Security clearances, how to get them what you can do with them is an ever-changing topic. And the last couple of years have brought quite a few changes, especially since the machinery moved from the Office of Personnel Management to the Defense Department. Here was an update: two attorneys from the federal employee-focused law firm Kalijarvi, Chuzi, Newman & Fitch, Managing Partner, Elaine Fitch and partner Mary Kuntz, spoke with Federal Drive with Tom Temin .
Tom Temin: Alright, let’s begin with what you think is the most significant change in the security clearance process and how that’s manifested in the experience of people trying to get it.
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Mary Kuntz: The most significant change is, of course, when the National Background Investigations Bureau, which was created in 2016, was then moved back over to the Department of Defense and subsumed within the newly created organization, the Defense Counterintelligence and Security Agency (DCSA). We’ll talk about this a little bit more, but we have Trusted Workforce 2.0, we have the notion of reciprocity, we have continuous evaluation, all of this is wrapped up within DCSAs new processes. And the goal, of course, is to have one process for everybody. And, you know, that would be fantastic. Because at this point, some people have greater due process than others do, depending on what type of position they hold. And it’s not a fair process all the way around. And, again, we’ll talk more about reciprocity in just a moment.
Tom Temin: But Mary, also, is it fair to say that even within, say, the intelligence community, there’s variation among the components there, let alone across the whole government, from DoD to the civilian agencies?
Elaine Fitch: Well, there’s definitely variation because the agencies get to make their own choices. But what we have seen over the last decade really is an attempt to sort of bring these processes in line, we’ve got standard adjudicative guidelines, we’ve got standardizing processes, the Office of the Director of National Intelligence, which is in charge of security clearances, the security executive agent has worked to standardize one thing after another. And that’s connected to the whole impetus for Trusted Workforce, 2.0 and reciprocity. You can’t accept clearances from another agency unless you can trust that they’re following standard procedures and investigations.
Tom Temin: Well, how close are we to reciprocity, because that’s been kind of a golden dream forever. It’s almost like FedRAMP for clouds, and that took 10, 12 years.
Mary Kuntz: You know that I think that is still an unanswerable question. The notion of reciprocity has been around since one of the executive orders issued in 1995. And here we are in 2022. We continue to get guidances and issuances from the government that says yes, reciprocity, yes, you must do this. Unfortunately, there are a number of exceptions to reciprocity. So it can’t be an out of scope examination, meaning more than seven years old, it has to be at the same level of clearance, the agency has to have the same requirements. For instance, some agencies require a polygraph and others don’t, it can’t be a temporary clearance. There are various ways that the agencies find to get around reciprocity, and there’s no mechanism at this point for enforcing it. So even if you move to a new federal agency and same level of clearance, you’re in scope, nothing’s any different, they should accept it, they can decide that they’re going to start over again, and there’s really nothing you get to do about it.
Tom Temin: That means then there are a lot of process, statutory, regulatory, and you name it -cultural even- changes that have to be aligned before reciprocity can actually exist, which makes it sound almost impossible.
Elaine Fitch: Trust, right. It’s what Mary just said, each agency has to trust that the otheragency is going to do a good job in making a clearance determination.
Tom Temin: And by the way, you mentioned polygraph, what’s the latest in polygraph or lie detector testing requirements? Does that still considered something reliable?
Mary Kuntz: Oh, yes, very much. So it’s not the polygraph test itself. It is the admissions that are obtained during the polygraph examination. And those are golden to the federal government. People get nervous when they’re sitting down for a polygraph, and you know, yes, there can be physical reactions, but really, it’s when you get nervous and frightened and you start spilling your guts about your past history and everything you did when you were five years old.
Tom Temin: Yes, I did steal that Corvette and drive it around the block and stash my pot in it or something like that.
Elaine Fitch: That’s exactly right.
Tom Temin: We’re speaking with Elaine Fitch and Mary Kuntz, they’re partners at the law firm Kalijarvi, Chuzi, Newman & Fitch. And what is going on with continuous vetting? This is said to be in place and that most of the people with clearance are under continuous vetting. Have all of the privacy stipulations and so forth, been solved with that? So that third party data sources, people’s financial activities and so on, can be monitored legally and morally I guess, to maintain that security clearance?
Elaine Fitch: Well, there’s sort of two sides to the continuous vetting. One is enrolling people. We know DoD enrolled all of its military and civilian that was completed last year. They’re busy enrolling contractor employees right now, we don’t know what the other agencies are doing. We know there’s a goal, we know that, ostensibly, they’re getting people enrolled. But we aren’t getting notice about that in quite the same way. But at least at DoD, we know that there’s a population civilian and military. So that’s half of it. The other half is what databases are they searching. And right now, it’s a fairly limited number of databases that can be very effective. But it’s a limited number. It is FBI, its court databases, its information on arrest, on convictions, and so forth. They expect to expand this to foreign travel, presumably through the Department of State passport control, and they also expect to expand this to tax records, IRS, but also presumably state tax records. They haven’t done that yet. That’s just the place they’re going to next. And after that, they’re even talking about, but I think they haven’t, dealt with the privacy issues of social media. Using this to search social media. That one, I think, will be controversial. They’re not there yet.
Tom Temin: And with respect to say, the tax records, then, that would be how they could get at, say, some large financial transaction that someone made, say they paid sales tax on a boat, and out-of-band financial transactions for the person’s pay grade, for example. Isn’t that considered a at least a red flag for a possible security violation?
Elaine Fitch: It is, but a much more common one might be say, gambling debt, okay? Which you might claim on tax, and they’re very concerned about gambling winnings and gambling debt, and if that showed up. But they’re also simply concerned about, did you file your taxes? Have you paid your taxes? That alone is an important part of the vetting.
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Tom Temin: A little bit tighter thread? What about say, alimony? Or child support judgments that would be in court records that could indicate someone in financial trouble as a result? You hear that hypothetical, but you haven’t seen that yet?
Elaine Fitch: I haven’t seen alimony, though I’m assuming that those records are brought in presently, because the court records are being searched. What I’ve seen are, practically overnight, calls on people who got arrested in some bar fight or something. They get arrested, they get released, the next day they go home, they find that personnel security has already contacted them and asked them to come explain themselves. That sort of overnight vetting is very different than the periodic re-investigation that people have enjoyed in the past.
Tom Temin: So given the establishment of Workforce 2.0, the new continuous vetting, the new process that happens from the Defense Department now, a new agency instead of OPM, if you add it all up, what is the trend in the cases that you’re seeing brought to you where people feel wronged in the whole process?
Mary Kuntz: You don’t know that we’re seeing a trend in cases changing as a result of the continuous vetting. What we’re seeing, as Mary just described, is that things are happening faster. So, whereas people would come to us and say, Hey, do I really need to report this? I mean, my clearance isn’t up for reinvestigation for another three, four or five years, can I just sit on this? You should not sit on it. There’s guidance out there about what’s required in self reporting. DCSA even has a great new fact sheet on it. And people need to know that things are being caught in real time. And if they are proactive and head straight into their security officer and say, “Hey, this happened. I need to let you know”. If it’s a financial issue, here are the steps I’m taking to correct the situation. That is gonna play a huge, important role in being able to mitigate whatever is found through continuous vetting.
Tom Temin: And if someone is a knucklehead, and somehow gets into an altercation in a bar, and arrested, that’s not necessarily grounds for losing their clearance if they can explain it. “I didn’t say anything to anyone. I just threw a shot glass at some guy.”
Elaine Fitch: That may not explain it, but I think you’re right. There’s always a chance to explain yourself in the security clearance process and continuous vetting does not take that opportunity away. You’ve got all the same due process rights you ever had. What it does is just mean that you can’t save things for five years or more, until your periodic re-investigation, they’re gonna pick up on these things. If you get a DUI, they’re gonna know it, you might as well just go ahead and report it. They will pick it up in the next week.
Tom Temin: Anything else people need to know. I mean, would you say overall, that the changes, and you’ve outlined a bunch of them in the latest publication, are good for the government and good for the cleared people? Or how would you characterize all of this?
Elaine Fitch: I think that the trend towards trying to standardize the clearance process to make sure even this trend, we’re hoping we’re going to see come September, with military and civilian employees enjoying the same due process rights as contractors, and bringing those processes together. I think that is giving us greater fairness, and is allowing people to feel a little bit less like this is kind of random. And so I think that is resulting in, you know, some positive outcomes here.
Tom Temin: So if we ever get real full reciprocity, then it might feel like Nirvana.
Elaine Fitch: That’s going too far. But yes, we can hope.
Tom Temin: And Elaine, a final question. The pandemic has said to have produced psychological stress in large numbers of people. It has caused financial issues for a large number of people. Has that had any relationship to the clearance and maintenance process for clearance?
Mary Kuntz: It has, and actually, the government is being fairly generous in addressing these issues. It was the National Counterintelligence and Security Center director came out with a little tweet/memo, acknowledging that the pandemic is going to affect people financially, and that that should not result in the denial or revocation of a clearance under the right circumstances. So they’re still looking at the same mitigating conditions which are, are you self reporting? Are you taking proactive action to fix the problem? And is the problem pandemic-related? And if that’s the case, and if you can meet all those criteria, you should be okay.
Tom Temin: But still stay out of bar fights.
Mary Kuntz: Definitely stay out of bar fights. Psychological conditions as well, you know, you read any newspaper article on the stressors that have resulted, and many people are suffering, because of the pandemic. Many people are afraid to go to counseling, because of that fear of losing their clearance or not getting a clearance, but government is encouraging people to seek counseling if they need it. And if you’re seeking counseling for pandemic related stressors, that is not something you need to self-report. It’s considered sound judgment and is a strong mitigating factor.
Tom Temin: Mary Kuntz and Elaine Fitch are partners at the law firm Kalijarvi, Chuzi, Newman & Fitch.
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