By: Anthony Kuhn, Esq.
I hear far too often as a security clearance attorney, “I didn’t know I should hire an attorney” or “my security officer told me I could handle this myself.” In nearly every security clearance case and at every stage in the adjudication process, your chances of success will increase with assistance from an experienced security clearance attorney.
Will my employer or the agency wonder why I hired an attorney?
It is possible that somebody who doesn’t understand the complexity of applying for and maintaining a security clearance might wonder why you hired an attorney. That said, anybody with a decent understanding of the process will not only understand; they will consider the choice to hire a security clearance attorney to be a mature and responsible action.
How can a security clearance attorney help?
In general, an attorney is trained to read and write in a more analytical manner and has a great deal of experience interpreting the questions on the different security clearance application forms. An attorney is also trained in persuasive writing and can present the facts in the light most favorable to you. Most people want to be honest and tend to present the facts in a very objective, often harmful manner. You would benefit from persuasively presenting the facts.
There is a significant difference between, “I was arrested for a DWI and blew a 1.5” and “I was arrested for driving while intoxicated. I immediately sought an evaluation and counseling. I self-reported to my security officer. I have no alcohol use disorder. My doctor’s evaluation indicates that it was an isolated incident and that my alcohol consumption meets the standard for a responsible pattern of conduct (See attached evaluation, proof of alcohol awareness training certificate, and ALCOHOL TEST). I have no other arrests.”
The first response leads the investigator to believe that you might have a problem and that there might be concerns regarding alcohol and criminal behavior. You would likely receive a Statement of Reasons, which would cost you time and money. The second response answers those questions and mitigates the concerns before anything is ever alleged.
During the application phase of the adjudication process, you will answer hundreds of questions and might need to disclose prior drug and alcohol use, arrests, employment actions, prior addresses, certain medical treatment, military service, tax filings, consumer debt and much more. Instead of just objectively stating that you were arrested for a DWI and providing a date, for example, an experienced security clearance attorney can assist you with compiling additional information and building in mitigation in the additional comments section below the question.
Also, a security clearance attorney can review your SF-86 for you and flag for preparation any issues that you might not have considered to be a significant issue, such as filing taxes late or revolving debt (regardless of missed payments).
Finally, a security clearance attorney can help to ensure you fully understand the questions that are being asked. A good example is the foreign contact questions. Many fail to realize that it is a two-part question asking (1) if you have had close or continuing contact with a person (2) with whom you have a bond of affection, common interest, or otherwise. If there is no bond, then you might not have to list the foreign contact.
The next step might be responding to a Statement of Reasons. It is extremely important, regardless of what you have heard, to have assistance when drafting your response to a Statement of Reasons. Do not just mark “I admit” or “I deny” on the Statement of Reasons. If you drafted and submitted your application without assistance, your new attorney might have to put in some extra work fixing whatever damage might have been caused in the application phase.
A security clearance attorney will assist you by providing a long list of mitigation that can be included along with the legal brief they are drafting. A good response is necessary if you hope to mitigate the Government’s concerns without the need for a hearing. Every allegation must be mitigated in writing and should have documentation attached supporting any response or assertions that were made. The adjudicator will never just take your word for it. An attorney can also research and include case law to help bolster your case and motivate the Judge to find in your favor to ensure that their decision is consistent with prior outcomes.
In addition to addressing and mitigating each specific allegation, your attorney will assist you in developing the “whole-person” arguments that must be included in your response. The adjudicator will have to determine (1) whether you have mitigated the specific concerns, and (2) whether it is clearly consistent with national interests to grant or continue your access to classified information. Step two of this test is a whole-person analysis to determine whether you are trustworthy and reliable. An attorney can assist in building out this portion of your response.
Hopefully a hearing is not necessary, but if you find yourself in this situation your attorney will prepare your pre-hearing submissions and assist you in lining up and preparing your witnesses. Your attorney can assist with your opening and closing statement and will question your witnesses and any Government witnesses. An experienced attorney will make you more comfortable and will have a good working relationship with the Judge and Opposing Counsel. Occasionally, it becomes necessary to object to a rules violation or to argue a Motion during the hearing. Your attorney will ensure the hearing remains fair and will step in whenever there is a reason to.
Lastly, you might have an opportunity to appeal a final denial if the hearing doesn’t go well. Just as you should have done with your earlier written response, you should have an experienced attorney, familiar with your case and with a good knowledge of the adjudicative guidelines and related case law, draft your appeal.
Do I really need to hire an attorney?
Nobody ever needs to hire an attorney. You are free to represent yourself. A defendant in criminal court is not required to hire an attorney, but the chances of an acquittal are much greater with an experienced criminal defense attorney. A security clearance adjudication is no different. Just as you wouldn’t hire a tax attorney to represent you in a criminal court, you should be careful not to hire an inexperienced attorney for your security clearance adjudication. You should be looking for an established security clearance attorney who is familiar with the adjudicative guidelines and the process and who can advocate effectively on your behalf at every step of the process. Generally, the earlier you get an attorney involved, the cheaper and easier the process is, and you increase your chances of success at every stage thereafter.
As a Managing Partner at Tully Rinckey PLLC, Anthony Kuhn focuses much of his time on the representation of military personnel and members of the intelligence community. He has extensive experience assisting clients in navigating matters involving security clearance suspensions and revocations, appeals to the Discharge Review Boards and Boards for Correction of Military Records, UCMJ violations and non-judicial punishment. He can be reached at email@example.com or at (716) 439-4700.
*The views and opinions expressed in this article are those of the authors and do not necessarily reflect the views, policy or position of this publication.
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