The Smith Amendment modification was passed by
Congress on October 9, 2004, and is on its way to
the White House for signature. Section 1062 of the
“Ronald W. Reagan National Defense Authorization Act
for Fiscal Year 2005” amends 10 U.S.C. § 986, the
“Smith Amendment,” so that a person would not be
barred from holding a security clearance unless he
or she was actually imprisoned for at least one
year, not just sentenced to that time. The
modification also directs the Department of Defense
to develop standards and procedures for the
determining if a person who was barred by the Smith
Amendment could be granted a waiver.
The effect of this change is to allow
people who have been sentenced to more than year but
placed on probation, or who actually served less
than a year of incarceration to hold a security
clearance. In cases where the Smith Amendment
prohibition does apply, the change also now
establishes standards for waivers where before,
there were none. The new law delegates the waiver
authority to persons below the level of Secretary of
Defense, Army, Navy or Air Force where previously
the Secretaries had to personally make that
When the change is signed into law,
10 U.S.C. § 986 will read as follows:
October 30, 2000, the Department of Defense may not
grant or renew a security clearance for a person to
whom this section applies who is described in
(b) Covered persons.–This
section applies to the following persons:
(1) An officer or employee of the
Department of Defense.
(2) A member of the Army, Navy,
Air Force, or Marine Corps who is on active duty or
is in an active status.
(3) An officer or employee of a
contractor of the Department of Defense.
(c) Persons disqualified from
being granted security clearances.–A
person is described in this subsection if any of the
following applies to that person:
(1) The person has been convicted
in any court of the United States of a crime, was
sentenced to imprisonment for a term exceeding one
year and was incarcerated as a result of that
sentence for not less than a year.
(2) The person is an unlawful
user of, or is addicted to, a controlled substance
(as defined in section 102 of the controlled
Substances Act (21 U.S.C. 802)).
(3) The person is mentally
incompetent, as determined by a mental health
professional approved by the Department of Defense.
(4) The person has been
discharged or dismissed from the Armed Forces under
(d) Waiver authority.–In
a meritorious case, an exception to the prohibition
in subsection (a) may be authorized for a
person described in paragraph (1) or (4) of
subsection (c) if there are mitigating factors.
Any such waiver may be authorized only in accordance
with standards and procedures prescribed by, or
under the authority of, an Executive order or other
guidance issued by the President.
(New language in italics.)
this time, Presidential guidance or authority has
not been issued and no standards or procedures for
granting waivers have been released to the public.
However, all pending cases under the former law
which would not be barred by the new amendment have
been put on hold pending the President’s signature
enacting the change into law.
Ambiguities in the latest amendment
raise a number of questions. Subsection (c)(1) uses
the terms “imprisonment” and “incarceration” in the
same sentence. Was that an intended distinction?
Does a sentence “to imprisonment” mean only to a
prison or penitentiary or does it include
house-arrest or a halfway house?
Sentencing must be for a term
“exceeding one year” but minimum incarceration is
for a day shorter period of “not less than a year.”
What does incarceration “for less than a year”
mean? 364 days is less than a year, so “not less
than a year” must mean a year or more. Would
incarceration during a leap year differ from a
nonleap year? A release after 365 days in a leap
year would be “less than a year.” We will have to
await future decisions to resolve these questions.
Anyone who has lost his or her
clearance since October 30, 2000 because of the
Smith Amendment and who has served less than a year
of incarceration should apply for reconsideration of
their clearance denial or revocation