Responding to the Statement of Reasons in a Security Clearance Matter
May 4, 2015
Responding to the Statement of Reasons
When federal employees or government contractors receive a Statement of Reasons or SOR in connection with their security clearance, it is important to take the matter very seriously. The SOR is simply the basis for the government’s security concerns with a security clearance holder and is the starting point for an employee’s security clearance defense. If the SOR is not responded to appropriately or in a timely fashion, the employee runs the risk of potentially losing their security clearance.
Statement of Reasons - Initial Processing
The Statement of Reasons or SOR is the core of the security clearance process for federal employees and government contractors. Generally, an SOR should be thought of as the allegations that the government is making against an employee that would make them unfit to be granted or to continue holding a security clearance. Generally, for federal employees the SOR or Statement of Reasons is provided by the relevant government agency’s local security office and the federal employee may or may not also be briefed on the upcoming security clearance process. For example, for Department of Defense (DoD) employees, the SOR will be processed through the DoD Central Adjudication Facility (CAF). If further proceedings are required after the initial answer to the SOR, they will then generally move to the Defense Office of Hearings and Appeals (DOHA) and/or the component’s security appeals board.
For government contractors, the issuance of the SOR is followed by processing through the individual government agency’s adjudication facility, in conjunction with the government contractor’s Facility Security Officer (FSO). The SOR is usually then reviewed by the government agency’s adjudicators. For example, if the government contractor’s security clearance is held by the DoD, then the DoD CAF would send the SOR to the contractor with instructions for responding. The contractor then initially responds. Should further processing be required after this response the SOR would be referred to DOHA and an administrative judge for a final decision.
Sample Statement of Reasons
The Statement of Reasons or SOR that is issued will list, to varying degrees, the security concerns at issue and also and the security guidelines which are involved. The following is an example of a Statement of Reasons issued to a federal employee:
SAMPLE STATEMENT OF REASONS
Here is an example of the core substance of a sample Statement of Reasons, for a federal employee:
Subj: INTENT TO REVOKE ELIGIBILITY FOR SECURITY CLEARANCE AND ASSIGNMENT TO A SENSITIVE POSITION, JAMES CARLTON
STATEMENT OF REASONS
Security Guideline(s): PERSONAL CONDUCT
4 May 15 You were issued a Letter of Intent to Suspend Access to Classified Information from DoD Installation 123 for alleged security concerns related to your use of a government credit card to pay for significant personal expenses between 2013 and 2015. After you were asked about the expenses on the government credit card you subsequently lied to investigators about the nature of these expenses.
Applicable Personnel Security Guidelines
The following are excerpts of the personnel security guidelines cited in reference (b), which are relevant to your case. Each guideline contains both disqualifying and mitigating factors.
The Concern. Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process.
Responding to the SOR
Once the employee receives the Statement of Reasons or SOR, the key, in terms of legal defense, is to either dispute the allegations and/or to mitigate them. That process begins with hiring an attorney who practices in the area of security clearance law, in order to assist them in responding to the SOR. In the example above, the first step for the attorney would be to analyze the allegations separately for both (1) the misuse charge and (2) the truthfulness charge for potential legal defense arguments. The next step would be to determine if the allegations themselves were valid (i.e. that the government credit card was used for the personal expenses alleged (sometimes mistakes are made by the government in preparing SORs or all of the facts are not fully known prior to the SOR issuance)).
For the truthfulness issue, the employee would have to explain why he or she was truthful with investigators. Sometimes this involves the fact that the employee may have brought the issues to the attention of investigators voluntarily or actually provided the information about the charges at issue or disclosed them in some other manner. Perhaps an argument might be made that the employee was completely truthful during the interview.
Next, it would be important to explain what mitigating factors could be helpful in explaining why the person involved should still be granted a security clearance despite the security concerns, as well as what is known as the whole-person concept. The whole-person concept is an overall review of the totality of the circumstances and person at issue, in light of the security concerns in making a security clearance determination.
To develop arguments in response to an SOR, one must review the applicable guidelines for the government agency involved. Most are similar, but in our DoD example, we would look to the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, DoD Directive 5220.6. For instance, there may be an argument that the expenses were really authorized by his agency, or that perhaps there was confusion about whether the expenses were in fact authorized which might serve mitigate the security concerns. There could also be other justifications. Another potential helpful factor might be whether or not the employee immediately paid the government credit card right away, immediately reported their actions to supervisors or security officers, etc.
The key to responding to the Statement of Reasons or SOR is to start with the factual allegations, make a full synopsis of all facts involving the allegation and review the potential mitigating factors in such cases. It is at that point that the attorney can begin preparing an effective response to the SOR.
When a Statement of Reasons or SOR is issued, it is important to obtain the advice of counsel where possible security clearance defense is needed. It is important to do so as early in the process as possible. Our law firm advises individuals in the security clearance process, in addition to representing them as they proceed through the investigations process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.