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Overview: Industrial Security Clearance Program
Administrative due process hearings and appeals of security clearance cases for private sector employees constitute DOHA's oldest mission. This mission is part of what is now called the Industrial Security Program and was created as a direct result of the U.S. Supreme Court's decision in
Greene v. McElroy
, 360 US 474, 79 S.Ct.1400, 3 L. Ed.2d 1377 (1959). The Supreme Court held that the then-existing security clearance process, which provided no opportunity for the cross-examination of witnesses was unacceptable because neither a Congressional statute nor an Executive Order from the President had authorized the program, nor were there discernable standards for denials or revocations.
In response to
, President Eisenhower signed Executive Order 10865 on February 20, 1960. Executive Order 10865 specifically addressed the procedural protections for individuals that the Supreme Court had found lacking in "a hearing which failed to comport with our traditional ideas of fair procedure." Executive Order 10865 requires a hearing in which contractor employees are given the opportunity to appear before the decision-maker to confront and cross-examine witnesses and attempt to rebut the Government's case. Not all cases go to a full hearing because, while both parties have the opportunity to have a hearing, if neither party wishes a hearing then a determination will be made on an administrative record composed of only documentary evidence.
DOHA provides the established administrative denial and revocation process when the Department has reached the preliminary decision that it is not clearly consistent with the national interest to grant or continue an applicant's eligibility for access to classified information. Applicants are private sector employees who hold or require a security clearance in connection with their employment. This includes employees of private companies working with classified information for DoD and for most other federal departments and agencies and any U.S. citizen who holds or requires access to classified information through either the North Atlantic Treaty Organization, Red Cross, or United Service Organization assignment with the Military Services overseas. At present, DOHA is providing its services by agreement with over two dozen other federal departments and agencies.
Contractor employees applying for, or seeking to retain, security clearances have received the procedural protections provided by Executive Order 10865 since 1960. DoD Directive 5220.6 implements Executive Order 10865. This process is discussed below.
When the Department of Defense Consolidated Adjudications Facility (DoD CAF) or other department or agency covered by DoD Directive 5220.6 cannot affirmatively find that it is clearly consistent with the national interest to grant or continue a security clearance to an applicant, or otherwise perform sensitive duties in a national security position, a Statement of Reasons (SOR) is issued to the individual and that SOR, along with the applicant's response, will be forwarded along with the case file to DOHA.
If either party (Applicant or the Government) has requested a hearing, it will be held in the United States before a DOHA Administrative Judge. The parties generally receive written notification of the time and location of the hearing. The hearing will be held either by video-teleconference at locations convenient to the participants, or in person in a metropolitan area near where Applicant lives or works.
Applicants may represent themselves or choose to be represented by an attorney at their expense or to have a Personal Representative such as a friend, family member, or union representative. Department Counsel, an attorney, represents the Government and will present evidence and argument supporting the SOR allegations made against the Applicant. Before the hearing the Department Counsel will send the Applicant a copy of the documents that will be presented to the Administrative Judge to support the SOR allegations ns. The Applicant is responsible for bringing to the hearing any witnesses or written evidence which explains, rebuts, mitigates or extenuates the evidence against the Applicant. Normally, the Applicant will not have another opportunity to present evidence.
If neither party requests a hearing, the case will be decided by an Administrative Judge on the basis of the written materials presented by the parties. Department Counsel will prepare a File of Relevant Material (FORM) that consists of documents that support the allegations contained in the Statement of Reasons and Department Counsel's arguments or comments based on those documents. Department Counsel will send a copy of the FORM to the Applicant with a notice that the clearance Applicant will have 30 days in which to submit a written response if the Applicant chooses to do so. That written response is the Applicant's last opportunity in this non-hearing version of the administrative process to introduce evidence which explains, rebuts, extenuates or mitigates the evidence against Applicant. If, after the 30 days have elapsed, and no response from the Applicant has been received, the Administrative Judge will make a decision based solely upon the written materials contained in the FORM.
At the DOHA hearing, an Administrative allows both the Government and the Applicant to put on their respective cases. DOHA Department Counsel represents the Government. The records collected by the Government are usually the Department Counsel's main evidence. Either party may have witnesses testify. Once the hearing is complete, the Administrative Judge issues a written decision.
The written decision by the Administrative Judge, whether following a hearing or the written FORM process, includes findings of fact and conclusions of law and is based upon the record evidence, the current national Adjudicative Guidelines, and case law. In all decisions, DOHA applies the "clearly consistent with the interests of national security" standard. The U.S. Supreme Court has held that the "clearly consistent with the interests of national security" test indicates that "security-clearance determinations should err, if they must, on the side of denials."
Dept. of Navy v. Egan
, 484 U.S. 518, 531 (1988).
The Administrative Judge's decision may be appealed by the losing party to the DOHA Appeal Board. Notices of Appeal must be received by the Board within 15 days of the date that appears on the Judge's decision. The Board will notify the appealing party when its appeal brief is due. The appeal brief should explain what the Judge did wrong and why the Judge's error changed the outcome of the case. The Appeal Board's authority is to review the Judge's decision for error. As a result the Appeal Board is not permitted to receive or consider new evidence (evidence that was not before the Judge). The winning party is permitted to respond to the appeal brief with a reply brief. After each party has submitted its brief the case is presented to a panel of three Appeal Board Judges. The Judges review the file that was before the Hearing Office Judge and the appeal and reply briefs and issue a written decision.
The Appeal Board gives deference to the Judge's credibility determinations in deciding whether the Administrative Judge's findings of fact are supported by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the record. The Appeal Board determines whether the Administrative Judge adhered to the procedures required by Executive Order 10865 and DoD Directive 5220.6. The Appeal Board can remand or reverse for errors of law or fact or where the Administrative Judge's rulings or conclusions are arbitrary, capricious, or contrary to law. Department Counsel represents the interests of the Government on appeal.
The text of Executive Order 10865, as amended, is Enclosure 1 to DoD Directive 5220.6. The answers to most questions about the substantive standards used to adjudicate security clearances are found in the current national Adjudicative Guidelines Enclosure 2 to the Directive. The answers to most questions about procedure are in the Additional Procedural Guidance (Enclosure 3) to the Directive. Reading DoD Directive 5220.6 in advance is a very important part of preparing for an industrial security clearance hearing.
Executive Order 12829, January 6, 1993, established DoD as the executive agent for the entire federal government's implementation of the new National Industrial Security Program (NISP) along with continuing responsibility for implementation of the procedural requirements of Executive Order 10865. Section 203 of Executive Order 12829 continues the process mandated by Executive Order 10865. Executive Order 12968, signed August 2, 1995 by President Clinton, did not affect the program and was specifically designed not to change the established administrative procedural protections given to contractors. Finally, Executive Order 13467 – which reformed and aligned the security clearance process – did not diminish or otherwise affect the denial and revocation procedures provided to individuals covered by Executive Order 10865 and only amends other parts of Executive Order 12968 to support clearance reform by authorizing automated adjudication where appropriate and authorizing continuous evaluation.