Security Clearance Jobs Blog

Two recent articles at ClearanceJobs.com note the rise – and importance – of professional security clearance attorneys. If you have a difficult clearance situation, or face the potential of losing your security clearance, chances are you’ll need some kind of professional assistance.

When it comes to getting a job in the intelligence community, it’s understood that most future CIA spies don’t spring from the womb donning a dark tie and sunglasses. A squeaky clean past isn’t a requirement for an intelligence career, but absolute honesty in the application and adjudication process is.

For many in the intelligence community, polygraph screenings are a key place for problems to arise. The security clearance polygraph process is increasingly under fire, and is one area that can leave many potential hires calling for legal advice. A McClatchy News Service report harshly criticized the polygraph process, arguing that employment screenings had uncovered instances of illegal behavior, including the viewing of child porn, and those disclosures weren’t revealed to federal authorities.

But it isn’t that cut and dry, notes Brad Moss, associate counsel at the law office of Mark Zaid, a well-known security clearance attorney. He explains, “The question asked during the polygraph is: ‘Have you ever seen anything pornographic that makes you feel uncomfortable?’ The men say yes, sure—that sometimes gets false flagged as child porn.”

The polygraph process does not offer a lot of opportunity for context – you’re basically battling a computer, and as Jeopardy taught us, that’s a tough battle to win. Nuance is not well understood by a machine.

So, if you decide you need to consult a lawyer, what should you ask in your initial consultation? Here’s a list compiled by ClearanceJobs contributor and security clearance consultant William Henderson:

• What are my chances of being granted a security clearance?
• How many security clearance cases involving an SOR have you had in the last 12 months?
• How many cases resulted in the successful rebuttal of an SOR without going to a hearing?
• How many cases resulted in the granting of a clearance after a hearing?
• Which federal agencies have you dealt with on security clearance cases?
• Who in your office will prepare my case (attorney or paralegal)?
• About how much will your services cost?
• How are your cost and fees calculated?
• How and when will I be required to pay?
• What do you need from me to get started?
• What can I do to help keep the costs and fees down?

Have you ever sought professional help in your clearance process? Did it help?

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Want to know the value of a security clearance? Ask someone who has had theirs revoked and fails to get it reinstated upon an appeal to the Defense Office of Hearings and Appeals (DOHA).

While the accuracy of polygraph examinations remains so controversial that they’re inadmissible in most courts, they continue to be a vital part of the security clearance application and review process, especially within intelligence agencies.

Well-known security clearance attorney Sheldon Cohen is drawing attention for his public criticism of their use by DOHA. Specifically Cohen criticizes the use of heavily redacted and anonymous investigation reports. Cohen sites his recent case of a client whose Department of Defense security clearance was revoked after an alleged admission of viewing pornography on a government computer and watching child pornography at home, from a 2008 CIA investigation.

While Cohen’s argument hinges on several separate and legitimate arguments, including Department of Defense Policy against “giving reciprocal effect to other agencies’ adverse clearance determinations” it hints to the continued controversy surrounding security clearance polygraph procedures.

A McClatchy News service expose earlier this year accused the National Reconnaissance Office of failure to adequately track and report criminal behavior disclosed in security clearance polygraph investigations, as well as inconsistencies in interview procedures.

Cohen’s client, who isn’t named, said some of the statements in the CIA investigation were misrepresentations, and he denied other statements. When it comes to security clearance polygraphs, while the interviews are recorded, subjects aren’t allowed a copy of the audio, and only redacted copies of the investigation reports are provided.

At the end of the day, while there are policies and procedures in place for employees, cleared personnel and members of the intelligence community, in particular, do not necessarily have due process under the law. Security clearance due process procedures are outlined for professionals, but in a variety of areas, from polygraph procedures to whistleblower protections, critics remain.

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Congress is adding muscle to its requests for harsh penalties against those accused of leaking classified information.

Last week Senator Richard Burr (R-N.C.) introduced the Deterring Public Disclosure of Covert Actions Act of 2012, which will revoke the security clearances of individuals who disclose covert actions. Burr emphasized that no such bill should need to be issued, but recent concerns about a dramatic rise in sensitive information being disclosed make such legislation necessary.

“There has been no shortage of news reports lately regarding covert and classified actions,” Senator Burr said. “Such reckless disclosure of top-secret information compromises our national security, jeopardizes the work of our intelligence officers and overseas partners, and risks innocent lives.”

The law would apply to officers, contractors and government employees and Burr emphasized in his statement that no one would lose their clearance without due process, and a determination that classified information had actually been leaked.

The bill comes in follow-up to an announcement by the Director of National Intelligence that new polygraph procedures would ask specifically about whether an individual has ever disclosed protected information. Polygraph procedures are now in the spotlight, following a McClatchy News Service report on abuses in the polygraph screening process. Unless carefully implemented, new polygraph screening methods along with harsher and more immediate penalties for those found revealing secrets could make for simpler responses to that question “how was your day?” – even if it’s your spouse asking.

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The idea of a polygraph examination can make even those with the cleanest conscience a bit nervous. Like most looming events, the more you think about it, the worse it can seem (or in fact, turn out to be). The latest Cleared News article at ClearanceJobs.com offers sage advice for those with a polygraph exam in their future. Tips include:

• Don’t ask others who have taken an exam what theirs was like.
• Follow your usual routine before an exam – including that AM cup of coffee, prescription medications, and as your mother would tell you, a nice breakfast (if you usually eat one).
• Don’t believe what someone tells you about sexual related behavior being a standard polygraph question.

Read the full article for all of the tips and information.

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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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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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An article in POLITICO this morning is an interesting tale. Apparently, the CIA is offering their operatives to the private sector.  The work they perform is not on “government time”, but as a side gig.   When I first saw this story, I thought it would be agents consulting along the lines of  corporate physical security or cybersecurity.   In fact, they’re working for Wall Street firms.

The CIA defends the practice as a type of talent retention program, where highly trained CIA officers can supplement their government salary without leaving the agency for the private sector, where they stand to earn 2x to 3x their current salary. POLITICO describes the work of one such firm used by Wall Street firms.

“The firm is called Business Intelligence Advisors, and it is based in Boston. BIA was founded and is staffed by a number of retired CIA officers, and it specializes in the arcane field of “deception detection.”

The tactics that BIA officials such as these teach hedge fund clients are based in a program it calls “Tactical Behavior Assessment” which focuses on the verbal and nonverbal cues that people convey when they aren’t telling the truth.

Often, BIA deploys its CIA-trained operatives to analyze quarterly corporate-earnings calls…and BIA uses them to figure out if the company may not be disclosing the truth…The information they gleaned from this phone call could be worth millions of dollars.”

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An April 10, 2009 article in CQ Politics highlights John Sullivan, who spent three decades as a CIA polygrapher giving polygraph tests to CIA employees.

When he sought a renewal of his CIA security clearance for a post-retirement job – He was turned down.

Sullivan had just written “Gatekeeper: Memoirs of a CIA Polygraph Examiner,” which discusses internal politics of the CIA.

“Today, he says, “I absolutely believe that the last polygraph examination I underwent was an abuse of the process and that those who participated in that process engaged in misconduct.”

I asked him whether CIA polygraphers are grilled on whether they’ve ever abused their powers, either on their own or at the direction of agency higher-ups, during their own lie detector exams.

They are not.”

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On 23 August 2008 the Washington Post carried an AP story about the Defense Intelligence Agency’s (DIA) intention to use contractors to conduct polygraph examinations for security clearances.

“An unclassified DIA document describing the new effort says the contractor hired to perform the exams will conduct a minimum of 4,550 a year in 13 new polygraph studios . . . . Those 13 new studios would be added to the eight now manned by DIA polygraphers. All would be overseen by DIA personnel.”

It seems there has been a major change in polygraph policy at DIA, possibly affecting positions that previous did not require an examination and/or requirements for periodic reexaminations. Could this be in anticipation of Periodic Reinvestigations being replaced by “Continuous Evaluation” as recently authorized by Executive Order 13467?

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