Security Clearance Lawyer
Individuals in military service or who work in certain government agencies, as well as employees of private companies who contract with the government to perform services, may necessarily come into contact with sensitive information related to national security. Anyone in such a position may be required to get and keep a security clearance for the duration of their work in or with that agency. This process involves an authorized investigative agency conducting a counterintelligence investigation or investigation of persons proposed for access to classified information. This process can take six months to a year to complete and once granted, a security clearance can be revoked at any time.
Henault & Sysko Chartered was founded by former National Security Agency employees who understand national security law from firsthand experience. Our security clearance lawyers can help you through any aspect of security clearance law, from obtaining any type of clearance, to keeping your clearance through reinvestigations, and pursuing adjudications and appeals if your clearance is denied or revoked.
Types and levels of security clearances
Security clearance law refers to three levels of trustworthiness and reliability adjudications:
- Public Trust Positions – Where the potential exists for an adverse impact to the integrity and efficiency of an agency’s mission, holders of sensitive positions are subject to a background investigation and suitability determination.
- National Security Positions – Persons in these positions require a personnel security clearance (PCL). These positions require access to classified information and have the potential to damage national security.
- Special Access Programs – Holders of SCI or SAP clearance (see below) may be given access to highly sensitive intelligence community information on a need-to-know basis.
Having a confidential security clearance means you have access to information that could reasonably be expected to cause measurable damage to national security in the event confidential information is improperly disclosed. Employees with a confidential clearance may be able to access certain designated and classified information on a need-to-know basis.
Obtaining the confidential security clearance level requires scrutiny of the applicant’s foreign employment and travel, marriages, immediate relatives and other personal relationships. This level of security clearance is often required of military personnel. Periodic reinvestigations occur every fifteen years.
This clearance level is required for persons who will have access to confidential information that could be expected to cause a serious level of damage to national security in the event the information is improperly disclosed. Applicants for a secret clearance level will have to undergo both a local and national agency check, as well as a credit investigation. One of the most common causes for rejection is having a poor financial history, such as a history of unpaid bills or bankruptcy. Having a criminal record or past criminal charges or foreign activities are also common grounds for disqualification of a secret clearance. Once granted, periodic reinvestigations occur every ten years.
An individual with top secret clearance has access to information or material that could cause exceptionally grave damage to national security in the event it is disclosed or released without authorization. In addition to many military personnel, workers in agencies such as the NSA, CIA and FBI must often obtain and maintain top secret clearances.
The expansive process for obtaining a top secret clearance includes an extensive background check, involving scrutiny of your relatives, friends and dependents, foreign travel or employment, and financial assets. Character references are also required as part of this process. Periodic reinvestigations occur every five years.
TS+ Highly Sensitive Classifications
The top secret clearance level also includes a couple of classified clearances that are only cleared on occasion. These levels include Sensitive Compartmented Information (SCI) and Special Access Program (SAP) clearances. The application and investigation process for these clearances is particularly extensive and intense. Before either of these classifications can be assigned, the applicant must first go through a single scope background investigation as well as a special adjudication process. If holding an SCI clearance, expect that your relationships and actions will be continually monitored by the government.
Common Personal Security Clearance Problems
Personal questions can get personal – Personal history questions can seem very intrusive. How much detail do you provide in your answers? Remember that incomplete or inaccurate answers may lead to a denial of clearance, and even honest mistakes or oversights can be seen as suspicious. Get advice in advance of the application process on how to properly respond on questionnaires and during in-person interviews.
The past is right behind you – Troubling aspects of your past (and present) can spell trouble for your security clearance application, including bad credit or large amounts of debt, credit card debt, arrests or convictions, DWI, travel abroad, a history of frequently moving or changing jobs, mental health issues, and having family living abroad. The nature, severity, frequency and recency of all of these subjects are important. With professional assistance, you can be proactive about possible negative material and put your best foot forward on interviews and interrogatories.
Conflicts of interest – If the government believes you would be put in the position of having to choose between loyalty to the government and some other principle, your clearance may be denied. It is important to be able to explain away apparent conflicts and allay suspicions.
General reliability and trustworthiness – Intelligence agencies know that the most effective means of protecting secrets is one’s own self-discipline and integrity; these principles are stronger than any external controls the government can impose. Your general reliability and trustworthiness can be revealed by your life history. We can help you emphasize your strengths and bring out any mitigating factors in suspect areas.
Retaliation and reprisal – National security law prohibits the retaliatory revocation of a security clearance or access determination. Examples of unlawful retaliation include revocation of clearance in response to an employee’s lawful disclosure of information to the DNI, other agencies or the Inspector General that the employee reasonably believes shows a violation of law, abuse or waste of funds, or a danger to public health or safety. An employee subjected to reprisal has 90 days to appeal the decision.
Facility Security Clearance Problems
Contractors of DoD or any of 31 other federal agencies may be required to get a facility clearance (FCL) under the National Industrial Security Program (NISP). Under the NISP, Key Management Personnel (KMP) of the company will be required to obtain the same level of clearance as the FCL. A common problem occurs when a necessary KMP has or is expected to have a significant issue getting or keeping that security clearance. This situation creates uncertainty and delay for the company contract. Henault & Sysko Chartered is vastly experienced in Industrial Security Clearances and can work with KMP to identify and resolve potential issues.
How to Keep Your Security Clearance
Being granted a security clearance is a privilege; it shows you can be trusted with sensitive information related to national security. If your job requires access to secure facilities or classified documents, you will probably need some level of security clearance. Unfortunately, applications are frequently denied, so it is critical to develop a careful and thoughtful strategy before applying for your clearance.
Apart from getting security clearance, it is equally important to keep it. Positions that require security clearance require that it be maintained throughout the course of the employment or contract, yet security clearances can be revoked at any time. The consequence of such a revocation may include termination, removal, demotion or segregation.
If you require security clearance for employment with the government or a government contractor, or for military service, don’t take chances with your future. Call Henault & Sysko Chartered in Maryland for assistance obtaining and maintaining your security clearance, and for high-quality legal representation in the event your clearance is denied, suspended or revoked.
Keep your security clearance through periodic reinvestigations
Obtaining a security clearance involves an extensive investigation into your past and present lifestyle, with the level of scrutiny dependent upon the level of clearance being applied for. Applicants for even the lowest level of security clearance should expect to be scrutinized by DSS or OPM in many areas of their life, including not just foreign employment and travel, but detailed aspects of their personal life including their spouse, immediate family and other personal relationships. The higher the level of security clearance requested, the more extensive the investigation, and the more frequent the timeframe for reinvestigations.
Security clearance holders are also subject to periodic reinvestigations, which occur every five years for top secret or highly sensitive (top secret plus SCI or SAP) clearance holders, ten years for a secret clearance level, and 15 years for holders of a confidential clearance. Don’t assume that once you obtain your security clearance it is easy to keep. Reinvestigations are in some ways more important than the initial application, because it is probable that you have been working with critical information for some time, and likely the information and material you access becomes more and more critical as you advance in your job. The reinvestigation could therefore be more intensive and extensive than the original investigation. If you are subjected to a reinvestigation or if your clearance has been revoked, we can help you prepare a response and file for any available appeals.
Act Quickly to Maintain Your Valuable and Necessary Security Clearance
The time to request a hearing after an application denial is very short. Along with your appeal, you must include a detailed brief that clearly emphasizes any mitigating factors which may be in your favor. Don’t delay in contacting Henault & Sysko Chartered in Maryland for help in getting or keeping your invaluable security clearance. Call 410-768-9300 for a free consultation with one of our knowledgeable, experienced and dedicated national security clearance attorneys.
Help with All Aspects of Security Clearance Law from Experienced Security Clearance Lawyers
For assistance obtaining or maintaining a personnel security clearance, or for advice and representation in any matter pertaining to security clearance law, call Henault & Sysko Chartered in Maryland at 410-768-9300 for a no-cost, confidential consultation regarding your needs and how our security clearance lawyers can help.