Fighting For Your Security Clearance

Working with sensitive information requires a government security clearance. If the government determines that your access to classified information is “not clearly consistent with the interests of national security” then it may revoke or withhold your access to sensitive information.  Losing a security clearance usually means losing your job as well as your ability to work in your area of expertise.  Security clearance revocations can occur for a variety of reasons; most common are revocations for “financial considerations” (about 50%) “personal conduct” and “alcohol and drug abuse.”  

If you received a Statement of Reasons warning that your security clearance may be revoked, you should know that you have the right to contest this action.  The Defense Office of Hearings and Appeals (“DOHA”) was established to decide cases involving the revocation of civilian security clearances.  You are entitled to review all documents and cross-examine all witnesses against you and to present evidence and witnesses in your favor and to have legal representation throughout the process.  The Statement of Reasons – setting out the exact reasons for the proposed revocation in advance of the hearing — is one of these rights. 

In 1960, President Eisenhower signed Executive Order 10865 which requires a hearing where government contractors are given the opportunity to appear before an Administrative Law Judge to confront and cross-examine witnesses and rebut the Government’s case.  Prior to 1960, security clearances were frequently revoked based on gossip and innuendo.  In the case that changed the law by granting due process before the revocation of a security clearance, an aeronautics engineer lost his security clearance (and his ability to work in the field) after investigators reported that his former wife had friends with questionable loyalties.  He was denied the right to question the witnesses against him or the investigators who wrote the report and his clearance was revoked.  

In Greene v. McElroy, Chief Justice Earl Warren wrote that the government is “not empowered to deprive [a person] of his job in a proceeding in which he was not afforded the safeguards of confrontation and cross-examination.” Id. at 360 U.S. 474, 3 L. Ed. 2d 1377, 79 S. Ct. 1400 (1959).  These rights remain embedded in the industrial security clearance process established by President Eisenhower after Greene.  As Chief Justice Warren wrote: “[t]he right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the “liberty” and “property” concepts of the Fifth Amendment, Id. citations omitted.

At a revocation hearing, the Administrative Judge must determine whether it is “clearly consistent with the interests of national security” for a person to have access to sensitive information based on a “totality of the circumstances”.  That means that the Administrative Judge will review your entire career along with the accusations against you in the Statement of Reasons in determining whether you should hold a security clearance.  It is imperative that you have an attorney with experience in security clearance matters representing you throughout the process, particularly at the hearing and in any investigation leading up to the hearing.   We have been working with civilians and military service members on security clearance matters, including walking people through the security clearance process, for 25 years.  Contact us to discuss your federal security clearance matter