(February 5, 2021) - Nina Ren of Kalijarvi, Chuzi, Newman & Fitch highlights changes on the horizon for Defense Department employees seeking security clearances.

On January 14, 2021, the Acting Undersecretary for Intelligence for the U.S. Department of Defense (DoD) issued a memorandum entitled "Simplifying, Centralizing, and Unifying the Established Administrative Process for Unfavorable Security Clearance Eligibility Hearings and Appeals, Including National Industrial Security Program (NISP) Contractor Employee Unfavorable Sensitive Compartmented Information Eligibility Hearings and Appeals."

Only two pages long, despite the lengthy title, this memorandum packs a punch and dramatically equalizes how DoD employees can fight to keep their access to classified information.

First, some background. To access national security information, every applicant must go through an extensive background investigation, which may involve taking a polygraph test, depending on the position and level of clearance (Confidential, Secret, Top Secret).

Above and beyond these basic requirements for collateral clearances are programs requiring special access, such as Sensitive Compartmented Information (SCI). SCI is "[c]lassified information concerning or derived from intelligence sources, methods, or analytical process that is required to be handled within a formal access control system established by the [Director of National Intelligence]," which adheres to even-more-stringent standards than collateral clearances.¹

Pre-memorandum procedures will continue to apply until the changes are implemented no later than September 30, 2022. Therefore, the DoD component making the initial decision to grant or deny an employee's security clearance application (SCA) and in determining what rights a DoD employee has for appealing a negative security clearance decision, will look at their employment status — whether they are a federal or contract employee. They will also determine if the employee needs special access to SCI.

For example, DoD contractors receive decisions on their SCAs from the Defense Office of Hearings and Appeals (DOHA) and their appeals are heard by a DOHA Administrative Judge (AJ), regardless of whether they requested a hearing.

On the other hand, DoD federal employees and military personnel receive their SCA decisions from the DoD's Consolidated Adjudications Facility (DoD CAF), and could appeal those decisions to a DOHA AJ only if they requested a personal appearance (PA).

However, that is then subject to an additional oversight panel: the Personnel Security Appeal Board (PSAB). For those who need SCI access, that decision is outsourced to the component holding the information.

All that, of course, complicates the adjudicative process and contravenes the DoD's now-decade-long effort to "reduce duplication, overhead, and excess[.]"²

Under the new system described in the memorandum, all military personnel and those employed by the Defense Counterintelligence and Security Agency (DCSA), Defense Intelligence Agency (DIA), National Geospatial-Intelligence Agency (NGA), National Reconnaissance Office (NRO), National Security Agency (NSA)/Central Security Service (CSS) and the Washington Headquarters Services (WHS) will have the same procedural protections provided in Executive Order 10865 and DoD Directive 5220.6.

In layperson's terms, that means regardless of who you are or what level of access you are seeking, you will be entitled to (among other things):

(1) Know, in writing and in as much detail as possible without affecting national security, why your access may be denied or revoked;

(2) Respond in writing under oath or affirmation;

(3) Appear "in person" to present additional evidence and argument why your access should be granted or reinstated;

(4) Representation by a lawyer (or non-lawyer);

(5) Call witnesses on your behalf;

(6) A written final decision from an AJ that will explain which allegations in the statement of reasons were found for or against you; and

(7) The opportunity to appeal if the decision is adverse.

Significantly, this means DoD contractors appealing a denial of access to SCI will now have their cases heard by the DOHA, along with everyone else.

In addition, DoD federal employees no longer have to go through a stressful personal appearance only to wait for an AJ at DOHA to issue an advisory opinion to the PSAB, which may reach a different decision. Indeed, the PSAB is not bound by any of the AJ's fact findings, including credibility determinations, that are based on live witness testimony.

That multi-step process is now simply a hearing before an AJ at DOHA, who will have the authority to issue a decision (not just an advisory opinion), with the possibility of an appeal if either side disagrees with the AJ's decision. In a nutshell, it is a much more fair and straightforward process.

As a result of the new memorandum, if your eligibility is denied or suspended before the changes go into effect, you can ask your component in writing to postpone your DOHA hearing and decision. For many employees, that means weighing the benefits of the new streamlined process with the increased delay in potentially resuming employment.

You can read the full memorandum here.³

1 DoD Manual 5200.02, Procedures for the DoD Personnel Security Program (PSP) (2020) https://bit.ly/3sVGcR7

2 Robert M. Gates, The Department of Defense, Track Four Efficiency Initiatives Decisions (2011) https://bit.ly/2YeLKbm

3 https://bit.ly/2NAJ59P