Demystifying Security Clearances

Depending on your age and media franchise preference, security clearances can conjure up images of shaken martinis, silenced Berettas, detailed satellite imagery, nuclear submarines, and codewords. When I was younger, I devoured Tom Clancy novels (back when he actually wrote them) and dreamed of working with information so secret I would have to tell my friends and family that my job was some ordinary dull grind, like lawyering…

If your career is taking you into that world of classified information, I envy you. I also can tell you that getting there is not a straight path. For law nerds like me, the whole process is governed by 50 United States Code (U.S.C.) § 3341, supplemented by Executive Order 12968, and regulated by 23 Code of Federal Regulations (C.F.R.) Part 147. There are additional regulations depending on the specific governmental agency.

Employer Sponsorship

However, whether you plan on working directly for any department of the U.S. Government or for one if its contractors, and whether you are trying to get a Confidential, Secret, or Top Secret clearance, obtaining one only begins by your potential employer sponsoring you for the position that requires the clearance.

Form SF-86

After being sponsored, you complete a Standard Form 86 (SF-86). U.S. Government forms often use the Standard Form/SF prefix, as if to try to assure people that their forms are standard and normal, even though we all know better. This SF-86 is available on the Electronic Questionnaires for Investigations Processing system (e-QIP). The e-QIP’s SF-86 covers everything about you for years prior. We’re talking where you lived, where you worked, where you went to school, where you’ve traveled, whom you know, whether you have any criminal history, what your finances are, and more. At this point, you would think the government knows all there is to know about you, right? But that’s just the beginning.

Investigation

The next step is a background investigation to verify that you were truthful on your SF-86. This can involve looking through available records and interviewing references, employers, and neighbors. For higher-level clearances, the investigation will be even more extensive, looking carefully at finances and connections with foreign individuals to determine how much vulnerability you have to leverage from those sources.

Once the investigator is confident that you gave the correct information and that nothing in your background so far flagged you as a security risk, you go through fingerprinting and a criminal records check. With those higher-level clearances, you may have to take a polygraph, too. Now that the investigator knows more about you than your own mother, all that information is evaluated under the Adjudicative Guidelines for National Security Eligibility. If it all checks out, your clearance is granted and you are on your way to wearing tuxedos and yelling things like, “Get off my airplane!” No, sorry. That’s the wrong Harrison Ford movie.

Denial.

If your clearance is not approved, or if it gets revoked, you can appeal the determination through an administrative appeal process. The specifics differ according to the sponsoring agency, but the general process is the same. The denial itself involves a Statement of Reasons (SOR). As its name implies, the SOR lists the concerns, based on the Adjudicative Guidelines, that led to the denial.

Upon receiving the SOR, you have between 20 and 30 days to respond in writing to explain the concerns away and provide mitigating evidence. This written rebuttal must respond to each concern in the SOR. The responses will need to correct inaccurate information, provide updated information (such as paid off debts), statements from friends or colleagues to show your trustworthiness (be careful which of your childhood friends you ask to write this reference), and any additional context you think is necessary to explain circumstances that appear concerning to the government. The government will then make its final determination based on the information in the rebuttal.

Alternatively, depending on where you applied for the position, you can request a hearing before an administrative judge with the Defense Office of Hearings and Appeals (DOHA). The judge will issue a written decision based on the evidence provided during the hearing. Even if you receive a final denial, you typically still can appeal to an appeal board of agency review authority. It is important to note that on appeal, you cannot provide any new or additional facts. The appeal focuses on whether denial was based on a correct application of law and guidelines.

Obviously, this is not a fast process. Depending on the level of clearance, you can wait between a month and over a year for the final approval, and even longer if you need to fight a proposed denial. This overview of the process, on the other hand, was entirely too fast. If you are contemplating applying for a position that requires a security clearance, if you are facing a SOR and need help with your rebuttal, or if you need representation before DOHA.

Contact us at alan@luchanskylaw.com, where we will do our best to make your dreams of being a spy come true.