Access Denied
The backlog of investigations for security clearances had been increasing steadily in past decades, as did work for lawyers helping corporations and individuals get them.
Then came Sept. 11, 2001.
Now, security clearance investigations are more stringent and more numerous, driven by demand from a ramped up defense industry and the new Department of Homeland Security. Backlogs have ballooned, and workers with the prized clearances are in short supply. But there is no shortage of work for their lawyers.
Congressional testimony indicates that from 2001 to 2003, security clearance requests increased from about 410,000 a year to more than 600,000.
Backlogs led to congressional hearings last year and a major overhaul last February. One reform was moving 1,850 security clearance investigators from the Defense Department’s Defense Security Service over to the Office of Personnel Management. At the time, OPM officials told Congress they hoped to cut the wait time, which had risen to 375 days, down to 60 to 90 days.
This time frame includes an adjudication process in which any denials go to administrative judges and sometimes to the Claims Appeals Board in the Defense Office of Hearings and Appeals.
The problems have brought an unhealthy aspect to competition in private industry. So called Beltway Bandit companies, which encircle Washington, D.C., and do a lot of work for the government, have been running drive time radio advertisements seeking workers who already have security clearances.
“The human resources people are beside themselves,” says Frederick F. Shaheen, a government contracts lawyer based in McLean, Va. “They get someone with a clearance in a job that’s critical to a contract they have, and then another company comes along offering another $15,000, and they’re gone.”
This marketplace volatility is good for individuals, he says, “but it hurts the high tech and aerospace industries, which is bad for the country.”
It also means a lot more work for lawyers, especially employment lawyers who handle security clearance problems and the handful of lawyers who specialize in national security law. Increasingly, government contracts lawyers are being called on to help corporate clients ensure that employees with clearances keep them when they come up for periodic review and that first timers clear the bar.
“I’ve seen things tighten up before,” says William S. Aramony, an Alexandria, Va., employment lawyer who has handled security clearance matters since the early 1980s. “It happened with the Navy after the John Walker spy case in the ’80s and with the CIA after the Alrdrich Ames case in the ’90s. But this is different. Everything’s tightened up. And it’s not likely to go back. In some ways, we’re approaching national security like the old Soviet Union, or the Israelis, and not to say that in a bad sense. It just reflects how society is changing.”
Investigators use a number of guidelines in background checks to build a person’s profile in two dimensions: trustworthiness and loyalty. They want to know about such things as drug and alcohol abuse, criminal convictions, mental health problems and debts. “The most common problem is debt,” says Aramony, who regularly handles cases for employees both inside and outside government with security clearance problems. “It goes to responsibility, which is part of trustworthiness.
Are you a risk because you are constantly in debt, or was it a one time thing because of a divorce or business problem?” The biggest change since 9 11, say several lawyers handling these matters, is concern about foreign born U.S. citizens with relatives in certain countries. One fear in these so called “foreign influence” cases is that those relatives could, for example, be kidnapped and used for threats to get classified information from the U.S. worker.
Terror Changes Everything
Until 9-11, says Washington, D.C., lawyer Elizabeth l. Newman, there were no major foreign influence cases. “Now, the number of foreign influence cases is huge,” says Newman, a former vice chair of the ABA Defense and National Security Committee and author of Security Clearance Law and Procedure (New York: Dewey Publications, 1998, with 2003 supplement).
Newman worries that greater emphasis on foreign influence issues may keep much needed workers from getting clearances they deserve. “I believe there’s a lot of potential for discrimination against people with foreign sounding names,” she says. “Security offices in companies would think, ‘Why even bother seeking a clearance?’ because the employee, even though an American citizen, has uncles and aunts in foreign countries.”
Another national security law expert, Sheldon I. Cohen of Arlington, Va., recently took the unusual step of taking a clearance case to federal court. He represented an Iranian born U.S. citizen who had been denied a security clearance to work as an electrical engineer. An administrative judge in the Defense Office of Hearings and Appeals ruled for the worker, but the agency’s appeal board reversed.
Courts have been reluctant to intrude on executive branch discretion in such matters. The Eastern District of Virginia had similar inclinations in Cohen’s case, ruling that it did not have subject matter jurisdiction. Nikpour v. Defense Office of Hearings and Appeals, No. 1:04CV439.
“I couldn’t see a better case or vehicle,” says Cohen, who chaired the ABA Committee on National Security Interests from 1990 to 1994 and wrote Security Clearances and The Protection of National Security Information, Law and Procedures, published by the Defense Personnel Security Research Center (2000).
Thomas M. Abbott, a Los Angeles based government contracts lawyer, says he has worked similar cases. Over a 20 year period, he handled about 50 security clearance matters–25 of them just in the past year.
A graduate of the U.S. Naval Academy who still holds a top secret clearance, Abbott says he sometimes tries to inject a bit of reality based humor into adjudication of these cases. Says Abbott: “I argue that it proves they are really Americans when they say, ‘Hey, I’m innocent ’til proven guilty, and I’m not in Iran anymore.’ I had one guy who had been divorced twice, and I said, ‘That proves he’s American.’ ”
