Just because you apply doesn’t guarantee you’ll get federal security clearance. Lots of people make basic errors in their clearance and suitability forms and that can make things take longer than they should or maybe deny altogether. Here with some tried and true advice on the mistakes to avoid, Shaw Bransford & Roth attorney James Heelan spoke to the Federal Drive with Tom Temin.
Tom Temin: Mr. Heelan, good to have you on.
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James Heelan: Hi, morning Tom, thanks for having me.
Tom Temin: Let’s begin with the process itself. This is that one where I think I read that form once, it’s something like 52 pages, or is it Form 52? Or tell us about some of the details.
James Heelan: I think you’re talking about the SF 86. It’s the standard application that all civilians and military personnel, contractors fill out, anyone who wants to get access to classified information. They fill out the SF 86. It’s about 125-some pages, and it is a thorough examination of a person’s life, history, really their whole adult experience. And it asks all sorts of questions that the government thinks are relevant to whether that person is trustworthy. To protect national secrets.
Tom Temin: How long does it typically take someone, say the first time around, to get through all of this form filling?
James Heelan: I have to give you that standard lawyer answer: It depends. If I’m a 22-year-old intern, and I’m on a congressional committee, and I’m applying for my first clearance, I don’t have a whole lot of life experience to report. Maybe I have some juvenile arrests that I would be compelled to disclose on the SF 86. Potentially, I’ve moved around a bit. But it’s a pretty simple application if you’re a young person applying for the first time, and you might go through the investigation within six to eight months, or could be even quicker. But let’s say you’re a full grown adult, and it’s your first time filling out that Sf 86. You have a lot of things to report. You may have many foreign contacts, perhaps you’ve lived abroad, perhaps you’ve been married before, and the government may be interested to understand the circumstances of the divorce and separation. So it all depends on how much life experience you have behind you, and how much the government has to examine.
Tom Temin: Well, at 125 pages, I guess it’s easy to have typos and so forth, of things you left out. So what mistakes do people make, do you find, that they should avoid and kind of have top of mind before they start?
James Heelan: At our firm we see five top mistakes, things that come across our desks most often. Most often we see people miss reporting or failing to report drug use and involvement. The SF 86 asks about seven years of drug use and involvement. Nowadays, involvement is so broad to mean things including investment in marijuana activities. So several years ago, when pot stocks hit the market, I got several calls from potential new clients asking me about their investments, whether they had to divest before filling out the SF 86. And the answer is that they do, they should be aware of their investments and divest of them before they try to obtain a national security clearance.
Tom Temin: And that even includes, say mutual funds or managed funds where there could be scores, dozens, hundreds of individual stocks within that fund.
James Heelan: Actually, it doesn’t. That’s a really excellent point. The Office of the Director of National Intelligence recently, a couple years ago, released a memorandum specifically on marijuana. And it specifically addressed investments and said that indirect investments where a person isn’t reasonably expected to know every single stock that their money is invested in are acceptable. But you can’t just go out and invest in a pot stock directly out in the marketplace.
Tom Temin: And by the way, just as an ancillary, what about cryptocurrency, which is slightly shady to begin with?
James Heelan: I haven’t had any cryptocurrency issues come across my desk.
Tom Temin: All right. So that’s number one drug use and involvement. What’s the second big mistake?
James Heelan: The other is arrests. People think that just because there was an arrest that didn’t result in a charge, or that their record was expunged, they think that they don’t need to report these arrests. But the SF 86 is explicit. Even if an arrest is expunged, or if it was done away with through some sort of settlement agreement or alternative resolution program, you still need to disclose it on the SF 86 report in your investigation. People try to rationalize their way out of reporting things. They say, well, the Court told me that I wouldn’t have a record and the officer told me there wouldn’t be a report written up. Well, it’s still responsive to the question on the 86. And if you don’t report it, the background investigator, I assure people out there, will find out.
Tom Temin: We’re speaking with James Heelan. He’s an attorney with Shaw Bransford & Roth. And what’s the third biggest mistake?
James Heelan: Foreign contacts. This has been a real developing issue over the last 15 years especially with social media. People go on vacation, they befriend some people, they become Facebook friends, they follow them on Instagram. It took a long time for security clearance adjudicators to really decide what a friend meant, for example, on Facebook. So people get into trouble because they forget the foreign contacts they have in their lives. And it’s awful difficult, especially if you live in an area like D.C. where you have foreign nationalities next door at the bars and restaurants you usually go to, you may have friends with spouses or in-laws who come from different countries. Those are all reportable foreign contacts. The big concern is that a country may use a foreign national to surreptitiously persuade you into divulging or otherwise compromising national security interests.
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Tom Temin: Right. So if you went to France, it’s not every waiter that you met in the cafes and Saint-Germain-des-Prés, but just maybe someone you might have retained friendship with and have regular correspondence with, say, as you mentioned, on social media?
James Heelan: Exactly. It’s the kind of person let’s say, you made real fast friends on your cruise ship and said, “If you’re ever in town, you can stay on my couch, you can stay at my place.” That’s the kind of person you need to report.
Tom Temin: And just to be clear, if say, a nextdoor neighbor, or someone that you are friends with day to day, you may not even know if they’re a foreign national. An accent is not necessarily an indicator one way or the other.
James Heelan: Right. But your obligation is just to report what you know. Right? Not just what you remember, you have a duty to do due diligence and dig in and really assess your own life and then report out.
Tom Temin: And if it isn’t neighbor, it’s likely they could be visited by that investigator anyway, because I, myself have been visited about my nextdoor neighbor a couple of times over the years.
James Heelan: Exactly. And that just goes to show even if you don’t disclose it, the government will likely find out and they’ll likely ask you about it. And you don’t want the first time you know about something to be in your investigatory interview.
Tom Temin: All right, and number four?
James Heelan: Prior job issues. People are required to disclose whether they left a former position and the circumstances under which they left the position. And people think oftentimes, again, with settlements, they say, Well, there’s a confidentiality clause. There’s nothing in my [Official Peronnel Folders], there’s no record of a proposed removal or a difficult circumstance that compelled me to leave the job. People, like I said, try to rationalize why they don’t need to disclose but the form is explicit. If you left your job after learning that you’re going to be forced to leave your job. Or if you’ve left your job under any kind of agreement or specific circumstances, you need to disclose. And so people get in trouble because, like I said, they rationalize and they decide the rules somehow don’t apply to them.
Tom Temin: The theme I’m hearing here is that even though things might be confidential from a legal standpoint, and whatever agreements you might have had established by a court, or some kind of a judging randomization, that doesn’t matter for purposes of reporting on your SF 86.
James Heelan: Exactly, exactly. The SF 86 doesn’t care about whatever legal fiction exists out there, and agreements and settlements and confidentiality clauses that might apply. The SF 86 is interested in the reality. They want to know what you have done in your life and want to be able to investigate it. They want you to be upfront and disclose it.
Tom Temin: And then that leads us to the fifth biggest mistake.
James Heelan: The fifth biggest mistake encapsulates everything I’ve just said it’s lacking care and thoroughness on the SF 86. Not thoroughly reviewing your personal records not going through your credit report to report any sort of what’s called derogatory information on the SF 86. People, it’s not a quick form. It’s lengthy for a reason. It deserves lots of time and attention. You want access to national security information, you should do your own due diligence before you apply.
Tom Temin: And should you have someone review it, even though there is a lot of confidential stuff in there that is the government’s right to know but perhaps nobody else’s? But I mean, I guess –
James Heelan: As an attorney in this area of law, I would say absolutely. I would say absolutely have an attorney review it. People can review it for thoroughness, they may want to go through all of your documentation with you. There’s different levels of service out there that attorneys will provide.
Tom Temin: And it strikes me that if someone is in this general field of perhaps working for or with the government, even if you don’t anticipate anything in the near future, requiring clearance, is it a good idea just to download the SF 86 and go ahead and fill it out, so you’ll be ready should the time come? If you like self torture?
James Heelan: You really want to be prepared? Sure. It could be like updating a resume. You keep it up to date. And as you go along, you continue adding the addenda. I haven’t done that myself but I could see some people out there wanting to be awful prudent. Follow that kind of advice, yes.
Tom Temin: All right. 125 pages. So if you do a page and light, it’ll only take you four months.
James Heelan: Or a very long weekend.
Tom Temin: Yeah, or a very long weekend. James Heelan is an attorney with Shaw Bransford & Roth. Thanks so much.
James Heelan: Thanks a lot, Tom.
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