Security Clearance Jobs Blog

Earlier today I wrote about the case of Mahmoud Hegab, a Virginia man who sued the National Geospatial-Intelligence Agency and its Director for revoking his top secret clearance.

The agency maintains it had significant concerns about his clearance, such as his

• recent residence in, and dual citizenship with, Egypt;
• extensive contact with foreign nationals, many living outside the U.S.; and
• his holding of an Egyptian passport that would require contact with Egyptian officials to renounce his citizenship and turn in his passport, thus increasing the potential he would be monitored by foreign intelligence services, etc.

But after his marriage to Bushra Nusairat, a graduate of the Islamic Saudi Academy, it seems their fears heightened.   The Islamic Saudi Academy is located in Fairfax County, Va. and is funded by the Saudi government-funded.  (You can read more about her activities that raised eyebrows with the agency here.)

Certainly, everyone has the right to freedoms of religion, expression, and association.  But no one has the right to a security clearance.  (Something with which Mr. Hegab states he agrees.)  The court declined to rule on the merits of his constitutional claims and instead deferred to the executive branch’s discretion over such matters.  Long and short: it’s a separation of powers issue.

While the court never touched the merits of the issue, I invite you to in the comments section.  Is Mr. Hegab’s question of lawfulness a legitimate one?  (And you need not be a civil rights litigator to post a comment.)

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A class action lawsuit has been filed in the state of California against a private company that contracts with the federal government to provide background investigations to OPM for secret and top secret security clearances, along with several of its supervisors. The plaintiff, a security clearance investigator, alleges violations of state labor laws were required in order to perform workplace duties.

The lawsuit alleges that California Labor code was violated by not keeping accurate time records or paying overtime hours for non-exempt employees. The lawsuit also alleges that workers were threatened with termination if they didn’t complete security clearance investigations within company-set timelines, which required working unpaid overtime hours in order to maintain employment.

The defendant in the suit argues that in order to complete the required paperwork and travel, investigators would need to work anywhere from 10-20 hours of overtime in order to finish the work to OPM standard. This included working at home and on weekends.

The lawsuit goes on to make a host of other complaints, from alleging that the plaintiff was fired for complaining about the unfair work standards to alleging that the company didn’t make proper accommodation for disabled/injured employees.

Regardless of what the merits or reality might be in the above-case, it brings to light a topic we see on this blog a lot – the demand for a quicker turn-around time in security clearance investigations, which likely doesn’t fit into the reality of a 40-hour work-week. Recent speculation on this board has been that OPM may bring more investigative and adjudicative roles in-house – the often unpopular ‘insourcing’ within the federal government. By moving more positions in-house OPM gains control, and workers fall under federal labor standards. Whether or not that leads to increased efficiency, I’ll leave to others to debate.

Any opinion on the California lawsuit? Is it common to see security clearance investigators working overtime without compensation, or being threatened with lay-offs if they complain?

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Do millennials have more difficulty obtaining security clearances than other generations? With debt issues starting earlier and our international world making ‘foreign influence’ more difficult to define, they certainly may have more difficulty filling out their security clearance applications.

A recent article on ClearanceJobs.com offered tips specifically for millennial job seekers filling out their SF-86. From keeping tabs of addresses that may change multiple times a year to ensuring you list a quality reference everywhere it’s required, the devil is in the details.

Failure to fill out a security clearance application accurately may be the biggest issue – regardless of greater instances of debt and foreign influence. Issues can often be mitigated, but failure to accurately report problems isn’t likely to be seen as oversight, but dishonesty.

What do you think – are there generational issues at play making today’s security clearance application more complex?

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A recent court ruling on whether or not employees holding ‘sensitive’ positions can appeal layoffs to the Merit Systems Protection Board demonstrates less about legal protections for federal employees than it highlights how confusing sensitivity designations can be.

Most individuals who have applied for a position with the federal government realize that there is a difference between ‘employment suitability’ and a security clearance. Employment suitability screening consists of a National Agency Check with Inquiries (NACI) with applicants completing an SF-85P, typically, versus an SF-86. Just as investigations differ depending upon the clearance level, investigations differ for employment suitability based on the level of risk assigned to the position. (Learn more here.)

Some are concerned that employment designations may soon be used to not just protect classified information, but to help oust employees from federal positions.

In a 2-1 decision by the U.S. Court of Appeals for the Federal Court, two low-level defense department employees were denied an appeal after being barred from holding “non-critical sensitive positions.” Following 9/11, many positions have been reclassified from non-sensitive to sensitive. The two plaintiffs in the recent case were individuals whose positions had been redesignated but due to financial issues, in one instance, and undisclosed reasons in the other, the individuals were not eligible for the sensitive positions, and were eventually fired as a result.

Critics of the ruling feel that reclassifying position designations could soon be used as a means for federal managers to fire employees without cause. The majority opinion in the case argued that the need to protect classified information trumps employee rights, in this instance. Federal agencies are more equipped to make personnel decisions than the courts, and electronic records management gives even non-cleared employees access to information which could harm national security.

As the government looks to cut costs and move forward with security clearance reform, reevaluation of security clearance designations may be in the cards. Unlike the case above, many agencies are looking into where they can reduce clearance levels, downgrading top secret clearances to secret clearances, which results in significant cost savings over time. At the same time, the widespread use of electronic records keeping, as referenced by the majority opinion in this case, will likely continue the use of ‘non-critical sensitive’ position designations as an assurance that those with access to government computer networks and systems warrant that access.

A position sensitivity designation is not the same as a security clearance. All federal positions are evaluated and given a sensitivity designation:

Non-sensitive

“As a practical matter within DOD 95% or more of all Non-critical sensitive positions are so designated because the positions require access to Confidential or Secret national security information and 95% or more of all Critical Sensitive positions are so designated because the positions require access to Top Secret information,” noted William Henderson, author and security clearance consultant. “All positions designated Special sensitive (a term not universally used within DOD) are so designated because they require access to SCI or other SAPs.”

An individual under investigation for a non-critical sensitive position without a security clearance undergoes the same adjudicative criteria as someone applying for the same non-critical sensitive position with the need for a security clearance. Persons with a ‘non-critical sensitive position’ could then be granted access to classified information administratively, without need for an additional investigation, said Henderson.

That reality supports the court’s decision that the designation of sensitivity – like security clearances – best falls within agency purview, rather than the judiciary.

Despite the outcry of union leaders and worker’s rights groups, it would seem the decision to allow the government to fire individuals who don’t meet criteria for non-critical sensitive positions is a sound one. Federal managers are unlikely to re-designate positions for the sole reason of retaliation, and if that were the case the employee would simply need to justify why their position should not have been reclassified.

It’s a tough topic – almost beyond the grasp of the editor of ClearanceJobs.com! Knowledgeable investigators, feel free to weigh in with your perspective or correction! – LK

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When is a job about more than the job? When you have a security clearance or you’re in the military.

Many people have heard the phrase ‘held to a higher standard’ used in conjunction with men and women in uniform. It’s not just a reference to a higher moral character or sense of patriotism, its actual military doctrine and protocol, including the Uniform Code of Military Justice and security clearance requirements. The military is just about the only employer these days who will fire you or demote you for having an affair, for instance. Why? Because the prohibition is outlined in UCMJ.

With such clear guidelines known by anyone in uniform, it’s hard to believe stories like this still exist. Last week the story broke of a Navy Commander who had an affair with a 23-year-old he met on a dating site. After the woman told him she was pregnant, the navy officer allegedly faked his own death via email messages. The officer had emails sent which implied an  incident had occurred in the scope of his “special operations” military duties and he’d died.

It sounds like a soap opera, but appears to be depressingly real. A Navy press release noted that Ward had been relieved of command due to “lack of confidence” and “allegations of personal misconduct.”

The reality is most security clearance issues are significantly less obvious than this. Will a one-time affair that you disclose to your spouse result in clearance denial? Hardly, and it’s not likely to even come up in the course of an investigation. But incidents such as the one above highlight the need for standards of personal integrity in positions of public trust, especially at the highest clearance levels.

If you’re willing to create a web of lies and pretend to be dead to avoid your problems, what else would you be willing to do? Now, if only all clearance investigations involved incidents this easy to assess.

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Maryland State Senator Roger Manno and 27 of his Senate colleagues have proposed a State income tax credit for costs incurred to obtain federal security clearances. The bill (SB296) would require “the Governor of Maryland to make a $6,000,000 appropriation in FY2014 and FY21015 for the tax credit, applying the Act to all taxable years beginning after December 31, 2011.”

Sounds great, but who would actually benefit from this tax credit. The bill does not define “federal security clearance” and it’s unclear whether the term “security clearance” is being used generically to cover all federal clearances (such as National Security Clearances, Public Trust Clearances, HSPD-12 Credentialing, and Transportation Worker Identity Credentials) or whether only National Security Clearances for access to classified national security information will be covered. Nor does the bill hint at the potential number of Maryland residents who might be able to claim the tax credit or the nature of the clearance-related expenses that will be covered. A call to Senator Manno’s office disclosed that the tax credit is primarily intended to benefit federal contractors and/or their employees, but no specific information was readily available.

The vast majority of federal contractor security clearances are processed by the Defense Industrial Security Clearance Office (DISCO), a component of the Defense Security Service (DSS). DOD approved $238.5M in federally appropriated funds for FY2012 to pay for the cost of DSS processing contractor security clearances, and DSS has never charged defense contractors or defense contractor employees for either the cost of personnel security clearances or facility security clearances.

So, the question remains, who will benefit from this tax credit? Will most of the $6M languish in a special fund and be unavailable for other State purposes, or will someone in the Maryland Senate research the subject and either withdraw the bill or rewrite it so it might actually provide some benefit to Maryland workers who are seeking jobs in the defense industry?

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While we often talk broadly about the time it takes to process security clearances, the investigation itself is the heart of security clearance adjudication. After several years of working to prevent duplication of efforts and the lengthy delays in transferring clearances between agencies or reinvestigating previously investigated individuals, the new guidelines seem to take a step backward.

The Office of Personnel Management’s revised standards use a five-tiered system with six types of investigations and two types of reinvestigations. The new standards don’t allow for an easy transition between public trust and national security positions, largely due to different application forms used. Moral of the story? Prepare for perhaps even lengthier delays when transferring between agencies with different clearance applications, or when applying for higher levels of clearance.

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On September 20, 2011 the FAS (Federation of American Scientists) Secrecy News blog reported, “The number of persons who held security clearances for access to classified information last year exceeded 4.2 million — far more than previously estimated — according to a new intelligence community report to Congress.”

Although this report by the Office of the Director of National Intelligence (ODNI) failed to provide data on several metrics required by Section 367 of the 2010 Intelligence Authorization Act, it gave a clearer picture of the cleared community and a different way of looking at the length of time it takes to get a security clearance.

In Fiscal Year (FY) 2010 642,831 security clearances were granted.  OPM, which reportedly conducts 90% of all security clearance investigations, “provided data for FY 2010 that it had available on 34,029 security clearance determinations across the Federal Government that took longer than one year . . . .”  This suggests that about 5.9% of all cases took over 1 year.

Also of interest was the 7% clearance denial rate reported by the National Security Agency.  For comparison the average denial rate at the Defense Office of Hearings and Appeals, Department of Navy, and Department of Air Force was about 1% and the denial rate at Department of Army was about 6%.

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The Office of Personnel Management (OPM) has posted 4 new Federal Investigations Notices (FIN) on their website all dated August 29, 2011.

FIN 11-04—“Continuous Efforts to Align with Reciprocity Goals and Timeliness Standards.” This FIN fully implements interim adjustments made to National Investigative Standards by a August 2010 joint memorandum issued by OPM and the Office of the Director of National Intelligence (ODNI).  This represents a significant retreat from the 3-tier concept approved in December 2008 and fails implement one of the major purposes of Executive Order 13467.  E.O. 13467 called for a system where “Each successively higher level of investigation and adjudication shall build upon, but not duplicate, the ones below it.”  As long as suitability/fitness investigations are based on an SF85 or SF85P, there is no possibility that these investigations, no matter how current or comprehensive, can be used to grant a national security clearance, which must be based on the submission of an SF86. Continue Reading »

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The Defense Security Service (DSS) announced that effective on August 29, 2011 as part of a Joint Personnel Adjudication System (JPAS) release update (version 4.3.0.0), the new 2010 Standard Form 86 (Questionnaire for National Security Positions) will be available for use by federal contractors using JPAS.  A new “Fair Credit Release” form will be required as part of the SF86.

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