Disclosing Criminal Violations in the Security Clearance Process
August 8, 2014
In the past, the disclosing of potential criminal violations may have put an individual’s security clearance at risk but generally did not expose him or her to potential criminal liability. Today, however, federal agencies may consider disclosing an individual’s criminal violations to law enforcement if they come across them in the security clearance process.
Disclosure of Criminal Activity
Some of the more common disclosures that we have come across include individuals self-reporting prior drug use, minor theft (e.g., shoplifting), and other relatively minor criminal violations. These more common violations are generally not reported to law enforcement by security clearance authorities.
However, serious crimes that are disclosed during a security clearance interview and/or polygraph examination may be reported to law enforcement. Such crimes include those that involve children, major theft, and the distribution of narcotics.
Slow Changes in How Criminal Issues are Reported
There have been some subtle changes in how federal agencies deal with criminal issues disclosed during security clearance investigations. In the past, some agencies took the position that there was no legal obligation to report most criminal violations to the Department of Justice. However, these agencies have now taken the view that nothing prevents them from disclosing such information to law enforcement. In other words, agencies have a fair amount of discretion in what they report.
Intelligence agencies have been focused mostly on the reporting of federal criminal violations, as opposed to those involving state law. Some federal agencies have implemented new policies to determine whether state law violations should be reported. One agency has indicated that it will report state criminal issues if the crime involves an imminent threat or serious bodily injury to another human being.
The move by federal agencies to report criminal activities to law enforcement seems to have increased following security clearance-related criminal activities, such as the Navy Yard shooting and the Edward Snowden classified leak issue. These high-profile incidents have made security clearance investigators somewhat more likely to report serious crimes, disclosed by individuals but not previously adjudicated, to law enforcement authorities. There have also been some congressional investigations into the failure of some intelligence agencies to report serious crimes to law enforcement.
Seek Legal Advice Early
When evaluating one’s risk in disclosing possible criminal conduct to security clearance investigators, it is important to obtain legal advice as early as possible. An attorney familiar with this area of law can help advise individuals as to whether it is appropriate to continue in the security clearance process and expose potential risks with respect to disclosing criminal violations to security clearance investigators and polygraphers.
When individuals are facing security clearance issues in the context of potential reportable criminal behavior, it is important for them to obtain legal advice and representation early. Our law firm advises individuals in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located at www.facebook.com/BerryBerryPllc.