9 March 2019
Imagine that you are on trial. After it is over, you are found not guilty. However, that verdict is only a recommendation and the final decision is made by the prosecution, who are so convinced of your guilt that they overturn the verdict and you are declared guilty. Sounds too Kafkaesque for real life? There is an actual situation where that scenario is not only possible, but does happen: A Federal employee, civilian or military, has his or her clearance suspended. The employee gets a day in court before a judge to argue why the clearance should be restored. The final decision is made by a security appeals board within the security office. Even if the judge recommends clearance restoration, this board can ignore that decision. Recent events have shown that unsuitable individuals can obtain the highest clearances as long as they are related to power. Yet those who have had their day in court and been determined to be suitable are at the mercy of a faceless board that has the authority to overrule the judge. This highlights a fundamental unfairness in the system that needs to be called out.
I am very familiar with this situation because it happened to me. In December 2014, I was with the Intelligence Community, or IC, and I had to re-take a polygraph, mistakenly referred to as a lie detector. Most experts have long concluded that the polygraph is not reliable, but the IC still swears by it. During my session, a question triggered a childhood memory and I started to get nervous. The polygrapher instantly decided that I was using countermeasures and instead of stopping to ask if there was anything about this question, forced me to admit that I was using countermeasures. She really got mad when I stated on paper that I was not using countermeasures and demanded I change my answer, which I did. Looking back, I should have stood my ground, or at least requested a lawyer be present.
By July 2016, now with a Defense agency that did not require a polygraph, I learned that my clearance was suspended and that I was on administrative leave until this was resolved. After submitting an initial written response that was rejected, I got my day in court in May 2017 and went before an administrative judge with the Defense Office of Hearings and Appeals, a Defense Department body that handles hearings and appeals. A Government attorney is present, as is mine. Both sides make their arguments for their respective cases. I even take the stand to make my case. Once it is finished, the administrative judge states that he will issue a recommendation within sixty days.
I learned of my fate in September 2017. In a Defense Department security office, I received a sealed manila envelope and a letter from the Defense Clearance Appeal Board, stating that they agreed with the administrative judge and my clearance is revoked. The final reason is that I denied using countermeasures, then I admitted using them, and that raised questions of untrustworthiness. It is not until after I left the security office that I opened the envelope. Inside was a transcript of the hearing and a copy of the administrative judge’s recommendation.
The administrative judge recommended that my clearance be restored! It would not be until March 2018, after I was officially removed from the Defense Department, that an official explanation was given: The Board made a typographical error. Given this discrepancy and the reason for it, the Board’s reason for revoking my clearance seems disingenuous at best.
Defense security personnel take their job seriously. Sometimes, security personnel can take their job too seriously and prefer to err on the side of caution when security issues arise, regardless of the situation or mitigating circumstances. While there are many cases where security clearances were rightly revoked, there are also cases where a situation is made more serious than it really is. This becomes ever more serious when you realize that people’s careers are destroyed because an overzealous security official did not like the judge’s recommendation. This highlights the need for an independent body to review the situation, take everything into consideration, and make a ruling. While the Clearance Appeals Board can ignore favorable recommendations on Federal employees, the judge’s decision is final when it comes to contractors. Perhaps the judge’s decision should be made final for Federal employees as well.
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