Representing Contractors in NSA Security Clearance Appeals
By John V. Berry, Esq., www.berrylegal.com
Our security clearance lawyers represent government contractors before the National Security Agency (NSA) in security clearance matters. As those seeking cleared positions know, the NSA is an intelligence agency with its own unique security clearance process through Executive Order 12968 and Security Executive Agent Directive 4 (SEAD 4). SEAD 4 governs the general security clearance process for federal agencies. There are different procedures for security clearance appeals for every agency. Below, we discuss the appeals process for government contractors at the NSA for security clearance and Sensitive Compartmented Information (SCI) access denials or revocations.
The Security Clearance Process at the NSA
As mentioned above, the security clearance appeals process at the NSA is similar to the process used by other federal agencies. However, the NSA security clearance process has its own unique features. The NSA clearance procedure for government contractors with security issues usually follows the process listed below.
- NSA Issues a Clearance Decision Statement.
When a contractor has a security clearance or SCI access denial or revocation from the NSA (referred to as the Clearance Decision Statement), it will list the security concerns. The Clearance Decision Statement will give the contractor 45 days from receipt of the letter to respond to the alleged security concerns. The NSA will also send a copy of the Investigative File, which provides the basis for the denial. The investigative file will usually include various documents often including the clearance investigation, related documents, reports, interviews, polygraph records and/or other items relevant to the NSA’s security concerns.
- Contractor Response to the NSA Clearance Decision Statement.
In most cases, if the contractor elects to challenge the Clearance Decision Statement they will need to respond to the NSA’s security concerns in a written submission. A thorough response must be prepared to address all of the security issues. It is critical to also provide exhibits, such as relevant evidence, declarations, character letters, declarations, affidavits, and other documentation related to the NSA’s security concerns or the character of the individual. Our security clearance lawyers typically represent contractors starting with this first step.
- First Level Clearance Decision Issued by the NSA.
Once the response to the Clearance Decision Statement is received by the NSA, the NSA Office of Personnel Security will review and issue a decision as to whether or not the security concerns against the government contractor have been dismissed or mitigated. If so, the matter is then resolved and the clearance or SCI is restored. If not, the individual will be provided a short decision briefly citing the reasons why the appeal was denied and informing the contractor of their right to a final appeal before the NSA Access Appeals Panel (AAP). There is then a very short period of time (usually 15 days) in which to either request a hearing with the AAP or otherwise simply submit a secondary written appeal.
- Personal Appearance with the NSA Access Appeals Panel.
If the contractor has elected to provide an in-person response (which is recommended), the next step is a meeting with the AAP. Any additional supporting documents must usually be submitted no later than 14 days prior to the AAP hearing. The AAP hearing is an in-person presentation. During this hearing before the AAP, counsel and the contractor will present their case asking for a reversal of the negative security clearance or SCI determination. The panel normally has 6-7 people present (panel members and an NSA attorney/advisor) and typically asks several questions during the presentation so it is important to be prepared. We recommend legal counsel during this process to ensure adequate preparation for the AAP hearing.
- The NSA Access Appeals Panel Final Decision.
Following the personal appearance hearing before the AAP, they will issue a decision, typically within 1-3 weeks. They will either grant or deny the clearance appeal. In a few cases, the AAP can seek additional information or ask for an additional response from the contractor. If the AAP issues a final denial, the government contractor may re-apply for a security clearance or access a year later. The relatively quick clearance review process at the NSA is unique among intelligence agencies where the security clearance process can often take much longer.
6. Other Considerations.
If an adverse clearance decision is reached by the AAP it is important to plan for the reapplication process with the NSA and also to determine any impact that a final AAP clearance denial might have on other security clearances held by the contractor. Separate security clearances may require representation before other agencies.
When a government contractor is facing security clearance issues at the NSA it is important to obtain legal advice and representation from an experienced security clearance lawyer. Our law firm advises government contractors in the security clearance process before the NSA. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.