal, state, or local government personnel from performing their official duties;
(3) gain retribution for perceived wrongs caused by the Federal, state, or local government;
(4) prevent others from exercising their rights under the Constitution or laws of the United States or of any state.
Criticism of government policy or government agencies is protected by the First Amendment to the U.S. Constitution. Even abstract or purely hypothetical advocacy of violent overthrow of the government is constitutionally protected speech, provided it does not seek to incite imminent unlawful action (sedition). Except for military personnel who are held to a higher standard, merely voicing opposition to the government or existing laws is not unlawful and not a security concern.
Everyone understands that involvement in unlawful activities to support foreign interests to the detriment of U.S. national security could result in the denial of security clearance. Almost everyone understands that sympathetic association with people involved in these types of activities could also result in clearance denial. However, sympathetic association with groups that use or advocate violence to achieve domestic political or social objectives may be less clearly understood as a potentially disqualifying condition for security clearance. Involvement in extremist organizations, such as hate groups, antigovernment patriot groups, and single-issue groups (i.e. Animal Liberation Front and Earth Liberation Front) fall into this category.
The tactics used by these groups vary greatly. Some operate completely within the law, using non-violent demonstrations to further their cause. Others organize lawful demonstrations with the intent of causing violence through vociferous, confrontational speech to gain greater media attention. A few advocate and use unlawful “direct action.” Membership in an organization that seemingly advocates only lawful, non-violent means to attain its objectives can be complicated by the existence of an underground faction of the organization that engages in unlawful direct action, and some members can be unaware that their contributions are funneled to the underground faction.
Even if a person does not participate in illegal activities, membership in an organization that advocates or supports illegal activities can create an allegiance issue under Guideline A. In this type of situation security clearance investigators and adjudicators must attempt to determine whether the person knew of and adhered to the group’s support of illegal activities. Guideline A lists the following:
Conditions that could mitigate security concerns include:
(a) the individual was unaware of the unlawful aims of the individual or organization and severed ties upon learning of these;
(b) the individual's involvement was only with the lawful or humanitarian aspects of such an organization;
(c) involvement in the above activities occurred for only a short period of time and was attributable to curiosity or academic interest;
(d) the involvement or association with such activities occurred under such unusual circumstances, or so much times has elapsed, that it is unlikely to recur and does not cast doubt on the individual's current reliability, trustworthiness, or loyalty.
In addition to security clearance, the two other major federal personnel security programs also contain disqualifying criteria related to allegiance, but are more limited in scope than the Adjudicative Guidelines.
Federal employment suitability/fitness standards make “Knowing and willful engagement in acts or activities designed to overthrow the U.S. Government by force” a disqualifying factor. The following is considered when applying this factor:
- Disqualifying acts must be overt, defined illegal acts.
- Disqualifying advocacy must be the incitement or indoctrination to commit defined illegal acts.
- Disqualifying associations require the individual to know of the organization’s unlawful goals, and for the individual to be an active member of the organization or to have the specific intent to further its unlawful goals.
Homeland Security Presidential Directive 12 (HSPD-12) credentialing standards state that a Personal Identity Verification (PIV) Card will not be issued to a person if:
- The individual is known to be or reasonably suspected of being a terrorist.
- The individual has knowingly and willfully engaged in acts or activities designed to overthrow the U.S. Government by force.
Cases involving potentially disqualifying activities related to allegiance (where clear and persuasive mitigation is not present) are rarely adjudicated for credentialing, suitability/fitness, or security clearance determinations. In the past 15 years there has not been one case involving the issue of “allegiance” decided by a Defense Office of Hearings and Appeals (DOHA) administrative judge. In most cases if a federal background investigation surfaces credible information of conduct specified under Guideline A, the background investigation would be promptly closed and the case would be referred to a federal criminal/counterintelligence agency for further investigation.
Security Clearance: The Whole-Person Concept (January 2011)
Among people who have been involved with national security clearances the “whole-person” concept has become widely known and often misunderstood.1 Applicants for security clearance are evaluated on potentially disqualifying and mitigating conditions listed under 13 separate guidelines in the “Adjudicative Guidelines for Determining Eligibility for Access to Classified Information.” The Adjudicative Guidelines additionally admonished adjudicators that:
The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is an acceptable security risk. . . . The adjudication process is the careful weighing of a number of variables known as the whole-person concept.Available, reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a determination. In evaluating the relevance of an individual's conduct, the adjudicator should consider the following factors:(emphasis added)
(1) The nature, extent, and seriousness of the conduct;
(2) the circumstances surrounding the conduct, to include knowledgeable participation;
(3) the frequency and recency of the conduct;
(4) the individual's age and maturity at the time of the conduct;
(5) the extent to which participation is voluntary;
(6) the presence or absence of rehabilitation and other permanent behavioral changes;
(7) the motivation for the conduct;
(8) the potential for pressure, coercion, exploitation, or duress; and
(9) the likelihood of continuation or recurrence.
These 9 factors, often referred to as the “General Criteria,” must be considered together with the applicable disqualifying and mitigating conditons listed under the 13 guidelines. But these are not the only factors and conditions that may be considered. The adjudicator should consider all aspects of the case that are relevant and material to the applicant’s trustworthiness and reliability.2 Unlike all the other mitigating factors that might apply to a security issue, only the last general criterion (“the likelihood of continuation or recurrence”) suggests consideration of a person’s general behavior before and after the conduct that resulted in the potentially disqualifying condition.
The problem with implementing the whole-person concept is the availability of information not directly related to the disqualifying condition(s) and the availability of information regarding some issue-specific mitigating conditions unique to each of the 13 guidelines.
Adjudication that results in a preliminary decision to deny or revoke a clearance is based on the applicant’s Questionnaire for National Security Position (SF86) and the investigative results—primarily the Reports of Investigation (ROI) and credit report. ROIs rarely include information regarding whole-person factors, other than those listed under the General Criteria, and almost all of the General Criteria address factors directly related to disqualifying conduct. This is because most investigative agencies use an abbreviated report writing style that focuses almost entirely on security/suitability issues.
Investigators are trained to report potentially disqualifying conditions, as well as information related to the General Criteria, but they receive little training on issue-specific mitigating conditions. Consequently issue-specific mitigating conditions, such as remorse/restitution or constructive community involvement for the issue of criminal conduct and total financial net worth as an indicator the relative value of foreign financial interests, are seldom recorded in ROIs.
Such things as recognition for professional accomplishments, consistent exemplary work performance, and academic achievements are usually not recorded in ROIs, unless there is an allegation of work- or school-related misconduct, and even then there is a possibility that they might not be recorded. Participation in civic, social, professional, educational, religious, and charitable organizations, as well as other forms of constructive community involvement, usually does not appear in ROIs, unless an interviewee’s knowledge of the applicant was based on contact related to one of these activities.
Without corroboration by an investigator or supporting documents, information on positive whole-person factors added to the comment sections of an SF86 has little adjudicative value. In some cases it is possible to submit supporting documents as an addendum to the SF86 for consideration during an interim clearance decision. It is also possible to provide supporting documents to an investigator during a Personal Subject Interview (PRSI) or Special Interview (SPIN), but it is difficult for an investigator to submit attachments with an ROI. Documents given to an investigator can usually only be summarized and included in the narrative text of the ROI. Consequently, the submission of documents that support positive whole-person factors usually does not occur until an applicant responds to a written notification (Letter of Intent or Letter of Instruction—LOI) that a government agency intends to deny or revoke his/her clearance. The LOI includes a “Statement of Reasons—SOR” detailing the applicable disqualifying conditions and conduct.
Most applicants are unaware that evidence of positive whole-person factors unrelated to disqualifying condition(s) is rarely considered by adjudicators unless applicants provide it themselves. This type of information is not elicited by the questions on an SF86, nor is it requested by an investigator during a PRSI or SPIN. LOIs generally include instructions advising that the applicant must submit a detailed written answer to the SOR that includes an admission or denial each allegation. The Department of Defense (DOD) “Instructions for Responding to Statement of Reasons (SOR)” at Appendix 11 to DOD 5200.2-R, Personnel Security Program, contains one sentence concerning the submission of documents related to whole-person factors:
“You may provide statements from co-workers, supervisors, your commander, friends, neighbors and others concerning your judgment, reliability and trustworthiness, and any other information that you think ought to be considered before a final decision is made.”
This sentence can easily be overlooked, because the instructions repeatedly emphasize submitting information that refutes, mitigates, extenuates, or explains the specific disqualifying information listed in the SOR.
The DOD “Instructions for Appealing a Letter of Denial/Revocation (LOD)”3 does not address whole-person factors at all and provides little guidance on the substance of appeals, but it makes reference to the information contained in the instructions for responding to an SOR.
Information that directly mitigates the potentially disqualifying condition(s) listed in the SOR is more important than positive whole-person factors. But positive whole-person factors can be used as the basis for supporting a favorable determination when information that directly mitigates a specific disqualifying condition does not exist or is insufficient.
Many applicants do not consider submitting evidence of positive whole-person factors until they have to respond to an SOR or appeal an LOD. Consequently this evidence is not available to adjudicators who can make a favorable determination at earlier stages of the adjudicative process. In cases involving major derogatory information, submitting this evidence at the earliest possible stage of the clearance process can reduce the time and increase the chance of a favorable determination.
1Although the use of the “whole-person” concept is clearly a requirement for national security clearance adjudications; its use is not specifically addressed in the standards for federal employment suitability/fitness or HSPD-12 credentialing determinations.
2 Defense Office of Hearings and Appeals, Case No. 04-00540.a1 (App. Bd. January 5, 2007).
3 DOD instructions for appealing an LOD are also at Appendix 11 to DOD 5200.2-R. In November 2007 this regulation was changed to allow witnesses to testify at “Personal Appearances.”
What Is My Chance of Getting a Security Clearance? (December 2010)
The Defense Industrial Security Clearance Office (DISCO) processes the vast majority of security clearances for federal contractor personnel. Administratively the adjudicative process at DISCO is slightly different from other federal adjudicative facilities, but case outcomes are statistically similar at all facilities.
DISCO receives completed security clearance investigations from the Office of Personnel Management (OPM). DISCO reviews the investigations, but they can only grant security clearances; they are not authorized to deny or revoke security clearances. If derogatory information in a case reaches a certain threshold, it must be referred from DISCO to the Defense Office of Hearings and Appeals (DOHA) for adjudication. The table below shows the progression of completed investigations once they are received at DISCO and work their way through the adjudicative process. Cases containing the most serious derogatory information, typically go through 4 levels of adjudicative review (not including the appeal process) before a final decision is made to deny or revoke a clearance, but the granting of a clearance can occur at the first level or at any of the subsequent review levels.
Typical Distribution of DISCO/DOHA Case Outcomes
Completed investigations received by DISCO
Clearances granted by DISCO
Cases referred from DISCO to DOHA
Clearances granted by DOHA staff adjudicators
Statement of Reasons (SOR)1 issued by DOHA
Clearances denied or revoked due to no response to SOR
SOR responses received by DOHA
Clearances granted by DOHA after review of SOR response
Cases referred to DOHA Administrative Judges
Clearances granted by DOHA Administrative Judges
Clearances denied or revoked by DOHA Administrative Judges
About 1% or 1,350 cases (sum of the 2 figures shown in red) of the approximately 150,000 completed investigations received by DISCO each year result in clearance denial or revocation. About 20% to 30% of cases decided by DOHA Administrative Judges are appealed by either the applicant or the DOHA Department Counsel.
While 99% may seem like a very large percentage of clearance approvals, it does not accurately reflect the true percentage of people who are eligible for a security clearance. An unknown number of people choose not to apply for positions that require a clearance, because they believe there are factors in their life that would inevitably result in a clearance denial. Some potential applicants fail to receive sponsorship, because they are screened out of the process by prospective employers. Others drop out of the process, because major derogatory information causes the process to continue for an unacceptable period of time. Many are not hired, because they fail to receive an interim clearance required for the job by the prospective employer due to derogatory information. In 2008 DISCO declined to grant interim clearances to 39% of applicants.
For the vast majority of people who apply for a clearance and are able to remain in the process until a final decision is received, the more important questions are “how long will it take to receive a clearance?” and “what can I do to reduce the time it takes to receive a clearance?” The average end-to-end elapse times by agency for the fastest 90% of cases are listed in the article, “Security Clearances:How Long Do They Take.” As for the other 10%, less than 1% of initial clearance investigations conducted by OPM take more than 180 days, but about 5% of clearance adjudications take more than 180 days. This is primarily because of the multiple levels of adjudicative review before a final decision can be made in cases involving serious security issues.
For applicants whose cases contain no derogatory information or only minor derogatory information, interim Secret clearances are granted a few days after the clearance application is submitted, and interim Top Secret clearances are granted within a few weeks. In the past most final clearance delays were due to the backlog of investigations. Today the length of time it takes to get a final security clearance decision usually depends more on the level of adjudicative review at which the decision is made. Applicants who receive interim clearances usually receive their final clearances in less than the average time. This is because their clearances are usually granted by the first-level adjudicator. For applicants whose cases contain moderate to major derogatory information, the earlier they are able to effectively articulate all the mitigating factors directly relevant to the issues present in their cases, the greater the probability that they will be granted clearances at one of the earlier stages of adjudication. Cases containing very serious/complex issues and those than can only be mitigated by positive “whole person” factors are usually decided by third- or fourth-level adjudicators and take the longest amount of time. Mitigating information can be provided by the applicant at different times during the clearance process:
- When completing the clearance application form.
- During a face-to-face interview with an investigator.
- In response to a “Written Interrogatory” when requested by an adjudicator.
- In response to an SOR.
- In response to “File of Relevant Material” (FORM)2 or at a hearing (DOHA cases only).
1An SOR is a written notice of why a preliminary determination to deny or revoke a security clearance has been made. Some agencies use the term, Letter of Intent or LOI instead of SOR.
2 The FORM contains all the information that will be presented to a DOHA Administrative Judge by the DOHA Department Counsel (attorney) when a hearing has not been requested. It is equivalent to the pre-hearing disclosure the Department Counsel makes to the applicant regarding the information the Department Counsel plans to submit at the hearing.
Understanding Federal Personnel Security Programs (November 2010)
People often use the generic term, “security clearance,” when referring to any government determination regarding an individual’s eligibility for access to protected information, facilities, or computer systems, as well as federal employment suitability or fitness. There are 3 major federal personnel security programs and each has its own terminology. All 3 programs have provisions for an interim eligibility authorization pending the completion of a background investigation and a final eligibility determination. All 3 programs require:
- sponsorship by a federal agency or federal contractor,
- submission of application forms and fingerprints,
- investigation of the applicant’s background, and
- favorable adjudication of the investigation.
The government is in the process of aligning these 3 programs under a single unified structure (see Executive Order 13467), but each program currently has its own standards and processes that are largely separate and distinct from each other. These programs are for:
- National Security Clearances,
- Employment Suitability or Fitness, and
- Homeland Security Presidential Directive 12 (HSPD-12) Credentialing.
National Security Clearances are governed by Executive Order 12968 and exist for the purpose of safeguarding national security information. Under this program federal employee and federal contractor positions are designated as “non-sensitive,” “non-critical sensitive,” “critical sensitive,” and “special sensitive.” Generally position sensitivity designations higher than non-sensitive are directly related to the level of classified national security information for which access is needed (Confidential/Secret, Top Secret, or Sensitive Compartmented Information and certain other Special Access Programs). Some positions may be designated as non-critical sensitive or critical sensitive; even though actual access to classified national security information is not required. Applicants must submit a Standard Form 86—SF86 (Questionnaire for National Security Positions) and undergo one of the following types of background investigations for an initial clearance:
- National Agency Check with Law and Credit Checks (NACLC) for military and contractor Confidential and Secret clearances,
- Access National Agency Check with Inquiries (ANACI) for federal employee Confidential and Secret clearances, or
- Single Scope Background Investigation (SSBI) for all Top Secret, Sensitive Compartmented Information (SCI), and certain other Special Access Program (SAP) clearances.
Some SCI and SAP clearances have an additional requirement of a polygraph examination. The granting or denying of a security clearance is based on the criteria contained in the “Adjudicative Guidelines for Determining Eligibility for Access to Classified Information.” SCI eligibility has additional standards listed in Intelligence Community Directive Number 704. There may be program-specific requirements for other SAP eligibility. E.O. 12968 requires agencies to provide individuals review and appeal rights for clearance denials and revocations, but these rights do not apply to interim clearances. After the granting of a security clearance, reinvestigations are required at periodic intervals (5 years for Top Secret, 10 years for Secret, and 15 years for Confidential). Federal agencies are conditionally required to reciprocally accept clearances granted by other federal agencies.
Employment Suitability is governed by Executive Order 10450 and 5 CFR Part 731 for the purpose of insuring that the selection and retention of federal employees are clearly consistent with the interests of the national security and will maintain the integrity or efficiency of federal service. The term, Employment Suitability, and the provisions of 5 CFR 731 apply primarily to federal “competitive service” appointmentsThese positions are required to be designated as high, moderate, or low risk, depending on the position's potential for adverse impact to the efficiency or integrity of federal service. “Positions at the high or moderate risk levels would normally be designated as ‘Public Trust’ positions. Such positions may involve policy making, major program responsibility, public safety and health, law enforcement duties, fiduciary responsibilities or other duties demanding a significant degree of public trust, and positions involving access to or operation or control of financial records, with a significant risk for causing damage or realizing personal gain.” Applicants are required to submit either a Standard Form 85—SF85 (Questionnaire for Non-Sensitive Positions) or Standard Form 85P—SF85P (Questionnaire for Public Trust Positions). They may also be required to submit a Standard Form 85P-S—SF85PS (Supplement Questionnaire for Selected Positions) and/or an Optional Form 306 (Declaration for Federal Employment). These forms are used to conduct one of the following background investigations:
- National Agency Check with Inquiries (NACI) for Low Risk positions;
- Minimum Background Investigation (MBI) for Moderate Risk positions;
- Limited Background Investigation (LBI) for Moderate or High Risk positions; or
- Background Investigation (BI) for High Risk positions.
The basic criteria for making employment suitability determinations are contained in 5 CFR 731.202. Federal agencies are authorized to establish additional job-specific suitability criteria based on the nature of the position. There must be a nexus between the additional criteria, the agency’s mission, and the position duties. Competitive Service applicants and employees are entitled review and appeals rights for any adverse suitability determination. Executive Order 13488 created a requirement that all personnel occupying Public Trust positions be subject to period reinvestigations and gave the Office of Personnel Management (OPM) authority to establish standards for such reinvestigations; however, OPM has not yet established the standards. The only current requirements for reinvestigations of personnel occupying Public Trust positions are those established by individual agencies pursuant to the Federal Information Security Management Act of 2002 (Title III of E-Government Act) and Office of Management and Budget (OMB) Circular No. A–130. Federal agencies are conditionally required to reciprocally accept favorable employment suitability determinations made by other federal agencies.
Employment Fitness is a term used for making hiring or retention decisions for federal “excepted service” positions at all risk levels and Public Trust determinations for contractor positions. Although, 5 CFR Part 731 applies primarily to “competitive service” positions; federal agencies are encourage to apply its provisions to excepted service (see 5 CFR Part 302) and contractor positions. Federal agencies generally follow the investigative requirements and adjudicative standards of 5 CFR Part 731 for employment fitness determinations; however, they rarely provide any review or appeal procedures for excepted service or contractor personnel found to be unfit. Reinvestigation requirements are currently the same as for “competitive service” positions, and conditional reciprocity of fitness determinations is permitted under OPM “Guidance on Implementing Executive Order 13488.”
HSPD-12 Credentialing requires that personnel granted physical access to federally controlled facilities or logical access to federally controlled computer systems be issued standardized Personal Identity Verification (PIV) cards. The purpose of HSPD-12, “Policies for a Common Identification Standard for Federal Employees and Contractors,” is to enhance security, increase government efficiency, reduce identity fraud, and eliminate potential for terrorist attacks. A National Agency Check with Inquiries (NACI) investigation is conducted based on the submission of either an SF85 or SF85P. The completed investigation is adjudicated using OPM’s “Final Credentialing Standards for Issuing Personal Identity Verification Cards under HSPD-12.” OMB Memorandum M-05-24 allows for the reciprocal acceptance of favorably adjudicated NACI and NACLC investigations (or better) previously conducted for HSPD-12 Credentialing, Employment Suitability/Fitness, or National Security Clearance determinations as the basis for granting a PIV card without any further investigation or adjudication. This applies regardless of how long ago the last investigation took place, provided there has not been a break-in-service of more than 2 years since the last background investigation. PIV credentials are valid for no more than 5 years and must be surrendered or cancelled when access is no longer officially required. Currently there is no requirement for reinvestigations for the reissuance of PIV cards. Federal Information Processing Standards Publication 201-1 created a requirement that agencies maintain appeal procedures for those who are denied PIV cards or whose PIV cards are revoked. OPM’s Final Credentialing Standards provides additional information regarding the requirements for appeal procedures and reciprocity.
Individuals who require PIV cards and are also applying for employment with a federal agency or a federal contractor for jobs that are subject to employment suitability/fitness and/or national security clearance determinations are first processed in accordance with the procedures for those programs. A favorable determination under either program can then be used as the basis for issuing a PIV card without any further investigation or adjudication. An unfavorable determination under either program can also be used as the basis for denying a PIV card. Under these circumstances no appeal procedures are required for PIV card denial or revocation.
It is possible to be subject to any combination of these 3 programs.Depending on the timing and sequence in which the programs are encountered, an applicant could submit 3 different application forms with fingerprints, undergo 3 different background investigations, and have each of the 3 investigations adjudicated separately under different standards.
Homeland Security Presidential Directive 12 (October 2010)
HSPD-12, “Policies for a Common Identification Standard for Federal Employees and Contractors,” was signed in August 2004 and is one of three major federal personnel security programs. The other two programs encompass national security clearances and federal employment suitability/fitness. For most federal employees and many contractor employees HSPD-12 requirements and processing are nearly invisible, because the issuance of an HSPD-12 compliant Personal Identity Verification (PIV) card occurs almost automatically when there is a favorable security clearance or employment suitability/fitness determination. It was estimated that HSPD-12 compliant cards would have to be issued to 4.3 million federal employees and 1.2 million contractors. According to OMB as of March 2010 only 64% of PIV cards have been issued.
HSPD-12 requires development and agency implementation of a mandatory, government-wide standard for secure and reliable forms of identification for federal employees and contractors requiring physical access to federally controlled facilities and logical access to federally controlled information systems. The Directive has three principle implementing documents:
- Office of Management and Budget (OMB), Memorandum M-05-24, August 5, 2005;
- Federal Information Processing Standards Publication (FIPS PUB) 201-1, March 2006; and
- Office of Personnel Management (OPM) Memorandum, July 31, 2008, Subject: “Final Credentialing Standards for Issuing Personal Identity Verification Cards under HSPD-12.”
For many contractor employees HSPD-12 is the only federal personnel security program they will encounter. Before any applicant can be issued a PIV card (also referred to as a credential), they must be sponsored by a federal agency or contractor, and the credential must be requested by proper authority. The applicant must personally appear at the appropriate registration office with two identity source documents, at least one of which must be a valid federal or state government issued picture ID, and the applicant must be fingerprinted. Acceptable forms of identification are listed on page 5 of INS Form I-9. The applicant must also submit either a Standard Form 85—SF85 (Questionnaire for Non-Sensitive Positions) or a Standard Form 85P—SF85P (Questionnaire for Public Trust Positions) in paper form or using OPM’s Electronic Questionnaire for Investigations Processing (eQIP). A National Agency Check with Written Inquiries (NACI) investigation must be conducted. Once favorable advanced results from the FBI National Criminal History (fingerprint) Check portion of the NACI are received, the applicant can be issued an interim credential. Issuance of a final credential takes place after the favorable adjudication of the completed NACI investigation. Adjudication can be done at either the personnel or security office of the requesting government authority using OPM’s Final Credentialing Standards.
An NACI consists of a National Agency Check (NAC) plus written inquiries and record searches covering:
- Employment, 5 years
- Education, 5 years and verification of highest degree
- Residence, 3 years
- Law Enforcement, 5 years
A standard NAC consists of a search of the OPM Security/Suitability Investigations Index (SII) and the Defense Clearance and Investigation Index (DCII), as well as an FBI Name Check and FBI National Criminal History (fingerprint) Check. An NAC can include checks of other federal agency records when appropriate (i.e. military records when an applicant lists military service). Written inquiries are sent to current and past employers, schools attended, and references. Local law enforcement authorities can also be sent letter inquires, but most of these checks are done electronically using the National Law Enforcement Telecommunications System (NLETS). (Note:By special agreement with OPM all NACIs requested by Department of Defense agencies include a credit check.)
Individuals applying for employment with a federal agency or a federal contractor for jobs that are subject to employment suitability/fitness or national security clearance determinations are processed in accordance with the procedures required for those programs. A favorable determination under either program can be used as the basis for issuing a PIV credential without any further investigation or adjudication. Individuals who previously received favorable employment suitability/fitness or national security clearance determination can also be issued a PIV credential without any further investigation or adjudication, regardless of how long ago the last investigation took place, provided they have not had a break-in-service of more than 2 years since their last background investigation.
PIV credentials are valid for no more than 5 years, but must be surrendered or cancelled when access is no longer officially required. Currently there is no requirement for a periodic reinvestigation to maintain a PIV credential.
When applicants, who are not subject to either of the other two personnel security programs, are denied a PIV credential, agencies must provide a procedure for appealing the denial. Applicants subject to either of the other two personnel security programs have no right to appeal the denial of a PIV credential. However, the programs covering federal employment suitability (but not fitness) and national security clearances have their own rebuttal and appeal procedures. A final adverse employment suitability/fitness or national security clearance determination can be used as the basis for denying a PIV credential. Applicants subject to federal employment fitness determinations are without any government-wide right to rebut or appeal an adverse fitness determination or the denial of a PIV credential. Federal employment fitness determinations apply to applicants for federal jobs designated as “excepted service” or “temporary” appointments and all federal contractor employees applying for jobs designed as Public Trust positions. Federal employment suitability determinations apply to applicants for federal jobs designated as “competitive service” appointments and career appointments in the Senior Executive Service.
At least one federal agency appears to continue to have its own facility access program that is not in compliance with HSPD-12. Department of Navy (DON) SECNAV M-5530.10 specifies that “Contractor employees who require access to DON controlled/restricted areas, NOT involving sensitive information or IT equipment and not involving access to classified information will be processed under the DON Facility Access Determination (FAD) program.” FAD requires only an NAC rather than an NACI. FAD adjudications use the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information rather than OPM’s Final Credentialing Standards. The FAD program gives commanding officers of naval facilities and activities final authority for access determinations and no due process (rebuttal or appeal) procedures are required. Under the FAD program it is possible for a contractor to be denied access to a DON facility based solely on an unfavorable review of the SF85P without an investigation or an opportunity to explain or mitigate unfavorable information. Navy commands must provide the contractor written notification of the FAD decision, but they are not required to given any reason for access denial.
Federal Security And Suitability Process Reform (September 2010)
In December 2004 the Intelligence Reform and Terrorism Prevention Act (IRTPA) became Public Law 108-458. Title III of the IRTPA created the following requirements:
- Responsibility—A single entity within the executive branch with responsibility for oversight of the security clearance process and a single agency to conduct, to the maximum extent practicable, security clearance investigations.
- Integrated Database—A single consolidated database of all security clearances, allowing that certain records may be excluded for national security reasons.
- Reciprocity—Prohibit duplicate investigations and require transferability and acceptance of investigations and clearances between federal agencies.
- Timeliness—By December 2009 90% of security clearance determinations be made within an average of 60 days from date of receipt of a completed application.
The Office of Management and Budget (OMB) was given responsibility for security clearance process oversight, and the Office of Personnel Management (OPM) was given responsibility for conducting investigations. However, 21 other federal agencies are currently authorized to conduct their own security clearance investigations. OPM’s Central Verification System (CVS) provides a single search capability for 90% of all investigations and clearances. CVS does not provide access to records maintained in the Intelligence Community’s (IC) clearance database. Reciprocity continues to be problematic and defies implementation by fiat. Tremendous improvements have been made in clearance processing time by significantly increasing the number investigative and adjudicative personnel and through technological improvements. (See related article on “Security Clearances: How Long Do They Take?”)
In its 100 Day Plan released in April 2007, the Office of the Director of National Intelligence (ODNI) announced its intention to develop and implement security clearance process improvements. In August 2007 OMB, DOD, ODNI solicited proposals from industry to develop a new government-wide, end-to-end security clearance process. In fall 2007 a decision was made to align and integrate federal suitability, credentialing, and security clearance processes. The Joint Security and Suitability Reform Team (JSSRT) was created and issued its initial report in April 2008 recommending a new governance structure and outlining specific process reform initiatives. In its December 2008 report the JSSRT provided an implementation timeline for its reform initiatives. After the new administration took office in January 2009 there was a reevaluation of the reform effort. This resulted in some policy changes and changes to implementation dates of individual components of the reform process. The JSSRT (also called the Joint Reform Team—JRT) plans to have most of the processes shown below substantially operational by the end of this year. (Source: Security and Suitability Process Reform—Strategic Framework, February 2010,
a joint report by OMB, DOD, OPM, and ODNI.)
eApplication—This is the new term for e-QIP (electronic Questionnaires for Investigations Processing). E-QIP has separate programs for each of the standard application forms. A new revised Standard Form 86—SF86 (Questionnaire for National Security Positions) was approved by OMB in March 2010 and should be implemented by the end of the year. OPM decided not to revise the other forms (SF85 and SF85P) until the SF86 was approved, because SF86 is the most comprehensive of the forms and changes in the SF86 will have a trickle down effect on the revision of the other forms. Approval of a revised SF85P (Questionnaire for Public Trust Positions) is expected by December 2011. (The new SF86 was previously planned to be implemented by December 2009.)
SWFT—Secure Web Fingerprint Transmission system allows DOD requestors to submit fingerprints electronically. This will eliminate mailing time and permit more efficient matching of fingerprints with SF86s. It will also eliminate the time OPM spends scanning the paper fingerprint cards before they can be forwarded to the FBI. SWFT became operational at Defense Industrial Security Clearance Office (DISCO) in August 2009.
CATS—The Case Adjudication Tracking System is a program that allows a DOD adjudication facility to electronically receive a completed investigative file from OPM and convert it into machine readable format. Previously investigative files were mailed from OPM to DOD Central Adjudication Facilities (CAF). CATS is cutting case transfer time in half. CATS has been fully operational at DISCO, Army, Navy and Air Force CAFs since April 2010. Some non-DOD CAFs currently receive completed cases electronically from OPM as image files.
eAdjudication. CATS permits completed investigations received electronically by DOD CAFs from OPM to be screened by a computer program. This program can favorably adjudicate clean cases without human review. eAdjudication is only being used for Secret clearances, and 25 to 30 percent of these cases are being favorably adjudicated in this manner. Wider implementation of eAdjudication should take place by December 2012.
ARC—Automated Records Checks. The JRT expects initial operating capability within selected DOD populations by July of this year. The term ARC can be misunderstood, because OPM uses this term to describe their existing automated records checks. The JRT defines ARC as the integration of the existing OPM ARC with selected ACES (Automated Continuous Evaluation System) records checks, which include about 30 government and commercial databases coupled with the capability of electronically scoring the results. Pilot programs using ARC are planned for July, August, and December 2010. Initial operating capability for a new ARC should be in place by December 2010.
ESI—Enhanced Subject Interview. A Pilot Program is planned for sometime this year with full Implementation by June 2012. The ESI will be a modified version of what is currently known as a Personal Subject Interview (PRSI) enhanced by new SF86 branching questions and the results of an ARC. (ESI was previously planned to be operational by June 2009.)
EFI—Expandable Focused Investigation. This is a new term for Reimbursable Security/Suitability Investigations or what was simply known as investigative case expansion. A Pilot Program is planned for sometime this year with full implementation by December 2013. (EFI was previously planned to be operational by September 2010.)
Revised Investigative Standards—In September 2009 it was announced that the Federal Investigative Standards that were approved in December 2008 would have to be revised. The standards created a 3-tier concept that integrated employment suitability, credentialing, and security clearance investigations, with:
- Tier 1 – Low-risk and non-sensitive positions
- Tier 2 – Moderate-risk and non-critical sensitive positions
- Tier 3 – High-risk, critical-sensitive, and special-sensitive positions
All 3 tiers rely heavily on the ARC and EFI. They expect the new revised standards will be finalized by the end of this year. Once the revised standards are approved, incremental deployment in selected populations can begin with full implementation expected by December 2013.
CE—Continuous Evaluation. This term is a misnomer. CE will eventually replace what is now known as a Periodic Reinvestigation (PR) and will be done on a periodic basis rather than continuously, albeit more frequently than before. This is one of the areas of the new investigative standards that requires revision. CE operational capability for Top Secret clearances and special access programs will be available by October 2010, but until revised investigative standards are approved, CE can only be used to supplement a traditional PR. New CE standards will be established and operational for public trust positions by December 2012.
Security Clearances:How Long Do They Take (May 2010)
There’s been a lot of improvement in case processing time over the past few years. Most of the improvement is directly related to the reduction in the backlog of cases. Since October 2006, the Office of Personnel Mangement (OPM), which conducts the vast majority of all security clearance investigations for the federal government, has reduced the number pending initial investigations that are more than 180 days old from about 99,000 to less than 1,500. They did this primarily by increasing their investigative staff. OPM currently has a combined federal and contractor investigative staff of about 8,500 personnel—about 6,500 of whom are field investigators. Ten years ago OPM and Defense Security Service together had half that many investigators. Seven intelligence agencies and 14 other federal agencies conduct their own security clearance investigations. The following chart shows the the average processing time for the fastest 90% of initial security clearances by agency for the 1st quarter of Fiscal Year 2010 (October to December 2009):
Notes:Agencies that receive investigative services from OPM are shown in blue and account for a combined total of 94.3% of the total workload.
Intelligence Community (IC) agencies that conduct their own investigations are shown in red and account for a combined total of 4.5% of the total workload.
Other agencies that conduct their own investigations are shown in greenand account for a combined total of 1.2% of the total workload.
DHS HQ 1st quarter FY2010 data unavailable; data shown for 4th quarter FY2009.
Source:Security and Suitability Process Reform—Strategic Framework, February 2010
A joint report by OMB, DOD, OPM, and ODNI
In the chart “Initiation Time” is “the time in days from the date of submission by the applicant to the receipt date of all information/forms (PSI forms, releases, fingerprint cards, etc.) required to conduct an investigation by the investigative service provider.”
Compared to a few years ago, 78 days is a vast improvement for initial DOD industrial security clearances (cases processed by the Defense Industrial Security Clearance Office—DISCO). But 78 days is an average for the fastest 90%, and an average is just a mathematical calculation. Here’s a better approximate representation of how it looked for the entire DISCO applicant population in FY2009.
The fastest 90% include those cases taking up to 180 days. Most cases taking longer than 180 days are those that involve major derogatory information and those that require investigative activity in overseas locations.
There are 2 situations where time spent on case processing is excluded from the case completion times. Approximately 13.6% of DISCO cases were rejected by either DISCO or OPM due to errors on the Standard Form 86—SF86 (Questionnaire for National Security Positions) or the fingerprint cards. These cases must be resubmitted as new investigative requests. DOD-wide in FY2009 about 20% of all investigations were returned to OPM, because the investigations were incomplete. Probably more than half of these cases were sent back to OPM, when a Subject Interview was required and the Subject of the investigation, who had been in Iraq or Afganistan, returned to the U.S. The other cases were returned to OPM due to deficiencies in investigative scope, period of coverage, or case expansion to properly resolve and/or corroborate unfavorable information. When cases are returned to OPM, they are reopened as new investigations and the elapse time for the cases are reset to zero.
A new SF86 was approved by the Office of Management and Budget (OMB) in March 2010. This new SF86 will not be implemented until later this year. It is significantly more complex than the current SF86 and will probably increase the rejection rate. More than ever applicants with complicated personal histories will need help in filling out the SF86 properly. On the positive side, as more requesters begin to use SWFT, the Secure Web Fingerprint Transmission system, it should help lower rejection rates. Currently most fingerprints for DISCO cases are mailed to OPM. The mailed fingerprint cards sit in a bin at OPM until they are matched with the SF86. If fingerprint cards are not matched to an SF86 within 14 days, the SF86 is rejected, returned to DISCO, and the request for investigation must be resubmitted. SWFT will enable a more efficient matching of SF86s to fingerprint cards and eliminate the time OPM spends scanning paper fingerprint cards before they can be forwarded to the FBI.
For complex cases there is a 2-stage adjudication process at DISCO. DISCO is authorized to grant security clearances, but they lack the authority to deny or revoke a clearance. When the level of derogatory information in an investigative case file reaches a certain threshold, DISCO must refer the case to the Defense Office of Hearing and Appeals (DOHA) for adjudication. In past years DISCO has referred about 20% of its cases to DOHA; however in FY2009 DISCO only referred a little more than 5% of its cases to DOHA. No reason has been announced for this change.DISCO was probably given greater authority to adjudicate more complex cases, and by granting clearances in about 95% of its cases very early in the process, it has been able to reduce its average adjudication time.
DISCO interim Secret clearance decisions take about 3 working days. These decisions are based solely on a review of the SF86 and a review of federal investigative and security clearance databases. In FY2008 DISCO granted interim clearances in only 61% of its cases. When compared the 1% denial rate for final clearances, the 39% declination rate for interim clearances clearly shows the importance of providing as much issue mitigation as possible in the SF86, so that adjudicators have that information available when making interim clearance decisions.
The Personal Subject Interview (October 2009)
The Personal Subject Interview (PRSI) is a required part of all investigations and periodic reinvestigations for Top Secret clearances. PRSIs are conducted by federal investigators (Special Agents) and federal contract investigators (Special Investigators). Interview procedures vary slightly from agency to agency, but most agencies follow the same basic format and cover the same topical areas.
The PRSI should take about an hour for the average person who has completed the clearance application form (Standard Form 86—SF86) accurately and only has a few residences, jobs, and schools listed on the form. If you have had extensive foreign travel, foreign contacts, or problems involving such things as alcohol, drugs, finances, or criminal conduct, the interview could take much longer. Usually there is only one investigator, but occasionally a second investigator may be present. An applicant has the right to have a personal representative or attorney present during the interview, but this is rarely necessary or beneficial. You should:
- Arrive promptly for the interview and silence your cell phone.
- Don’t bring any weapons with you into the interview room, even if you are authorized to have them.
- Bring a government-issued photo ID, such as a driver’s license or military ID card.
- Bring a personal address book or anything that contains contact information on your associates and family members.
- Bring a copy of your SF86.
- If your case involves some security issues, bring any relevant documents with you to the interview, such as birth/citizenship certificates, passports, financial documents, court records, etc.
- Ask the investigator for a business card.
After identifying himself with his badge and credentials and examining your identification, the investigator usually begins by explaining the purpose of the interview, the provisions of the Privacy Act, and the criminal penalties for false statements. You will also be reminded that your participation in the interview is voluntary. It’s your choice to answer some, all, or none of the questions. However, refusal to answer any legitimate question can result in a security clearance denial. Only when the investigator asks a question that is obviously beyond the scope of a security investigation, can you refuse to answer and not risk a clearance denial. Such questions usually relate to religious beliefs, opinions regarding racial matters, political or union affiliations, and lawful sexual conduct that would not make you susceptible to blackmail. Office of Personnel Management (OPM) federal investigators have the applicant answer questions under oath or affirmation. OPM contract investigators have the applicant make an unsworn declaration. Both procedures carry equal weight under the law.
The investigator will essentially cover every question on your SF86 to confirm the accuracy and completeness of the information you provided, plus some questions that are not on the form. Questions on the SF86 cover most of the security issues listed in the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information. But a few of the 13 guidelines are either not addressed or only partially addressed in the SF86. In one manner or another, questions covering all 13 guidelines will be asked during the interview.
Like the SF86, interview questions are based on certain time periods. Some questions pertain to your entire life. Others pertain only to the last 7 or 10 years (or back to your 16th or 18th birthday depending on your age). For the purpose of the interview questions, the seven- or ten-year time frame is based on the date you completed the SF86. If you completed the SF86 on November 1, 2009, ten years includes everything between November 1, 1999 and the date of your interview. Under certain circumstances investigators are authorized to ask about relevant information regardless of how long ago it occurred.
The investigator will ask for details about any potential security issue information listed on your SF86. The investigator will also try to discover unfavorable information that is not listed on the SF86. Answer the investigator’s questions as precisely, truthfully and completely. Many investigators follow the sequence of the questions on the SF86, so you can follow along on your copy of the form. As each question is asked volunteer any information that mitigates, clarifies, explains, extenuates or otherwise decreases the possible negative effect of unfavorable information you listed on your SF86. It’s the investigator’s responsibility to ask questions that will elicit the details regarding anything that might be considered a security issue. These questions will cover who, what, when, where, how, why, and who else knows. Additionally investigators are trained to determine and report the following factors:
(1)nature, extent, and seriousness of the conduct;
(2)circumstances surrounding the conduct, to include knowledgeable participation;
(3)frequency and recency of the conduct;
(4)individual's age and maturity at the time of the conduct;
(5)extent to which participation is voluntary;
(6)presence or absence of rehabilitation and other permanent behavioral changes;
(7)motivation for the conduct;
(8)potential for pressure, coercion, exploitation, or duress; and
(9)likelihood of continuation or recurrence.
These factors are taken from the Adjudicative Guidelines and known as the “general criteria.” However, each of the 13 guidelines has it own set of mitigating conditions, many of which are not specifically cover by the general criteria. Unfortunately OPM investigators receive little training on the unique mitigating conditions listed under each of the 13 guidelines. Therefore, you should be prepared to volunteer mitigating information that is not elicited by the investigator’s questions.
If the investigator fails to ask you about any unfavorable information listed on your SF86, mention the information yourself. If you don’t, it will have to be addressed during a follow-up interview and will delay your clearance. If you have been involved in serious misconduct, had significant financial problems, or have extensive foreign connections, it would be wise to make a written explanation of the situation(s), including all applicable mitigating conditions. Give a copy of the written explanation to the investigator.
You may be asked to sign a specific release for information concerning financial matters, mental health counseling, and/or substance abuse counseling. Refusal to sign a release, even if you know that the information being sought does not exist, can result in having your clearance denied.
If you and the investigator prepare properly for your PRSI, the interview should be completed in one session. Occasionally at some point after the PRSI, there may be a need for a follow-up contact with the investigator. This usually occurs when you were unable to provide some information at the time, the need for a written release arises later, some minor matter requires further clarification, or you later remember some pertinent information. If a major discrepancy or security issue surfaces through one of the other components of the security investigation, it usually necessitates a separate “Special Interview” to resolve the matter.
New Federal Investigative Standards (June 2009)
(Note: Since this article was first written, implementation of the new standards was put on hold. In September 2009 it was announced that the new standards would not be implemented as written, but would be revised in the near future. It is anticipated that the revision will probably be finalized in early 2010 and only affect investigations that do not involve security clearances.)
A December 2008 report by the Joint Security and Suitability Reform Team (JSSRT) announced the approval of revised Federal Investigative Standards for Personnel Security Investigations. The new standards are described in a December 13, 2008 memorandum, “Approval of the Federal Investigative Standards,” signed by the Director of National Intelligence (DNI) as the “Security Executive Agent” and the Acting Director of the Office of Personnel Management (OPM) as the “Suitability Executive Agent.” Planned implementation of the new standards will involve “incremental deployment in selected populations anticipated to begin in the second quarter of calendar year 2009.” These new standards cover:
·Suitability for Government employment;
·Eligibility for physical and/or logical access to federally controlled facilities and computer systems;
·Eligibility for access to classified information;
·Eligible to hold a sensitive position; and
·Fitness to perform work for or on behalf of the Government as a contractor employee
According to the JSSRT report, the new standards reduce “the types of initial investigations from fifteen to three and the types of reinvestigations from five to two.” The new standards use three levels of position sensitivity, which are designated as:
Tier 1 – low-risk positions, non-sensitive positions, and positions involving physical and/or logical access to government facilities and computer systems.
Tier 2 – moderate-risk positions, non-critical sensitive positions, and positions requiring access to Confidential, Secret, and Department of Energy (DOE) “L” level information.
Tier 3 – high-risk positions, critical sensitive positions, special sensitive positions, and positions requiring access to Top Secret, DOE “Q,” and Sensitive Compartmented Information.
Initial Investigations for each position sensitive level will consist of:
2.Corroboration of date and place of birth through appropriate documentation by a trusted information provider.
3.Submission of fingerprints and a check of appropriate databases for prior federal investigations.
4.Verification of citizenship or legal resident status of foreign born applicants.
5.Local law enforcement agency checks at all places of employment, residence, or school attendance of six months or more during the past 5 years. Check of the appropriate criminal justice agency for details and disposition of any identified arrests.
6.Automated Records Checks (ARC) for information regarding the applicant’s criminal history, involvement in terrorism, validity of Social Security number, education and employment history, employment conduct, military discharge, and Selective Service registration, as appropriate.
7.Expandable Focused Investigation (EFI) to develop and resolve identified security/suitability issues.
1.Tier 1 requirements.
2.Additional ARC for information regarding the applicant’s financial history, foreign associates, business interests, and other foreign connections.
1.Tier 2 requirements.
2.Enhanced Subject Interview (ESI)—a comprehensive interview of the applicant to review his or her background to explore any potentially disqualifying conditions and mitigating factors relevant to adjudicative standards.
3.Review of employment records and interview of supervisors at all place of employment during the past 3 years.
4.Local law enforcement agency check at a current residence of less than 6 months.
5.Additional ARC for information regarding the applicant’s civil court records, large currency transactions, possible unexplained affluence, and foreign associations/preference.
6.ARC for information regarding the applicant’s spouse’s or cohabitant’s criminal history and to verify the U.S. citizenship or legal status of any foreign-born immediate family members.
Tier 1 – No reinvestigation is required, except for the reissuance of a credential (such as a Personal Identification Verification card required under HSPD-12), in which case new fingerprint cards will be submitted for a criminal history check.
Tier 2 – Individuals who require eligibility for access to classified information at the Tier 2 level will be reinvestigated on an aperiodic basis or as required by security-related events, but not less than once every five years. The reinvestigation will consist of a new eApplication, Tier 2 ARC, and an EFI to develop and resolve identified security/suitability issues, as appropriate.
Tier 3 – Individuals who require eligibility for access to classified information at the Tier 3 level will be reinvestigated annually or as required by security-related events. The reinvestigation will consist of a new eApplication, Tier 3 ARC, and an EFI to develop and resolve identified suitability/security issues, as appropriate. At least once every five years an ESI will be conduct as part of a reinvestigation.
The new investigative standards are the most significant change to the U.S. Personnel Security Program since Executive Order 10450 of 1953. The new standard for Tier 3 eliminates much of the field investigation previously conducted for Single Scope Background Investigations (SSBI) required for access to Top Secret, “Q,” and Sensitive Compartmented Information. Eliminated from the field investigation are interviews of neighbors (covering the last 3 years), educational references (last 3 years), employment references (prior years 4 -7), a second employment reference (last 7 years), former spouses, and social references (total of 4), as well as the review of employment records (prior years 4 -7), residential records (last 3 years), and education records (last 3 years).
Aside from the ESI, the only field investigation required for Tier 3 will be an employment record review and an interview of a supervisor at each place of employment during the last 3 years. This may be a meaningful adjunct to the eApplication, ARC, and ESI for applicants who are over 24 years old, but for many who are 18 to 23 it may be far less meaningful than interviews of their friends and/or schoolmates.
At the Tier 3 level the new standards rely heavily on the ability of the ARC and the new eApplication to surface as much or more issue information than the traditional investigative sources that are being eliminated. However, the eApplication is only described in general terms, and there is no indication if there will be only one version of the eApplication or if there will be multiple versions based on Standard Forms 85, 85P, and 86. Multiple versions of the eApplication could cause problems when people try to move laterally within the same tier. The ARC is also described in general terms, and the specific government and commercial databases that will be used are not identified.
The ability of the new standards to reduce investigative turnaround time will depend greatly on the threshold at which a security/suitability issue triggers an EFI. An EFI involves additional investigative actions, beyond the normal investigative components for each tier, to develop and resolve identified security/suitability issues. Because not all security/suitability issues are equal, and because the new ARC may produce issue indicators that are unlike the indicators produced by traditional investigative sources, new methods of measuring these issues and issue indicators will be needed to establish appropriate EFI thresholds that are consistent from agency to agency. This will be especially important in Tier 3 investigations. The SSBI is a relatively comprehensive investigation that requires expansion (now called EFI) in a small percentage of cases where major security/suitability issues are present. To obtain the same level of issue resolution provided by a standard SSBI, a much larger percentage of Tier 3 investigations will require an EFI.Without consistent EFI thresholds, barriers to clearance reciprocity will be created.
Moderate-risk and high-risk positions are defined as public trust positions. The absence of any requirement for reinvestigations of individuals in public trust positions does not comply with Executive Order13488 issued in January 2009. This executive order made reinvestigations mandatory for public trust positions and made OPM responsible for establishing their standards. No doubt the same officials at OPM who were involved in drafting the executive order were also involved in drafting the memorandum on the new investigative standards. Because of Executive Order 13488, the memorandum establishing the new investigative standards became in need of revision 5 weeks after it was issued.
A Brief History of the U.S. Personnel Security Program (May 2009)
The roots of the U.S. Personnel Security Program can be traced back to the Civil Service Act of 1883 that required applicants for federal employment to possess the requisite character, reputation, trustworthiness, and fitness for employment. In 1912 the LaFollette Act established protection for federal employees from being fired from their jobs for arbitrary reasons and imposed a standard of “just cause” that would promote the “efficiency of the service,” a concept later applied to security clearance determinations. The Hatch Act of 1939 added a prohibition against anyone employed by the government from being a member of any organization that advocates overthrowing the U.S. Government.
Executive Order 8781 (1941) required fingerprinting of all federal employee and directed the FBI to establish a system to check criminal records. In 1942 War Service Regulation II denied federal employment to anyone whose loyalty was in “reasonable doubt.” The Atomic Energy Act of 1946 mandated a security program for the Atomic Energy Commission and directed the FBI to investigate applicants’ character, associations, and loyalty. Executive Order 9835 (1947) established the Federal Employee Loyalty Program, providing standards and procedures for investigations and creating Loyalty Review Boards. The Civil Service Commission (CSC) was charged with conducting investigations for federal “competitive service” positions.
In 1948 by joint agreement of the service secretaries, the Department of Defense (DoD) unified the military security program and implemented standards and procedures similar to those put into effect for civilians under E.O. 9835. In 1956 DoD Directive 5210.9 established the same loyalty standard for the military as required for civilians. DoD Regulation 5200.2 created detailed uniform security clearance policies and standards for military, civilian, and contractor personnel.
Executive Order 10450 (1953) superseded E.O. 9835 and required investigations of federal employees to determine their reliability, trustworthiness, good conduct and character, and loyalty to the United States. It required that employment be “clearly consistent with the interest of national security.” The E.O. required a full field investigation for sensitive positions and a minimum of a National Agency Check with Inquiries (NACI) for other positions. In 1954 the Atomic Energy Act was amended to authorize the Department of Energy (DoE) and the Nuclear Regulatory Commission (NRC) Safeguards and Security programs, which created a structure for the protection of “Restricted Data” separate from national security clearances. Executive Order 10865 (1960) established standards governing access to classified information for federal contractor employees. In 1965 CSC redefined “sensitive” positions into “critical-sensitive” and “non-critical sensitive” positions and removed the requirement for a full-field investigation for non-critical sensitive positions.
The Defense Investigative Service (DIS) was created in 1972 to consolidate DoD Personnel Security Investigations (PSI) previously conducted by US Army, Navy and Air Force. Soon after DIS became operational it had 48,000 pending cases (twice its optimum workload), many of which were overdue. From 1974 to 1985 DIS’s workload increased over 58% with 17.5% fewer personnel (about 850) than the military had to do the job prior to 1972.
In 1981 a General Accounting Office report (GGD-81-105) estimated that delays for initial security clearances cost the Government $920 million a year in lost productivity. That same year DIS imposed a moratorium on conducting Periodic Reinvestigations (PR) for clearances involving access to Sensitive Compartmented Information (SCI) in order to deal with a large backlog of requests for initial investigations. In 1983 it resumed these PRs and also began conducting PRs for collateral Top Secret clearances. The 1985 “Stillwell Commission” report recommendations resulted in $25 million of additional funding for DIS with emphasis on Periodic Reinvestigations (PR) for Top Secret clearances due to large the backlog of these cases. The Commission further recommended PRs for Secret clearances. In 1989 DIS began conducting period reinvestigations for Secret clearances and receives 40,000 new cases in this category and 46,000 the following year. DIS was allowed to increase its investigative staff and reached high point of about 3,100 personnel, including 2,400 field investigators by 1991. However, in anticipation of a reduction in security clearance requests because of the “peace dividend,” a hiring freeze is imposed on DIS later that year. A subsequent 48% reduction-in-force occurred over the following 3 years and left DIS with an investigative staff of about 1,600 personnel, including about 1250 field investigators.
In 1991 National Security Directive 63 established the Single Scope Background Investigation (SSBI) standard for access to Top Secret defense information, Secret and Top Secret Restricted Data, and Sensitive Compartmented Information (SCI). The SSBI significantly increased the amount of work required for investigations for Top Secret clearances. A revision of Director of Central Intelligence Directive 1/14 in 1992 added neighborhood investigations to PRs for Top Secret clearances. The 1994 “Joint Security Commission” report recommended standardization, computerization, and changes in investigative scope for security clearances. In response to the 1994 amendment to the National Security Act of 1947, Executive Order 12986 (1995) established the Security Policy Board to develop a common set of investigative and adjudicative standards, improve clearance reciprocity, strengthen appeal procedures, and improve non-discrimination.
In 1996 DIS was forced to implement a quota system for periodic reinvestigations restricting the number of requests Defense agencies were authorized to submit. The quota system remained in place until 1999 and significantly increased the backlog of these cases. The Office of Personnel Management (OPM), which had been created in 1978 to partially replace the CSC, privatized their Office of Federal Investigations (about 770 employees) resulting in the creation of the US Investigations Services (USIS) in 1996 under an Employee Stock Ownership Plan. USIS was awarded a 3-year non-competitive contract to conduct investigations for OPM. The 1997 report of “The Commission on Protecting and Reducing Government Secrecy” recommended a full range of changes to the security clearance process to make it more efficient and to address transparency and due process concerns.
In 1998 the new investigative standards required by E.O. 12968 were issued. Implementation of the new investigative standards resulted in “backlog” of 400,000 PRs, most of which were investigations required by the new standards but not yet submitted to the Defense Security Service—DSS (formerly known as the Defense Investigative Service). In 2000 DoD began shifting a large portion of security clearance investigations from DSS to OPM. In 2004 DoD began submitting all security clearance investigations to OPM, and DSS investigators began conducting cases under OPM control. According to General Accountability Office report 04-344, DSS and OPM had a combined investigative staff of 4,200 government and contractor personnel. OPM estimated that about 8,000 were needed. The average turnaround time for an SSBI by OPM hit a high of about 396 days. Later that year the President approved an optional Phased Periodic Reinvestigation (PPR) for Top Secret clearances. The PPR provided for a less expensive investigation of narrower scope than the standard PR for Top Secret clearances.
In December 2004 Title III of the Intelligence Reform and Terrorism Prevention Act (IRTPA) required that by December 2009 90% of clearance determinations be made within 60 days. In response to another IRTPA requirement, Executive Order 13381 designated the Office of Management and Budget (OMB) as the single office within the executive branch responsible for policy and oversight of the personnel security program. OMB further designated OPM as the primary investigative agency for conducting personnel security investigations. In February 2005 DSS transferred about 1,600 personnel to OPM, increasing OPM’s investigative staff to a combined total of 7,819 employees and contractors. By 2008 OPM investigative staff reached a high point of 9,421 personnel.
In February 2008 the President issued a memorandum on “Security Clearances” directing that a proposal be submitted to him by April 2008 to modernize, standardize, and integrate comprehensive credentialing, security clearance, and suitability processes. The Joint Security and Suitability Reform Team (JSSRT) submitted its “Initial Report” as directed by the memorandum and submitted a progress report in December 2008. A new 3-tier investigative standard was approved for suitability and security clearance investigations with planned full implementation by late summer 2010. Executive Order 13467 was issued to establish a governance structure and a legal basis for the major changes planned for the federal personnel security program. It directed that the existing disparate processes for employment suitability, public trust, and security clearances be aligned into a unified coherent structure. In January 2009 Executive Order 13488 established the concept of reciprocity of fitness and employment suitability determinations for federal “excepted service” and contractor positions and a requirement for periodic reinvestigations for “public trust” positions.
OPM reduced the number of its initial investigations that were over 180 days old from 98,000 in October 2006 to 1,802 in August 2008, and average timeliness for 90% of all clearance determinations improved from 265 days in 2005 to 82 days in the 4th quarter of Fiscal Year 2008. However, it is widely acknowledged that the current security clearance system is incapable of attaining the December 2009 IRTPA average timeliness requirement of 60 days for 90% of clearance determinations. The new clearance system being developed by the JSSRT with its new investigative standards, eApplication, Automated Record Checks, eAdjudication, and Continuous Evaluation may be able to meet this requirement, but probably not until sometime in late 2010.
EMPLOYMENT SUITABILITY VERSUS SECURITY CLEARANCE (April 2009)
When you accept a federal job offer that requires a security clearance, you will be required to submit a “Questionnaire for National Security Positions,” also known as a Standard Form 86 (SF86).Although the paper version of the SF86 is still in use, most applicants will use the electronic web-based version of the SF86 called e-QIP (Electronic Questionnaires for Investigations Processing).
For most positions you will have to wait until you are granted either an interim security clearance or a final security clearance before you are actually hired and report for duty. That can be a matter of a few days or several months depending on the clearance required. Your agency’s security office will review your SF86 for completeness and provide a copy to their Human Resources (HR) office where your SF86 will be reviewed to insure that you meet the minimum employment suitability * criteria for the position. If the HR review is favorable, the security office will forward your SF86 to the organization that will conduct your background investigation. At this point your agency’s security office can grant or decline to grant an interim Secret clearance, if required. A determination for an interim Top Secret clearance can not be made until certain preliminary checks are completed. These checks usually take about 20 to 40 days. When the investigation is completed, it is usually forwarded to the agency’s HR office for employment suitability adjudication. If the HR adjudication is favorable, the investigation is then adjudicated for a security clearance. These two adjudications are usually separate processes by separate offices using different criteria.
There are 3 stages at which the offer of employment you accepted can be withdrawn by the agency—the initial HR review, the HR adjudication, and the security clearance adjudication. If you are rejected because you failed to meet employment suitability criteria, your right to 1) be informed of the specific reasons, 2) rebut the reasons, and 3) appeal a final adverse decision to the Merit System Protection Board (MSPB) will depend on the type of the position you were offered. Federal agencies are required to use employment suitability standards and procedures for all appointments to “competitive service” positions. The U.S. Office of Personnel Management recommends, but does not require, that these same standards and procedures be used for appointments to “non-competitive” positions, such as “excepted service” and temporary positions.
Most Intelligence Community (IC) agency jobs and some other federal jobs that require security clearances are “excepted service” positions. Consequently if an agency withdraws a job offer for an excepted service position due to employment suitability reasons, they generally only inform you that you were found to be unsuitable for the position without providing any specific reasons. Applicants sometimes confuse this with being denied a security clearance, because the job offer was withdrawn after they submitted an application for a security clearance.
Title 5 Code of Federal Regulations Part 731 (5 CFR 731) governs federal employment suitability standards and procedures. Section 731.202 of 5 CFR 73 covers specific suitability criteria. The “Adjudicative Guidelines for Determining Eligibility for Access to Classified Information” governs federal security clearance criteria. Employment suitability and security clearance criteria are very similar, but a few differences exist.
One major difference is that suitability criteria can be influenced by the nature of the position for which you are applying, whereas security criteria is unaffected by the nature of the position. This difference can result a situation where you are rejected due to suitability criteria, but where you would have been granted a security clearance had you not been eliminated from the hiring process before your security clearance adjudication was completed. In this situation it is possible you can later be hired as federal contractor employee and be granted a security clearance at the same level required for the federal job. For example, the Drug Enforcement Agency (DEA) considers applicants unsuitable for employment, if they have ever illegally used any drug. The only exception to this is for self-disclosed “limited youthful and experimental use of marijuana.” The FBI has a similar policy that limits drug involvement to experimental marijuana use more than 3 years ago and experimental use of other drugs more than 10 years ago. Both the DEA’s and the FBI’s suitability criteria for drug involvement are significantly more restrictive than security criteria currently being applied by most federal agencies.
If your offer of employment from a federal agency is withdrawn after you submit an SF86 and the agency notifies you that you were found unsuitable for the position without providing any other explanation, the position was an excepted service or temporary position not covered under 5 CFR 731. This adverse suitability determination may not have any affect on your future security clearance eligibility. It may not have any affect on your suitability for employment at a different federal agency.
If a federal agency intends to withdraw their offer of employment for a competitive service position because suitability criteria, they must notify you in writing and state the specific reasons they believe you are unsuitable. This notice must also explain your right to receive the information used to make this decision against you and your right to make a written rebuttal.If the agency makes a final adverse suitability decision, they must notify you of that decision in writing and inform you of your right to appeal the decision to the MSPB.
If your case receives a favorable employment suitability determination, your background investigation will be adjudicated for a security clearance. All security clearance adjudications are required to provide essentially the same “due process rights,” regardless of whether the appointment is for a competitive service, excepted service, or temporary position. If there is a preliminary decision to deny a clearance, you will be sent a “Statement of Reasons” (SOR) or a “Letter of Intent” (LOI) detailing specific reasons why granting you a clearance may not be clearly consistent with the interests of national security. The SOR or LOI will include instructions for submitting a rebuttal and in some cases requesting a hearing. If there is a final decision to deny a clearance, you will be sent a “Letter of Denial” that contains instructions for submitting an appeal.
* For excepted service positions the word “fitness” may be used instead of “suitability,” but has essentially the same meaning.
DOHA SUITABILITY/SECURITY ISSUES IN FY08 (December 2008)
During Fiscal Year 2008 (Oct 07 to Sep 08) Defense Office of Hearings and Appeals (DOHA) Administrative Judges decided about 1,300 security clearance cases. These were cases where applicants received and responded to a “Statement of Reasons (SOR)” that specified why DOHA felt that the applicant should not be granted a clearance.
DOHA posts clearance decisions at their website where it is possible to skim over a synopsis of each case or read full-length individual case decisions. The information presented here is based on suitability/security issues listed in the case synopses and should also be the same as the issues listed in the SORs for these cases. The Adjudicative Guidelines for Determining Eligibility for Access to Classified Information defines 13 issues that can be listed in an SOR. Twelve of the 13 issues are listed below according to the frequency they appeared in the case synopses followed by the total number of times they were listed. One issue, Allegiance to the United States, was not cited in any of the cases.*
3. Foreign Preference(272)
9.Use of Info Technology Systems(14)
10.Handling Protected Information(11)
The number of separate issues present in each case ranged from 1 to 4. For example 3 delinquent debts would all be covered under the one issue of Financial Considerations; whereas, 3 delinquent debts plus 2 petty theft convictions would result in 2 issues—Financial Considerations and Criminal Conduct.
Financial Considerations was by far the most prevalent issue and appeared in over 50% of the cases. Although Personal Conduct was the second most frequently cited issue and appeared in 38% of the cases; it was almost always cited due to falsification of information related to one of the other issues. Foreign Preference, cited in 21% of the cases, and Foreign Influence, cited in 12%, frequently appeared together. The vast majority of Foreign Preference issues were based on the possession of a foreign passport and dual-citizenship; whereas, Foreign Influence was usually based on close relationships with people living in high-risk countries. Criminal Conduct ranked fourth, but its ranking was slightly inflated by the arbitrary use of this issue to cover the criminal aspect of falsification, illegal drug use, and alcohol-related arrests already covered by the Personal Conduct, Drug Involvement, and Alcohol Consumption issues. Drug Involvement was cited in 10% of the cases and Alcohol Consumption was cited in 8%. The remaining issues were cited in 1% or less of the cases. About 63% of all these cases resulted in a clearance denial or revocation.
Historically the most prevalent suitability/security issues have been Criminal Conduct, Drug Involvement, Alcohol Consumption, and Financial Considerations. Personal Conduct has also been a leading issue, but as previously indicated, it is regularly cited when applicants list false information on their security forms regarding arrests, drugs, alcohol, or finances. Over the years the number of cases involving Financial Considerations has gone up or down in response to changes in the economy, particularly unemployment. In FY98 it was only the 5th most prevalent issue.
In the past 10 years the number of clearance investigations processed at the Defense Industrial Security Clearance Office has increased about 50%, but the number of cases with significant derogatory information has increased by more than 500%. In FY98 DOHA had about 250 cases resulting in SORs, compared to about 1300 in FY08. Some of this is attributable to the dramatic increase in the number cases citing Foreign Preference and Foreign Influence as issues. In FY98 these issues were cited in DOHA cases a total of 15 times, compared to a total of 427 times in FY08.
Suitability/security issue distribution in DOHA cases differs significantly from cases at other major Department of Defense (DoD) Central Adjudication Facilities (CAF). Eighty-one percent of the clearances denied or revoked by the Department of Navy CAF in FY08 were due to Financial Considerations. The number of Foreign Preference and Foreign Influence issues in DOHA cases is currently greater than at other major DoD CAFs.
*Allegiance to the United States has rarely been an issue in security clearance adjudications, because background investigations that develop credible information concerning this issue are almost always closed before completion and transferred to a federal criminal investigative agency.
REBUTTING AND APPEALING SECURITY CLEARANCE DENIALS (November 2008)
The Defense Industrial Security Clearance Office (DISCO) is a Central Adjudication Facility (CAF) that is part of the Defense Security Service. DISCO processes about 150,000 personnel security clearances each year for DoD contractors and contractors of 23 other federal agencies. These are referred to as industrial cases. DISCO favorably adjudicates about 75% of these cases after the investigations are conducted by the Office of Personnel Management. If DISCO cannot affirmatively find that it is clearly consistent with the national interest to grant or continue a personnel security clearance, the case is referred to the Defense Office of Hearings and Appeals (DOHA) for further review. DOHA has the option to request further investigation, send out written interrogatories, interview the applicant, and/or require the applicant to undergo a psychological evaluation. Of the approximately 35,000 to 40,000 cases received each year, DOHA favorably adjudicates about 96% and directs DISCO to grant or continue the clearances. DOHA makes preliminary decisions to deny or revoke clearances on the remaining 4%. When this occurs, DOHA sends the applicant a “Statement of Reasons” detailing the specific reasons why it intends to deny or revoke the clearance and advises the applicant of their right to submit a written rebuttal and their right to a hearing.
The Department of Energy (DOE) has its own Office of Hearing and Appeals that makes initial decisions and handles appeals on industrial and non-industrial security clearances. DOE’s procedures are similar to DOHA’s.
The Statement of Reasons (SOR)
About 10% of applicants who receive an SOR drop out of the process by not responding to the SOR; their clearances are denied or revoked without further action. For an applicant who chooses to rebut the SOR, the written rebuttal must be received at DOHA within 20 days from the date the applicant receives the SOR. This rebuttal can be made with or without a request for a hearing. Applicants may request an extension of time to file a rebuttal to the SOR, but they must have a good reason. The rebuttal must include a detailed written answer that admits or denies each allegation in the SOR and provides information that rebuts, explains, or mitigates each allegation.
Upon receipt of the SOR rebuttal, DOHA sends the applicant a File Of Relevant Materials (FORM). The applicant has 30 days from receipt of the FORM to submit a written response to the FORM, setting forth objections, rebuttal, extenuation, mitigation, or explanation, as appropriate. If a review of the rebuttal to the SOR and/or response to the FORM determines that allegations are unfounded, or evidence is insufficient for further processing, DOHA withdraws the SOR and DISCO grants or continues the clearance. Otherwise, the case is assigned to a DOHA Administrative Judge (AJ) who will consider the case with or without a hearing.
About 88% of case decisions based only on a review of the written record by a DOHA AJ result in clearance denial or revocation. About 60% of case decisions based on a hearing result in clearance denial or revocation. About 70% of applicants who respond to an SOR request hearings.
Either the applicant or a DOHA attorney can request a hearing. If a hearing is requested, the applicant will be notified at least 15 days in advance of the time and place of the hearing. The hearing will be held at a location within a major city near the applicant’s place of employment or residence. The AJ may require a pre-hearing conference. The applicant must appear at the hearing in person with or without an attorney or a personal representative. Hearings are generally open, except when the applicant requests that it be closed, or when the AJ determines that there is good cause for keeping the proceedings closed.
As far in advance as practical, the DOHA attorney and the applicant may request information from the opposing party regarding witnesses or other evidence to support or rebut, explain, extenuate or mitigate information contained in the SOR that may be presented at the hearing. At the hearing witnesses and other evidence are subject to cross examination, and a verbatim transcript is made of the hearing.
After the hearing, the AJ makes a written decision that includes not only the clearance decision but also all findings of fact, policies, and conclusions regarding the allegations in the SOR. This written decision is sent to both the applicant and the DOHA attorney. DOHA then directs DISCO to make appropriate notification to the applicant’s employer. If the clearance is denied or revoked, the applicant is notified of appeal procedures.
Either the applicant or the DOHA attorney can appeal the DOHA AJ’s decision. About 20% to 30% of these decisions are appealed. This must be done in writing within 15 days of the AJ’s decision. Appeals go before a DOHA Appeal Board of three AJs. A written appeal brief must be received by the Appeal Board within 45 days from the date of the AJ’s original decision. If the DOHA attorney appeals, a copy of the brief is sent to the applicant, and the applicant has 20 days to submit a written reply brief, if any. No new evidence is received or considered by the Appeal Board; therefore, most appeals claim that the evidence did not support the decision and/or insufficient weight was given to applicant’s mitigating evidence. Except for rare circumstances where there were procedural errors, an Appeal Board’s decision is final. The Appeal Board issues a written decision addressing the material issues raised on appeal, and a copy is sent to both parties. The Appeal Board can affirm, reverse, or remand a case to the original AJ with instructions for further review.
In the vast majority of appeals, the DOHA Appeal Board affirms clearance denials. An applicant whose clearance has been finally denied or revoked is barred from reapplying for a clearance for a period of one year from the date of the initial adverse clearance decision. Industrial and non-industrial applicants do not have a right to contest security clearance denials or revocations in the courts. Documents entitled,“Prehearing Guidance” and “Appeal Instructions” are posted at the DOHA website.
Industrial Versus Non-Industrial Clearances
There are differences between the adjudication of most industrial cases and the adjudication of cases involving military/federal civilian applicants and cases involving Special Access Programs. In such non-industrial cases, applicants who receive an SOR (also known as a Letter of Intent or a Letter of Instructions—LOI) do not have a right to a hearing. The applicant’s written rebuttal to the SOR is reviewed by a supervisory adjudicator who makes the clearance decision. If the applicant’s clearance is denied or revoked, the applicant then has a right to appeal. In making the appeal, the applicant has the choice of submitting a written appeal with supporting documents directly to their Personnel Security Appeal Board (PSAB) or requesting a personal appearance before a DOHA AJ. Procedures and timelines for SOR rebuttals and appeals differ slightly for each CAF/PSAB. Applicants who choose to appear before a DOHA AJ to present their appeal are permitted to explain their case (with or without an attorney or personal representative) and submit supporting documents, but it is not a hearing. There are no witnesses, other than the applicant, and there is no cross examination. The DOHA AJ evaluates all the information presented and makes a written clearance recommendation to the applicant’s PSAB. PSABs are composed of three members and decisions are made by a majority vote. PSABs notify applicants of their final decision and include reasons for their decision.
At first glance it may seem that applicants in industrial cases have greater procedural protections and administrative remedies than in non-industrial cases, because of their right to a hearing. But that hearing is an adversarial process in which the government is represented by an attorney experienced in security clearance matters, and the applicant may not be able to afford equal representation. When industrial applicants appeal their cases, they can not introduce new evidence; whereas, applicants in non-industrial cases can submit new evidence, and the PSAB can take an entirely fresh look at the case and make what they believe to be the appropriate decision without regard for the lower-level decision. Lastly, in industrial cases, either party (the applicant or the DOHA attorney) can appeal the decision of a DOHA AJ, but in non-industrial cases only the applicant has the right to appeal to a PSAB
A REVIEW OF EXECUTIVE ORDER 13467 (July 2008)
On 30 June 2008 President Bush issued Executive Order 13467 (Reforming Processes Related to Suitability for Goverenment Employment, Finess for Contractor Employees, and Eligibility for Access to Classified National Security Information). This Executive Order (E.O.) establishes a governance structure and a legal basis for major changes to the government's personnel security program. It directs that the existing disparate processes for employment suitability, public trust, and security clearances be aligned into a unified coherent structure.
The E.O. gives the Director of National Intelligence (DNI) as the new “Security Executive Agent” sole responsibility over security and public trust clearance processing.Responsibilities formerly assigned to the Security Policy Board (SPB) under E.O. 12968 and responsibilities formerly assigned to the Office of Management and Budget (OMB) under E.O. 13381 have been reassigned to the DNI.More importantly the DNI was given unilateral authority to carry out these responsibilities.Under the earlier executive orders the SPB only had authority to recommend policy changes to the President through the President’s National Security Advisor, and OMB had to obtain the concurrence of other cabinet level officials in order to change policy. The DNI now has authority to: 1) develop government-wide policies on security clearance and sensitive position investigations and adjudication, 2) decide who will do the investigations, and 3) decide who will adjudicate the investigations and issue the clearances.This presents a significant opportunity to consolidate the separate investigative and adjudicative entities currently used by numerous Intelligence Community (IC) and other federal agencies.Consolidation of these functions would greatly simplify reciprocity of clearances and facilitate the movement of cleared personnel from one agency to another.Although the new E.O. enables the DNI to make sweeping changes to the current system; it leaves much to the DNI’s discretion.
The Office of Personnel Management (OPM) was designated the “Suitability Executive Agent.”Its responsibilities and authority for federal employment suitability investigations and determinations remains essentially unchanged.OPM was given the additional responsibility for investigations and determinations related to “logical and physical access” to federal facilities and information systems.This new responsibility covers the standards used for implementing Homeland Security Presidential Directive 12.
The new executive order also created the “Suitability and Security Clearance Performance Accountability Council.” The Council, chaired by OMB’s Deputy Director for Management, was given: 1) authority over the design of computer systems for personnel security processing and 2) authority to issue policy to insure the alignment of suitability and security processes.The council will report directly to president.
E.O. 13467 authorizes continuous evaluation of personnel who hold active security clearances (this will include the use of new commercial and government databases) and authorizes security clearance adjudication using automated procedures (eAdjudication).The concept of “continuous evaluation” involves automated checks on Top Secret clearance holders once a year and on Secret/Confidential clearance holders once every five years—instead of the current Periodic Reinvestigations that are done at 5-, 10-, and 15-year intervals.A program, known as ACES (Automated Continuous Evaluation System) previously developed by DoD’s Personnel Security Research Center (PERSEREC), will be used “as is” or in some modified form for this purpose.PERSEREC also developed what is known as Automated Decision Support (ADS).This program was designed to review and adjudicate investigations for Secret clearances where little or no unfavorable information is present.It will be the basis for eAdjudication of about 25 percent of all Secret clearances.
Developing a new government-wide computer system will take the most time to complete and will be the pacing factor for implementing a new personnel security process.
To accomplish the objectives of E.O. 13467 the four different forms currently used (SF85, SF85P, SF85PS, and SF86) for suitability and security processing need to be modified or reduced to one form.One of the limitations of the current system is that an investigation based on any form other than the SF86 is not sufficient for granting a security clearance regardless of how thorough the investigation is.Position sensitivity levels will also need to be restructured and simplified.Currently there are six sensitivity levels with level 4, 5, and 6 each having three separate sublevels depending on special duties, polygraph requirements, whether a national security clearance is needed in conjunction with Public Trust clearance, and whether the clearances are for contractors or government employees.
Although the scope and period of coverage for new clearance investigations have not yet been decided; it seems likely that for initial Top Secret clearances some sort of phased investigation similar to that currently authorized for Single Scope Background Investigation Periodic Reinvestigations (SSBI-PR) will be used.This will probably consist of an Automated Records Check (ARC) involving essentially the same databases used in ACES and an automated review of the clearance application form, followed by a Personal Subject Interview and employment reference and record checks covering only the most recent few years.If unfavorable information surfaces from any of these “Phase One” components of the investigation, the information will be evaluated against a matrix of issues/recency.If a matrix threshold is met, additional “Phase Two” field investigation components will be conducted appropriate to the unfavorable issue information.Initial investigations for Confidential/Secret clearances will probably only include an automated clearance application review and an ARC.An issue-specific Subject Interview and additional issue-relevant field investigative checks would be added to the investigation when unfavorable information present on the application form or surfaced during the ARC meets an issue-matrix threshold.Continuous Evaluation for all levels of clearances will probably be limited to review of a new clearance application form and an ARC.
The scope and reliability of the ARC are critical to this new process.Much time and effort are now being expended by field investigators in states that do not allow OPM and other investigative agencies computer access to state-level criminal history record systems.Strong federal legislation may be required to force these states to grant computer access to these records, so that the existence of criminal history record information can be checked without requiring field investigators to visit individual police departments.Commercial databases to be accessed by the ARC will include court, financial, real estate, and business records.
Congress mandated that a new clearance system be ready for implementation by January 2009.Some demonstration projects of sub-systems have been completed and their results analyzed by the Joint Suitability and Security Reform Team.If the new system is ready by January 2009, full implementation could take a year or more.
RECIPROCITY OF SPECIAL ACCESS ELIGIBILITY (July 2008)
Many people with the appropriate special access eligibility experience problems when moving from one employer to another and sometimes when moving from one contract to another while working at the same company. Office of the Director of National Intelligence (ODNI) and Office of Management and Budget (OMB) policy requires federal agencies to accept clearances issued by other federal agencies provided the clearance is based on a current investigation and the clearance meets the investigative and adjudicative standards required under Executive Order 12968.1 ODNI policy further states that this “reciprocity does not include agency determinations of employment suitability [and] nothing precludes . . . [an agency] from exercising authority to grant or to deny [SCI] access for reasons of operational necessity regardless of another [agency’s] decision.”
There are rules concerning the reciprocal acceptance of access eligibility (commonly referred to as a “clearance”) for Special Access Programs (SAP) beyond those that apply to collateral security clearances. These rules are sometimes confusing, because they are not uniform in their definition of SAP, often referring to SAP as being a separate and distinct category of information from SCI (Sensitive Compartment Information) and Q (Secret and Top Secret Restricted Data). SCI and Q are SAP. Executive Order 12958 provides the following definition: “Special access program means a program established for a specific class of classified information that imposes safeguarding and access requirements that exceed those normally required for information at the same classification level.” There are three types of SAP—Acquisition, Intelligence, and Operations/Support.
Executive Order 12968 states that, “Except where there is substantial information indicating that the employee may not satisfy the standards . . . of this order, an employee with existing access to a special access program shall not be denied eligibility for access to another special access program at the same sensitivity level. . . or have an existing access eligibility readjudicated, so long as the employee has a need for access to the information involved.” The investigative requirements for the SAP sensitivity levels are:
·NACLC or ANACI2
·SSBI without polygraph
·SSBI with counterintelligence-scope polygraph
·SSBI with expanded-scope polygraph.
If an applicant’s investigation is current and the applicant is being considered by the gaining agency for a higher sensitivity level, the gaining agency is authorized to impose “additional but not duplicative” investigative requirements (i.e. pass a polygraph examination of the appropriate type). An exception to the “additional but not duplicative” policy authorizes agencies to require applicants for initial SAP access or SAP access at a higher sensitivity level to submit a current SF86 and require those already accessed to a SAP to submit an updated SF86 or SF86C on an annual basis in lieu of a polygraph.
If an applicant’s investigation is current and at the appropriate sensitivity level, there are only two situations where the clearance does not have to be reciprocally accepted by the gaining agency. If either situation exists, the gaining agency is authorized to decline reciprocal acceptance and sponsorship of the existing clearance and to reinvestigate and/or readjudicate the case prior to granting a clearance. These two situations (which are covered under OMB Memorandum, November 14, 2007, Subj: Reciprocal Recognition of Existing Personnel Security Clearances) are:
1.As an “exception” the agency that granted or continued an existing clearance, did so despite a failure to meet adjudicative or investigative standards. Exceptions are defined as:
·CONDITION. Access eligibility granted or continued with the proviso that one or more additional measures will be required. Such measures include additional security monitoring, restrictions on access, and restrictions on an individual's handling of classified information.
·DEVIATION. Access eligibility granted or continued despite a significant gap in coverage or scope in the supporting background investigation. "Significant gap" for this purpose means either complete lack of coverage for a period of six months or more within the most recent five years investigated or the lack of an FBI name check or an FBI fingerprint check or the lack of one or more investigative scope requirements in its entirety. . . .
·WAIVER. Access eligibility granted or continued despite the presence of substantial issue information that would normally preclude access. Agency heads or designees approve waivers only when the benefit of access clearly outweighs any security concern raised by the shortcoming. A waiver may require special limitations on access, additional security monitoring, and other restrictions on the person's handling of classified information beyond normal need-to-know.3
2.The gaining agency is already in possession of substantial new issue information indicating the adjudicative standards may not be satisfied.
To be “already in possession of substantial new issue information” means the gaining agency received information from an incident report, a polygraph examination report, or an SF86/SF86C submitted anytime after the last adjudication. To be substantial, the issue information must lack sufficient mitigation and must raise serious doubts about granting access eligibility. Unmitigated “. . . substantial issue information constitutes the basis for granting access eligibility with a waiver or condition, or for denying or revoking access eligibility.”
1 As used here “current investigation” means one that is not more than 5 years old and there has not been a break-in-service of more than 24 months.
2 Applies only to “non-designated” Secret level SAP and therefore does not apply to SCI or Q.
3 The most common reason for a “waiver” is the existence of an immediate family member who is not a U.S. citizen.
SECURITY CLEARANCE REINSTATEMENT & RECIPROCITY (June 2008)
(For clearances not involving access to highly sensitive programs)
People are often unsure about their eligibility for a security clearance after they leave a job where they held one. They hear terms like "active," "current," and "expired" and are uncertain about their meaning. These terms are shorthand expressions that are somewhat misleading, but uniformly understood by personnel and security professionals who use them.
- ACTIVE—An active clearance is one where the person granted the clearance is authorized access to classified information (e.g. the person is employed in a job where he/she was granted a clearance and the clearance has not been terminated).
- CURRENT—A current clearance is one that was terminated, but the clearance can be reinstated because certain time limits have not expired.
- EXPIRED—An expired clearance is one that was terminated and can no be reinstated because certain time limits have expired.
The basic policy regarding security clearance reinstatement and reciprocity is contained in Executive Order 12968. Essentially it states that clearance eligibility shall be reapproved without further investigation for:
1. An applicant who was previously granted a clearance based on an investigation that is less than 5 years old and who has been continuously employed by the same employer since the clearance was granted.1
2. An applicant who was previously granted a clearance based on an investigation that is less than 5 years old and who has been separated for less than 2 years from the employment where the clearance was granted.2
3. In both cases: a) the original clearance must have been terminated because there was no longer a need for access to classified information, and b) there has been no change in relevant information provided for the last background investigation and no information that would tend to indicate the applicant may no longer satisfy clearance eligibility standards.3
E.O. 12968 was supplemented by memoranda from the Office of Management and Budget dated: December 12, 2005, July 17, 2006 and November 14, 2007; Subject: Reciprocal Recognition of Existing Personnel Security Clearances. These memoranda state that if an individual has a "current" final Top Secret clearance based on an investigation less than 7 years old (10 years for Secret and 15 years for Confidential) from another federal agency and the gaining federal agency is not in possession of substantial information indicating that the standards of E.O. 12968 may not be satisfied, then the gaining federal agency must make a favorable clearance decision and can not:
- request a new security questionnaire
- review existing background investigations
- review existing security questionnaires
- initiate any new investigative checks
The existence of "information indicating that the standards of E.O. 12968 may not be satisfied" falls into two areas: 1) new substantial issue information and 2) evidence that the prior clearance was granted despite a failure to meet adjudicative or investigative standards—collectively known as exceptions. Exceptions exist when an individual’s clearance is subject to restrictions or additional requirements, based on an investigation that had significant gaps in coverage or scope, or granted with a waiver due to substantial issue information that would normally preclude access, but the benefit of access clearly outweighed the security concern. If the gaining federal agency is aware of an "exception" or new substantial issue information, the gaining agency may reinvestigate and/or readjudicated the case prior to granting another security clearance, regardless of the date of the prior investigation or the length of any break-in-service.
Employment Suitability vs. Security Clearance Determination
Differences between employment suitability issues and security clearance issues often contribute to the perception that reciprocity is not being honored. For example, military veterans and contractor employees with current, final Secret clearances are not eligible for immediate federal employment because the NACLC investigation for a Secret clearance differs from the NACI suitability investigation for federal employment.4 Additionally there are employment suitability requirements such as psychological/medical evaluations, as well as the unwillingness to consider mitigation for certain issues (e.g. any past illegal drug use is a disqualifying condition for employment as a DEA agent) that might disqualify applicants who already possess a Top Secret clearance.
There is no overarching national policy regarding reciprocity between Public Trust and National Security clearances and investigations. In fact a National Security clearance can not be granted based on an investigation that used a Standard Form 85P (Questionnaire for Public Trust Positions), even though most Public Trust investigations exceed the requirements for a Secret security clearance.
Age of last Investigation
Investigative requirement based on
length of break-in-service
0 – 23 months 24 months or more
Less than 15 years
15 years or more
Secret or "L"
Less than 10 years
10 years or more
Top Secret or "Q"
Less than 5 years
5 years to 7 years
7 years or more
1 There is no requirement to be continuously cleared.
2 There is no requirement to have been in a cleared status at the time of separation from the job.
3 The applicant may have to certify in writing that there has been no change in the relevant information provided for the last background investigation.
4 The NACI has investigative components not present in the NACLC and vice versa.
CLEARANCE REFORM MILESTONES (May 2008)
On May 7, 2008 John Fitzpatrick, Director Special Security Center, ODNI gave a presentation at the Information Technology Association of America “Security Clearance Reform” meeting in Arlington, VA. Perhaps the most significant part of Fitzpatrick’s presentation on the work of the Joint Security and Suitability Reform Team (JSSRT) was a list of reform activitiy milestones:
Create process blueprint; identify needed changes to policies; and propose proof of concept demos (Aug 07)
Obtain DNI, USD(I) & DD/OMB buy-in; identify validation method (Oct 07)
Launch 13 Original Demonstrations (Nov 07)
Draft Presidential memorandum (Jan 08)
Complete IT “as-is” system assessment (Jan 08)
Integrate Work Plans of all security and suitability reform efforts (Feb 08)
Publish Presidential memorandum (Feb 08)
Determine overarching governance structure (Mar 08)
Perform and evaluate demonstrations (Mar 08)
Submit response to Presidential memorandum (Apr 08)
Draft revision to policies (Apr 08)
Kick-off End-to-End Technology Demonstration (Apr 08)
Submit Executive Order for signature (Jun 08)
Implement governance structure to manage the end-to-end reform process (Jul 08)
Formulate end-to end IT strategy (Sep 08)
Conduct follow-on activities for further recommendations (Dec 08)
Implement policy revisions as amended (Dec 08)
Execute acquisition strategy as developed (Dec 08)
Although two milestones scheduled for completion in April were not done by the time of the presentation, there appears to be good progress in the reform effort. Strange that at least some of these milestones were not included in the April 30, 2008 Initial Report to the President by the JSSRT.
DOD CHANGES SECURITY CLEARANCE QUESTION ON MENTAL HEALTH (May 2008)
In April 2008 the Defense Department (DoD) announced a change to the requirements for answering question #21 on the security clearance application form (Standard Form 86—SF86). DoD issued supplemental instructions for answering the question, which concerns an applicant’s mental health treatment, because officials believe it is needlessly preventing some people from seeking counseling.
The SF86 (Questionnaire for National Security Positions) asks the applicant to list mental health consultations during the past seven years. It does not ask for treatment details if the care involved only marital, family, or grief counseling, not related to violence by the applicant, unless the treatment was court-ordered.
As of April 18, applicants no longer have to acknowledge care under the same conditions, or if the care was strictly related to adjustments from service in a military combat environment. The revised wording has been distributed to the services and will be attached to the cover of the questionnaire.
On 1 May 2008 the Office of Personnel Management (OPM) issued Federal Investigations Notice 08-01 announcing the change to question #21 on the SF86. Their new instructions
are identitical to the instructions released by DoD and are applicable to all federal security clearance applicants.
BOND AMENDMENT REPLACES SMITH AMENDMENT (February 2008)
DoD was partially successful in its efforts to get the Smith Amendment repealed. The Amendment (10 USC 986), effective since October 2000, prohibited only DoD from granting or continuing security clearances for:
1) Convicted felons who were incarcerated for more than a year as a result of the conviction.
2) Current users of illegal drugs.
3) Mentally incompetent persons.
4) Anyone discharged or dismissed from the Armed Force under dishonorable conditions.
Section 1064 of the 2008 Defense Authorization Act repealed 10 USC 986, but created a new law, known as the Bond Amendment (50 USC 435b, Section 3002) prohibiting all federal agencies from granting or renewing any security clearance to a person who is an unlawful user of a controlled substance or an addict. It also prohibits all federal agencies from granting or renewing access eligibility for Special Access Programs, Restricted Data, or Sensitive Compartmented Information for anyone (without a waiver) who has been:
1) Convicted of a crime, sentenced, and incarcerated for a term exceeding 1 year,
2) Discharged or dismissed from the Armed Forces under dishonorable conditions, or
3) Determined to be mentally incompetent by a government approved mental health professional.
It seems more equitable to make the law applicable to everyone rather than just those affiliated with DoD, but the new law does little to improve security clearance adjudications. Some adjudicative facilities may be unable to always predict future access to Resticted Data. So as a practical matter they may have to apply Bond Amendment requirements to the adjudication of all security clearances. Within the Department of Defense adjudicators have been delegated the authority to waive Bond Amendment restrictions and grant these clearances with a "waiver" annotated in the applicable field of the person's security clearance database record.
DECEMBER 2007 REPORT ON DOE POLYGRAPH USE (January 2008)
A recently released Congressional Research Service (CRS) report
reviewed the effects of the October 2006 change to the Department of Energy’s polygraph policy. The policy change eliminated most routine counterintelligence (CI) scope polygraph exams for employment screening purposes and created a new program of random CI exams of designated personnel, as well as issue-oriented exams based on CI information. Mandatory screening exams are limited to counterintelligence/intelligence personnel, personnel with SCI or SAP access, personnel with regular and routine access to Top Secret information, and selected personnel based on risk assessment.
The report indicated that the number DOE personnel, applicants, and contractor personnel subject to polygraph screening examinations was reduced from an estimated 20,000 to less than 2,500 due to the policy change. This was a theoretical reduction because the previous polygraph policy was never fully implemented. The report also touched on the pros and cons of polygraph use for CI screening purposes.
The policy change did not affect the use of polygraph for interim Q access authorizations under the DOE Accelerated Access Authorization Program.
IMPACT OF THE IRTPA ON CLEARANCE PROCESSING (October 2007)
The Intelligence Reform and Terrorism Prevention Act (IRTPA) became law in December 2004. Title III of that act requires that 90 percent of all applications for security clearances be adjudi-cated within an average of 60 days from the date of receipt by the investigative agency. This goal must be reached by December 2009. The act also specifies an interim December 2006 goal of adjudicating 80 percent of all security clearance applications within an average of 120 days—90 days for the investigative phase and 30 days for the adjudicative phase. The act goes on to re-quire an annual report on the progress toward these goals, specifically the time required “. . . for conducting investigations, adjudicating cases, and granting clearances, from the date of submis-sion to ultimate disposition and notification to the subject and the subject’s employer.”
In its February 2007 report to Congress, the Security Clearance Oversight Group (SCOG) projected that average processing time for initial investigation and adjudication for 80 percent of cases begun after October 1, 2006, will be 120 days or less. The report cited the following figures regarding investigations completed by the Office of Personnel Management (OPM), which is responsible for 90% of all clearance investigations for the federal government:
80% of initial clearance investigations completed after October 1, 2006 averaged 101 days, and 80% were adjudicated in an average of 17 days (118 days total).
64% of initial clearance investigations initiated in October 2006 have been completed, and they took an average of 63 days.
80% of reinvestigations completed from October to December 2006 averaged 279 days.
100% of initial clearance investigations completed after October 1, 2006 averaged 166 days, and 100% were adjudicated in an average of 39 days (205 days total).
It seems fairly obvious from these numbers that OPM has placed a higher priority on cases for initial clearances opened after October 1, 2006—much to the detriment of older initial cases and reinvestigations. It also appears that the SCOG feels that only investigative and adjudicative time on initial cases begun after October 1, 2006 need be considered when determining compliance with the IRTPA. The SCOG acknowledged that it did not include the following in their calculations of average clearance processing times:
Time to hand-off applications to the investigative agency.
Time to hand-off investigation files to the adjudicative agency.
Time involved when cases are returned to the investigative agency for more informa-tion.
Time involved in these ancillary processes is significant. In September 2006 the General Accountability Office (GAO) reported that it took an average of 111 days for initial Top Secret clearance application submissions for DoD contractors. This did not include the time taken by the applicant to complete the application. In this GAO report DoD adjudicative officials estimated that it took two to three weeks to print and transfer completed cases from OPM. Cases returned to OPM for additional investigation are opened as new cases, and the clock starts all over again.
It is clear that OPM has reduced turnaround time for clearance investigations compared to only a few years ago. They have done this by significantly increasing the number of field investigators, rather than by eliminating inefficiencies and improving the process. There has also been some decline in the quality of investigations.
It is unclear how the SCOG can justify excluding reinvestigations, older initial investigations, and ancillary processing time from the requirements of the IRTPA, but some conclusions can be drawn from all of this. Reinvestigations and initial investigations opened before October 2006 at OPM, will take much longer than more recently opened initial investigations. If OPM has difficulty completing 80% of its initial investigations within 90 days, it may begin rejecting a larger percentage of faulty applications, since these applications take longer to process. OPM may also further deemphasize reinvestigations and older initial investigations. The quality of OPM investigations may be further sacrificed in their efforts to improve timeliness. Or OPM may just increase the price of their investigations and add more investigative staff. If OPM is successful in meeting or exceeding the IRTPA requirements, expect the adjudicative facilities to begin demanding higher quality reports and returning larger numbers of investigations to OPM for additional work. For the unfortunate 20% whose cases are not reported for IRTPA purposes, their initial clearances will take an average of about 426 days, plus the ancillary processing time.