2014 Security Clearance Year in Review


Interim Clearances—The Under Secretary of Defense for Intelligence (USD-I) issued a memorandum with an effective date of February 1, 2014, regarding new minimum standards for interim secret clearances.  Actual implementation may take more than a year.  More information about this change is available at an article on interim clearances.

NISPPAC Report—The National Industrial Security Program Policy Advisory Committee (NISPPAC) posted the Report of its November 2013 meeting at the Information Security Oversight Office (ISOO) website.   The Defense Security Service (DSS) reported that the furloughs and sequestration from earlier in 2013 temporary halted the submission of personal security investigations to the Officer of Personnel Management (OPM) and created a one-month backlog of about 13,500 cases.  Because of the security studies of the September 2013 Washington Navy Yard shooting, the Director of DSS “suggested that there will likely be enhanced adverse information reporting requirements levied on both government and industry.”  DOD Consolidated Adjudications Facility (DOD CAF) reported that “the elimination of the industrial backlog was estimated at two years.”

Federal Lawsuit Against USIS—The Department of Justice (DOJ) filed a lawsuit against US Investigations Services (USIS), the largest supplier of investigative services to the US Government, for breach of contract and false claims made to the US Government.  USIS is accused of submitting thousands of background investigations to the Office of Personnel Management (OPM) without properly completing a quality review.

Washington Navy Yard (WNY) Shooting Reports—DOD released their internal review and independent review of physical and personnel security practices in the aftermath of the September 2013 WNY Shooting.  The Department of Navy (DON) released their separate review, as well as the Secretary of the Navy’s (SecNav) endorsement of its findings.  The reviews generally included the following recommendations:

  1. Reduce the interval between Periodic Reinvestigations.
  2. Implement the Automated Continuous Evaluation System (ACES).
  3. Through security education emphasize the responsibility of cleared personnel, coworkers, and supervisors to report unfavorable information of security significance.
  4. Establish a DOD insider threat management and analysis center.
  5. Fund the identity management enterprise services architecture.


Quality Review of OPM Investigations—Because of the issues underlying the lawsuit against USIS filed by DOJ in January, OPM reported that they were removing all contractor personnel from the final quality review of background investigations.  By the end of February all such reviews will be done by OPM federal employees.

OPM IG Act—This act, which was introduced in the House of Representatives as H.R. 2860 and was essentially the same as Senate Bill 1276 (Security Clearance Oversight and Reform Enhancement Act—SCORE), became Public Law 113-80 on 2/12/2014.  It authorizes the OPM Inspector General (IG) to use up to 0.33% of the billion dollar OPM Federal Investigative Services (FIS) revolving fund to conduct audits of the fund.

GAO Report on Security Clearances—The General Accountability Office (GAO) released a report titled, “Actions Needed to Ensure Quality of Background Investigations and Resulting Decisions” (GAO-14-138T).  The report found that “Executive branch agencies do not consistently assess quality throughout the personnel security clearance process, in part because they have not fully developed and implemented metrics to measure quality in key aspects of the process.”


OMB Personnel Security Review—The White House Office of Management and Budget (OMB) released its report on background investigations that support hiring, credentialing, suitability, fitness, and security clearance decisions.  The review was primarily in response to the WNY Shooting and was similar but less detailed than the DON review and the two DOD reviews released in January.

SecDef Approves 4 Recommendations from WNY Shooting Reviews—The Secretary of Defense (SecDef) approved four recommendation made by the DOD Internal and Independent Reviews of the WNY Shooting, plus directed further analysis of three additional recommendations made by the Independent Review, which included regaining responsibility for conducting its own background investigations, which have been conducted by OPM since 2005.

SecNav Approves All Recommendations from WNY Shooting Report—The SecNav approved all 14 recommendations contained in the Navy’s Judge Advocate General Manual (JAGMAN) investigation of the WNY Shooting.  A list of completed actions was also published.


DOD Inspector General (IG) Report—The DODIG issued Report No. DODIG-2014-060, “An Assessment of Contractor Personnel Security Clearance Processes in the Four Defense Intelligence Agencies.” The report had findings that affect all DOD agencies, including:  1) lack of effective personnel security policy, 2) lack of effective record keeping, 3) avoidance of security adjudication, 4) lack of information sharing, and 5) lack of connectivity between the Defense Central Index of Investigations and the Joint Personnel Adjudication System.  Item #3 refers to the refusal to adjudicate a case when there is a “Loss of Jurisdiction.”

ODNI 2013 Report on Security Clearance Determinations—The Office of the Director of National Intelligence issued its annual statistical report on security clearances.  The most surprising new information in the report was the number of people (2,058,402) who had clearances (access eligibility), but who did not currently require access.  This represents about 40% of all cleared personnel (5,150,379).


OPM FIS Annual Stakeholder Report—The FIS Report for Fiscal Year 2013 consists of 31 pages of facts and figures detailing almost every aspect of FIS operations.  To their credit FIS refunded about $25 million (2.5% of their Revolving Fund) to their customers and essentially have not raised their prices in 3 years.

NISPPAC Report—NISPPAC posted its March 2014 meeting report at the ISOO website.  There was considerable discussion regarding the new Continuous Evaluation (CE) program and its phased implementation.  “CE will be phased in over a period of three years with the first goal to develop initial operating capability by the end of FY 2014, which will involve a small set of [CI] agencies at the TS/SCI level. . . and embrace a limited number of data sets, so as to build the foundation for a much more extensive program. . . [and] will be fully implemented [for the Tier 5 level] by the end of 2016.”   Tier 5 refers to investigations for TS and TS/SCI clearances.


OPM IG Report—Findings in this report included: 1) deficiencies in the quality review process for background investigations, 2) missing training documents for case reviewers, and 3) weak FIS control over contractor quality review process.

DSS Access–Volume 3, Issue 2 (June 2014) of the quarter DSS publication “Access” contained DSS Personnel Security Management Office for Industry (PSMO-I) updates and initiatives on industrial personnel security investigations (PSI), including information on PSI submissions backlog, electronic fingerprint submissions, changes to interim clearance processing, data quality initiatives, JPAS account management, and a future Case Adjudication Tracking System (CATS) portal for industry Facility Security Officers (FSOs).

Quarterly CAP Goal—“Insider Threat and Security Clearance Reform” was created as a new Cross-Agency Priority Goal and the first quarterly (2nd Quarter FY2014) progress update was released.


OPM’s e-QIP Hacked—The New York Times reported that in March Chinese hackers broke into OPM’s computer system that maintains personal information on people who have applied for federal security clearances.

2014 Intelligence Authorization Act (IAA) Enacted—The 2014 IAA became Public Law No: 113-126.   Among other things it requires the Director of National Intelligence (DNI) to “(1) ensure that the background of each employee or officer and contractor of the intelligence community is monitored continuously to determine their eligibility for access to classified information; and (2) develop procedures to require sharing of potentially derogatory security information concerning an employee, officer, or employee of a contractor of the intelligence community that may impact the eligibility of such individuals for a security clearance.”

Security Interview by Chatbot—The National Center for Credibility Assessment (NCCA) conducted a study to determine the feasibility of conducting security clearance interviews conducted using a Chatbot.  In their study they used U.S. Army volunteers who interviewed by a Chatbot while hooked up to cardiographic and electrodermal (heart and skin) monitor.

Tax Debts Owed by Security Clearance Holders—In 2013 GAO reported (GAO-13-733) that about 8,400 non-DOD federal security clearance holders owed about $85 million in unpaid federal tax.  As a follow up GAO issued GAO-14-686R that reported about 83,000 DOD military, civilian employees, and contractors with security clearances had unpaid federal tax debt totaling more than $750 million.


DHS Issues Stop Work Order to USIS—The Department of Homeland Security (DHS), which contracted directly with USIS for background investigations, issued a stop work order because of a reported cyber-attack on the USIS computer system, potentially compromising investigative data from thousands of cases.

OPM Stops Issuing New Cases to USIS—Because of the reported cyber-attack on the USIS computer system, OPM stopped issuing any new investigative work to USIS.  OPM later directed USIS to return all uncompleted investigations to OPM.  About 2,000 USIS employees were furloughed.  The work that was previously assigned to USIS will be redistributed to the other investigative elements working for OPM.


OPM Fires USIS—OPM announced that it would not renew its investigative services contract with USIS.  USIS investigators began scrambling to apply for employment with the two remaining OPM Investigation Service Providers (ISP):  Keypoint Government Solutions (KGS) and CACI.  Both firms began handling thousands of job applications from former USIS investigators.  KGS doubled in size and replaced USIS as the nation’s largest ISP.

ODNI Polygraph Policy—Security Executive Agent Directive 2 (SEAD 2) on the use of security screening polygraph exams was obtained by Marisa Taylor of McClatchy News under the Freedom of Information Act.  In summer 2012 allegations surfaced about misconduct involving polygraph exams conducted by the National Reconnaissance Office (NRO).  Several news articles were written about alleged abuses at NRO.  Two congressmen voiced their concerns, and the IG of the Intelligence Community conducted an investigation.  The result is a new national polygraph policy that says very little—much less than the DOD Instruction on polygraph.  Absent is any policy on unfavorable administrative action based solely on unresolved personnel security screening examinations or limitations on pre-test or in-test questioning.

Quarterly CAP Goal—The “Insider Threat and Security Clearance Reform” Cross-Agency Priority Goal quarterly progress update for 3rd Quarter FY2014 was released.

GAO Report on Security Clearances—GAO released a report titled, “Personnel Security Clearances: Additional Guidance and Oversight Needed at DHS and DOD to Ensure Consistent Application of Revocation Process” (GAO 14-640), in which it provided data on the number and type of issues that resulted in clearance revocations.


Cyber-vetting Could Become Part of Security Clearance Process—An online article at the Federal New Radio website reported that “For the past six months, the Director of National Intelligence has been trying to determine whether the government should do Google searches on people who hold security clearances.”   The Director of the National Counterintelligence Executive was quoted as saying, “We’re trying to identify whether or not it’s practical, viable and feasible to even use [social media] as part of the evaluation and adjudication process.”

Federal Investigative Notices (FIN)FIN 14-06, “Special Agreement Check and Reimbursable Suitability/Security Investigation Billing Rates Effective October 1, 2014” and FIN 14-07, “Investigations Reimbursable Billing Rates Effective October 1, 2014” combine to provide the new billing rates for all investigative product offered by OPM for FY2015.  Overall there were some minor changes in product costs, but overall rates remained essential the same as last year.

NISPPAC Report—NISPPAC posted its June 2014 meeting report at the ISOO website.  The Director of DSS “advised that a revised interim [security clearance] process would not be instituted within industry until there was an automated process that would permit DSS to retrieve fingerprints and complete a review of the Standard Form (SF) 86, and the results of national agency checks.”  A DOD CAF industry representative “emphasized that the CAF completes about 180,000 adjudications for industry every year, and issues a Statement of Reasons (SOR) for about 4% of that caseload.”  The Director of DOHA “noted that, contrary to what is reported in JPAS, there are far less than the 10,000 cases reported at DOHA, and indicated that the number is actually around 1,000 cases.”


Owner of Polygraph.com Indicted—Douglas Williams was indicted on obstruction of justice and mail fraud charges for allegedly training customers to lie and conceal crimes during polygraph examinations.

New Nominee for Director of Naval Intelligence—The SecNav nominated Rear Admiral Elizabeth Train to replace Vice Admiral Ted Branch as Director of Naval Intelligence.  Branch had his security clearance suspended in September 2013 due to possible involvement in a bribery scandal.  Since then Branch has been unable to attend important, classified meetings with other service intelligence chiefs, leaving the Navy underrepresented that those meetings.  The SecNav nominated Train because there was no indication of how much longer the FBI would take to complete their investigation.

Federal Investigative Notices (FIN)FIN 15-03, “Implementation of Federal Investigative Standards for Tier 1 and Tier 2 Investigations.”  OPM is implementing the revised Federal Investigative Standards (FIS) according to the phased FIS Implementation Plan.  “Tier 1 is the investigation for positions designated as low-risk, non-sensitive. . . using the Standard Form (SF) 85.  Tier 2 is the investigation for non-sensitive positions designated as moderate risk public trust positions. . . using the SF 85P.”  “OPM is conducting Tier 1 investigations in lieu of the former National Agency Check and Inquiries (NACI) (SF 85) product and Tier 2 investigations in lieu of the former Moderate Risk Background Investigation (MBI) (SF 85P).”  Neither the revised FIS nor the FIS Implementation Plan has been made publicly available.


KGS Security Files Hacked—Following cyber-attacks on OPM (reported in July) and USIS (reported in August) security clearance records, hackers broke into Key Point Government Solution’s (KGS) computer system that maintains personal information on people who have applied for federal security clearances.

Quarterly CAP Goal—The “Insider Threat and Security Clearance Reform” Cross-Agency Priority Goal quarterly progress update for 4th Quarter FY2014 was released. The Government’s efforts to improve personnel security and protect sensitive facilities are falling behind schedule.


Things That Didn’t Happen In 2014

New Adjudicative Guidelines—ODNI has been working on new security clearance Adjudicative Guidelines for about 5 years.  Two sets of guidelines currently exist.  One set was approved by the President in December 2005.  ODNI issued guidelines in October 2008.  The 2 sets of guidelines are the same, except for Guideline C—Foreign Preference.  The ODNI’s version of Guideline C is much more permissive.  It allows people to obtain foreign citizenship, maintain dual citizenship, and exercise of rights of foreign citizenship, including the use of foreign passports.  For this reason DOD refuses to use the ODNI guidelines, and it appears that DOD and ODNI have been unable to reconcile their differences.

New SF86—The “60-Day notice and request for comments” for proposed changes to the SF86 (Questionnaire for National Security Positions) was posted to the Federal Register in March 2013.  The “30-Day Notice and request for Comments” for proposed changes to the SF86 was posted to the Federal Register July 2013.  Extensive changes were made after the initial comment period, but it’s been 18 months and a new SF86 still hasn’t been approved.  At least the latest proposed changes include a rewrite of Question 21 (Mental Health), and it is now written in an objective rather than totally subjective manner.

Incident Reporting—ODNI announce 2 years ago that they were developing new national standards for reporting matters that affect clearance eligibility.  The new standards have been in the final stages of coordination for over a year.  If and when they are issued, they will be released as SEAD 400).  Currently self-reporting requirements for cleared personnel are vague, confusing, and inconsistent across federal agencies.  New standardized national reporting requirements are badly needed, especially in light of the failure to report the bizarre conduct of Aaron Alexis during the month preceding the WNY Shooting that resulted in the murder of 12 people.


Legislation That Died When the 113th Congress Ended

SCARE Act—Had it been enacted the Security Clearance Accountability Reform and Enhancement Act (S. 1744) would have required OPM to (1) terminate or place on administrative leave an OPM employee for falsifying investigative reports and  (2) debar or suspend a contractor for intentional involvement in similar misconduct. The act would have required the review and updating of guidance for (1) position sensitivity designations; (2) quality controls; and (3) periodic reviews of position sensitivity designations.

Security Clearance Reform Act of 2014—Had it been enacted H.R. 4022 would have required the President to submit to Congress a strategic plan to improve security clearance and background investigation activities, including continuous evaluation.  It would have required that all final quality reviews of background investigations, all investigations for Top Secret clearances, and all interviews of clearance applicants be done by federal employees.  It would have also required OPM to report to Congress any criminal justice agencies that refuse to provide criminal records to OPM and would have reduced criminal justice grant funding to those agencies.

CORRECT Act—Had it been enacted the Clearance and Over-Classification Reform and Reduction Act (H.R. 5240) would have decreased the number of security clearances, as well as the amount of classified information.  It would have addressed privacy concern related to continuous evaluation and required improvement of the background investigation process.

Enhanced Security Clearance Act—Had it been enacted H.R. 5482 would have required a plan to eliminate backlogs of overdue periodic reinvestigations (PRs), instituted new intervals for PRs using automated record checks twice every five years, and required enhanced personnel security programs for security reviews, including the use of cyber-vetting and data mining.

Prevent Conflict of Interest with Contractors Act—Had it been enacted S. 2061 would have precluded contracts or contract extensions for conducting quality reviews of background investigation fieldwork services or background investigation support services, if the contractor is performing the services to be reviewed. _________________________________________________________

By William Henderson, January 23, 2015

All Original Material Copyright © 2015 Federal Clearance Assistance Service. All rights reserved.

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Periodic Reinvestigations For Public Trust & Security Clearances

On November 9, 2011 the Office of Personnel Management (OPM) published its final rule on changes to Title 5 Code of Federal Regulations Part 731 (5 CFR 731), “Suitability.”  The new rule went into effect on December 9, 2011.

The major change to 5 CFR 731 is the requirement to conduct period reinvestigations (PR) on all covered Public Trust (PT) positions.  A covered position is defined as “a position in the competitive service, a position in the excepted service where the incumbent can be noncompetitively converted to the competitive service, and a career appointment to a position in the Senior Executive Service.”  Agency heads are required to “designate every covered position within the agency at a high, moderate, or low risk level as determined by the position’s potential for adverse impact to the efficiency or integrity of the service.”   PT positions are those at the high and moderate risk levels.

Previously federal agencies could only conduct PRs on certain PT positions using the authority provide in the Computer Security Act of 1987 and OMB Circular No. A-130; both of which applied primarily to information technology positions.  A National Agency Check with Credit (NACC) was recommended for PRs for Moderate Risk PT positions, and a “Periodic Reinvestigation” (PRI) was recommended for High Risk PT positions.  The PRI is a specific OPM investigation, and should not be confused with the generic term periodic reinvestigation or PR.

The new rule requires a National Agency Check with Local Agency Check and Credit Check (NACLC) for Moderate Risk PT positions and a PRI for High Risk PT positions be conducted at 5 year intervals for all covered positions.  Non-convertible excepted service positions, temporary positions, and contractor positions (non-covered positions) are not affected by the new rule; however, OPM recommends that non-covered positions be designed as high, moderate, or low risk positions in the same manner as covered positions and that  provisions of 5 CFR Part 731 apply to them.  The new rule further states:

If, prior to the next required reinvestigation, a separate investigation is conducted to determine a person’s eligibility (or continued eligibility) for access to classified information or to hold a sensitive position, or as a result of a change in risk level as provided in paragraph (e) of this section, and that investigation meets or exceeds the requirements for a public trust reinvestigation, a new public trust reinvestigation is not required. Such a completed investigation restarts the cycle for a public trust reinvestigation for that person.

It also establishes a time period within which an individual, who previously occupied a covered or non-covered PT position, can be reinstated to a covered PT position without a new investigation.  The time period is the same as the time period used for national security positions, which allows clearance reinstatement when a break-in-service does not exceed 24 months and the underlying investigation has not gone out-of-date.  Previously, if there was any break-in-service, a new investigation was required for covered positions.  No break-in-service is permitted for reciprocal acceptance of favorable PT determinations when moving from a covered position to a non-covered position or moving between non-covered positions. (See OPM Memo of September 24, 2009.)

Periodic Reinvestigations for National Security Positions

Equally important is the pending change to 5 CFR 732, “National Security Positions.” Deep in the OPM comments to the final rules affecting 5 CFR 731, OPM stated:

Likewise in our proposed rule amending 5 CFR part 732, dated December 14, 2010, Designation of National Security Positions, the timeframe for reinvestigations is also set at 5 years for national security positions not requiring eligibility for access to classified information. We expect to publish the revised part 732 regulations in early 2012.

The words “for national security positions not requiring eligibility for access to classified information” may be confusing to some people.  It’s important to understand that the minimum investigative requirements for all national security positions, including those that require eligibility for access to classified information, are based on position sensitivity levels, not on security clearance levels.  All positions requiring access to classified information are designed national security positions, but not all national security positions require access to classified information.  Consequently everyone in a national security position, regardless of whether the position requires access to classified information, will be subject to a reinvestigation at least once every 5 years.  The Director of National Intelligence, who has authority over security clearance policy, may impose greater requirements for positions that involve access to classified information.

This has serious implications for people who hold Secret or Confidential clearances and believe that they are not required to disclose problems with alcohol, drugs, finances, criminal conduct, or mental health treatment until their next PR.  Their PRs will occur 5 to 10 years earlier under the new rule, and the need to do something about their problem will become more pressing.  Regardless of what some people believe, cleared personnel have always had an obligation to self-report such matters immediately to their security officer.

Future Changes to Investigative Standards

Also hidden deep in the OPM comments to the final rules affecting 5 CFR 731 was information about future investigative standards:

“. . . OPM is assessing its investigative products as part of a Joint Security and Suitability Process Reform effort under E.O. 13467.  Future Federal investigative standards resulting from this effort will use automated records to the extent possible and may impact the investigative structure and process. . . .  Future Federal investigative standards may redefine investigation and reinvestigation standards for public trust positions. . . .  [N]ew investigative standards are under development. The new investigative standards are targeted to be implemented in 2013.

The revised Federal Investigative Standards issued by OPM in August 2011 under Federal Investigation Notice (FIN) No. 11-04 appeared to be a permanent retreat from the 3-tier concept approved in December 2008 that relied heavily on expanded automated records checks.  It now appears that FIN 11-04 was only intended as a temporary measure to make some minor changes and clarify the current investigative standards.

by William Henderson
All Original Content Copyright © 2011 Last Post Publishing. All rights reserved.

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Security Clearance Help: Who Needs It?

Many people who find themselves filling out a Standard Form 86 (SF86), “Questionnaire for National Security Positions,” know little about the security clearance process and have a vague understanding of what might affect their eligibility to receive a clearance. Some will scour the internet looking for information. Others will rely entirely on the guidance provided by their sponsor’s security officer, however thorough or limited it might be. Few seek the assistance of a security clearance consultant or attorney.

The average security clearance denial rate among federal agencies is about 2.5%, but that doesn’t mean that 97.5% of the general population will be eligible for a clearance. It means that of the people who make it to the final stages of the security clearance process, 2.5% are denied a clearance. Many people don’t bother to apply for jobs that require a clearance, because they believe there are factors in their life that would inevitably result in a clearance denial. Some potential applicants fail to receive clearance sponsorship, because they are screened out of the process by prospective employers. Others, who initially receive sponsorship, have sponsorship withdrawn before a final clearance decision is made, because they fail to receive an interim clearance. An unknown percentage of applicants who are lucky enough to retain sponsorship despite having an interim clearance declined, later drop out of the process, because the unfavorable information in their background delays the process for so long that either they or their prospective employer cannot wait any longer for a final clearance decision.

The percentage of the population that might be eligible for a security clearance is much lower than 97.5%, and the percentage of the population that can actually get a job offer that results in a final clearance is probably about 65%. For most applicants the problem is not eligibility for a final clearance; the problem is eligibility for an interim clearance and/or receiving a final clearance within a reasonable period of time, so they can get and keep the job.

Since 2007, time required to conduct a background investigation has been significantly reduced, but this has resulted in a decrease in the quality of investigative reports. As a result, today the most time consuming delays normally occur during the adjudication phase of the clearance process. Adjudicators struggle to decide cases that lack sufficient information or contain unresolved issues. They are often faced with the choice of further delaying a case by requesting additional information or making a poor decision based on an inadequate investigation. Questionable decisions can sit on a supervisory adjudicator’s desk for weeks before they are approved or returned to the adjudicator for more work.

Over the past five years I’ve helped well over a thousand people with their security clearance problems and questions, and I’ve studied in detail the systemic problems in clearance processing. What I’ve learned is that about 15% of applicants will have their application forms rejected by the Government due to improper or incomplete forms submission, resulting in delays of four to eight weeks before they are required to resubmit their applications, if the job is still available. About 30% will be screened out by employers or declined an interim clearance and not get hired. About 50%—the fortunate ones—will receive an interim clearance within a week and a final Secret clearance within six to eight weeks of submitting an SF86. The remaining 20% will wait from a few to several months. Top Secret clearance processing takes twice as long as Secret clearances.

I divide clearance applicants into four categories of equal size based on the unfavorable information in their backgrounds: Clean—Minor—Moderate—Major. With little or no assistance applicants in the “Clean” and “Minor” categories will move swiftly through the system and get their clearances within two to four months. Without assistance those in the Moderate category will see their cases drag out for several months before their clearance is finally granted, and those in the Major category may wait a year and some will ultimately be denied a clearance. Applicants in each group can help their own cases move faster through the process.

Applicants in the “Clean” and “Minor” categories only need to read a few authoritative articles on the process and fill out their forms carefully to avoid most of the detours and roadblocks that delay a favorable clearance decision. They need to spend about as much effort on the clearance application as they do preparing their tax returns.

Those in the “Moderate” category need to study the process in depth and perhaps pay for a little professional help. Simply searching the internet for information won’t be enough and usually takes too long. There are many well-intentioned people who write articles and answer questions on various blogs, but their knowledge is often based on their personal experiences as clearance applicants or from reading a few Government documents or articles by others. I’m often dismayed by the misinformation published on reputable websites. The best published sources of information are Government documents, but searching for them on the internet is difficult, unless you already know which documents you need or know the precise “keywords” to find them. If you find them, you have to be able to decipher what they say.A well-written book on security clearances will cite the relevant Government documents and explain them. Unfortunately, even a well-written book cannot address all aspects of the clearance process. There are dozens of Government agencies that grant security clearances, and each one has a slightly different process and interpretation of Government policy.

Applicants whose cases fall into the “Major” category need professional help, if they want to reduce the time and increase the possibility of receiving a clearance. Knowledgeable, experienced former background investigators can help people reduce the time it takes for their investigations and provide general guidance on issue mitigation, but former Government security clearance adjudicators are better qualified to provide security clearance assistance. They know what information is needed from the applicant to make a clearance decision. They also know how much issue mitigation is required to overcome potentially disqualifying factors and how it needs to be presented to achieve the best possible results in the shortest possible time. The few applicants whose cases make it to the administrative hearing or personal appearance stage of adjudication are best served by the assistance of an attorney who specializes and has experience in representing security clearance applicants. This is not a common legal specialty and experience matters.

The cost of an attorney with more than 10 years of experience will range from $300 to $450 an hour depending on experience and location. Some of the assistance provided by an attorney may be done by a paralegal whose billing rate should be between $120 and $160 an hour. A well-qualified independent security clearance consultant will charge a little more than an attorney’s billing rate for a paralegal.

By comparison the cost of having simple tax returns with itemized deductions prepared by an account is about $250. These types of tax returns are comparable to clearance cases that are “Clean” or contain only minor unfavorable information. For cases ranging from single moderate to multiple major issues, a security clearance consultant will charge from $300 to $1,500 and an experienced attorney will charge about twice that much. Representation before an administrative judge will add to the cost. Nevertheless, professional assistance for cases involving moderate to major issues is much less costly than weeks or months of lost wages caused by clearance processing delays and missed employment opportunities.

Individuals who already have a clearance and encounter moderate to major security issues should also seek professional assistance. Both cleared personnel and clearance applicants who anticipate problems should seek professional help as early possible. Failure to do the right thing at the proper time can complicate problems, resulting in additional delays and/or unwarranted clearance suspensions, denials, or revocations.

by William Henderson
All Original Content Copyright © 2012 Last Post Publishing. All rights reserved.

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Aaron Alexis: Security Clearance Failure?

A lot has been reported during the past month about the failure of the federal security clearance process as it relates to Aaron Alexis, the Washington Navy Yard shooter who murdered 12 people on September 16, 2013.

What Was Known
The Navy granted Alexis a Secret clearance in March 2008 based on an NACLC background investigation. The Navy knew from the investigation that he failed to disclose on his clearance form a May 2004 arrest for malicious mischief in Seattle, WA for which he was never prosecuted. Alexis claimed the arrest occurred because he deflated another person’s car tires and that he didn’t disclose it on his clearance form because the charge was dismissed. He also had some previously delinquent debts, but he was in the process of repaying them.

While Alexis was on active duty with the US Navy Reserves from May 2007 to January 2011, his Navy command was aware of his 2008 arrest for disorderly conduct, his 2010 arrest for unlawful discharge of a firearm, and at least two Navy disciplinary boards related to poor performance and insubordination. In addition, he was subject twice to Non-Judicial Punishment and at least one former supervisor felt that he displayed indications of mental illness.

In January 2011 Alexis was released early from the Navy Reserves with an honorable discharge, and his security clearance was administratively terminated.

Alexis was hired by a defense contractor in September 2012 for a position that required a Secret clearance. His employer would have checked his JPAS (Joint Personnel Adjudication System) record and determined that his Secret clearance was eligible for reinstatement, because his last investigation was less than 10 years old and less than 24 months had elapsed since his Navy clearance was terminated. At his employer’s request, the Defense Industrial Security Clearance Office would have reinstated Alexis’ clearance within a few days without any additional investigation or adjudication.

To get unescorted access to military bases so that he could do his work as a defense contractor employee, Alexis also needed a Common Access Card (CAC), DOD’s version of an HSPD-12 Personal Identity Verification (PIV) card. Usually there’s a security vetting process before a person can be issued a CAC; however, rules implementing HSPD-12 allow Government agencies to issue PIV cards to anyone with a favorably adjudicated NACI or NACLC (or better) investigation without any further investigation or adjudication, provided there has not been a break-in-service of more than 2 years since the investigation. It doesn’t matter how old the investigation is. So, Alexis was probably granted a CAC based solely on a check of his JPAS record, which showed a favorably adjudicated NACLC from 2008.

While working at Newport Naval Air Station in August 2013, Alexis’ employer became aware of his instability. Over the course of his stay Alexis disturbed other guests by knocking on their doors in search of the voices he was hearing. Alexis’ mother advised his employer that he had a history of paranoid episodes. Despite being aware of this, his employer took no action.

What Went Wrong
These events highlight systemic problems in the federal personnel security programs:

  • No matter how old an investigation is, anyone with a favorably adjudicated NACI or NACLC (or better) federal background investigation can be granted an HSPD-12 PIV card without any additional vetting, provided they have not had a break-in-service of more than 24 months.
  • There are requirements for people with security clearances, their coworkers, and their supervisors to report through security channels matters that affect security clearance eligibility. However, insufficient emphasis is placed on these requirements, particularly coworker and supervisor responsibilities, and some requirements are vague. Failure to report such matters is a security violation, but when they’re discovered, people are rarely held accountable for their failure to report them.Ten years is too long an interval between periodic reinvestigations for a Secret clearance.
  • Background investigations for Secret clearances are very limited when compared to background investigations for Top Secret clearances. This is clearly evident by the price difference between the two investigations. Currently the standard OPM investigation for Top Secret clearances costs $3,959; whereas, the standard investigation for Secret clearances costs $210.
  • Seattle police records indicated that Alexis was arrested for malicious mischief and unlawfully discharge of a firearm, but the records were never reviewed as part of Alexis’ 2007 NACLC investigation for his Secret clearance. Although federal law requires local law enforcement agencies to disclose arrest records to OPM investigators; it also allows agencies to charge a fee for this service. OPM refuses to routinely pay for this service. In such cases OPM investigators must search local criminal court record in place of police records.

Alexis’ military supervisors were aware of issues affecting his clearance eligibility while in the Navy Reserves. At least one supervisor was aware that Alexis had a mental health issue. Yet none of these issues were ever reported to the appropriate Navy security clearance officials. Alexis’ employer was aware that Alexis was emotionally “unstable” and had a history of paranoid episodes, but they also failed to report the matter through security clearance channels or take any other action to restrict Alexis’ access. Police at the Newport Naval Station were notified of bizarre conduct by a contractor who had access to their base, but they failed to take appropriate action.

Things That Are Being Done To Fix The Problem
New federal investigative standards were approved in December 2012, but may take more than a year to implement. One of the changes to the standards is the decrease in the periodic reinvestigation interval for Confidential and Secret clearances to 5 years. The exact scope of future investigations has not been made public, but it’s possible that the disparity between investigations for Top Secret and Secret clearances may narrow. It’s also possible that all investigations may be required to include checks of the most complete criminal history repository of law enforcement agencies (i.e. police departments and/or county sheriff’s offices).

New National Reporting Requirements are close to being approved. This will provide standardized basic reporting requirements applicable to all security clearance holders, their coworkers, and their supervisors.

The President, the Secretary of Defense, and the Secretary of the Navy have ordered broad reviews of the security clearance process.

Other Things That Should Be Done
In addition to revitalizing the security and suitability reform efforts that began in 2007 and speeding up implementation of a number of planned improvements, the following changes should be considered:

  • All federal employees and contractors with PIV cards or in positions of Public Trust should be required to immediately report potentially disqualifying events or conditions to their security officer.
  • All personnel with security clearances, in Public Trust positions, or granted PIV cards should be required to submit a form similar to an SF86C to their security officer once a year, indicating whether any potentially disqualifying events have occurred. Security officers should have to endorse the form, certifying they are not aware of any other unfavorable information. Supervisors should be required to submit annual certificates to their security officers, stating that they have reported all potentially disqualifying information pertaining to their subordinates.
  • Periodic reinvestigation requirements for PIV cards and for basic federal employment suitability/fitness need to be created.

by William Henderson
Copyright © 2013 Federal Clearance Assistance Service. All rights reserved.

Posted in Special Issues | Comments Off on Aaron Alexis: Security Clearance Failure?

Pending Changes to Federal Personnel Security Policy

Four significant pending changes to federal personnel security policy were mentioned in the published minutes of the March 2013 NISPPAC meeting. These changes were reported by Charles Sowell, the former Deputy Assistant Director for Special Security at the Office of the Director of National Intelligence (ODNI):

  • Revised Federal Investigative Standards
  • Revised Adjudicative Guidelines
  • New National Reporting Requirements
  • New Polygraph Policy

Revised Federal Investigative Standards (FIS)
Although the revised FIS was mentioned by Sowell, nothing was actually reported in the published minutes of the NISPPAC meeting regarding it. This could be because the revised FIS is protected as “For Official Use Only “(FOUO) information. There was a February 2013 DOD memo concerning the delayed implementation of the revised FIS, and the latest OPM Federal Investigative Services Stakeholder Report also mentioned it at page 34:

With the December 2012 signing of the revised Federal Investigative Standards by Director John Berry and Director James Clapper, the Suitability and Security Executive Agents, our focus will be on reengineering our business processes to implement the standards in a phased and fiscally responsible way, directly supporting the mandate to implement a five-tiered investigative model aligning the investigative requirements for both security clearances and suitability, facilitating reciprocity, and using automation to the maximum extent practicable.

The use of the words, “the mandate to implement a five-tiered investigative model” seems somewhat strange, since OPM and ODNI have the authority to establish the investigative standards and there was no indication that a higher authority had ordered a five-tiered structure.

One can only speculate at why OPM and ODNI chose to withhold the details of this revision of the FIS when previous versions have appeared in publicly accessible documents. Perhaps the revised FIS contains a sensitive list of all Government and commercial databases that will be used as part of a new enhanced Automated Record Checks (ARC), which will form the foundation of all types of personnel security investigations. It’s also possible that, unlike the prior FIS, the revised FIS may contain provisions for cyber-vetting and details of how social media sites can be used to collect relevant information. Perhaps least likely possibility is the addition of a “traffic analysis” component to some periodic reinvestigations that the Government would prefer not to disclose publicly.

Revised Adjudicative Guidelines (AG)
The NISPPAC report indicated that the revised AG is in the final stages of coordination and may be promulgated via Security Executive Agent Directive 200 (SEAD 200) later this year. Work started on revising the AG well over two years ago. The current AG, approved in December 2005, is in need of general updating to remove redundancies and accommodate social and cultural changes. Among the needed changes are:

  • Elimination of superfluous guidelines. For example there is nothing in Guideline D (Sexual Conduct) that is not adequately addressed under Guideline J (Criminal Conduct), Guideline E (Personal Conduct), and Guideline I (Psychological Conditions).
  • Combining and/or grouping guidelines. For example Guideline B (Foreign Influence) shares security concerns covered in Guideline C (Foreign Preference), and Guideline L (Outside Activities).
  • Reconciliation of Guideline C in ODNI ICPG 704.2 with the December 2005 AG. Currently the two versions of Guideline C are significantly different and in many ways contradictory.
  • Specific guidance regarding medical marijuana use and its relationship to the Bond Amendment. The current AG does not include any mitigating factors specifically for past or present medical marijuana use and provides no exception to the Bond Amendment, which requires clearance denial for any person who is an unlawful user of a controlled substance. Any use of marijuana is still a criminal offense under federal law.

National Reporting Requirements
In March 2013 ODNI began SEAAC (Security Executive Agent Advisory Committee) coordination of the first-ever National Reporting Requirements document, which will eventually be issued as SEAD 400. Currently each federal agency has its own self-reporting requirements for cleared personnel. These are lists of conduct and conditions that could affect a person’s clearance eligibility and must be reported to their security officer. These reporting requirements can vary dramatically from agency to agency, and major differences exist for personnel with collateral clearances versus Special Access Program (SAP) clearances. Some reporting requirements are so vague that no one knows what they mean. For instance DOD requires reporting of “Acts of omission or commission that indicate poor judgment.”

Standardized Government-wide reporting requirements are sorely needed. Hopefully SEAD 400 will contain basic reporting requirements for all collateral clearance and SAP clearance holders and allow individual agencies to supplement the basic requirements with agency-unique reporting requirements.

New Polygraph Policy
In November 2012 a new ODNI national polygraph policy was in coordination with a national polygraph working group, and in March 2013 the policy was being coordinated with the Office of Management and Budget (OMB). The objectives of the new policy are to clarify existing practices for agencies that use the polygraph and to ensure standardization and consistency. The current interagency polygraph policy is based on a 1998 Memorandum of Understanding signed by the 18 federal agencies that operated polygraph programs and is primarily focused on reciprocity issues.

In July 2012 a series of news articles appeared alleging abuse of polygraph procedures at the National Reconnaissance Office (NRO). This prompted requests from Senator Charles Grassley and Representative Rush Holt to the DOD Inspector General (IG) and to the ODNI IG to investigate the allegations. An investigation by the NRO IG with ODNI IG assistance was initiated. In late July 2012 the Director of National Intelligence (DNI) directed an evaluation of the use of federal personnel security polygraph programs, the results of which led to the DNI’s decision to create a national polygraph policy. The DNI subsequently convened an interagency polygraph working group to develop the new policy.

It was initially anticipated that the new policy would be issued in about February 2013, but OMB coordination has resulted in some delays.

by William Henderson
Copyright © 2013 Federal Clearance Assistance Service. All rights reserved.

Posted in Policy & Standards | Comments Off on Pending Changes to Federal Personnel Security Policy