Every year countless federal employees, members of the military, and federal contractors have their careers placed in jeopardy by having their security clearance or access to SCI suspended or revoked. Many individuals decide to respond to or appeal the recommendation/decision on their own. Many of these same individuals assume that, as an administrative proceeding, a security adjudication is somehow “less formal” and, thus, can be handled without an attorney. The reality is quite different: official documents recommend an attorney, and the loss of a clearance will certainly be far costlier when a career comes to an abrupt halt.

While no one can guarantee a favorable outcome, as each case is different (because facts matter), scoping the response to address the government’s specific concerns in light of applicable laws, rules, and regulations means the difference between winning or losing; or having a fighting chance and outright losing.

Not seeking counsel is dangerous for a number of reasons.

First and foremost, the decision is not judicially reviewable. This is because of precedent set by the Supreme Court of the United States. In other words, the ultimate decision cannot be taken before a federal court. There is no “suing.”

Second, and this is particularly true with Department of Defense clearances before Administrative Judges: if you lost before the Administrative Judge, the only way to win on appeal is to prove that the Administrative Judge erred in either fact or law. No new evidence is permitted before the Defense Office of Hearings and Appeals Board. If it wasn’t addressed at the lower level, there is nothing that can be practically done. Many prospective clients have contacted the firm at that stage. Unless there is a glaring error, we can’t take the case in good conscience.

Finally, this is a legal proceeding. In some situations, the Department or Agency arguing for the revocation will be represented by an attorney who is prepared to argue against you retaining your security clearance. As such, the written response to the Statement of Reasons or Letter of Intent must bust be on point and sound.

The possible loss of a security clearance is a serious matter. When in doubt, seek counsel.

This article was prepared by Thomas Toman, National Security Investigations Intern.

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One of the most crucial aspects of any clearance investigation is the SF-86 form that all applicants are required to fill out. It is an imposing, 127-page document that covers everything from past living addresses to foreign contacts. Because of the central role it plays in clearance adjudications, the SF-86 is not a form that should be taken lightly.  The document itself has become a topic of media discussion after it was revealed that Attorney General Jeff Sessions did not disclose contacts with the Russian Ambassador on his SF-86. The discussion of the issue was short lived, however, as it was later revealed that Sessions’ staff had contacted the Department of Justice. Reportedly, Department of Justice attorneys  instructed that he omit the contacts.

We at Compass Rose Legal Group believe that the affairs surrounding the Attorney General’s SF-86 serve as a valuable example of how to, and how not to, approach the SF-86.  While the average clearance applicant will not face the same issues or media scrutiny as Jeff Sessions, his case provides a cautionary tale for all applicants. Accordingly, consider the following:

  • Fill out your own SF-86 form. Once you sign and submit the form, you become responsible for its contents.  This is not dissimilar from a tax form or contract. While it might be tempting to let a staff member or secretary handle the SF-86 for you, the level of detail required requires personal attention.
  • Pay close attention to the wording of all questions: certain information is not required to be reported, and the questions note this. When in doubt, seek counsel.   Similarly, for all applicants the SF-86 contains a section on mental health counseling. Depending on the section, an applicant may or may not be required to provide that information. Read this section carefully.
  • Take time to fill out the form completely, accurately, and then re-examine it thoroughly before submission. Omissions, particularly if purposeful, can be a crime. Even if the omissions do not result in a criminal referral, missing information results in a weighty issue that security adjudicators can latch on to and question.
  • When in doubt, seek counsel.
This article was prepared by Thomas Toman, National Security Investigations Intern.

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National Security Law & Security Clearances Are Directly Impacting the White House

The current issues impacting the Trump White House have brought national security matters, the Intelligence Community, and security clearance adjudications into the spotlight simultaneously. Compass Rose Legal Group, PLLC is a law firm specializing in representing the Defense and Intelligence Communities, and we believe this overview will help simplify the chronology of events that have led to this increasingly complex matter unfolding as publicly as it has.

Notwithstanding the political implication surrounding these events, the facts are materializing into a case study of what federal employees, contractors, and members of the military ought not to do.

Who is Michael Flynn?

Michael Flynn was President Trump’s first National Security Advisor and former Director of the Defense Intelligence Agency (“DIA”). Flynn was removed from his position as DIA Director by then-President Obama, who cited policy disagreements between Flynn and the larger Intelligence Community. Subsequently, in 2016, Flynn was appointed as the National Security Advisor by Donald Trump; he served only 24 days before being asked to resign.

Flynn’s Liabilities

Flynn is currently at the center of a Justice Department investigation into Russian meddling in the 2016 election. Moreover, he is also under heightened scrutiny for accepting (and not reporting) money to lobby on behalf of Turkey. Reportedly, it is this information that he failed to disclose on his SF-86. His failure to report has provided prosecutors with leverage to force Flynn’s cooperation in the ongoing investigation.

Here is a brief timeline of the events that have led to his removal by President Trump, and the subsequent appointment of a Special Prosecutor:

  • On December 10, 2015, Michael Flynn allegedly receives money from Russian officials during a trip to Moscow. The payment triggers a subsequent investigation by the Pentagon Office of Inspector General in April 2017.
  • On August 9, 2016, Michael Flynn receives $530,000 dollars for lobbying work on behalf of a Turkish firm with strong ties to the Erdogan government in Ankara. The money was intended to go toward the production of a pro-Turkish government film, but no film is ever produced. General Flynn does not report this activity to federal lobbying authorities or register as a foreign agent until March of 2017.
  • On November 8, 2016, Michael Flynn writes an op-ed in The Hill that supports the Turkish government’s crackdown on (allegedly) seditious elements. According to press reports, he shared a copy of this article with the Turkish firm behind his August payment before publishing it.
  • In December 2016, Flynn begins communicating regularly with the Russian Ambassador to the United States, Sergey Kislyak.
  • On January 4, 2017, the Trump transition team is first informed that Flynn is under investigation by the Department of Justice.
  • On January 10, 2017, Flynn blocks a plan to arm Kurdish Rebels against ISIS, contrary to the recommendations of the Obama White House. This was viewed as a massive policy victory for Turkey, who opposes the Kurds. After Flynn’s resignation, the Trump White House began to arm the Kurds again.
  • On January 26, 2017, Acting Attorney General Sally Yates warns White House counsel Don McGahn that Flynn has allegedly lied about his discussions with the Russian Ambassador. Yates reportedly supplied evidence that Flynn had discussed U.S. sanctions on Russia with the ambassador, which he had vehemently denied.
  • On February 9, 2017, a Washington Post report reveals that Flynn lied to Vice President Mike Pence about his conversations with the Russian Ambassador by assuring him that sanctions were never discussed.
  • On February 13, 2017, Flynn resigns following intense media scrutiny.
  • On May 17, 2017, the Department of Justice appoints former FBI director Robert Mueller III to lead an independent probe into the Trump administration’s relationship with Russia.
This chronology of events was prepared by Thomas Toman, National Security Investigations Intern.

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Compass Rose Legal Group’s Managing Attorney Andrew Bakaj is quoted in a LawNewz article discussing the ramifications of former National Security Adviser Michael Flynn’s SF-86. The SF-86 is the form that federal employees and contractors must complete in order to obtain a security clearance.

Andrew discusses the ramifications of Flynn’s failure to disclose his foreign contacts; foreign activities; and foreign business, professional activities, and foreign government contacts on his SF-86. He is quoted saying:

Given that there are multiple ongoing investigations, perhaps even a criminal investigation, the false official statements can be used as leverage by a federal investigator and the Department of Justice to obtain a guilty plea to a lesser crime or, in the alternative, to compel cooperation in the event he’s not the ‘biggest fish’ in an investigation.”

You can read the full article by clicking here.

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At Compass Rose Legal Group, we handle security clearance cases throughout the Federal Government. Regardless of which Department or Agency we appear before, there is a major common theme running through the adjudication process. Obtaining a successful outcome means mitigating the concerns that the U.S. Government has in an individual’s ability to safeguard classified information.

Security clearances are a privilege and not a right, and there is no right to have the substance of the Federal Government’s concern litigated before any Federal Court. See  Department of the Navy v. Egan 484 U.S. 518 (1988). At the end of the day, what has to be accomplished is having the clearance adjudicators understand that the concerns they have about an individual having access to classified information have been “mitigated.” Mitigated — this term has meaning. It is, in fact, a “term of art”, a term that has significance for those reviewing an individual’s ability to have access to classified information.

As a starting point, familiarize yourself with the security clearance adjudicative process and the mitigating factors described here.

If you have questions, please contact us at info@CompassRosePLLC.com.

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Compass Rose Legal Group’s Managing Attorney Andrew Bakaj and colleague Mark Zaid write a follow-on article with Just Security regarding PPD-19 whistleblower protections.

Andrew and Mark are handling multiple clients with PPD-19 appeals, and they have already forged precedent-setting decisions.

While not the topic of the article, PPD-19 is the key mechanism by which federal employees and contractors can challenge adverse security clearance actions (ie. suspension, revocation, etc.) when the action follows lawful protected activity. For more information, contact CRLG at info@CompassRosePLLC.com.

To read this article, click here: Letter to the Editor: Whistleblower Protections Are Getting Stronger.

Links to prior and associated articles are here:

Whistleblower Reinstated in Job in Test Case for NSA and Intelligence Community.

New Case Proves Intelligence Community Whistleblowers Have Protections.

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On January 26, 2017, ABC News Reported that President Trump issued a memorandum to certain Federal Employees restricting their communication with Congress. If true, this poses a problem for all Federal Employees because communications to Congress and the relevant Congressional Committees are protected communications by law. (see The Whistleblower Protection Enhancement Act, the Intelligence Community Whistleblower Protection Act, and Title 10 as it applies to the Military (“No person may restrict a member of the armed forces in communicating with a Member of Congress or an Inspector General.”)).

Please note: certain Federal Employees, notably members of the Intelligence Community, must follow internal policies and procedures to properly communicate with Congress.

Under normal circumstances, an allegation of retaliation because an individual went to Congress would be the subject of a whistleblower reprisal investigation. The restrictions imposed by the President, which may run contrary to law, poses an interesting question:

Can the President of the United States be the subject of a Whistleblower Reprisal Investigation?

The short answer is: perhaps. If so, given the circumstances and the current environment here in Washington, I would posit that a Congressional Committee would be the only body that could effectively and independently investigate such an allegation.

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By Andrew P. Bakaj, Esq.

At THIS moment, the legal issues involving whistleblowing in the Trump era is no different than whistleblowing under Presidents Obama and Bush. The difference is that many federal employees and contractors are now vocal about it because they are concerned that President Trump or his appointees/designees may direct an action perceived to be illegal. As a result, many of those individuals will come to rely on federal whistleblower laws to protect them as they engage in protected activity. Accordingly, it is in the federal employee’s and contractor’s best interest to become familiar with one CRITICAL component of whistleblower protection: the definition of a PROTECTED disclosure. In order to be protected from retaliation/reprisal, the disclosure must be viewed – BY LAW – as “protected.”

What is a protected disclosure?

A protected disclosure, ie. LAWFUL whistleblowing, is a disclosure of a violation of law, rule, or regulation; fraud, waste, or abuse; mismanagement, or a substantial and specific danger to public health or safety. The disclosure need not be 100% accurate, because the legal theory is that the government doesn’t want people running around conducting their own “investigations” into the various issues they intend on disclosing. The disclosure merely has to be based on a reasonable belief that a violation was taking place. That may appear to be a low bar, but investigators will hone in on that should they intend on closing-out the case without investigation. Those issues are very fact specific and can get tricky. Let’s leave that one there for now.

Next, the disclosure must be made through proper channels. Some employees are able to make a disclosure publicly to the media. Others are most certainly not. For example:  members of the Intelligence Community are prohibited from making any disclosures to the media. In fact, such activity by members of the Intelligence Community is known by the phrase “unauthorized disclosure” or, in laymen’s terms, “leak.” Not only are members of the Intelligence Community prohibited from engaging in unauthorized disclosures, doing so opens up the strong possibility of a criminal investigation and prosecution. Generally, disclosures are protected if you make it through your chain-of-command or to an Office of Inspector General.

Terminology & phraseology – let’s turn to the easy one first: a substantial and specific danger to public health or safety. The disclosure here has to be specific and there must be an actual threat to the health and safety of the general public. This means what it says.

Now, let’s turn to the key phrases “Fraud, Waste, & Abuse,” “Mismanagement,” and “Law, Rule & Regulation.” These words matter, and its misinterpretation can lead to the door being left wide open for retaliatory action without any safeguards to protect against it. In many cases, this is where a whistleblower reprisal case is won or lost.

Fraud, Waste, Abuse, and Mismanagement versus Law, Rule, or Regulation

Many individuals try and articulate that a “fraud” is taking place within their agencies and, as a result, expect that they cannot be retaliated from disclosing it. Not so fast. How do you define waste? What is a fraud? What is abuse of authority? What is mismanagement? Does the person have to be in a “management” billet to “mismanage?”  This, right here, is a hot mess. The best way to define these is to link the fraud, waste, abuse, or mismanagement to a violation of law, rule, or regulation. Think of it this way: if something is wasteful, it should be illegal.Therefore, be sure you’re able to tie your disclosure to a violation of LAW, RULE, OR REGULATION. If you’re not sure, seek counsel. Down the road, should you be retaliated against and have to articulate the basis for your disclosure, you don’t want to be left relying on the position that what you witnessed “felt” like a fraud or a waste of government money and therefore your supervisor “mismanaged” the program. That’s conclusory. What LAWS, RULES, or REGULATIONS did they VIOLATE?

Policy Disputes are NOT Protected

Potential whistleblowers need to understand that, by law, a disclosure of a policy dispute is not protected. So, what exactly is a policy dispute? A policy dispute is when you disagree with leadership on what approach or position to take on a particular issue. Policy disputes occur all the time in Washington. That’s just a fact. And remember: the President, his cabinet, and his appointees have broad authorities and are, in fact, empowered to create and implement policies and strategies. If, however, they direct an illegal action, that’s different. This is a critical point because if you find yourself disagreeing with the President or his cabinet on the “direction” they’re taking your department or office, your disclosure may not be protected – unless the disagreement is rooted in law, rule, or regulation. Given the current climate, expect to defend against retaliatory action with an allegation of insubordination being at the top of the list. However, if you’re a member of the Intelligence Community expect an action involving your security clearance. As of 2012 and 2014, retaliating via a security clearance action is a violation of law and regulation.

What does it mean to be Protected from Reprisal?

Let’s be clear: whistleblower “protection” doesn’t protect you from your superiors taking retaliatory actions against you. What your protected disclosure does is afford you the opportunity to CHALLENGE the action by asserting a whistleblower status, prompting an investigation to determine whether the action taken against you was in reprisal. This is absolutely important to understand. If you go into this thinking nothing will happen to you because of your whistleblower status, you will be in for a rude awakening. You need to go into this understanding how to properly disclose wrongdoing. Should, heaven forbid, leadership reprise against you, your legal status as a bona fide whistleblower will allow you to PUSH BACK by filing complaints in an effort to correct the record and protect yourself and your career.

What does all this mean?

In the coming months, and perhaps years, many federal employees and contractors will feel compelled to stand up for what they believe is right. Doing so is fraught with risk and, frankly, given the recent announcement that the President has issued a hiring freeze, an error on an employee’s part may lead to termination with no hope on finding alternative government work. So the stakes are high.

That being said, when it comes to making difficult choices about when and how to stand up and draw lines in the sand, you need to consult with yourself, your family, and with an attorney – a personal attorney. Remember, while it may be prudent to speak with government counsel, they do not represent you. In fact, government counsel will be the ones providing your leadership with the legal sufficiency to justify the retaliatory action against you.

In short, up-armor yourself and act accordingly.

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 By Andrew P. Bakaj, Esq.

Recently I have had individuals, including those within the Federal Government, reach out to me with questions about the State Department’s announcement that administrative investigations will begin into Secretary Clinton’s use of an unauthorized email server at her home. The questions were asked in light of the upcoming Presidential election and the investigation’s possible impact on it. My goal is to answer some of these questions in order to help interested individuals understand exactly what is going on based on the information we publically know (or believe we know).

This needs to be underscored: while the general issues being addressed in the investigations are not entirely new, what is different is the prominence of the matter. Ultimately, this involves a presumptive nominee for President. Regardless of the political impact this may have, there are processes and procedures for handling such matters. For full disclosure: I have previously interned for Secretary Clinton when she was a United States Senator. This is not a political piece, but an overview of federal investigations and security clearance matters based on my experience both with the Federal Government and as a private practice attorney representing federal and national security employees who find themselves under investigation or possibly losing their security clearance.

Federal Criminal Investigation

The first question that was posed to me was why is there an administrative investigation when FBI Director James Comey declined to indict Secretary Clinton? The answer is fairly straight forward. The FBI’s investigation involved identifying and investigating whether Secretary Clinton, and any other individuals, violated federal criminal law. Director Comey made it clear in testimony on Capitol Hill that based upon the FBI’s inability to identify specific intent for Secretary Clinton to violate federal criminal law, they did not recommend the Department of Justice (“DOJ”) prosecute her. Recommending that no one be criminally prosecuted is different from not referring the matter to DOJ. The FBI did refer the matter to DOJ and Director Comey, as FBI Director, recommended the matter not be prosecuted. Once referred, it was ultimately up to Attorney General Loretta Lynch to make that final decision. Ultimately, DOJ declined to prosecute.

Criminal Investigation vs. Administrative Investigation

The standards governing federal administrative investigations are much lower than criminal investigations. The critical difference: conviction for a criminal offense requires that the evidence be proven “beyond a reasonable doubt.” This is the highest standard because such a conviction results in the loss of liberty. With federal administrative investigations, the burden of proof is either “a preponderance of the evidence” or “clear and convincing evidence,” depending on the matter being investigated. It is a lower standard because, if a violation is found, the worst that can happen is that someone could ultimately lose their security clearance and their job. No one has a “right” to a particular job or a security clearance. Liberties are not at stake. Furthermore, when it comes to matters involving security clearances, the investigation is skewed in favor of national security. That is to say, the amount of evidence it takes to deny or revoke someone’s security clearance is lower because, on balance, if someone is identified as a security risk the decision will be in favor of denying access to classified information to the detriment of the individual’s ability to obtain a security clearance.

Why an Administrative Investigation Now?

Whenever facts impact various federal law, rules, and regulations, if a criminal investigation is ongoing the administrative investigation takes a back seat. Criminal investigations can result in indictments and prosecutions, and the manner in which those investigations are conducted must be in line with strict criminal procedures and guidelines. The reason goes back to the evidentiary standard described, above.

Who is Being Investigated?

This is a difficult question. It is possible that Secretary Clinton’s personal conduct is being investigated administratively. However, given that Secretary Clinton’s use of a private email server, or at the very least use of an e-mail address not connected to the State Department, was fairly well known by officials within the State Department, it is conceivable that individuals many rungs below her and her senior staff are under administrative investigation. For example: anyone who could have stopped it, whether it was the State Department’s Security Officers, Information Technology specialists, or others, all of those individuals could be under investigation. It doesn’t mean that they are, but they could be. I think a legitimate concern here could be that a GS-12 or GS-13 employee’s action, or for that matter inaction, could be construed as engaging in administrative violations.

While everyone is concerned about Secretary Clinton, I think about her senior aides who, if she is elected as President, may be unable to obtain a security clearance. I also think about the career federal employees and foreign service officers who’s career this may impact for years to come.

 What is Being Investigated?

This is a tricky question as well. Administrative investigations really run the gamut. I am certain that the Office of Inspector General and others want to know what fail-safe points failed or, in the alternative, were there any fail-safe’s in place to begin with? That is to say, how did we get to this point in the first place? Those findings could be used in yet another, separate, administrative investigation: a security clearance investigation and adjudication. I don’t believe Secretary Clinton will be under a clearance investigation at this time because she is no longer affiliated with the State Department in an official capacity. Conversely, other individuals still at the State Department may be.

As Director Comey stated in testimony, administrative actions can be taken against employees who may not have violated criminal law but who have demonstrated poor judgment or willful disregard for policies and regulations. Those actions include, but are not limited to, reprimands, suspensions, and termination of employment. Those are human resource penalties. Regarding security clearances, actions could include suspensions and revocations (which would lead to possible termination of federal employment). All of these decisions will require fact finding, ie. investigations, before decisions are made.

Duration of the Investigation(s) and its Impact on the Election

Administrative investigations can take well over a year. Adjudicating a security clearance can take just as long. In this particular case, the administrative investigators and security clearance adjudicators can adopt reports and facts gathered by the criminal investigation.  This could reduce the investigative time period significantly. Ultimately, it depends on how many people are under investigation, how many investigators are actively working the cases, and how much of the investigation has to be conducted anew.

As to the impact this will have on Secretary Clinton’s presidential ambitions, that’s up to the American people. The same is not true for her aides and any foreign service officers under administrative investigation.

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