Calling all criminal defense practitioners!! Do any of your clients hold a security clearance? Clients with clearances are especially prevalent in Virginia, due to its dense military population, and its proximity to the District of Columbia. In 2018, a Director of National Intelligence report indicated that approximately 4 million Americans workers held a clearance of some sort. That number has been listed as higher in other years, and the most dense concentration of clearance-holders surrounds the District of Columbia and its neighboring states.
Security clearance issues are a frequent collateral consequence of criminal charges. “Issues” range from delayed investigations and adjudications for granting clearance, to suspensions, revocations, and denials of clearances. If your client has a clearance which may be impacted by his or her activity, rendering the correct advice is paramount. You may want to consult with an attorney versed in this area of law, or even refer the client to such an attorney for separate representation on that issue.
What is a security clearance? When an individual has a need to access classified national security information, they must be “cleared” through an investigation beforehand. If cleared, the individual may gain access to classified information, up to and including the level of clearance they have- if they have a “need to know.” A large percentage of cleared individuals do not have access – but when and if their project or job requires access, they are cleared for it, and will be debriefed on the security protocols and required to sign a non-disclosure agreement or other attestations. (*The debriefing and NDA, while certainly required for an employee to have notice of his disclosure requirements, is often never provided to many of my clients, especially government contractors.)
There are three levels of clearances- “confidential,” “secret,” and “top secret.” A “public trust” is not a clearance. Sometimes erroneously referred to as a “public trust clearance,” it is a national security eligibility determination. Those with a public trust position will not be accessing classified information- but their background will be checked. Public trust employees have different disclosure/notification requirements than those holding a security clearance.
Individuals with security clearances have various disclosure/notification requirements depending on a variety of factors, which include: the level of their clearance; the type of work they perform; their employer; the project or space they work on or in. It is not desirable, or advisable, for an individual to over-disclose, or to submit a notification when it is not necessary. Conversely, a failure to disclose or notify the government of an arrest or other problem, when disclosure is required, can be fatal to holding a clearance in the future. (Discussed more below.)
How are individuals investigated and cleared? First and foremost, an individual must have a sponsoring employer, who attests to the Director of National Intelligence that their position requires access to classified material, and requests a certain level of clearance. For instance, if Sally will necessarily be reading only Secret-level documents, her sponsoring employer must not ask for her to receive a higher Top Secret clearance.
Generally, applicants come from three sectors: active duty military personnel, civilian federal employees (such as those on the GS pay scale), and civilian contractors. A contractor is someone employed by a private company which is paid by the government to complete a specific project. If there is a problem with a clearance, the individual's employment sector is an important piece of the puzzle for an advising attorney to take into consideration before rendering advice. Administrative processes, defense tactics, and outcomes slightly differ.
The sponsoring employer will request that an investigation be initiated, and the individual must submit a lengthy form which examines over 25 areas of personal information. The currently used SF86 form is 136 pages, and some individuals must provide copious additional information depending on their circumstances (for instance, if they travel frequently or have contact with many foreign nationals, such as relatives.) An investigator from one of several government agencies will review the form, investigate and verify the information, and interview the individual (and others). Sometimes, a polygraph is required, and the polygraph experience varies significantly from agency to agency, includes more intrusive questions than the SF86, and often requires multiple sessions.
The government previously renewed security clearances periodically through a process called Periodic Reinvestigations (PR). The time frame for a PR was every 10 years for Secret level clearances and 5 years for Top Secret. However, as part of a re-vamp of the system, cleared individuals are being migrated into the Continuous Evaluation (CE) program, whereby issues that may raise a concern about national security should come to the attention of the government sooner than the 5 or 10 year PR. One outcome of the CE system will ideally be to ferret out information that individuals are not self-disclosing- such as arrests, for example.
The term “disclosure” refers to notifying one's employer, chain of command, or security officer of an event or activity which may raise concerns about national security. Disclosures are required in the case of security breaches (unusual contact from foreign nationals, leaks, etc.,) and may be required in the case of certain personal activity (such as domestic disturbances, financial insolvency, mental health issues, arrests, investigations, etc.) A disclosure is not necessarily always required for every possible occurrence, and that requirement depends upon a variety of factors including employment sector, clearance level, nature of work performed, what notices were provided to the individual, and more.
If a disclosure is required, and not made, it can be fatal to holding a continued clearance. If a disclosure is not required, but is made, unnecessary adverse effects may result. There is, however, an art to drafting a disclosure. I usually recommend to my clients that they allow me to draft the disclosure, and send it themselves in writing to their security officer or chain of command, with a receipt confirmation for our records. A disclosure must be truthful and succinct. Volunteering extraneous details in an initial disclosure has often proved to become very problematic down the line, when we are appealing a revocation or suspension.
Often, criminal defense practitioners do not know how to correctly advise a client on the issue of disclosure (its necessity or its format.) Incorrect advice can seriously imperil and negatively impact the client's clearance, and therefore her employment, housing status, and the lives of her dependents. Therefore, it is imperative to be well-educated if discussing these matters.
Working in consultation with a security clearance lawyer during the entire course of a criminal case can also greatly mitigate adverse outcomes in the clearance context. Controlling the discovery process, such as what documents transfer to the possession of the client, is one example. With varying discovery practices around the Commonwealth, each recommendation is made on a case by case basis. Other examples are the decision of whether to plead guilty to a reduced charge or accept a deferred disposition. Security clearance lawyers have mitigation plans just as criminal defense lawyers, and it can be very helpful to cooperate and align both plans. These considerations, and more, will be discussed in Part Two of this article.
Phoenix S. Ayotte, Esq., of Ayotte Law, LLC, works predominantly in the area of security clearance representation. Led into it out of necessity in her prior Virginia and Federal criminal defense practice, she became specialized in this area and is pleased to be defending clients in clearance denial and revocation cases. Ms. Ayotte resides in Key West, Florida, has a virtual remote practice, and is a frequent visitor to the Commonwealth and District for her client's hearings. [email protected]