Access to classified information is a condition for holding or keeping many federal jobs. However, unlike many other federal personnel actions, there are only limited rights to appeal security clearance decisions and the personnel actions that might go with having a clearance denied or revoked. The Merit Systems Protection Board has jurisdiction to review only whether proper procedures were followed and cannot examine the reasons for a security clearance decision.
Government vetting processes generally involve two distinct activities: investigation activities which include application and information collection; and adjudication activities which include information assessment and decision making. There are different levels of investigation depending on the level of risk, position sensitivity, or access requirements.
Security Clearance Background Checks
Investigations to support a Secret level security clearance include automated and manual checks of criminal history, terrorist activities, credit, and foreign activities and influence. When the checks identify issues of concern, additional checks, including interviews and other more manual efforts, are conducted as needed. TS/SCI investigations add non-automated checks, including interviews of the subject, employers, and social references, and collect information related to foreign influence and foreign preference.
Adjudication decisions are made by federal employees in the agency where the individual will be assigned. The agency adjudicator assigned to an investigation reviews it using applicable guidelines relative to hiring, credentialing, and/or security clearance determinations.
Clearance determinations remain valid for a specified number of years after the completion of the investigation. Periodic reinvestigation cycles are: every five years for a Top Secret clearance or access to sensitive compartmented information; every 10 years for a Secret clearance; and every 15 years for a Confidential clearance. Note: Under a policy announced in 2016 and being phased in, reinvestigations are to be performed every five years for all clearance levels.
There are several major executive orders governing security access for federal employees. Executive Order 12958 of April 17, 1995, stated that employees are “subject to appropriate sanctions if they knowingly, willfully, or negligently” disclose to unauthorized persons information properly classified. Sanctions may include reprimand, suspension without pay, removal, termination of classification authority, loss or denial of access to classified information, or other sanctions in accordance with applicable law and agency regulation.
It further says that an agency “shall, at a minimum, promptly remove the classification authority of any individual who demonstrates reckless disregard or a pattern of error” in applying classification standards.
Executive Order 12968 of August 2, 1995, expanded on that order by establishing a uniform federal personnel security program for employees who will be considered for initial or continued access to classified information. The order stresses that access to classified information is a privilege, not a right.
Executive Order 13467 of June 30, 2008 addressed the lack of common standards and reciprocity among agencies regarding who is eligible to have access to certain classified information or physical locations. The order said background investigations and clearance adjudications should use consistent standards to “the extent possible” and that each successively higher level should build on, but not duplicate, the ones below it. Investigations and adjudications further “shall be mutually and reciprocally accepted by all agencies” and an agency generally may not establish additional requirements. The exceptions would be when stricter requirements are mandated by law or when they are necessary to address significant needs unique to the agency involved or to protect national security. Implementing rules are at 5 CFR 731.
The White House in 2014 ordered a series of changes to: reduce the number of federal and contractor employees who have clearances by reexamining whether access to classified information is really needed for a job; ensure that investigators can access state and local criminal records as part of background investigations; begin continuous evaluation using real-time information from sources such as credit checks and personnel records, starting with the most sensitive levels; tighten the oversight of contractor investigators and federal employee adjudicators and set new standards for measuring the quality of their work; and prioritize cases to move through the backlog based on the sensitivity of the position. Most of these were long-term initiatives.
Note: An October 25, 2014 memo from the Director of National Intelligence stressed that federal law prevails over any state law allowing possession and use of certain drugs, such as marijuana, that are considered controlled substances for federal law purposes. This includes the potential for denying a security clearance to a prospective employee or revoking one from a current employee. Also, a May 26, 2015 memo from the Office of Personnel Management at www.chcoc.gov/transmittals, which includes the DNI memo, states that similar considerations apply to suitability decisions under law, rules and executive order.
Security Executive Agent Directive 5 of 2016 made checking of publicly available postings on social media a standard part of background checks for new or renewed security clearances. The policy means that clearance applicants or holders will have to consent to searching of information that has been broadcast or published for public consumption; is available to the public on request; is accessible online to the public; is available to the public by subscription or purchase; or is otherwise lawfully accessible to the public. The government will not request or require individuals to provide passwords or log into private accounts, turn over private emails, or otherwise disclose social media information not publicly available.
Information turned up in those searches falls under the same procedures for investors to follow up—or not—used for information turned up in other ways, such as document searches or interviews with the employee or other persons about the employee. Also, the same rules apply regarding how the information gathered is used and shared inside the government.
In most situations, employees subject to “adverse action” such as removal are entitled to protections including written notice of the specific reasons for the proposed action, an opportunity to respond to the charges, the requirement that the agency’s action is taken to promote the efficiency of the service, and the right to review of the action by the Merit Systems Protection Board. However, these rights do not apply in agency actions based on security clearance determinations, on grounds that those decisions are a matter of national security which is in the executive branch’s control and not subject to review by the courts.
In Department of the Navy v. Egan, 484 U.S. 518, 531 (1988), the U.S. Supreme Court ruled that MSPB may not review the substance of the revocation decision but only may review whether an agency complied with certain procedures. Such a review only addresses whether an employee received sufficient notice of the charges against him or her, had an adequate opportunity to respond, was entitled to be represented by counsel, and received, in writing, the agency’s specific reasons for a decision.
Security Clearance and Whistleblower Protections
A Presidential directive of October 10, 2012 adding whistleblower protections for employees in the intelligence community included the right to challenge a decision affecting access to classified information that an employee considers to be retaliatory.
In 2013, the U.S. Court of Appeals for the Federal Circuit held in OPM v. Conyers, No. 2011-3207, that those restrictions on appeal rights also apply to federal employees holding “non-critical sensitive” positions—even if they do not involve access to classified information—when they are subject to adverse actions based upon a determination that they are not eligible to occupy such a position. The U.S. Supreme Court later allowed that decision to stand by refusing to hear an appeal.
Under a Presidential memo of January 31, 2014, agencies may not make an unfavorable determination with respect to the suitability, fitness, or qualifications of an applicant for federal employment because that applicant has experienced or is experiencing financial difficulty through no fault of the applicant (such as due to an extended period of unemployment), if the applicant has made a good-faith effort to meet his or her financial obligations. That policy does not affect the authority of an agency to determine eligibility for access to classified information or to occupy a sensitive position.
Public Law 113-126, the fiscal 2014 Intelligence Authorization Act, requires continuous monitoring of employee backgrounds to determine eligibility for access to classified information, and orders procedures to be developed to share potentially derogatory security information among stakeholders. It also expanded some whistleblower protections for intelligence community employees, in part by putting into law certain procedures created by the 2012 directive.