The security clearance process: how to help soldiers who lose their clearances

Scenario

Assume for a moment, that you are a military defense counsel. First Lieutenant (1LT) True Blue, an Arabic linguist with the 34th Military Intelligence Battalion, comes to you for legal advice because he is under investigation for allegations of downloading child porn6graphy and disclosing classified information. The U.S. Army Criminal Investigation Command (CID) thinks your client downloaded the pornography on his government computer, and that he also electronically mailed classified information to a non-authorized recipient on the same computer system. Your client proclaims his innocence on the pornography charge; he maintains that the government computer is a workstation shared by several individuals, any of whom could have downloaded the pornography. As for the sending of classified information to an unauthorized user, 1LT Blue admits this mistake but claims that it was a one-time transgression resulting from simple negligence. You also learn that he gave a statement to CID consistent with this version.

At the end of the counseling, you tell your client to remain silent, and then you call CID to inform the investigating agent that you now represent 1LT Blue. (2) After several months, the government decided not to pursue criminal charges. The command, upon consultation with its trial counsel, did not think the case should go to court because there was not enough evidence. (3) Although the child pornography was found on his personal account, the government was unable to show that 1LT Blue was the person who downloaded the files. The isolated nature of the classified breach resulted only in a verbal reprimand from 1LT Blue's battalion commander. Your client is very happy; it is yet another defense victory.

Receiving an "Intent to Revoke Security Clearance" Letter

About a month later, there is a knock on your office door. It is 1LT Blue, and he looks very upset. He is holding a letter entitled, "Intent to Revoke Security Clearance." The letter is from the U.S. Army Central Personnel Security Clearance Facility (CCF); it states that the CCF has made a preliminary decision to revoke 1LT Blue's security clearance.

You realize that the letter your client now holds is a result of the criminal investigation. During this investigation, the CID found "credible information" (4) to believe that 1LT Blue possessed illegal child pornography and compromised classified information, in violation of the Uniform Code of Military Justice (UCMJ). (5) This information, in the form of a CID report, was then forwarded to 1LT Blue's command. (6) The command, in turn, forwarded a Department of Army Form 5248-R, "Report of Unfavorable Information for Security Determination," to the Commander of the CCF. (7) Based on that report, the CCF reviewed 1LT Blue's security suitability. Pending the CCF's decision whether to revoke a soldier's clearance, the soldier's command or the CCF will normally suspend the soldier's access to classified information. (8)

1LT Blue's situation is serious. If he loses his clearance, he will be referred to the Department of Army's Suitability Evaluation Board (DASEB). The DASEB will "decide what unfavorable information, if any, will be made a part of the recipient's official personnel files." (9) If the unfavorable information is placed in 1LT Blue's official military personnel file (OMPF), (10) it will hinder promotion, assignment, and schooling opportunities, and could even trigger an elimination board. (11)

The "Intent to Revoke" Process

The "intent to revoke security clearance" letter from CCF contains a statement of reasons (SOR). (12) The SOR outlines the security concerns and the adverse information pertaining to the soldier; in 1LT Blue's case, the concerns stem from security violations and sexual behavior that is criminal in nature.

The "intent to revoke" letter sets forth two procedural paths for 1LT Blue: (1) forfeit his opportunity to contest the security clearance revocation; or (2) elect to submit a statement and materials for consideration in the final adjudication. (13) A client should always elect to submit a statement and materials for consideration in the CCF's final adjudication. First Lieutenant Blue has ten calendar days to inform the CCF of his intent to submit a statement and materials for consideration. He then has sixty calendar days from the date he received the "intent to revoke" letter to respond. (14)

This timeline will give the client time to exercise two critical rights outlined in the letter: (1) his right to request a copy of the investigative file; and (2) his right to seek legal advice from a judge advocate. To understand the factual background of the case, the client or his attorney should immediately request a copy of the file from the CCF. A preprinted form requesting this information from the CCF should be attached to the letter. (15) The file will give the factual basis for the proposed revocation and allow the attorney and client to address each allegation with particularity. Armed with the facts, a judge advocate (16) can, in turn, hone the client's submission and thereby give him the greatest possible benefit of counsel. (17)