Security Clearances - Law Office of Thomas D. Farrell Attorney Certified Specialist in Family Law

FAQs: Security Clearances

This Web site contains only general information and readers shoud not take any
actions without first consulting a qualified attorney about their specific situation.

What is the difference between a denial and a revocation of a Security Clearance?
If you are applying for a Security Clearance the adverse action is called a denial. If you already have a Security Clearance, the action is called a revocation.

How do I know if my clearance is about to be denied or revoked?
Your security manager will give you a “Letter of Intent” (LOI). The letter will state the intended action and the reasons (in a very summary fashion) and explain your appeal rights.

How do I appeal?
Typically, the LOI contains a form which you fill out and deliver to your security manager in a very short period of time—as little as five days. If you fail to do so in time, your rights to appeal are forfeited. Always appeal. Even if you have a very weak case, you can always withdraw your appeal later, but if you don’t make a timely request, you can’t turn back the clock.

How does the appeal process work?
This is a simplified explanation, but generally there are three steps. First, the individual submits a written appeal to the original adjudicator, either the service central clearance facility or the Defense Industrial Security Clearance Office (DISCO). If that appeal is not successful, then the individual may request a further appeal to the Defense Office of Hearings and Appeals (DOHA). Although a DOHA appeal may be had on strictly a paper review, the individual is entitled to request a personal appearance before a DOHA Administrative Judge. This is always the better approach. The DOHA Administrative Judge makes a recommended decision, but the final decision is made by the Personnel Security Appeals Board (PSAB). The individual has no input to the PSAB, and its decisions are final and, except in very rare instances, not reviewable by a court of law.

What do the adjudicators or the DOHA Judge consider?
First and foremost, they consider factual evidence either refuting or mitigating the particular security concerns identified in the LOI. Second, they consider the “whole person” which generally entails a demonstration of the individual’s importance to national security, past contributions thereto, and anticipated future contributions. Ultimately, the question is whether the granting of a clearance is clearly consistent with the interests of national security.

How does one respond to specific security concerns?
It is important to review the published adjudication guidelines and address both aggravating and mitigating factors. Whenever possible, documentary evidence is far more helpful that mere assertions. For example, where an individual is deemed a security risk due to bankruptcy, a demonstration by way of current financial statements, bank statements, proof of ownership and value of assets, current debt statements, proof of income and expenses can all paint the picture that the individual is now financially stable. Mere protestations of loyalty are rarely successful.

How can I prepare?
When I accept a national security client, we assess what witnesses and documents might best make the case. Active client participation is essential. I will frequently ask clients to obtain character references, and to provide performance evaluations and other supporting documentation. We also ask clients to identify potential witnesses and solicit their cooperation.

What happens at a personal appearance?
The personal appearance is a hearing before a DOHA Administrative Judge. These judges are lawyers and frequently retired JAG officers who are very knowledgeable about the adjudicative guidelines and who bring many years of military experience to the case. The typical hearing lasts for one to three hours. The government rarely appears, so the individual’s attorney has free reign to call and examine witnesses, subject only to additional questioning by the judge. There are no rules of evidence, except relevance. In Hawaii, hearings are typically held by video teleconference at Pacific Fleet headquarters in Makalapa. The Administrative Judge is located in Burbank, or in some cases, in Washington, DC. Generally, witnesses should appear to testify in Hawaii, but I have had cases where some witnesses testified in Hawaii and some in Washington, while the Judge conducted the proceeding from Burbank.

Should I do this myself?
In most cases, loss of a Security Clearance means the eventual loss of one’s job or separation from military service. For military personnel, the loss of a clearance also means that they are highly unlikely to find post-separation employment in defense related work. I am a trained counterintelligence agent, and a military intelligence officer with over two decades of experience. I have also served as security manager in almost every unit where I have been assigned. I have seen too many cases of naïve do-it-yourselfers who lost their careers.

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Honolulu, HI 96813
Tel: 808 . 535-8468
Fax: 808 . 585-9568
Email: tom@farrell-hawaii.com