Security Clearance Lawyer
Call (702) 388-1216
or E-Mail Kenneth Roberts, Esq.
For A Free Consultation
If you believe that you may have clearance problems, and will need to apply for, or renew a clearance in the future, or have been recently denied a clearance, please call Kenneth M. Roberts, Esq., Lt. Col., USAF (Ret.) at (702) 388-1216 for a confidential consultation.
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.
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