National Security Adjudicative Guidelines – Security Clearance Law

On December 10, 2016, James Clapper, then the Director of National Intelligence, issued revised National Security Adjudicative Guidelines to become effective June 8, 2017.  As background, the Adjudicative Guidelines are used by the executive agencies, including the Department of Defense (DoD), to determine initial or continued eligibility for access to classified information or eligibility to hold a sensitive position.  In short, these guidelines are the rules by which all federal government agencies have to play by when adjudicating security clearances.

The 2017 Adjudicative Guidelines contain the same categories of information to be evaluated in the context of the whole person.  They are:

Guideline A:  Allegiance to the United States

Guideline B:  Foreign Influence

Guideline C:  Foreign Preference

Guideline D:  Sexual Behavior

Guideline E:  Personal Conduct

Guideline F:  Financial Considerations

Guideline G:  Alcohol Consumption

Guideline H: Drug Involvement and Substance Misuse (the “Substance Misuse” aspect is new to the 2017 guidelines)

Guideline I:  Psychological Conditions

Guideline J:  Criminal Conduct

Guideline K:  Handling Protected Information

Guideline L:  Outside Activities

Guideline M: Use of Information Technology ( the prior guidelines referenced IT “systems”)

Though there some changes in the wording used throughout the guidelines, the most significant change in the 2017 Adjudicative guidelines involves Guideline C: Foreign Preference.

Under the 2005 Adjudicative Guidelines (the prior version) it was disqualifying to exercise “any right, privilege or obligation of foreign citizenship after becoming a U.S. citizen.”  Unlike Guideline B: Foreign Influence, the identity of the country didn’t matter.  There was no mitigating condition available to clearance applicants who were unwilling to renounce foreign citizenship and surrender or invalidate their foreign passport, even when their dual citizenship was with a country like Canada, the United Kingdom, Australia, or New Zealand.

Under the 2017 Adjudicative Guidelines, the Guideline C:  Foreign Preference concern adds the qualifying language that the citizenship must be in conflict with U.S. National Security Interests.  The specific language is:

Foreign involvement raises concerns about an individual’s judgment, reliability and trustworthiness when it is in conflict with U.S. national interests or when the individual acts to conceal it.  By itself, the fact that a U.S. citizen is also a citizen of another country is not disqualifying without an objective showing of such conflict or attempt at concealment.  The same is true for a U.S. citizen’s exercise of any right or privilege of foreign citizenship and any action to acquire or obtain recognition of a foreign citizenship.

Absent any conflict with U.S. national security interests (conflicting interest) or concealment of foreign involvement, it will now be permissible for a cleared person or clearance applicant to:

  • apply for and/or acquire foreign citizenship, and
  • possess and use a foreign passport, except to exit and enter the United States, provided the existence of the foreign passport has been reported to the appropriate U.S. security official.

When there is a “conflicting interest,” dual citizenship may be mitigated, if the applicant is willing to renounce foreign citizenship and there is no evidence of foreign preference.

Guideline H: Drug Involvement and Substance Misuse was expanded to capture the misuse of substances that may not be illegal.

The prior Guideline H: Drug Involvement focused on the misuse of illegal drugs and prescription drugs.  The 2017 Adjudicative Guidelines expanded this adjudicative guideline as reflected in the revised heading, Guideline H: Drug Involvement and Substance Misuse, to include misuse of non-prescription drugs and “other substances that cause physical or mental impairment.”  The specific language for the Guideline H concern is now:

The illegal use of controlled substances, to include the misuse of prescription and non-prescription drugs, and the use of other substances that cause physical or mental impairment or are used in a manner inconsistent with their intended purpose can raise questions about an individual’s reliability and trustworthiness, both because such behavior may lead to physical or psychological impairment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations.

Jacksonville, FL based Attorney Patrick Korody has earned the reputation as one of the best security clearance lawyers in the country.  Mr. Korody, a former Navy Judge Advocate (JAG), uses his military background and experience to present comprehensive evidence attacking the concerns levied against his security clearance clients and establishing all mitigating circumstances.  To date, and though no guarantee can ever be made to a client, every one of Mr. Korody’s security clearance clients has received or retained his or her clearance.  Mr. Korody, the nation’s best security clearance lawyer, offers a free case evaluation.  He can be reached at (904) 383-7261.

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