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Security Clearances And Criminal Charges

The impact of criminal charges, even if they are ultimately determined to be unfounded, can have long-reaching consequences. For those with government jobs that necessitate federal security clearances, from the moment charges are filed, those clearances are in jeopardy.

There are three levels of security clearance: Confidential, Secret, and Top Secret. Federal government agencies grant their employees and contractors various clearances depending on the responsibilities that their jobs entail. Before being granted a security clearance, an individual applying for a job within the federal government will be reviewed by the agency using 13 criteria to determine whether she is an acceptable security risk:
  • Allegiance to the United States
  • Foreign Influence
  • Foreign Preference
  • Sexual Behavior
  • Personal Conduct
  • Financial Considerations
  • Alcohol Consumption
  • Drug Involvement and Substance Misuse
  • Psychological Conditions
  • Criminal Conduct
  • Handling Protected Information
  • Outside Activities
  • Use of Information Technology

The same criteria are used when someone is reevaluated for a security clearance. This happens every five years for a confidential clearance, every 10 years for a secret clearance, and every five years for a top secret clearance, unless something like a criminal charge triggers a review. The reviews are supposed to be holistic, taking into account “all available, reliable information about the person, past and present, favorable and unfavorable.” This includes considering the nature, extent, and seriousness of any questionable conduct, the surrounding circumstances, the motivation for the conduct, the likelihood of recurrence, and any rehabilitation or behavioral changes since the incident. Additionally, the agency making the determination should consider whether the individual voluntarily reported the alleged misconduct, and was truthful and complete in responding to questions.

The guidelines on “criminal conduct” describe the concerns raised by criminal charges, conditions that could be disqualifying, and conditions that may mitigate the offense. They note that criminal activity, “by its very nature… calls into question a person’s ability or willingness to comply with laws, rules, and regulations.” Criminal charges, therefore, “create doubt about a person's judgment, reliability, and trustworthiness.” Patterns of minor offenses could be disqualifying, even though the individual offenses themselves are not of great concern.
Most importantly, dismissal of the criminal case will not guarantee that that person can keep their security clearance. Although agencies are directed to consider whether the charges were favorably resolved, they are also instructed to make their own determination on whether the crime was committed, regardless of the outcome of the criminal case. Evidence of criminal conduct, irrespective of any formal charges or convictions, could be disqualifying.
Finally, the guidelines outline mitigating factors that the agency should take into account when determining whether to revoke or suspend someone’s security clearance due to criminal charges. These include whether(1) a long time has passed since the criminal behavior occurred, (2) the individual was coerced into the crime and that coercive influence is no longer in the individual’s life, (3) there was no reliable evidence to support that the individual committed the offense, and (4) there is evidence of successful rehabilitation.

Disclaimer: The information in this blog is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this blog should be construed as legal advice from The Eichner Law Firm or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this blog should act or refrain from acting on the basis of any information included in, or accessible through, this blog without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.