LOSS OF A
SECURITY CLEARANCE BECAUSE OF A FELONY CONVICTION:
THE EFFECT OF 10 U.S.C. § 986, THE “SMITH AMENDMENT”
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.”
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.”
Amendment resulted from a newspaper article
published in USA Today generally critical of
the Defense Office of Hearings and Appeals (DOHA).
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.
§ 986 was subsequently implemented by the Department
of Defense by a Memorandum dated June 7, 2001, from
the Deputy Secretary.
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.
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.
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
Memorandum is further implemented by DOHA by its
Operating Instruction No. 64, dated July 10, 2001.
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.
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
December 14, 2001 and October 23, 2002, there were
20 cases identified in which eleven different
Administrative Judges recommended a Smith Amendment
All of these cases overwhelmingly satisfied the
mitigating conditions of Security Guideline J,
concerning criminal conduct.
the cases in which an Administrative Judge did
recommend a waiver were appealed.
In all of those cases, although the employee would
have otherwise been granted a clearance, the
three-member Appeal Board did not recommend a
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.
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.
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.
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.
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
The report noted:
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.
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
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.
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
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.
The author is in the private practice of law in
Arlington, Virginia. He is the author of Security
Clearances and the Protection of National Security
Information: Law and Procedures, 335 pp., published
by the Defense Personnel Security Research Center,
Technical Report 00-4, November, 2000.
The Smith Amendment, so named after its sponsor, Senator
Bob Smith, amended the Floyd D. Spence FY-01 Defense
Authorization Bill, P.L. 106-398 App.,
§1071, 114 Stat. 1654A-275.
Felons Gain Access to the Nations Secrets,”
USA Today, pp. 1A, 6A, Dec. 29, 1999.
See, Opening Statement of Senator Bob Smith before the
Senate Armed Services Committee Hearing to Review
Procedures and Standards for the Granting of Security
Clearances at the Department of Defense, April 6, 2000.
DOHA cases recommending a waiver under the Smith
Dec. 14, 2001, John G. Metz, Jr., A.J.
Dec. 18, 2001, John R. Erck, A.J.
Dec. 26, 2001, Robert Gales, A.J.
May 28, 2002, John G. Metz, Jr., A.J.
April 22, 2002, William R. Kearney, A.J.
April 16, 2002, Claude R.
Dec. 26, 2001, Elizabeth M. Machinski, A.J.
May 8, 2002, Joseph Testan, A.J.
April 22, 2002, John G. Metz, Jr., A.J.
Jan. 24, 2002, Roger C. Wesley, A.J.
Feb. 5, 2002, Kathryn Moen Braeman, A.J.
Dec. 18, 2001, Jerome H. Silber, A.J.
Mar. 11, 2002, Kathryn Moen Braeman, A.J.
Feb. 28, 2002, Joseph Testan, A.J.
May 8, 2002, John R. Erck, A.J.
Feb. 14, 2002, Elizabeth M.
Oct. 23, 2002, Paul J. Mason, A.J.
Oct. 2, 2002, John G. Metz, Jr., A.J.
Oct. 23, 2002, John R. Erck, A.J.
Aug. 20, 2002, John R. Erck, A.J.
The mitigating conditions for GUIDELINE J - Criminal
The criminal behavior was
The crime was an isolated
The person was pressured or
coerced into committing the act and those pressures are
no longer present in that person's life;
The person did not
voluntarily commit the act and/or the factors leading to
the violation are not likely to recur;
There is clear evidence of
April 22, 2002
April 18, 2002
July 25, 2002
Sept. 24, 2002
Aug. 9, 2002
Aug. 20, 2002
Aug. 21, 2002.
The Appeal Board Judges in all cases were Emilio
Jaksetic, Michael Y. Ra'anan and Jeffrey D. Billett.
Letter from John P. Stenbit, Assistant Secretary of
Defense for Command, Control, Communications and
Intelligence, March 4, 2002(on file with the House and
Senate Armed Services Committee. The Senate Committee
Control Number is SASC No. 107-2-08.)
Letter from John P. Stenbit, Feb. 26, 2003 (On file with
the House and Senate Armed Service Committees).
Copyright © Sheldon I. Cohen