Security Clearance Law
Some clients, as a normal part of the performance of efforts for the government, require security clearances for facilities and personnel. The security clearance process has many pitfalls that can prevent an otherwise trustworthy employee from obtaining a necessary security clearance. Failure to obtain and maintain a security clearance costs the employer a great deal of money in lost productive time or contracts and jeopardizes the career of the employee.
In support of this need to smoothly obtain security clearances, Marbury Law has established a distinct practice in security clearance law. This practice provides clients with the following services:
- Pre-clearance counseling to acquaint employees with the process and what to expect.
- On-call assistance to answer questions concerning the responses to DoD or other agency security clearance forms.
- Interview support for those individuals who may be subject to Defense Security Service interviews.
- Appeal of denial of access to assist individuals in overcoming an adverse determination of fitness for access to classified material.
- Representation in administrative hearings before the Defense Office of Hearings and Appeals (DOHA) or other agencies, for those exceptional cases where a hearing with witnesses is required to obtain the necessary clearance.
These services result in a greater percentage of employees being cleared and a more rapid start on contractual efforts due to a larger cleared-employee pool, together with savings to the employer in overhead due to fewer employees being in an uncleared status for an extended period of time. More detail on the above services is provided below.
When employees apply for clearances they are often simply asked to fill out forms (typically the DD Form 1879 and the Standard Form 86, the successors to the infamous DD398 or equivalent). While instruction for the forms is provided, the potential ramifications of certain responses are not addressed, leaving the employee wondering whether or not to report certain events in his/her past. The consequences of a failure to report an event, or of the event itself, are not explained. Nor is the effect of the event on the successful granting of a clearance explained.
Pre-clearance counseling involves explaining the meaning of the various categories of questions to the employee. It also involves informing employees of the relative importance of certain events in one’s past and how to deal with such past events on the security clearance form. Confidential private sessions are available for those employees desiring such attention, to explain and specifically deal with events and questions of a personal nature. These sessions are kept confidential in order to encourage full disclosure of past events, maximizing the chance of a successful granting of access to classified data.
If desired, a discussion of the requirements of a polygraph examination can be conducted as well, to alleviate the tension associated with this process. It is important for the applicant to be familiar with the categories of questions and what will and will not be asked. This greatly relaxes the employees leading to more rapid and higher passage rate of such examinations.
After pre-clearance counseling, Marbury Law is available to discuss questions that may arise as individuals subsequently remember events or simply have questions regarding their clearance form responses. This on-call assistance minimizes the number of costly personal visits with an attorney, yet gives prompt responses to a candidate’s needs for answers regarding security clearance forms and procedures.
Appeals of Denial of Access
If an adverse determination of fitness for access to classified data is made by the clearing agency, it is not the end of the road. Marbury attorneys will candidly assess for the employer the chances of prevailing on the issues that are obstacles to the applicant’s access. After such an assessment, if warranted, the attorney will intervene with the agency and take the appropriate steps to obtain the statement of reasons for the denial of access, make the appropriate FOIA/Privacy Act requests for information, and prepare the necessary written oral appeals. Any appeal is submitted with knowledge of the appropriate case law and mitigating circumstances accepted by the Defense Office of Hearings and Appeals (DOHA).
Conduct of Administrative Hearings
In certain cases, it is clearly appropriate to request a hearing before the Defense Office of Hearings and Appeals (DOHA) to review a denial of access determination. It has been our experience in such hearings that the Administrative Judge is quite fair and impartial in his/her determination. In the hearings, which are informal, the government presents its position as to why the applicant should be denied access, and the applicant presents his/her side of the argument in favor of granting such clearance. During the hearing, the applicant can confront government witnesses and have an opportunity to present his/her own witnesses to support the applicant’s access to classified information. Marbury Law will prepare all aspects of the hearing and conduct the defense of the applicant. All procedures are conducted with the various clearance guidelines in mind to maximize chances for reversing the initial determination. (NOTE: In the case of a military member or government civilian, the process is somewhat different. The government does not present its case to the Administrative Judge. However, the military member or government civilian has no right to confront or call witnesses).
Marbury Law offers one of the few full-service security clearance practices available. Our attorneys have extensive experience with the issues that can arise in the clearance process. We have also successfully counseled many employees on all phases of the security clearance procedure. Counseling of the type offered by our firm will prevent costly mistakes from being made by the applicant that can damage the chances of the company obtaining the cleared workforce it needs to obtain and perform classified work for the government.