Our practice

Security Clearance & Polygraph

Protecting the security clearances—and careers—of federal employees, contractors, and military members. We represent clients worldwide.

For many federal employees and contractors, and for members of the military, a security clearance is a prerequisite to obtaining and keeping a job—particularly at agencies such as CIA, NSA, NRO, and NGA, and at the Departments of Defense, State, Homeland Security, Justice, and Energy. Some positions also require successfully completing a polygraph examination.

Most of the time, the clearance process proceeds without incident. When issues arise, however, the outcome can determine whether a career continues. Experienced counsel can make the difference between a clearance that is granted or retained and one that is denied or revoked.

Our attorneys have handled security clearance matters from inside the government as well as in private practice. Founding & Managing Partner Andrew P. Bakaj is a former CIA officer and federal investigator, and Senior Partner I. Charles McCullough III served as the first Senate-confirmed Inspector General of the Intelligence Community, where he received and reviewed whistleblower complaints from across the IC and oversaw a review of the National Reconnaissance Office’s handling of admissions made during polygraph examinations. Learn more about our attorneys.

How We Help

Before and During the Investigation

Guidance on completing security questionnaires—the SF-86 for national security positions, the SF-85P for public trust positions, and the SF-85 for non-sensitive positions—and on the new Personnel Vetting Questionnaire that is replacing them;
Preparation for background investigation interviews and pre-polygraph counseling; and
Advice on self-reporting obligations and on addressing potential concerns before they become formal issues.

Responding to Adverse Actions

Formal responses to a Statement of Reasons (SOR) or Letter of Intent (LOI), assembling the evidence and mitigation needed to address each concern under the adjudicative guidelines;
Responses to interrogatories, suspensions of access, and derogatory information recorded in government personnel security systems such as DISS and Scattered Castles; and
Obtaining the client’s own investigative and adjudicative records through Privacy Act and FOIA requests, so that the response addresses what the government actually relied upon.

Hearings, Personal Appearances, and Appeals

Representation at hearings before Administrative Judges of the Defense Office of Hearings and Appeals (DOHA) and on appeal to the DOHA Appeal Board;
Personal appearances and appeals before agency and component appeals boards; and
Matters before Intelligence Community elements, which maintain their own adjudication and appeal procedures.

The Clearance Process

When an adjudicator identifies a concern, the individual typically receives a Statement of Reasons or Letter of Intent explaining the basis for a proposed denial or revocation. The individual then has a short window—often 20 to 30 days—to respond in writing and, depending on their status, to request a hearing or personal appearance. Decisions may then be appealed.

The procedures differ for government contractors, federal civilian employees, military members, and Intelligence Community personnel, and many Department of Defense determinations are now made by the Defense Counterintelligence and Security Agency (DCSA). The written response is frequently the most important opportunity to resolve a case, and it should be prepared with care.

Common Issues

Clearance decisions are made under the 13 adjudicative guidelines established by Security Executive Agent Directive 4 (SEAD 4), applying a “whole-person” assessment that weighs both disqualifying and mitigating factors. Issues we frequently address include:

Financial considerations, including delinquent debts, tax issues, and bankruptcy;
Foreign influence and foreign preference, including foreign family members, contacts, property, and dual citizenship;
Drug involvement, including marijuana use, which remains a federal security concern even where state law permits it;
Alcohol consumption and related incidents;
Personal conduct, including questions about candor and omissions on security forms or in interviews;
Criminal conduct, including arrests that did not result in convictions;
Handling protected information and misuse of information technology; and
Psychological conditions, which by themselves are rarely disqualifying but are often misunderstood.

Continuous Vetting and Reporting Obligations

Under the government’s Trusted Workforce 2.0 reforms, periodic reinvestigations are being replaced by continuous vetting—ongoing, automated checks of criminal, financial, and other records. A new arrest, a significant debt, or unreported foreign travel can now trigger a review at any time, not just every five or ten years. At the same time, Security Executive Agent Directive 3 (SEAD 3) requires clearance holders to self-report certain foreign contacts, foreign travel, arrests, financial problems, and other events.

Failing to report can create a more serious problem than the underlying event. If you are unsure whether something must be reported, or how to report it, speak with counsel first.

Clearances, Employment, and Reprisal

A clearance action often threatens a client’s job as well. Because the Supreme Court held in Department of the Navy v. Egan that the merits of clearance determinations are generally not reviewable by the Merit Systems Protection Board, an employment action that follows a clearance decision requires a coordinated strategy. See our Federal Employment Law page.

Federal law and Presidential Policy Directive 19 prohibit taking clearance actions in reprisal for protected whistleblowing. If you believe your clearance was targeted because you reported wrongdoing, see our page on Whistleblower Representation.

Facility Clearances and Industry

We also advise companies seeking to obtain or maintain facility security clearances under the National Industrial Security Program Operating Manual (NISPOM), now codified at 32 C.F.R. Part 117, and assist contractors in helping their employees through the clearance application and adjudication process. For more information, see DCSA’s National Industrial Security Program resources.

Member

Security Clearance Lawyers Association

Additional Resources

If you are facing a clearance issue—or want to address a potential concern before it becomes one—contact Compass Rose Legal Group.

This information is general in nature and is not legal advice. Procedures and deadlines vary by agency and by the individual’s employment status.