The adjudications, due process hearings, and appeals of security clearance
cases for private sector employees constitute DOHA's oldest mission. The mission is
part of what is now called the Industrial Security Program, which was created as a result of
the Supreme Court's decision in Greene v.McElroy, 360 US 474, 79 S.Ct.1400, 3 L.
Ed.2d 1377 (1959). The U.S.Supreme Court in Greene v.McElroy held that the then-existing security
clearance process (determinations by an intra-DoD Board composed of representatives of the
military departments with no opportunity for cross-examination of witnesses) was unacceptable
because neither a Congressional statute nor an Executive Order from the President had authorized
the program, nor were there discernable standards for denials or revocations.
In response to Greene, President Eisenhower signed Executive
Order 10865 on February 20, 1960. Executive Order 10865 requires a hearing in which contractor employees
would be given the opportunity to appear before the decision-maker to confront and
cross-examine witnesses and attempt to rebut the Government's case. Not all cases go to
a full hearing because a clearance Applicant has the choice of having a hearing or having the case
determined on a record composed of only documentary evidence.(1)
DOHA handles those cases in which the Department has reached the preliminary
decision that it is not clearly consistent with the national interest to grant or
continue a security clearance for access to classified information to a person who holds or requires a
security clearance needed in connection with his or her employment. This includes employees in the
private sector and any U.S.citizen who holds or requires access to classified information through
either the North Atlantic Treaty Organization, Red Cross, or United Service Organization assignment
with the Military Services overseas. At present, DOHA is providing its services by
agreement with twenty other federal departments and agencies.
Contractor employees applying for security clearances have been receiving
essentially the same administrative due process since 1960, pursuant to DoD Directive 5220.6,
which implements Executive Order 10865. This process is discussed below.
When the Columbus Operations Center of Defense Investigative Service
(DIS), forwards a case to DOHA in Columbus, Ohio, the initial adjudication of a personnel
security clearance case for a contractor employee is performed by DOHA personnel security specialists
in Columbus. This initial review is based on DoD Directive 5220.6 and the Adjudication
Policy criteria and considerations found at Enclosure 2 of this Directive.
The adjudication policy has mitigating and disqualifying factors for
each area of concern.If the DOHA security specialist adjudicators recommend that the case be submitted
to an Administrative Judge for a determination whether to deny or revoke the security
clearance, a Statement of Reasons (SOR) is issued by DOHA. The SOR is issued to the Applicant
for a security clearance after a legal sufficiency review by a DOHA Department
Counsel.
The Applicant has thirty days to respond to the SOR by admitting or denying
each separate allegation in the SOR (with further explanation if desired by the
Applicant) and sign their answer in the presence of a notary. If the Applicant does not respond
after a reasonable time, the Applicant is defaulted and clearance processing is terminated with
resultant denial of a pending request for a security clearance and revocation of any current security
clearance.
If an Applicant requests a hearing, it will be held in the United States,
in a metropolitan area near where the Applicant lives or works before a DOHA Administrative
Judge who will decide the case. Some Applicants represent themselves or choose to be represented
by an attorney at their expense or to have a Personal Representative such as a
friend, family member, or union representative. Department Counsel, an attorney, represents the Government
and will present evidence and argument supporting the allegations made against the
Applicant in the Statement of Reasons. Before the hearing the Department Counsel will send
the Applicant a copy of the documents that will be presented to the Administrative Judge
to support the allegations in the Statement of Reasons. The Applicant is responsible for
bringing to the hearing any witnesses or written evidence he or she wishes to have the Administrative
Judge hear or consider.
If the Applicant does not wish to have a hearing, and Department Counsel
does not request one, the case will be decided by an Administrative Judge on the basis
of the written materials presented by both sides. Department Counsel will prepare a File
of Relevant Material that consists of documents that support the allegations contained in the
Statement of Reasons and Department Counsel's arguments or comments based on those documents. Department
Counsel will send a copy of the File of Relevant Material to the Applicant with a
notice that the clearance Applicant will have 30 days in which to make a written response if the Applicant
chooses to do so. If, after the 30 days have elapsed, no response from the Applicant is
received, the Administrative Judge will make a decision based solely upon the written materials
contained in the File of Relevant Material.
At the DOHA hearing, an Administrative Judge presides over a trial-type
procedure which allows both the Department and the Applicant to put on their respective
cases. DOHA Department Counsel represent the Government. The records DIS collects are
usually the Government's main evidence. Witness testimony is often used to fill in the
gaps of the paper record. For both parties, the testimony of witnesses may also be the only
way to introduce certain documents into evidence. In some very rare instances, DIS Special
Agents may be asked
to attest to the fact that they collected the records. The industrial hearing
gives the applicant the
opportunity to confront and cross-examine witnesses. Once the hearing is
complete, the
Administrative Judge issues a written decision.
The written decision by the Administrative Judge includes findings of
fact and
conclusions of law and is based upon the record evidence, written security
suitability criteria, and
case law. In all decisions, DOHA applies the "clearly consistent with the
interests of national
security" standard. The U.S.Supreme Court has held that the "clearly consistent
with the
interests of national security" test indicates that "security-clearance determinations
should err, if
they must, on the side of denials." Dept.of Navy v.Egan, 484 U.S.
518, 531 (1988).
The Administrative Judge's decision may be appealed by either party to
a DOHA Appeal
Board. The Appeal Board gives deference to the Judge's credibility determinations
in deciding
whether the Administrative Judge's findings of fact are supported by such
relevant evidence as a
reasonable mind might accept as adequate to support a conclusion in light
of all the contrary
evidence in the record. The Appeal Board ensures that the Administrative
Judge adheres to the
procedures required by Executive Order 10865 and DoD Directive 5220.6. The
Appeal Board
can remand or reverse for errors of law or fact or where the Administrative
Judge's rulings or
conclusions are arbitrary, capricious, or contrary to law. Department Counsel
also represent the
interests of the Department on appeal and handle any actions arising out
of the final decision.
The text of the Executive Order 10865, as amended, is Enclosure 1 to
the Directive. The
answers to most questions about the substantive standards used by the Department
to adjudicate
security clearances are found in Enclosure 2 to the Directive. The answers
to most questions
about procedure are in the Additional Procedural Guidance (Enclosure 3) to
the Directive.
Reading the Directive in advance is a very important part of preparing for
a security clearance
hearing.
This information is from the DOHA article
Overview of DOHA's Industrial Security Mission
