Security managers can
play an important role in advising employees with
clearance problems, and can often save the company a
valued employee or applicant which it otherwise might
Although the vast majority of
employees have no clearance problems, a small number are
challenged by the Defense Investigative Service (DIS)
and are eventually referred to the Defense Office of
Hearings and Appeals (DOHA) for adjudication.
The areas most likely to
cause security clearance concerns are alcohol
consumption, drug involvement, financial instability or
carelessness in adhering to security regulations.
Issues such as allegiance to
the United States, foreign preference, outside
activities or deliberate security violations rarely come
into play at the administrative level because such
conduct generally results in criminal prosecutions for
subversion or espionage falling under the jurisdiction
of the FBI and Department of Justice.
If an employee’s clearance is
brought into question, there are a number of steps he or
she can take in defense both during the DIS
investigation and later if referred to DOHA for
adjudication. During the investigation, although an
employee must cooperate and to speak with a DIS
investigator, he has the right to have an attorney
present at the interview.
During the investigation an
employee may also be asked to take a polygraph
examination and at its conclusion also asked to give a
signed sworn statement of what he said during the
examination. For clearances at the confidential, secret
and top secret level, an employee may refuse to take a
polygraph examination and that may not be used against
him in determining whether to grant the clearance.
(For SAP and SCI access an employee must agree to be
If an employee does agree to
take a polygraph, he has the right to have an attorney
present at the polygraph, to consult with the attorney
during the polygraph and to discontinue the polygraph at
any time. At the conclusion he has the right to decline
to give a written sworn statement of what he said.
If DIS refers the case to
DOHA for adjudication the employee will be sent a
"Statement of Reasons" which is a mixed statement of
factual allegations and legal conclusions, and the
employee must reply under oath within 20 days either
admitting or denying the charges.
The charges are frequently
restated in multiple ways and invariably include a
catch-all charge of "conduct involving questionable
judgment, untrustworthiness, unreliability or
unwillingness to comply with rules and regulations."
Even if the employee is
exonerated of the underlying misconduct, the security
clearance may still be revoked because of "poor judgment
In replying to the Statement
of Reasons an employee will frequently admit to
everything without focusing on the facts alleged or the
legal conclusions to be drawn. Although he may later
attempt to amend his answer, his original reply will be
considered as evidence against him.
Though an employee may have
committed the acts charged, that is only the beginning
of the inquiry. The Adjudication Guidelines require the
weighing of a number of variables known as the "whole
person concept", which include the circumstances
surrounding the conduct, the individual’s age and
maturity, motivation and the possibility of
Once the government has
presented its case, the employee has the burden of
demonstrating that the granting of or continuing
eligibility for a security clearance is "clearly
consistent with the interests of national security." Any
doubt will be resolved in favor of the "national
security", i.e. to deny a clearance.
After an initial decision by
the DOHA Administrative Judge, either the government or
the employee may appeal to the DOHA Appeals Board which
will make a final determination based on the record of
the hearing. Unless a constitutional issue is raised,
which is rare, the decision of the Appeals Board will be
final and not reviewable by a court.