What Can I Do If My Security Clearance is Being Revoked?

1April
2013


 

 

 

 

If someone has an issue with regard to his or her security clearance, either initially applying for one or having a problem with one that the government is attempting to suspend or revoke, they are often unsure where to turn to find out what exactly the issues are with their security clearance. Department of Defense (DOD) Directive 5220.6 deals with all matters regarding the Defense Industrial Personnel Security Clearance Review Program. One can simply perform a search request in a search engine for this directive and you should be able to find it. Make sure you are dealing with the directive that was made effective for any adjudication in which a Statement of Reasons was issued on or after September 1, 2006. This directive was initially enacted on January 2, 1992 but it was revised on August 30, 2006 and is effective for any cases after September 1, 2006.

You may also refer to my blog post of July 16, 2012, if you have a concern regarding preparing your initial application for security clearance and you have some information or issues in your background that gives you pause for concern.

The manner in which the situation usually arises is that the government issues a Statement of Reasons (SOR) expressing an intent to revoke a security clearance.  That document is provided to the facility security officer who, in turn, gives it to the person whose clearance is being revoked.  It is very important to act promptly when you receive a SOR.  You will have due process rights, one of which is to request a hearing before an Administrative Law Judge (ALJ).  We always recommend that security clearance applicants timely respond to the SOR and ALWAYS request a hearing before an ALJ.  In our estimation, this is the single best opportunity to get or retain a security clearance in light of the receipt of a SOR.

DOD Directive 5220.6 sets forth all policies, responsibilities, and procedures of the Defense Industrial Personnel Security Clearance Review Program. Per the directive, it applies to the Department of Defense, the military departments, and the defense agencies/DOD components. This directive is used by the government to determine whether it is clearly consistent with the national interest to grant or continue a security clearance for an applicant.

More importantly, the directive sets forth procedures when the DOD is attempting to suspend or revoke a security clearance. Procedures set forth in the directive allow the applicant for a security clearance to submit a rebuttal statement or, alternatively, request a hearing before an Administrative Law Judge. The directive notes that the hearing before an Administrative Law Judge is an adversarial proceeding and that both parties, the government and the applicant, have a responsibility to present their respective cases. The government is represented by an attorney known as Department Counsel. The applicant has an option of appearing by himself/herself, being represented by an attorney selected and paid for the by the applicant, or being represented by a personal representative.

The hearing before an Administrative Law Judge is held in a locality within 150 miles of the residence or place of employment of the applicant. The directive further provides that an Administrative Law Judge is not empowered to issue subpoenas and, as a result, appearance of witnesses and production of documents is purely voluntary. The parties, per the directive, have a wide degree of discretion in order to present the evidence in their cases and the Federal Rules of Evidence are used as a guide only. All witnesses are subject to cross examination by the other party. Importantly and where an applicant who is concerned with regard to his or her security clearance will find the most information is in the Adjudicative Guidelines for determining eligibility for access to classified information which is contained in the directive. The directive sets forth several guidelines from personal conduct to financial considerations, drug involvement, alcohol consumption, and criminal conduct among other guidelines. If the government is intent on revoking a security clearance, it will set forth the guidelines from the directive. It is very important to note that there are mitigating conditions that an applicant can utilize to show why he or she is deserving of the security clearance which would allow access to classified material.

Our law firm has been handling security clearance revocation matters for several years. If you have questions or concerns and would like to review your situation, please contact attorney Ronald C. Sykstus at or by calling 256-539-9899.

 

Posted in Security Clearance |