Attorney or Personal Representative

I’m a personnel security consultant.  Among other things, I provide representation to security clearance applicants who have security clearance eligibility problems.  Many of my clients come to me with questions about the process and concerns about their eligibility for a clearance.  After answering their questions and explaining what they should expect as they move through the clearance process, I’m often asked to recommend an attorney who can represent them at a hearing.  I have to explain that I can represent them and that I have represented clients at hearings before DOHA Administrative Judges.  Presidential Executive Order 12968, “Access to Classified Information” gives clearance applicants the right to be “represented by counsel or other representative.”  I’ve also written responses to Statements of Reasons (SOR), Files of Relevant Material (FORM), and written Interrogatories.  More often than not, these written responses result in favorable clearance decisions, obviating the need for a hearing.  I’ve helped people trying to overcome clearance problems with the departments of Defense, State, Energy, Commerce, Treasury, Interior, Veterans Affairs, Health and Human Service, and Homeland Security (including USCG, ICE, CBP, USSS, USCIS), as well as the CIA, FBI, DIA, NRO, NGA, NSA, FAA, VA, USTA, and USAID.

I’ve had clients come to me after first paying a thousand dollars or more to attorneys who didn’t understand the difference between a national security clearance and a public trust position.  These attorneys (or their paralegals) wrote lengthy rebuttals to “Notices of Proposed Action” regarding disqualification under federal employment suitability criteria, citing mitigating factors from the National Security Adjudicative Guidelines as if responding to an SOR for security clearance denial.  My business partner was threatened once with legal action by an irate attorney who thought we were practicing law without a license.  The attorney obviously knew nothing about security clearance law, but somehow felt we were unlawfully taking business away from him.

It’s just as important not to rely on the free advice from work associates and others.  Even federal background investigators who contribute to blogs can give you inaccurate advice.  Often, they work for one federal agency and your background investigation is being done by a different agency.  Sometimes they offer information or advice about adjudication without any experience with adjudications.  Most investigators have never spoken to an adjudicator or read a written clearance decision.  They may have a very thorough understanding of the Federal Investigative Standards, but little or no understanding of the National Security Adjudicative Guidelines and how the guidelines are applied.  They can be completely oblivious to standards for Federal Employment Suitability/Fitness and Homeland Security Presidential Directive 12 credentialling (known as CAC in DoD).

I saw a comment in which a blogger recently stated that he received a Top Secret/SCI clearance from a three-letter Intelligence Community (IC) agency, even though he used marijuana two years before he submitted his clearance application, implying that two years of abstinence is needed to mitigate past marijuana use.  It wasn’t unusual for an IC agency to grant clearance to someone who has abstained from marijuana involvement for two years or more, provided the marijuana involvement occurred when they were relatively young and only spanned a few years.  Today the period of abstinence from marijuana use can be much shorter.

by William H. Henderson, July 3, 2024

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