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DS Procedures for Investigations
Summary: In order to comply with Executive Order 12968 and NSC standards, the Personnel Security/Suitability Division of the Bureau of Diplomatic Security has issued enhanced procedures governing the conduct of background investigations. As a result, DS investigators conducting background investigations (including five-year periodic reinvestigations, i.e., updates) have been instructed to ask a variety of questions of subjects and sources. Some of the questions are extremely personal. While we do not have negotiating rights in this area, DS afforded AFSA and AFGE the opportunity to submit comments regarding its new procedures prior to its release. The purposes of this message are to alert employees to the new procedures and to educate members on the adjudicative guidelines DS and other federal agencies use when deciding whether an individual should get or retain a security clearance. DS's procedures closely follow Executive Branch orders and attempt to balance the interest of national security with those of personal privacy.
Enhanced DS Procedures for Security Clearance Background Investigations
The Personnel Security/Suitability Division of the Bureau of Diplomatic Security has issued new procedures governing the conduct of background investigations. These procedures are the result of President Clinton's 1995 Executive Order 12968, which established a uniform federal personnel security program. To accomplish this, the order required the NSC's Security Policy Board to promulgate minimum investigative standards and common adjudicative guidelines that apply to all federal agencies conducting background investigations. DS's enhanced procedures to investigators closely follow the standards and adjudicative guidelines set forth in the Executive Order and the NSC regulations.
In an unprecedented action, DS afforded AFSA and AFGE the opportunity to submit comments on the new guidelines before they were implemented. While unions do not have the right to negotiate standards for issuing security clearances, DS made a good faith effort to accommodate our concerns while still covering the areas of inquiry set forth in the Executive Order and implementing regulations. The purposes of this message are to alert employees to the new procedures and to educate members on the adjudicative guidelines DS and other federal agencies must use when deciding whether an individual should get or retain a security clearance.
The information gathered during a background investigation is designed to ensure that all persons with access to national security information are "reliable, trustworthy, of good conduct and character, and of complete and unswerving loyalty to the United States." Investigators collect information about an individual from a variety of sources and report factual information. DS personnel at headquarters compile the reports from investigators and assess the information against the adjudicative guidelines issued by the NSC. In accordance with the Privacy Act of 1974, DS must make every effort to assure the information considered is timely, relevant, accurate and complete. Personnel assessing the information from an investigation consider all information about the person, both positive and negative, and render a subjective determination that granting access to classified information is clearly consistent with the interests of national security. It is important to understand the federal courts have consistently held that no one has a right to a security clearance. Furthermore, the courts and administrative agencies have ruled that they do not have the authority to second-guess an agency's decision not to grant a security clearance and will defer to the agency's judgment.
Employees holding clearances are required to cooperate with the investigator. Employees who do not submit the appropriate forms in a timely manner or cooperate in the subject interview risk delay in the investigation or a negative decision regarding their clearance. Even though there may be consequences to an employee's clearance as a result of not cooperating, background investigations are considered "voluntary." Therefore, an employee who voluntarily discloses that he or she has engaged in criminal activity may have that information used against him or her in a criminal case. For this reason, employees may invoke the protection of the Fifth Amendment, which allows them to refuse to provide information to the investigator that may be used against them in a criminal proceeding. The DS procedures to investigators instructs them not to require or compel an employee to answer incriminating questions without first consulting DS. A federal employee cannot be compelled to answer questions that might subject the employee to criminal prosecution unless the employee receives written assurances that his or her answers cannot be used in any criminal prosecution. This is a complicated area of law. Employees with questions should contact the AFSA attorneys listed below.
The 13 Adjudicative Guidelines
Employees undergoing background investigations in connection with their five-year periodic reinvestigation ("subjects" of background investigations), will be asked, among other things, a variety of questions covering 13 specific categories of information. These 13 areas of inquiry are derived from the NSC's Adjudicative Guidelines. Employees who are not the subject of the background investigation who are contacted as "sources" (coworkers, supervisors, neighbors, etc.) will be asked similar, but ordinarily condensed, questions covering the adjudicative guidelines. Some of the questions are of an extremely personal nature (those relating to sexual behavior, alcohol use, mental health counseling, etc.) While employees may feel DS has no right to ask these questions, the questions are authorized by the Executive Order and the implementing regulations and are applicable to all federal employees seeking or holding a security clearance granting access to national security information. DS is sensitive to the concerns about these issues and has undertaken training initiatives to best assure investigators use tact and limit their inquiries to relevant security related issues.
In addition to asking a number of general questions of subjects and sources, individuals conducting background investigations will ask a series of questions relating to the following 13 areas: Allegiance to the United States; Foreign Influence; Foreign Preference; Sexual Behavior; Personal Conduct; Financial Considerations; Alcohol Consumption; Drug Involvement; Emotional, Mental, and Personality Disorders; Criminal Conduct; Security Violations; Outside Activities; and Misuse of Information Technology.
Allegiance to the U.S., Foreign Influence, Foreign Preference
The first three areas are designed to ensure that individuals holding clearances are of unquestionable allegiance to the United States and are unlikely to be subject to duress or coercion by a foreign government due to familial or financial ties to a foreign country or government. Employees with immediate family members, persons to whom the employee is bound by close ties of affection, or financial interests in a foreign country could be subject to coercion or exploitation. DS weighs a number of factors under these adjudicative guidelines to determine whether granting a clearance is consistent with national security.
It is AFSA's understanding that some federal agencies, including the Department of Defense and Agency for International Development, to name just two, have a blanket rule of denying a clearance to an individual who is a dual citizen. While DS is reviewing this issue, at this time, dual citizenship is not an automatic disqualification from holding a security clearance at the Department of State. DS weighs all information about a person, both positive and negative, then carefully considers whether granting access to classified information is clearly consistent with the interests of national security.
The fourth factor, Sexual Behavior, is probably one of the areas of inquiry that will make subjects and sources (as well as the background investigator) most uncomfortable. Sexual behavior is a security factor if it involves a criminal offense, indicates a personality or emotional disorder, subjects the individual to undue influence or coercion, or reflects lack of judgment or discretion. Sexual orientation, in and of itself, may not be used as a disqualifying factor in determining a person's eligibility for a security clearance. DS is concerned about potentially exploitable sexual behavior, not orientation. Thus, employees who engage in sexual relationships that they attempt to conceal run the risk of affecting their security clearance. DS will consider the extent to which the employee has gone to conceal the behavior, his or her intent to continue the concealment, and the actions the employee would take to maintain concealment of the behavior. Candor about any potentially exploitable behavior makes an employee less susceptible to coercion and, therefore, less likely to have any adverse action taken by DS against his or her security clearance. Regardless of the behavior, investigators are instructed not to ask subjects to discuss the nature of their intimate sexual acts.
AFSA suggested that DS instruct investigators to phrase questions regarding sexual behavior in terms of "personal conduct" (e.g., Have you engaged in conduct that is criminal in nature, would make you susceptible to coercion, etc.) rather than "sexual behavior" (e.g., Have you engaged in sexual behavior of a criminal nature or sexual behavior that causes you to be vulnerable to coercion, exploitation, or duress.). DS agreed with this suggestion and the procedures permit investigators to phrase questions in terms of personal conduct. However, as the NSC Adjudicative Guidelines contain separate and distinct guidelines for sexual behavior and personal conduct, investigators may phrase appropriate questions in terms of sexual behavior. DS has training initiatives in place to assure that any questions concerning extremely personal matters are asked in a sensitive, tactful manner and only seek information relevant to determining suitability for continued employment or continued access to classified information. DS encourages employees who believe investigators have behaved in a manner that is inconsistent with DS's procedures to contact the Director of the Personnel Security and Suitability Division, Doug Quiram, at (571) 345-3219.
Conduct involving questionable judgment, untrustworthiness, unreliability, or unwillingness to comply with rules and regulations could indicate that the person might not properly safeguard classified information. In the security clearance world, an individual's provision of false or misleading information is often far worse than the underlying conduct he or she is trying to hide. For example, an employee's past drug use will not automatically result in the revocation of his clearance (see discussion of drug involvement in paragraph 14, below). However, if the employee lies to DS about the drug use or tries to minimize it, he or she is likely to lose his or her clearance because of his or her untrustworthiness. Such an employee also may be subject to criminal prosecution for knowingly providing false information. Another concern of any concealed behavior is the person's susceptibility to coercion. DS will examine the extent to which the conduct has been concealed, intent of maintaining the concealment into the future, and the lengths to which one would go to continue any concealment. Therefore, AFSA advises employees to provide truthful information on their security forms and to DS investigators.
An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds. In addition, unexplained affluence is often linked to proceeds from financially profitable criminal acts, e.g., Aldrich Ames. Background investigators will routinely ask questions regarding a subject's financial situation. AFSA periodically is asked whether declaration of bankruptcy will affect an employee's security clearance. The answer depends upon the reason for the bankruptcy and the steps the employee has taken to pay off creditors. If the bankruptcy was due to circumstances beyond the employee's control (e.g., divorce, illness, etc.) and the employee voluntarily has taken steps to pay off creditors, this may be viewed favorably by DS. AFSA encourages employees experiencing difficulty in meeting their financial obligations to contact a consumer creditor counseling service for assistance with debt management.
Alcohol Consumption and Drug Involvement
A diagnosis of alcoholism or a history of alcohol-related incidents will trigger a security concern. However, an employee who acknowledges alcoholism, obtains treatment, follows treatment recommendations, signs up with Alcoholics Anonymous or a similar support group, and demonstrates a sincere intent to stop drinking will not lose his or her clearance unless he or she has a history of repeated unsuccessful rehabilitative efforts. Use of illegal drugs or of legal drugs in a manner that deviates from approved medical direction will also trigger a security concern. Like the criterion governing alcohol use, evidence that the individual has not used drugs for a period of time can mitigate the security concern. The period of time is not defined but it must be of sufficient length (years not months) to convince DS that the employee has been rehabilitated and is not a security risk. Employees who use illegal drugs after obtaining a clearance are probably at greater risk of losing their clearance than those who used drugs prior to getting a clearance. DS makes a concerted effort to consider alcohol and drug abuse as medical issues and, therefore, usually seeks the opinion or assistance from the Office of Medical Services, as well as the Bureau of Human Resources, to resolve such issues under the provisions of 3 FAM 4130 (Standards for Appointment and Continued Employment) before making an adverse determination under 12 FAM 230 (Personnel Security).
Mental, Emotional and Personality Disorders
The background investigator's role with regard to this factor is to obtain a general overview of the issue and obtain current contact information for the medical professionals. DS instructs their investigators not to get involved in detailed, diagnostic issues with the subject. As AFSA previously discussed, going to a therapist or marriage counselor is unlikely to result in a negative security clearance recommendation. In addition, the Executive Order governing clearances provides that "no negative inference concerning the standards in this section may be raised solely on the basis of mental health counseling. Such counseling can be a positive factor in [security clearance] eligibility determinations." However, employees should understand some cursory questions concerning such counseling may be appropriate to clearly establish the reason for the counseling and to support the positive aspects of the counseling.
If information gathered during the background investigation indicates that there may be an emotional, mental, or personality disorder that causes a significant defect in a person's judgment, reliability, or stability, the matter will be referred to MED to render a professional opinion. Even employees with serious medical conditions (schizophrenia and bipolar disorder) may be granted a clearance if they follow appropriate medical advice relating to treatment and there is evidence that medication keeps their condition under control.
A history or pattern of criminal activity creates doubt about a person's judgment, reliability and trustworthiness. As with many of the factors discussed in this cable, DS will look at whether the incident is recent, whether the incident is an isolated event, and whether there is clear evidence of successful rehabilitation. Examples of issues in this category include an employee's failure to pay income taxes, conviction of shoplifting, and falsification of vouchers. As is true with many of the adjudicative factors, employees who express remorse for their actions and who take remedial action prior to being confronted by DS may not lose their clearance as long as the incident is not one in a pattern of illegal conduct or notorious. Again, demonstrating candor and honesty about any conduct is recommended.
Noncompliance with security regulations raises doubt about an individual's trustworthiness, willingness, and ability to safeguard classified information. In the State Department's heightened security climate, employees must be extra vigilant in safeguarding classified information. Employees with multiple security infractions must demonstrate a positive attitude towards the discharge of their security responsibilities. Recent cases at the State Department demonstrate that multiple security infractions or a poor attitude with regard to security likely will result in an employee's clearance being placed on probation for one to two years. Further infractions or violations could result in a proposal to revoke the clearance. Employees are reminded that regulations pertaining to computer security also fall into this category.
Involvement in certain types of outside employment or activities is of security concern if it poses a conflict with an individual's security responsibilities and could create an increased risk of unauthorized disclosure of classified information. Investigators may question subjects to ascertain whether they have engaged in any service, whether compensated or not, with a foreign country or foreign national.
Misuse of Information Technology Systems
Noncompliance with rules, procedures, guidelines or regulations pertaining to information technology systems may raise security concerns about an individual's trustworthiness, willingness, and ability to properly protect classified systems, networks, and information. Accordingly, DS will ask a series of questions regarding computer security practices. Issues involving misuse of information systems may also be addressed as security violations.
The Adjudication and Appeal Processes
It is important to understand that DS investigators are charged with gathering and reporting facts. They do not offer personal opinions regarding these facts nor do they decide whether an applicant or employee should get or retain a security clearance. Experienced DS evaluators in Washington review the facts, reported by investigators, apply the adjudicative guidelines, and decide whether an applicant should get a clearance or an employee retain his or her clearance. If DS decides against a clearance, applicants and employees may appeal the decision. AFSA is available to assist members with the appeal process.
It is clear to AFSA that DS recognizes the personnel background investigation process is invasive. However, the interests of national security require anyone with access to classified information to have affirmatively demonstrated, through personal and professional history, loyalty, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion. These traits can only be established by conducting thorough background investigations and considering all the information developed as a whole. We believe DS has worked hard in crafting its procedures to strike a balance between protecting the national security and respecting a person's privacy interests.
We hope the foregoing is useful and puts into perspective the type of questions subjects and sources may be asked during interviews. Employees with specific questions or concerns regarding the foregoing should contact AFSA attorneys Sharon Papp (PappS@state.gov) or Zlatana Badrich (BadrichZ@state.gov), (202) 647-8160, or via fax at (202) 647-0265.