On October 30, 2000, Congress enacted a new law, known as the “Smith Amendment”, which prohibits the Department of Defense from granting or renewing a security clearance to any person who had been “convicted in any court of the United States of a crime and sentenced to imprisonment for a term exceeding one year.”^[2]  That Amendment, codified at 10 U.S.C. § 986, provides that “in a meritorious case the Secretary of Defense or the Secretary of the military department concerned may authorize an exception to the [above stated] prohibition.”

The Smith Amendment resulted from a newspaper article published in USA Today generally critical of the Defense Office of Hearings and Appeals (DOHA).^[3]  The article selected thirteen out of several thousand DOHA decisions issued between 1994 and 1999 to bolster the story.  Senator Bob Smith picked up on the story to start an investigation of the entire DOHA appeals process.^[4] 

10 U.S.C. § 986 was subsequently implemented by the Department of Defense by a Memorandum dated June 7, 2001, from the Deputy Secretary.^[5]  It included convictions in either a Federal or State court, and also included any sentence of more than one year regardless of the amount time actually served.  The DoD Memorandum further provided that the decision of whether a particular case was sufficiently meritorious to justify a request for waiver, would begin with the appellate authority of the DoD component concerned.  In the case of civilian contractors’ employees, that appellate authority is DOHA.

Government employees of the Department of Defense holding security clearances are also subject to the Smith Amendment.  Review of their appeals go instead first to the Central Adjudication Facility (CAF) of the Military Department employing them, and then to the Military Department’s Personnel Security Appeal Board (PSAB).  Whether such Boards are applying a different standard than DOHA for recommending waivers is not known because there is no public record of those Boards’ decisions.

The DoD Memorandum requires that all cases must first be fully investigated and adjudicated in accordance with Executive Orders, DoD Directives and regulatory guidance to develop a record upon which to evaluate whether a waiver is meritorious.  In cases coming before DOHA, the applicable directive is DoD Directive 5220.6.  The DoD Memorandum further requires that before a waiver can even be considered, there must first be a decision, “without consideration of” 10 U.S.C. § 986, to grant or renew the security clearance of the person involved.  If sufficient reason is found to grant or renew the clearance, the authority responsible for making that decision, either DOHA for contractors’ employees or the CAF for Government employees, may then recommend to the Secretary of Defense or to the Secretary of the Military Department concerned, that the case merits a waiver of the Smith Amendment. 

The DoD Memorandum applies both to initial determinations to grant clearances and to reinvestigations.  It does not apply to conversions, transfers or reinstatements of current DoD security clearances for either government employees or defense contractors’ employees.

DoD’s Memorandum is further implemented by DOHA by its Operating Instruction No. 64, dated July 10, 2001.^[6]  That Operating Instruction directs DOHA Administrative Judges to initially determine whether 10 U.S.C. § 986 applies to the facts of a particular case.  If the judge so determines, and further determines, without consideration of 10 U.S.C. § 986, that there would have been a decision to grant or renew the security clearance, the Administrative Judge must then include, without explanation, a statement either recommending or not recommending a waiver of 10 U.S.C. § 986.^[7]

Operating Instruction No. 64 further directs that if a case is appealed to the DOHA Appeal Board, and it would have granted a clearance but for the Smith Amendment, it too shall include, without explanation, a statement either recommending or not recommending a waiver of 10 U.S.C. § 986.  Finally, the Operating Instruction provides that in any case in which an Administrative Judge or the Appeal Board, recommends consideration of a waiver, the Director of DOHA shall, within his sole discretion, determine whether to forward the case to the DoD Deputy General Counsel for further consideration of a possible waiver by the Secretary of Defense, “together with such rationale as may be requested by the Deputy General Counsel.”

Between December 14, 2001 and October 23, 2002, there were 20 cases identified in which eleven different Administrative Judges recommended a Smith Amendment waiver.^[8]  All of these cases overwhelmingly satisfied the mitigating conditions of Security Guideline J, concerning criminal conduct.^[9]

Seven of the cases in which an Administrative Judge did recommend a waiver were appealed.^[10]  In all of those cases, although the employee would have otherwise been granted a clearance, the three-member Appeal Board did not recommend a waiver.^[11]  Because DOHA Operating Instruction No. 64 precludes either an Administrative Judge or the Appeal Board from offering any explanation for its decisions, the appealed decisions offer no insight as to why the Administrative Judge recommended a waiver, and the Appeal Board did not.

To the present time there have been less than a dozen waiver recommendations made by the Director of DOHA to the DoD Deputy General Counsel over the course of the past two years.  As of April 2003, there has yet to be a decision by DoD on any of the forwarded cases.  In each forwarded case the Director of DOHA wrote a memorandum providing his rationale for recommending a waiver.  As these memoranda would probably be considered “pre-decisional”, they most likely would not be obtainable under the Freedom of Information Act.  If and when a case is approved, the DOHA Director will probably post his recommending memorandum and the waiver approval on the DOHA website if it becomes the final decision document, so the public can be informed of the standards required for approval. 

It is apparent from the small number of cases forwarded, that the Director of DOHA believes that Congress intended a far more stringent standard to be applied in felony cases than simply the application of the mitigating factors already found in Guideline J. In each of the 20 DOHA cases where waivers were recommended, the  Administrative Judge found that there was more than enough “good cause” to find that it was in the national interest to grant a security clearance.  Except for the Smith Amendment, the applicant’s prior conviction would not have barred the granting of a clearance.  Nevertheless, in all seven cases where Administrative Judges recommended waivers that were appealed to the DOHA Appeal Board, and in eleven of the remaining thirteen cases where waivers were recommended by Administrative Judges which went directly to the DOHA Director, the Administrative Judge’s recommendation was overruled and it was ultimately determined that the case did not merit a waiver recommendation. 

The only overview of the application of the Smith Amendment is found in the annual reports which the Smith Amendment requires DoD to file with Congress.  The two annual reports thus far filed by DoD offer little reason for optimism.  The first report, covering July 1, 2001 through December 31, 2002 stated that no waivers were approved by the Secretary of Defense or the Secretaries of the Military Departments for that period.^[12]  The second annual report covering January 1, 2002 to December 31, 2002 reported that only one waiver had been granted by the Department of Defense during that period.^[13]  The report noted:

The Secretary of the Navy granted a meritorious exception [for the renewal of a security clearance] to an individual whose clearance was revoked based on an 18-month imprisonment sentence in July 1985 for petty theft, which was later suspended.  From 1977 to 1985 the individual was involved with drugs and alcohol, which led to disreputable behavior.  This individual has held a Secret clearance in the Department since 1992.  There has been no evidence of similar conduct since 1985.

From the decisions to date, it cannot be predicted whether any of DOHA’s recommended waivers under the Smith Amendment will be granted by the Secretary of Defense. 

The record to date is dismal.  Prior to the enactment of the Smith Amendment, a felony conviction had always been one of the reasons for denying a security clearance.  A judge or other deciding official, however, was permitted the discretion to consider other mitigating factors to outweigh the prior conviction.  Historically, mitigation was sparingly applied and in only the most meritorious cases.  The Smith Amendment removed that discretion entirely. 

Today, no one wants to appear “soft” on security, but the byproduct of that attitude is that many people who erred long ago, and who have rehabilitated themselves and become good and productive members of society are now losing their clearances and their jobs solely because of the Smith Amendment.  Many years of meritorious service to the government count for naught.  The result is that the government is losing the services of good people valuable to our national defense. 

There is no known instance of a person previously convicted of a felony, who having been later granted a security clearance, was found to have committed any act endangering the national security.  Yet in response to a sensational newspaper article, the government is now losing the services of talented long-time, loyal employees and contractors.

Sheldon I. Cohen

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