Security Clearance Jobs Blog

On December 30, 2010 the International Association of Chiefs of Police (IACP) released a report on their yearlong study of police cybervetting policy, “Developing a Cybervetting Strategy for Law Enforcement.” The report was a collaborative effort by the IACP and the Defense Personnel Security Research Center (PERSEREC). The report states that:

Using the Internet to gather information concerning job applicants and incumbents is an extension of existing background investigations conducted on persons applying for positions and promotions within law enforcement. The Internet is merely a new source to identify and collect information about people’s behavior.

The report doesn’t provide a “model” or “suggested” policy, but rather guidelines for agencies to develop their own policy based on the needs of their individual departments and the communities they serve. According to a September 2010 IACP survey, 31% of law enforcement agencies are already using cybervetting for law enforcement applicants.

Cybervetting Guidelines are presented at Appendix C of the report. In view of the “Bozeman Blunder” perhaps the most controversial aspect of the recommended guidelines is the provision that:

With the consent of applicants, candidates, and incumbents, law enforcement agencies may review online information about these individuals available on websites, where a subject’s password is required to view content. . . . Applicants, candidates, and incumbents may be asked to access password-protected websites so that the recruiter or background investigator can review their profiles, blogs, or other online forums for disqualifying content. . . . Law enforcement agencies should not ask for passwords.

Additionally a recommended supplemental questionnaire asks for information regarding an applicant’s past and present:

• e-mail addresses
• online screen names, handles, or nicknames (except those used for banking or healthcare).
• websites or blogs where they are members, frequent, or contribute

PERSEREC produced a separate report, “Developing a Cybervetting Strategy for National Security Positions,” in part from the same study, but it will not be available to the public.

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On January 19, 2011 the Supreme Court of the United States (SCOTUS) published its 8-0 decision regarding “NASA v. Nelson.” It reversed and remanded the decision of the 9^th U.S. Circuit Court of Appeals to grant a preliminary injunction against NASA enforcement of Personal Identity Verification (PIV) credentialing required under Homeland Security Presidential Directive 12 for contractor personnel who occupy non-sensitive, low-risk positions.

28 contractors working at the Jet Propulsion Laboratory a filed suit against the U.S. Government claiming that the National Agency Check with Inquiries (NACI) investigation used to determine eligibility for PIV credentialing violated their right to “informational privacy.”  A U.S. District Court initially denied their request for a preliminary injunction, but the injunction was later granted by the 9^th Circuit Court. The SCOTUS majority opinion skirted the main issue by stating:

“Assuming, without deciding, that the Government’s challenged inquiries implicate a privacy interest of constitutional significance, that interest, whatever its scope, does not prevent the Government from asking reasonable questions of the sort included on SF–85 and Form 42 in an employment background investigation that is subject to the Privacy Act’s safeguards against public disclosure. . . . The forms are reasonable in light of the Government interests at stake.” (emphasis added)

In a separate concurring opinion, Justice Scalia made the simple assertion that a “federal constitutional right to ‘informational privacy’ does not exist.” He objected to the SCOTUS majority opinion because “The Court decides that the Government did not violate the right to informational privacy without deciding whether there is a right to informational privacy, and without even describing what hypothetical standard should be used to assess whether the hypothetical right has been violated.”

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On December 22, 2010 the Office of Personnel Management announced that in February they will begin a phased implementation of the Electronic Questionnaires for Investigations Processing (e-QIP) version of the new March 2010 Questionnaire for National Security Positions (Standard Form 86—SF86). A copy of the new SF86 has not yet been posted to the OPM forms site, but was to be distributed to other investigations service providers before the end of December.

The last version (July 2008) of the SF86 was phased in over a period of about 5 months from September 2008 to January 2009.  DOD contractor personnel were among the last to begin using the form.

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On December 21, 2010 Congress passed the 2010 Anti-Border Corruption Act (S. 3243 [Enrolled]) affecting polygraph examinations and periodic reinvestigations of U.S. Customs and Border Protection (CBP) law enforcement officers (LEO).

The bill made the following findings:

• Since 2003, 129 CBP officials have been arrested on corruption charges
• During 2009, 576 investigations were opened on allegations of improper conduct by CBP officials.
• CBP policy requires all applicants for LEO positions to receive a polygraph examination and a background investigation before being offered employment and a periodic reinvestigation every 5 years.
• In 2009, less than 15 percent of applicants for CBP LEO positions received polygraph examinations.
• As of March 2010, CBP had a backlog of approximately 10,000 periodic reinvestigations.
• Without additional resources, by the end of fiscal year 2010, the backlog of periodic reinvestigations will increase to approximately 19,000.

Without providing any additional funding, the bill requires the Secretary of Homeland Security to ensure that within 2 years all applicants for LEO positions in CBP receive polygraph examinations before being hired and that within 180 days periodic reinvestigations be initiated on CBP LEO personnel as required.

The bill itself is a scant 2 pages, but the report that accompanies the bill is longer and provides background on the corruption problems CBP has encounter due to rapid growth and targeting by Mexican drug trafficking organizations (DTOs).  The report indicates that:

• CBP has stated that they want to administer the [polygraph] exam to all applicants, but they have not been given the resources necessary to accomplish this. Of those applicants who do take a polygraph test, CBP finds 60 percent of them ineligible for employment, primarily due to prior drug use or a criminal history that the applicant had not previously disclosed.
• Mexican DTOs supply illicit narcotics to 230 U.S. cities, and they utilize a broad range of tactics to ensure the successful transport of their narcotics. These tactics include bribery and intimidation of U.S. law enforcement personnel, particularly those charged with securing the border and interdicting contraband.
• DTOs have been attempting to infiltrate [CBP] by sending drug traffickers to take the entrance examination.

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On December 1, 2010 the Government Accountability Office (GAO) presented testimony before a House subcommittee. The testimony was presented in the form of a report (GAO-11-232T) entitled: “Personnel Security Clearances: Overall Progress Has Been Made to Reform the Governmentwide Security Clearance Process.” The testimony covered 3 major long standing issues: a single federal database for clearance information, reciprocity, and timeliness.

The “Intelligence Reform and Terrorism Prevention Act of 2004” (IRTPA) “required that no later than 12 months after the date of its enactment, the Director of OPM and the Director of OMB establish and commence operating and maintaining a single, integrated database of security clearance information.” No single integrated database exists or is planned. Instead, OPM’s Central Verification System (CVS) provides a “single search” capability for about 90% of all investigations and clearances. Integrating the remaining 10% of Intelligence Community (IC) clearances remains problematic.

Government agencies reported requiring additional investigation and/or adjudication on some currently cleared individuals for reasons that are not permitted by existing reciprocity rules. Due to the absence of government-wide metrics for reciprocity, GAO was unable to measure the degree of non-compliance with clearance reciprocity requirements.

GAO acknowledged that significant improvements in timeliness of clearances had been made and that overall timeliness requirements of the IRTPA had been met. GAO noted that of the agencies they reviewed DOD, DOE, and NGA had consistently met the 60-day IRPTA requirement during the first three quarters of FY2010 (October 2009 to June 2010), and 11 other agencies had not. A chart on page 7 of GAO-11-232T reported timeliness for seven IC agencies and seven non-IC agencies.

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After resolving differences with the Senate version, the House version (HR 2701) of the 2010 Intelligence Authorization Act (IAA) was signed by the President and became Public Law No: 111-259 on October 7, 2010. (This is the first IAA to become law since 2004; others either died in Congress or were successfully vetoed.) Here are the highlights:

• Requires reports, reports and more reports.
• Establishes the Inspector General (IG) of the Intelligence Community (IC).
• Requires ODNI to issue a directive concerning GAO access to IC information.

Reports containing the following information regarding security clearance are required:

1. Total number of active security clearances at each level as of October 1 of the preceding year and the number granted during the preceding fiscal year.

2. For each IC element by level of clearance:

• Time it took to grant clearances during the preceding fiscal year, expressed in terms of the average for the fastest 80%, fastest 90%, slowest 20% and slowest 10%.
• Number of pending investigations as of October 1 that have remained pending for 4 months or less, 4 to 8 months, 8 to 12 months, and more than 12 months.
• Percentage of cases that resulted in clearance denial/revocation during the previous fiscal year.
• Percentage of investigations during the previous fiscal year that contained incomplete/insufficient information.
• Number of cases that took more than 1 year to complete by investigative and adjudicative agencies and the cause for delays.

3. No later than April 2011 a report on Government-wide investigative standards, adjudicative guidelines, and quality metrics; a plan to improve professional development of adjudicators; and metrics to evaluate the effectiveness of clearance reciprocity.

4. No later than April 2011 a report on the feasibility of reducing the number of investigative and adjudicative agencies to 2 each within a year and reducing the number of investigative and adjudicative agencies to 1 each within 4 years.

5. Not later than April 2011 a report by the IC IG on reciprocity of security clearances between IC agencies.

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A monograph on “Debt and Home Foreclosures: Their Effect on National Security Clearances” by Sheldon I. Cohen, a prominent Washington D.C. area attorney specializing in national security clearance, was recently posted at his website. Cohen reviewed 62 case decisions by Defense Office of Hearings and Appeals (DOHA) Administrative Judges between 2006 and 2010 involving foreclosures and short sales. He also reviewed 71 DOHA Appeal Board cases involving Guideline F: Financial Considerations. Regarding 22 case decisions that resulted in the granting of security clearances, Cohen stated:

“The common thread in all of these cases is that: (1) applicants were victims of circumstances not of their own doing; (2) they had not been speculators in the housing market who were caught when the bubble burst; (3) they had not succumbed to fraudulent schemes “too good to be true” as a result of their own greed; and (4) they had made good faith efforts to meet their other debts after the loss of their homes by foreclosure or short sale.”

This monograph is probably the only document on the internet that analyzes written case decisions on this subject. A further analysis of the cases reviewed by Cohen might produce some distinctions between outcomes of cases involving foreclosures versus short sales.

Full 37 page study [pdf] – Debt and Home Foreclosures: Their Effect on National Security Clearances

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The Office of Personnel Management (OPM) recently announced (FIN 10-08) the new prices of their standard investigative products for Fiscal Year 2011. There was no annual price increase in October 2009. With one exception, the prices of the most common investigations increased 3%. The MBI (Minimum Background Investigation, now renamed the Moderate Risk Background Investigation) increased 20% for priority handling and 27% for standard service. OPM discontinued the Limited Background Investigation (LBI), which was previously used for Public Trust determinations. It also eliminated the PTSBI (Public Trust Special Background Investigation) and the PRIR (Periodic Reinvestigation and Residence Coverage), as well as various special upgrades and updates to standard investigations.

It appears that the new Enhanced Subject Interview (ESI) will replace the Personal Subject Interview (PRSI), a standard component of many investigations. A separate charge for the ESI will be added to the price of the NACLC and ANACI when required by case expansion criteria.

Reimbursable Suitability/Security Investigations (RSI) will continue to be offered (FIN 10-09) for focused investigations needed to resolve issues that fall outside the scope or period of coverage of standard investigations. It is unclear whether the SPIN (Special Interview) will continue to be offered as an option under the RSI. With very few exceptions, federal agencies (including DISCO) pay OPM for these investigations. Here are the new prices that become effective on October 1, 2010:

Related Post: Cost of Security/Suitability Investigations – FY2009

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Our popular ongoing series allows you to ask your most complex questions regarding security clearances and our regular contributors of present and former clearance investigators and adjudicators will try to answer them. The rules are listed below. Failure to abide by them will mean your question will be deleted.

NOTE: Due to the volume of questions we receive, we cannot answer all of them. Selected questions that have not been answered in the past will likely be answered.

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Please read over previous threads to see if your question has already been answered. Use the Search tool to locate specific keywords.

Related Articles:

• Employment Suitability Versus Security Clearance
• Criminal Conduct and Security Clearances
• Drug Involvement and Security Clearances
• Rebutting and Appealing Security Clearance Denials
• Alcohol Consumption and Security Clearances
• Personal Finances and Security Clearances

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A June 15, 2010 article, “Buzz on lie detectors is a lie, NSA video says,” at WashingtonPost.com reported on a new 10-minute video about polygraph tests posted at the Defense Security Service’s (DSS) training website. “The Truth About the Polygraph” is reported to be a video produced by the National Security Agency (NSA) designed to reduce the anxiety applicants feel about the examination.

The DSS Academy website provides the following comments regarding the video. An accompanying 2-page brochure is also available:

Many positions of trust with the U.S. Government require candidates to undergo a polygraph examination. This video, aimed at either current or prospective employees, provides an overview of the process that may be encountered when a polygraph examination is required for employment or access to sensitive information.

Neither the DSS Academy website nor the video itself provided any information about the production of the video.

It’s difficult to make any general statements about the manner in which polygraph tests for security clearance applicant screening are conducted. Although, all federal polygraph examiners are trained at the Defense Academy for Credibility Assessment—DACA (formerly known as the DOD Polygraph Institute); examiners develop their own individual style that’s usually influenced by their organization’s culture.

Truth About the Polygraph Brochure [pdf] | The Truth About the Polygraph [flash video]

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Over the past two years, ClearanceJobsBlog.com has become the only place on the internet where people can ask tough questions about security clearances and get expert answers. Our staff and regular contributors have taken the time to answer even the most complex questions and give people peace of mind and assistance for an inherently confusing topic. We greatly appreciate all of the input.

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In September 2009 representatives of OMB, OPM, ODNI, and DOD testified before the Senate subcommittee on Homeland Security and Governmental Affairs regarding security clearance reform. (See 16 Sep 2009 blog topic “Congressional Hearing On Security Clearance Reform.”) Post-Hearing Questions (and answers) for the record were recently published as an appendix to the hearing report.

One of the most interesting questions concerned the number of cases returned to OPM by DOD due to incompleteness. Under Secretary of Defense for Intelligence James Clapper’s response on page 93 was illuminating:

In FY 2008, the Department returned approximately 188,483 cases and in FY 2009, the Department returned approximately 129,558 cases. Some cases are returned to OPM due to incompleteness or because they were missing critical expansion of developed issues. Other cases are returned or requested to be reopened because the subject of the case was deployed and could not be reached to complete the subject interview. However, in many instances where investigations received from OPM lack investigative scope items or other necessary information, adjudicators contact the subject or agencies themselves to obtain missing information in order to avoid timeliness delays or to avoid incurring additional costs. The Department does not currently have a means to track those cases.

In FY 2008, the Department was charged approximately $86,303,826 and in FY 2009, $63,104,471 for cases returned to OPM due to incompleteness or with requests for additional information.

Here is OPM Director John Berry’s response on page 90 to a slightly different question:

During FY 2009 of the 2,157,531 investigations closed, 1721 (.08 percent) were reopened due to quality concerns. Of the 1721 investigations reopened, 1362 (79 percent) were conducted by contractors, and 359 (21 percent) by Federal employees. The quality reopen percentages rates trend very closely to the actual workload distribution between contractor and Federal staff.

Clapper’s response addressed only DOD security clearance investigations, which totaled about 650,000 in FY 2009. Berry’s response included all agencies and all types of investigations, including single agency checks. Even if the majority of the cases returned by DOD to OPM were because the subject of the case was deployed, it’s still very difficult to reconcile DOD’s 20% return rate with OPM’s .08% “quality” reopen rate. And in how many cases did DOD adjudicators obtain information by themselves that should have been in the report of investigation?

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At first, it looked like 62 workers at Defense Finance and Accounting Service (DFAS)’s military payroll accounting facility in Cleveland, Ohio would lose their jobs due to credit problems. In the past, other DFAS workers in Columbus and Indianapolis had lost jobs because of credit issues.  The Cleveland facility processes pay for active Navy personnel, military retirees, and government officials, including the President.

After some lobbying by local members of Congress, an article in The Plain Dealer explains what happened next…

“The Defense Finance and Accounting Service has agreed to suspend a controversial policy of firing workers for credit reasons while it reviews whether it was necessary to upgrade their security clearances in 2005. The announcement gives a temporary reprieve to 47 workers who were about to lose their jobs.”

“DFAS spokesman Tom LaRock said that since 2001, 54 employees from all DFAS offices have been terminated for not being able to obtain a favorable background clearance…All DFAS positions are classified as sensitive, LaRock said. Because they process people’s pay, employees have access to social security numbers, bank accounts and other sensitive information, he said.”

“It is not top secret or confidential,” he said. “It is considered a background clearance.”

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The Office of Personnel Management (OPM) recently released an undated presentation entitled, The Security Clearance and Investigation Process. Included in the presentation are the following data:

The fastest 90% of the initial security clearance investigations were completed in an average of 41 days (70 days for Top Secret and 36 days for Secret/Confidential).

For Fiscal Year 2005 OPM reported conducted 31,300 Public Trust Investigations (Background Investigations—BI, Limited Background Investigations—LBI, and Minimum Background Investigations—MBI) and 142,354 Suitability Investigations (National Agency Check with Inquires—NACI). These numbers increased in FY07 to about 47,000 and 284,500 (respectively). The FY09 figures show a dramatic increase in Public Trust investigations. The rise and fall of NACIs from FY05 to FY09 may have been caused by a large surge of investigations for HSPD-12 PIV cards. The category of “Other” primarily covers NACs (National Agency Check) and SACs (Special Agreement Check). SACs are usually a single records check, such as an FBI fingerprint check, military personnel records check, credit check, etc., used for pre-screening candidates, resolving individual security/suitability issues, or fulfilling other federal agency mission related objectives that don’t require a standard security or suitability investigation.

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Once again the news media got it wrong. Referring to the Report of the DoD Independent Review Related to Fort Hood (Protecting the Force: Lessons from Fort Hood), an Associated Press article, claimed:

“Their investigation also found his top-level security clearance hadn’t been properly investigated.”

A WashingtonPost.com article stated:

“The report also said that Hasan was granted a top-level security clearance in February 2008 but that his background check did not include interviews with co-workers, supervisors or Hasan himself.”

The DoD report actually stated:

“[Hasan] held an active and current SECRET security clearance based on a February 2008 National Agency Check with Local Agency and Credit Check of [sic] background investigation. Although accomplished in accordance with current guidelines, this background investigation did not include a subject interview or interviews with coworkers, supervisors, or expanded character references.”

A Secret clearance can hardly be characterized as a “top-level security clearance,” and if it was “accomplished in accordance with current guidelines” it was incorrect to claim that it “hadn’t been properly investigated.” A standard NACLC has the narrowest scope of any security clearance investigation and does not include a Subject Interview or any reference interviews. It simply isn’t capable of surfacing the type of information that might have made a difference in Hasan’s case.

The DoD report went on to criticize the adequacy of the NACLC for Secret clearances, the vagueness of the Adjudicative Guidelines, and insufficient training on how and to whom significant information is reported. However, the DoD report did not cite any specific examples of vagueness in the guidelines or insufficiency in training. Army Regulation 380-67, “Personnel Security Program” states, “the supervisor must ensure that all relevant information is reported to the local command security official responsible for processing the investigative paperwork.” It also states, “Coworkers have an equal obligation to advise their supervisor or appropriate security official when they become aware of information with potentially serious security significance regarding someone with access to classified information or employed in a sensitive position.” Guideline A of the Adjudicative Guidelines appears equally clear and unambiguous about the issue of loyalty and allegiance.

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