PERSEREC 1 1

Technical Report 00-4

November 2000

Security Clearances and the Protection

National Security Information
and Procedures

Sheldon I. Cohen
Sheldon I. Cohen & Associates

Approved for Public Distribution:

Distribution Unlimited. Defense Personnel Security Research Center
99 Pacific Street, Suite 455-E
Review of this material does not imply Monterey, California 93940-2497
Department of Defense endorsement of
factual accuracy or opinion.
Technical Report 00-4 December 2000

Security Clearances and the Protection of

National Security Information:
Law and Procedures

Sheldon I. Cohen
Sheldon I. Cohen & Associates

Released by
James A. Riedel
Director

Defense Personnel Security Research Center

99 Pacific Street, Suite 455-E
Monterey, CA 93940-2497
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14. ABSTRACT

PERSEREC undertook to sponsor the development of this report in order to make available in one place a readily
understandable discussion of the complex laws and procedures that have been designed to protect National Security
information. The report provides an authoritative compendium for lawyers, security officers and for managers of
corporations who must deal with the legal and procedural aspects of security clearances and -not least-for government and
contractor employees whose livelihoods depend upon their acquiring or maintaining security clearances.

15. SUBJECT TERMS

Security clearances, law and procedures;

16. SECURlTY CLASSIFICATION OF: 17. LIMITATION 18. NUMBER 19a. NAME OF REPONSIBLE PERSON
Unclassified OF ABSTRACT OF PAGES James A. Riedel, Director
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 The Defense Personnel Security Research Center undertook to sponsor the
development of this report in order to make available in one place a readily
understandable discussion of the complex laws and procedures that have been designed to
protect national security information. The contents of the report are relevant to all
employees and contractor personnel of the Department of Defense who require security
clearances, and also to employees of federal agencies that deal with energy, intelligence
gathering, and law enforcement.

Sheldon Cohen has provided in this report an authoritative compendium for

lawyers, security officers, and managers of corporations who must deal with the legal and
procedural aspects of security clearances and, not least, for government and contractor
employees whose livelihoods depend upon their acquiring or maintaining security
clearances.

James A. Riedel
Director
 Acknowledgements
I want to acknowledge first the assistance of Dr. Theodore R. Sarbin, Project
Manager, Defense Personnel Security Research Center (PERSEREC), whose advice,
help, and understanding were immeasurable. The assistance is also acknowledged of
many people from various federal offices who provided information that was not
obtainable from published sources. Included among these are some individuals whose
identities cannot be disclosed for security reasons.

Among those whom I can identify, and to whom I am indebted, are Richard A.
Ferris, Associate Director for Investigations, U.S. Office of Personnel Management; a
representative of the Central Intelligence Agency Office of General Counsel; Kim L.
Hargrove, Esq., Assistant General Counsel, National Security Agency; Barry Dalinsky,
Office of Safeguards and Security, U.S. Department of Energy; Robert R. Gales, Chief
Administrative Judge, Defense Office of Hearings and Appeals; D. Jerry Rubino,
Director, James P. Walker, Assistant Director, and Charles L. Alliman, Associate
Director, Security and Emergency Planning staff, U.S. Department of Justice; Thomas N.
Willess, Associate General Counsel, National Imagery and Mapping Agency; Steven
Lewis, Security Specialist, Defense Security Service; and Michelle I. Walensky, Public
Affairs Specialist, Federal Bureau of Investigation.

Gratehl thanks go to Leon J. Schacter, Director, Defense Office of Hearings and

Appeals and to Stuart Aly, Associate General Counsel, Defense Legal Services Agency,
who reviewed the manuscript and whose comments were of invaluable help.

Finally, I wish to thank Dianne Johnson and Geneva Green in my office and
Suzanne Wood at PERSEREC whose editorial assistance made this report possible.

Although all those named above provided great guidance and assistance, the
content and opinions contained in this book are the responsibility of the author alone and
to the best of my ability reflect the official positions of the departments or agencies
reviewed. I have made an effort to provide up-to-date information, although 1 am aware
that I am dealing in some sense with a moving target, for rules and regulations are
changing constantly.

vii
 ...
Vlll
 Table of Contents
Introduction 1

Chapter 1
Constitutional and Statutory Authority for the Establishment of a
National Secrecy System 5

Chapter 2
Type and Scope of Background Investigations 13

Chapter 3
Security Clearance Investigations by the Defense Security Service 18

Chapter 4
Security Clearance Investigations by the Office of Personnel Management 22

Chapter 5
Adjudicative Guidelines for Determining Eligibility for Access to Classified
Information 26

Chapter 6
Military and Defense Civilian Employee Appeals of Adverse Clearance
Determinations 48

Chapter 7
Contractor Employee Appeals of Adverse Clearance Determinations 55

Chapter 8
Use of the Polygraph in Security Clearance Investigations 62

Chapter 9
Central Security Investigation Indices 69

Chapter 10
Sensitive Compartmented Information and Special Access Programs 72

Chapter 11
Physical Security, Facility Clearances, and the NISPOM 78

Chapter 12
Security Clearances at the National Security Agency 85

Chapter 13
Department of Energy Security Clearance Program 88
Chapter 14
Department of Justice and the Federal Bureau of Investigation
Security Clearance Program 96

Chapter 15
Removal from Government Employment for Security Reasons
Under 5 U.S.C. 5 7532 103

Chapter 16
Classified Information in Judicial Proceedings and the Classified Information
Procedures Act 106

About the Author 111

Notes 113

Appendices

Appendix A: Sources on the Protection of National Security Information A- 1

Appendix B: Personnel Security Policies for Granting Access to Classified

Information, Interim Final Rule, Federal Register B- 1

Appendix C: Director of Central Intelligence Directive 614, Personnel Security

Standards and Procedures Governing Eligibility for Access to Sensitive
Compartmented Information (SCI) C- 1

Appendix D: Defense Office of Hearings and Appeals, Additional Procedural

Guidance D- 1

Appendix E: Defense Office of Hearings and Appeals, Memorandum for all

Applicants and Their Respective Attorneys or Personal Representatives, and
Department Counsel, Prehearing Guidance for DOHA Hearings E- 1

Appendix F: Defense Office of Hearings and Appeals, Statement of Reasons F - 1

Appendix G: Department of Energy, Part 710, Criteria and Procedures for

Determining Eligibility for Access to Classified Matter or Special Nuclear
Material G-1

Appendix H: United States District Court, Protective Order H- 1

Appendix I: Special Security Agreement I- 1

Appendix J: Questionnaire for National Security Positions, Standard Form 86 - J-1

 Introduction
This report is intended to gather and analyze the law and procedure pertaining to
national security clearances and the protection of national security information. It is
written for lawyers practicing in this area of the law, for security officers and security
managers of corporate government contractors dealing with classified information, and
for government employees and contractor employees whose livelihoods depend on
obtaining or keeping a security clearance. This field involves virtually everyone working
for or doing business with the Department of Defense @OD), the Department of Energy
(DOE), and the various federal government agencies dealing with intelligence gathering
or law enforcement.

The report is not about espionage and the laws dealing with espionage. That is an
area of criminal law beyond this report's intended scope. Any deliberate intent to disclose
national security information to unauthorized recipients, particularly to foreign recipients,
is a matter for criminal investigation and prosecution by the Federal Bureau of
Investigation (FBI) and the Department of Justice (DOJ). Nor is this report about
intelligence gathering or the use of intelligence information that is within the province of
the Central Intelligence Agency (CIA), the National Security Agency (NSA), the
National Imagery and Mapping Agency (NIMA), the Defense Intelligence Agency
(DIA), and numerous other departmental intelligence agencies. Rather, this report is
about the protection of national security information to prevent such information from
being compromised and the granting of clearances and access to that information both to
companies and to individuals. It concerns the processes and procedures used by the
govement to prevent the unauthorized disclosure of the nation's security information.

The agencies principally concerned with personnel security investigations are the
Defense Security Service (formerly the Defense Investigative Service), the Office of
Personnel Management, the FBI and the CIA for Sensitive Compartmented Information.
Final clearance adjudications are principally the responsibility of the Defense Office of
Hearings and Appeals for employees of government contractors, the Department of
Energy for its employees and the employees of its government contractors; and for other
government employees, the individual agencies' Adjudication Facilities and Personnel
Security Appeals Boards.

The need for protecting a nation's secrets has been recognized from the earliest
days of established government. In the United States the authority to do so has
historically been based on the inherent war powers of the President under the US.
Constitution. Besides those general powers, Congress, by statute, has vested in the
President specific powers and means for protecting national secrets, most particularly
since the end of World War 11. Those statutes include the National Security Act of 1947
that established the CIA, and the National Security Agency Act of 1959 that established
NSA. More recently enacted was the National Imagery and Mapping Agency Act of
1996, creating NIMA from a number of offices scattered throughout the government.
That Act recognized and formalized the existence of the National Reconnaissance Office
(NRO), which until then had been so secret that its very name could not be mentioned.
 Presidents, through their Constitutional powers and the powers delegated by
Congress, issued public Executive Orders and secret Directives, creating agencies and
programs. The very existence of some of these programs is treated as a national secret.
Systems for protecting secret information and for determining who will have access to
that information have also been established by Executive decree. Yet even in protection
of national security, probably the most important of the President's responsibilities, his
power is not plenary. It is balanced with the other Constitutional imperatives of due
process and equal protection for the citizens of this country. In that balance, however, the
greater the need for secrecy and the more important the secret, the less weight is put on
the individual's constitutional rights. Even in this critical area, the President's
discretionary powers are not unfettered. He could not, for example, deny employment in
a secret project simply because of a citizen's race. This country is hopefully long past the
days when it interned its citizens simply because of their national origin, as was done to
Japanese-American citizens in 1941. Although no one has a constitutional right to see
classified information, if the government's reasons for denying access to classified
information were shown to conflict with fundamental constitutional protections, the
courts today would not refuse to consider and balance the conflicting constitutional
interests.

One not familiar with the law of classified information might think that
information might simply be classified "Secret" or "Not Secret"; or even "Confidential,"
"Secret," and "Top Secret." The system is far more complex. Information is categorized
by its type, sensitivity, uses and origin. The right of an individual to see or use, i.e., to
"access" a particular type or level of classified information always depends on his need to
see the particular information. It also depends on his having been investigated and
determined to be trustworthy and reliable. The degree of trustworthiness and reliability to
which the person is held will increase, as will the intensity of their background
investigation, as the sensitivity of the information to be available to them increases.

The type of due process afforded an individual whose clearance is threatened

depends not only on the nature and degree of sensitivity of the information, but also on
the employer. Contrary to common expectation, an employee of the United States
Government, who would seemingly be considered more reliable because of the historical
development of the law, has far fewer due-process rights than his industrial counterpart.

National security law is many faceted and somewhat arcane. Terms like
"clearance" and "access" may at first blush seem the same. Nevertheless, they are
significantly different, and that difference significantly affects an individual's or
company's ability to deal with classified information. Personnel clearances and facility
clearances are interrelated. Not infrequently, the mishandling of national security
information will jeopardize both a company's right to hold classified information and an
individual's security clearance. Someone not regularly involved in these issues might be
bewildered when faced with a potential loss of a "clearance" or loss of "access." That
loss could permanently deprive a person from working in the only field they know, or a
company of a key employee or contract on which its very survival depends. At such times
assistance should be sought from those people knowledgeable about the law and
procedure concerned with protecting national security information. It is to those people to
whom this book is directed.

Note: While every effort has been made to make this book gender neutral, at times use of
terms "he or she" or even the more cumbersome "he/she" tended to make the writing
even more ponderous than it was already. For simplicity in such cases the pronoun "he"
was used to encompass both male and female employees--with apologies for this
shorthand.
 CHAPTER 1

Constitutional and Statutory Authority

for the Establishment of a National Secrecy System
The Government's Right to Protect Information

The right of the government to keep information secret is found explicitly in only
two places in the U.S. Constitution. The first, Article I, Section 5, authorizes each House
of Congress to publish a Journal of its proceedings, except for "such parts as in their
judgment requires secrecy." The other, Article I, Section 9, requiring the publication of a
statement of account of all public money "from time to time," has been interpreted to
authorize keeping secret for a time certain expenditures for military or foreign relations.'
Implicit, however, is the authority of the Executive Branch to keep information secret in
carrying out its responsibilities in the areas of national defense and foreign relation^.^
This has been recognized from the earliest days of our country going back to military
operations in the Revolutionary

The Executive Branch exercised the power to protect national defense and foreign
relations information without le a1 formality until 1947 when an executive order was first
issued under President Truman.,gThis was followed by a series of four revisions, the first
of which was issued in 1972 by President Nixon followed by three more updates under
Presidents Carter, Reagan, and linto on.' The executive order currently in effect,
E.O.12958, closely resembles the Executive Order issued under President Carter, while
the Reagan Order followed more generally the policies of President Nixon, reflecting the
ebb and flow of the philosophies and policies of the political party then in power.6

The first Executive Order establishing standards for access to classified informa-
tion by government employees was issued in 1953 by President ~isenhower.~ A separate
executive order providing procedures for appealing security clearance decisions by non-
government, contractor employees was issued in 1960by President Eisenhower and re-
mains in effect today.* Most recently, President Clinton issued Executive Order 12968 in
1995 governing access to classified information by both government and nongovernment
employees, and providing, for the first time, a government-wide procedure for appealing
access decisions by government employees.

In addition to the inherent powers of the Executive Branch under the Constitution,
its authority to keep information secret flows from five statutes: the Espionage ~ c tthe, ~
National Security Act of 1947," the Atomic Energy Act of 1954," the Counter-
intelligence and Security Enhancements Act of 1994, amending the National Security Act
of 1947,12and the Freedom of Information ~ c t .The ' ~ National Security Act directs the
Director of Central Intelligence to "protect intelligence sources and methods from unau-
thorized dis~losure."'~ The Atomic Energy Act protects an entirely distinct category of
information relating to the production of atomic weapons and nuclear materials.15 The
Counterintelligence and Security Enhancements Act of 1994 directs the President to
develop uniform requirements for background investigations and uniform standards for
appeal of access denials.I6

Executive Order 12958 "prescribes a uniform system for classifying, safeguard-

ing, and declassifying national security information," i.e., information relating to "the
national defense or foreign relations of the United states."17 It establishes only three
classification levels: Confidential, Secret and Top secret.''

Certain information is considered so critical that, although not classified at a

higher level, access to that information must meet more rigorous standards. Where the
vulnerability of the information or the threat to it is exceptional, and normal criteria for
determining eligibility for access to such information is deemed insufficient to protect
that information, or when specifically required by statute, E.O. 12958 authorizes the Sec-
retaries of Defense, State, and Energy and the Director of Central Intelligence to establish
programs known as Special Access Programs to afford a greater degree of secrecy.19
They are generally referred to as "SAPS." Some of these programs have been called
"black" programs because their very existence or purpose is not publicly disclosed. Some
are considered so sensitive that they are considered "waived" programs, and the existence
of these is revealed on1 orally to the chairmen and certain staff members of key Con-
gressional committees.?o

Another category of protected information flowing both from inherent Presiden-

tial power and from statute is Sensitive compartmented information (SCI). That is infor-
mation concerning intelligence, particularly the "sources and methods" of gathering
intelligence. The legal bases for protecting this category of information are the National
Security Act of 1947 and Executive Order 12333.~'

The authority to protect information from disclosure includes not only the power
to decide what information is to be protected, but who will have "access" to that infor-
mation. Under Executive Order 12958, a person may have access to classified informa-
tion only when a favorable determination of eligibility has been made by an agency head,
when the person has signed a nondisclosure agreement and when the person has a need to
know the i n f ~ r m a t i o nFor
. ~ ~SAP information, a standard of eligibility higher than nor-
mally established for the same level of classified information may be used.23

General guidelines for eligibility for access were established for the first time
throughout the government in Executive Order 12968. They provide that an individual
must be a U.S. citizen, of sound judgment and character, trustworthy, and free from
potential foreign allegiances and coercion.24That executive order directed the Security
Policy Board to carry out its requirements, and that Board has now developed uniform
Adjudicative Standards binding on the Executive Branch that have been issued by the
National Security ~ d v i s o r . ~Those
' uniform standards have been or are now being incor-
porated into each agency's regulations.26The uniform standards have also been incorpo-
rated by the Director of Central Intelligence in Director of Central Intelligence Directive
614 (DCID 614), the regulation controlling access to Sensitive compartmented informa-
tion ( s c I ) . ~ ~
 Entirely separate systems have been established to determine eligibility for access
by contractor employees and by government employees, and for eligibility for access to
SAP and SCI information. The standards, investigatory methods, and procedures are dis-
cussed in detail in Chapters 4,5,7, and 8.

The determining of security accesses and clearances is a major government pro-

gram that has become its own cottage industry. Whole agencies have been created that do
nothing but investigate and make such determinations. The cost to the government and
industry of protecting classified national security information was reported for 1989 to be
$13.8 billion. By 1995, rimarily due to the end of the Cold War, it was reported to have
dropped to $5.6 billion.P,

An Individual's Rights in Relation to the Protection of Classified Information

Although the President has plenary powers under the Constitution to protect the
national security and conduct foreign relations, those powers do not automatically over-
come the rights of association; freedoms of speech, religion, liberty and due process; and
the equal protection of the law guaranteed to citizens under the Fifth and Fourteenth
Amendments of the ~ o n s t i t u t i o nThe
. ~ ~ courts have balanced these potentially counter-
vailing interests, and though considerations of national security weigh very heavily on the
scales, an individual's interest in employment and to be free from discrimination cannot
be ignored.30The process that is due and the equality of protection afforded always
depend on the issues at stake. In general, however, the courts will not interfere with the
Executive Branch's discretionary judgments of eligibility.3' Colorable constitutional
claims and whether an agency has followed its own procedures are reviewable by the
courts unless Con ess has clearly expressed its intent to preclude judicial review of con-
stitutional claims!Moreover, the Supreme Court has said that any attempt by Congress
to "deny any judicial forum for a colorable constitutional claim would raise serious con-
stitutional concerns."33

While the Executive Branch's determinations are virtually unchallengeable, they

are not without some limits. The Supreme Court in Dept. Of Navy v. Egan reiterated that
the courts have, in the area of national security, "shown utmost deference to Presidential
responsibilities" and "have been reluctant to intrude" in national security affairs, but its
decision a few months later in Webster v. Doe leaves the door open for challenge, based
on a violation of Constitutional right. Denial of a clearance in this day because of dis-
crimination for race, religion, or national origin would be unthinl~able.~~ It is far from
certain, if there was a direct confrontation of these values, what the outcome would be in
view of the courts' upholding of the Executive Branch's power to exclude lesbians and
male homosexuals from the military.35Fortunately, those issues have been mooted by
Executive Order 12968 that prohibits discrimination "on the basis of race, color, religion,
sex, national origin, disability, or sexual orientation in granting access to classified
inf~rmation."~~

Because of historical anomalies in the case law, two procedural systems have
evolved for determining eligibility for access to national security information. One sys-
tem exists for employees of government contractors, for whom a fill administrative
hearing is allowed, with the right to present and cross examine witnesses, and another for
government employees who have no such rights.37The Department of Energy, under the
authority of the Atomic Energy Act, has combined these into a single system granting the
full body of due process rights to both classes of employees.

In Greene v. McElroy, a 1959 case, the Supreme Court held that an employee of a
defense contractor, whose loyalty was questioned, had the right to be shown the govern-
ment's evidence against him and the opportunity to demonstrate that it was untrue.38The
Supreme Court's later pronouncement in Dept. Of Navy v. Egan did not require any
administrative hearing for government employees, holding that there is no inherent right
to a security clearance, and that the Executive Branch has the discretionary right to grant
access to classified i n f ~ r m a t i o nWhile
. ~ ~ there is no logical way to reconcile these two
decisions, the gap has been partially closed by later Executive action. President Clinton,
by Executive Order 12968, has provided a truncated appeals process for government
employees or applicants for employment that requires that they be presented with the
reasons for denying their eligibility for access, and be allowed an opportunity to make a
written and oral presentation to present evidence why they should have access.40While
not formalized to the degree of having a hearing on the record with the right to cross-
examine the government's witnesses, the procedure allowed by the executive order is a
degree of due process that, in all likelihood, meets Constitutional requirements, and a
degree that would be sustained by the courts.

While procedures, more or less elaborate, are available to challenge adverse

determinations of a person's eligibility for access, the determination of a person's need
for access is, under the executive order, discretionary and conclusive with the Executive
ranch.^' Frequently, the line between these requirements becomes blurred. Under the
"need" determination, people in the past have been denied access to SCI and Special
Access programs without ever knowing that they have been investigated or found to be
unsuitable. Today, DCID 614 has been revised to require that people be notified of the
reasons for denial of access to SCI with a limited right to appeal. That directive does not,
however, affect SAPS.

If a government employee is denied access to a SAP program without notifica-

tion, that presumably would have no effect on his employment because so long as the
employee held a security clearance, he would not lose his job. But for a contractor's
employee, denial of SAP access would mean that he would not be hired for a job requir-
ing SAP access, or would be laid off when work not requiring SAP access became un-
available. The contractor employee would not be the wiser, because he would never have
been told that he was considered and rejected for employment in a SAP or "black"
program.

The Standardization of the Industrial Security Program

During the Cold War years of the 1950s through the 1970s, the nation's industrial
community grew to meet the government's need for military, intelligence, and nuclear
products. Each government agency at that time developed its own requirements and stan-
dards for protecting its national security information. By the end of the 1980s, the exces-
sive cost to both industry and the government of multiple standards and requirements
became overwhelmingly apparent. It was recognized that not only was there a plethora of
government personnel security programs, but there were numerous overlapping industrial
security programs, each with differing requirements for protecting classified information
and each with differing standards for physical security of facilities. In April 1990, the
President directed the National Security Council to explore the development of a single,
integrated industrial security program that might result in cost savings and improved
security protection. Before the end of that year the Secretaries of Defense and Energy,
and the Director of Central Intelligence submitted a report recommending the establish-
ment of a National Industrial Security Program (NIsP).~~ Their report found that there
were 21 Departments and agencies, each with its own industrial security program. It
found that in DoD alone there were 47 different standards, manuals, and directives sup-
plementing the basic executive orders and legislation, creating a significant burden on
industry and govemment. It reported that more than 25,000 people had multiple back-
ground investigations conducted by the various agencies with which they dealt. The cost
to industry was $120 million a year in added administrative costs and employee down-
time while waiting for the additional clearances for employees who had already been
cleared in other areas.43That added cost was, of course, passed on to the govemment
through higher prices. The report found that standardization of requirements could reduce
duplication by at least 20 percent.

The 1990 Report recommended the establishment of a National Industrial Secu-

rity Program under the direction of the DoD, leaving to the Secretary of Energy the
authority to protect nuclear materials. It also recommended leaving to the Director of
Central Intelligence the authority to protect sensitive compartmented information, i.e.,
intelligence sources and methods, because of their need for extraordinarily stringent con-
trols. Special Access Programs (SAPS)were also considered a special need. From those
recommendations came a govemment-wide consolidation of industrial security require-
ments for physical security, known as the National Industrial Security Program (NISP). It
also resulted in the development of a standardized background investigation that became
known as the Single Scope Background Investigation (SSBI).

Based on that report, an interagency task force was established in December 1990
to develop a National Industrial Security Program. It was given six months to turn around
40 years of institutional evolution. The recommendations of that task force, which
included opinions and ideas from industry panels, and fiom the American Bar Associa-
tion on personnel security issues, became the basis for the simplification of the entire
classified information program. Ultimately, fiom that report came uniform standards for
determining a person's eligibility for access to classified information, and uniform appeal
procedures if a security clearance or access was denied or revoked.

The first effort to consolidate the clearance process was the; issuance of National
Security Directive 63, Single Scope Background Investigations, in 1991 that set minimum
standards for Top Secret clearances and that required each agency to recognize the back-
ground investigations of other agencies. Its purpose was to eliminate redundant and
costly investigative practices used throughout the Executive ranch.^^ That consolidated
investigation, known as the SSBI, replaced the Background Investigation (BI) required
for access to Top Secret information, and the Special Background Investigation (SBI)
required for Sensitive compartmented i n f ~ r m a t i o nThe
. ~ ~ SSBI required a personal inter-
view of the subject, law enforcement and credit checks, and interviews with people
knowledgeable of the subject's lifestyle and background covering a 10-year period. It
allowed agencies to exceed those standards to address issues unique to those agencies.
Some agencies such as the CIA, the NSA, the FBI and the Treasury Department were
allowed to continue to use polygraphs to screen employees and ap licants because of the
nature of the national security infonnation with which they dealt.4 r

The next step in the consolidation was the issuance of Executive Order 12829 on
January 6,1993, formally establishing the National Industrial Security Program. The pro-
gram was to serve as a single, integrated, cohesive industrial security program to protect
classified information. That executive order directed the National Security Council to
provide overall policy direction, directed the Infomiation Security Oversight Office
(ISOO) to oversee the implementation of the executive order, and directed the Secretary
of Defense to issue a National Industrial Security Program Operating Manual to prescribe
the specific requirements for safeguarding classified information by contractors, licen-
sees, and grantees. The Secretaries of Energy and the Nuclear Regulatory Commission
were given responsibility for the portion of the manual dealing with nuclear energy, and
the Director of Central Intelligence was made responsible for the portion dealing with
intelligence sources and methods, i.e., sensitive compartmented information.

The National Industrial Security Program Manual (NISPOM) was issued in Octo-
ber 1994, and a supplement dealing with SAPS, sensitive compartmented information
(SCI) and critical restricted data (RD)was issued in December 1 9 9 4 . ~It ~replaced the
Department of Defense Industrial Security Manual for Safeguarding Classified
Information.

The need for further consolidation remained apparent. In 1993, because of the
fragmented personnel security system, the Secretary of Defense and the Director of
Central Intelligence appointed a Joint Security Commission to study and make recom-
mendations for a simplified, more uniform, and more cost-effective system. The Com-
mission issued its report, Redefining Security, in February 1994 addressing problems not
only in personnel security, but also in physical security, classification management, and
information systems security.

Congress acted swiftly to accept many of the Commission's recommendations. In

October 1994 it amended the National Security Act of 1947 to require the President to
establish standards and procedures to govern access to classified information binding on
all departnicnts, agencies, and offices of the Executive ranch.^' It was intended that
those standards and procedures create uniform minimum requirements governing the
scope and frequency of background investigations and provide uniform minimum stan-
dards for appealing adverse access determinations. The law required that employees in
the Executive Branch whose access to classified information was threatened with denial
or termination be so advised and be given an adequate opportunity to respond to any
adverse information before a final agency decision. The purpose of the legislation was to
provide a procedure that would ensure that security determinations were not made based
on inaccurate or unreliable information because of their impact on the careers and liveli-
hoods of the individuals concerned, and the possibility of depriving the government of
the services of valuable employees.49

As a result of this legislation, President Clinton signed Executive Order 12968,

Access to ClassiJ%edInformation, on August 2, 1995 that required: (a) reciprocal accep-
tance by agencies of each other's security investigations, (b) a common set of adjudica-
tive guidelines for determining eligibility for access to classified information, (c) a com-
mon set of investigative standards for background investigations, and (d) minimum
review procedures for those whom it had been determined did not meet the standards for
access to classified information. These standards and procedures applied not only to gov-
ernment and contractor employees but also applicants for employment. It did not supplant
the greater appeal procedures for contractor employees. The Executive Order directed the
Security Policy Board to carry out its requirement^.^' It supplemented but did not replace
National Security Directive 63 that had previously established the investigative standards
for the Single Scope Background Investigation. The Security Policy Board developed
uniform adjudicative and investigative standards that were approved by the White House
on March 24, 1997.~'They are binding on the entire Executive Branch and have been or
are being incorporated in each agency's regulations.52

The remaining act of unification and standardization in the field of protecting

national security information was the issuance of Executive Order 12958, ClassiJied
National Security Information, on April 17, 1995, establishing a uniform system for clas-
sifying and declassifying national security information. The executive order directed the
Information Security Oversight Office (ISOO) to oversee compliance with the order and
created the Interagency Security Classification Appeals Panel to resolve classification
disputes arising under the order.

In the view of many, the task of consolidation and simplification is far from com-
plete. In March 1997, the Commission on Protecting and Reducing Government Secrecy,
a bipartisan commission created by Congress to review matters related to classified
information and security clearances, issued its report.53The report contained a number of
significant recommendations among which were: (a) enactment of a statute that would
state the principles of what may be declared secret, (b) creation of a national declassifi-
cation center to coordinate the declassification of information, (c) establishment of an
Executive Branch office responsible for classification and declassificationpractices, (d)
requirement that officials who initially classify information consider the costs and bene-
fits of secrecy as a factor in keeping something secret, (e) requirement that the Director of
Central Intelligence issue guidelines for determining what intelligence sources and meth-
ods are to be kept secret, (f) further standardization of the security clearance procedures,
and (g) greater attention to the threat to automated information systems.

On May 7,1997, S. 712, dubbed the Government Secrecy Reform Act, was intro-
duced by Senators Daniel Moynihan and Jesse Helms to enact the consensus recommen-
dations of the omm mission.^^ Hearings were held and a report issued by the Senate Com-
mittee on Governmental Affairs. However, no further action was taken in the 105th
~ o n g r e s sThe
. ~ ~bill was reintroduced in the 106th Congress on January 19, 1999 by
Senators Moynihan and ~ e l m sAt . ~the~ time of this writing, no legislation has been
enacted to carry out any of these recommendations, nor has the Executive branch taken
any steps to carry them out.
 CHAPTER 2

Type and Scope of Background Investigations

Background of the Present System

Before employees or applicants for employment in government or industry can

have access to national security information, they must undergo a background investiga-
tion to determine whether they are sufficiently trustworthy to hold a security clearance.
The length and complexity of the investigation varies depending on the type of clearance
required and the nature and sensitivity of the information being protected. Confidential,
Secret, and Top Secret clearances each have different investigative requirements, as do
"Q" and "L" accesses for the Department of Energy. Access to Sensitive Compartmented
Information (SCI) and to special access programs has even more stringent investigative
requirements. The type of investigation required and the scope of each investigation are
discussed in this chapter.

Because over the years each agency had developed its own requirements and its
own unique forms, frequently requiring information not required by other agencies, it was
decided at the highest government levels to consolidate and simplify the clearance appli-
cation process. As a first step, the White House in 1991 issued National Security Direc-
tive 63, which established standards for a single background investigation to be used
throughout the government for Top Secret clearance^.^^ Those unified standards are
known as the Single Scope Background Investigation (SSBI). That Presidential action
was overtaken by legislation in 1994 requiring the Executive Branch "to establish uni-
form minimum requirements governing the scope and frequency of background investi-
gations of all employees in the Executive branch of Government" requiring access to
classified i n f ~ r m a t i o nWhile
. ~ ~ that statutory requirement is binding on all departments,
agencies and offices of the Executive Branch of government, it does not apply to con-
tractor employees.

The requirements of the statute were carried out by Executive Order 12968 on
August 2, 1995, which directed the Security Policy Board to develop a common set of
adjudicative standards for background investigations for access to classified informa-
t i ~ nAgencies
. ~ ~ were allowed under the Executive Order to use any lawful investigative
procedure to resolve issues that might arise during an investigation. The statutory man-
date was further carried out when the Securit Policy Board published the Uniform
Investigative Standards on March 24, 1997.6 g

The Executive Order and the Security Policy Board's Uniform Standards apply to
all U.S. Government civilian and military personnel. Although not required by statute,
they also apply to consultants, contractors and their employees, licensees, and grantees of
the government.6' They establish standards for collateral clearances, i.e., Confidential,
Secret, and Top Secret, and for SCI and Special Access Programs access determinations.
"Q" and "L" accesses under the Atomic Energy Act are also covered. The Standards
allow for enhanced investigative requirements for certain Special Access Programs if
they are specifically approved under Executive Order 1 2 9 5 8 . ~ ~
 The Uniform Standads require that investigations meeting the standards for a
given level of clearance must be rr~utuallyand reciprocally accepted by all agencies. They
also provide that if a person who has less than two years' break in service is reemployed,
a reinvestigation will not be required unless it appears that the person no longer satisfies
the standard:,

Scope of Clearance Investigations

The Security Policy Board has established three investigative standards. The first
standard is for Confidential, Secret, and "L" clearances and includes all Secret level Spe-
cial Access Programs (except those with "enhanced requirements").63 The second stan-
dard is for Top Secret and "Q" clearances, including those in SCI and Top Secret Special
Access Programs. The third standard is for reinvestigations of persons already cleared.64
All investigations include a National Agency Check as a minimum.

National Agency Check (NAC)

The National Agency Check I ,irsists of a review of: (a) the FBI's investigative
(

and criminal history files including a fingerprint search, (b) Office of Personnel Man-
agement (0PM)'s SecurityISuitability Investigations Index (SSI), (c) the Department of
Defense Defense Clearance and Investigations Index (DCII), and (d) such other national
agency records as are appropriate to the individual's backgro~nd.~' Those other agencies
may include the Immigration and Naturalization Service for records of citizenship, the
State Department, the CIA, the Treasury Department and the Department of Defense for
military personnel records. Any other federal agency's records may be checked where
appropriate to the investigation.66For an NAC, the applicant must submit a Standard
Form 86 (Questionnaire for National Security Positions), along with all releases and a
fingerprint card.

National Agency Check with Local Agency and Credit Checks (NACLC)

A National Agency Check with Local Agency and Credit Check inquiries
includes, in addition to the National Agency Check requirements: (a) a financial review
including a credit bureau check covering the places where the applicant has resided,
worked or gone to school for the previous seven years; (b) a check with law enforcement
agemies where the applicant has lived, worked, or attended school within the last five
years; and (c) independent confirmation of date and place of birth. The investigation may
be expanded if necessary.67

Siugle Scope Background Investigation (SSBI)

The requirements for a Single Scope Background Investigation were established

in National Security Directive 63. These requirements have been incorporated in the
Uniform Investigative Standards adopted by the Security Policy ~ o a r d . ~ *

The scope of the SSBI is the prior 10 years or to age 18 of the applicant, which-
ever is less. An investigation may be expanded, as necessary, to resolve employment
issues and standards unique to individual agencies. Investigative requirements are:
(a) completion of SF 86; (b) a National Agency Check on the applicant with a fingerprint
check; (c) a National Agency Check of the subject's spouse or cohabitant without a fin-
gerprint check; (d) verification for naturalized citizens of U.S. citizenship of the applicant
and of his or her immediate family members; (e) independent verification of birth, edu-
cation, employment history, and military history; (f) interviews with four references at
least three of which have been independently developed, and with any former spouse
divorced within the previous 10 years; (g) confirmation of present and past residences
and interviews with neighbors; and (h) review of public records concerning the applicant
for bankruptcies, divorces, and civil or criminal actions. A personal interview of the
applicant is required in all cases, conducted by trained investigative, counterintelligence
or security personnel. Additional interviews may be conducted to resolve significant in-
formation inconsistencies. For departments or agencies, where authorized, the personal
interview may include a polygraph e ~ a m i n a t i o n . ~ ~

Confidential, Secret, and "L" Clearance Investigations

Confidential, Secret and L clearance investigations, require, in addition to a

National Agency Check, a local agency and credit check (NACLC)." The investigation
may be expanded if necessary. Reinvestigations of persons holding Secret and "L"clear-
ances must be conducted at least every 10 years - for Confidential, it is every 15 years.

Top Secret and " Q Clearance Investigations

The Single Scope Background Investigation is used for initial investigations for
access to Top Secret, including Top Secret Special Access Programs (SAPS), and for
access to Sensitive Compartmented Information (SCI). It is also used for "Q" access
authorizations under the Atomic Energy ~ c t . ~ '

The SSBI may be expanded to resolve issues where the applicant has resided
abroad, or has listed foreign travel or connections with possible subversive organizations.
Medical records will be reviewed if the applicant lists a history of mental or nervous dis-
orders or addiction or abuse of drugs or alcohol. In that case, interviews with relatives,
psychiatrists, psychologists, and other medical and Iaw enforcement professionals may be
required.

A preemployment polygraph is required only for those agencies for which it has
been approved. These include the FBI, the CIA, the National Security Agency, the
Defense Intelligence Agency, and a limited number of positions in the Department of
Justice and in the Drug Enforcement Agency. It may be used in connection with investi-
gations or reinvestigations by other agencies to resolve issues that arise.

Periodic Reinvestigations (SSBI-PR)

Periodic Reinvestigations are required for Top Secret accesses, including those
dealing with Special Access Programs and Sensitive Compartmented Information, and
for " Q access authorization^.^^ The investigation, known as a Single Scope Background
Investigation - Periodic Reinvestigation (SSBI-PR), must be conducted at least every five
years. The requirements are the same as those for an initial SSBI with the following
exceptions: (a) a National Agency Check is not required on a spouse or cohabitant if
already completed in connection with a prior investigation, (b) no further review of edu-
cation is needed, (c) employment is verified only since the last investigation, (d) only two
references and two neighbors must be interviewed, and (e) the Treasury Department's
financial data bases are checked for unusual or illegal financial transactions covering the
period while the person held a security clearance.

Temporary Eligibility for Access

In exceptional circumstances where official functions must be performed before

the completion of the investigation and adjudicative process, temporary eligibility for
access to classified information may be granted to an employee while the initial investi-
gation is underway. Where such eligibility is granted, the initial investigation will be
expedited.73If unfavorable information is identified during the investigation, the agency
granting the temporary access may revoke it at any time.7"

At a minimum, temporary access at the Confidential, Secret, and "L" levels

requires the completion of a Personal Security Questionnaire, SF 86, a favorable review
of the form and submission of a request for an expedited National Agency Check with
Local Agency Checks (NACLC). The minimum required before a temporary Top Secret
and " Q access is allowed is favorable review of the SF 86 and submission of a request
for an expedited SSBI. For temporary SCI access, and for persons who have not previ-
ously had a favorable security investigation, there is also required a favorable review of
the FBI criminal and investigative records, of OPM's Security/Suitability Investigations
Index (SII), and of the Defense Clearance and Investigations Index (DCII). Agency heads
may establish additional requirements for temporary access based on the sensitivity of the
particular classified information involved, but those requirements may not exceed the
common standards for background investigations established by the Security Policy
Board. Temporary access is not reciprocal and is valid only at the agency granting it.
Howevcr, another agency may agree to accept it.75

The Personal Interview

Questions asked during a personal interview must have relevance to the security
determination. Questions concerning religious beliefs and affiliations, beliefs and opin-
ions regarding racial matters, political beliefs, and affiliations of a non-subversive nature
are prohibited.76AISO barred are questions relating to opinions regarding the constitution-
ality of legislative policies and questions concerning affiliations with labor organizations
and fraternal organizations.

Department of Defense regulations require department investigators, including

those from the Defense Security Service, to be prepared to explain the relevance of their
inquiries. The regulations do not permit inferences to be drawn from a refusal to answer a
question for which relevance has not been e ~ t a b l i s h e dInterviewers
.~~ are instructed not to
offer any opinion regarding the relevance or significance of any answers given to eligi-
bility for access to SCI. Information developed during the interview is required to be kept
in personnel security channels and access to that information is limited to those with a
need to know.78The Office of Personnel Mana ement Manual for Personnel Investiga-
6
tions gives its investigators the same direction.

Sensitive Position Investigations

Positions not requiring access to "national security information" can still have a
material adverse effect on the national security. Such positions are designated as Sensi-
tive positions for which a full field investigation is required.80OPM has defined four lev-
els of sensitivity: (a) Special-Sensitive - those positions with a "potential for inestimable
damage to the national security," (b) Critical-Sensitive - those with a potential for "ex-
ceptionally grave damage, (c) Noncritical-Sensitive-those with a "potential of damage
or serious damage," and (d) Non-Sensitive-those that are "potentially prejudicial.''8'

With respect to national security classifications, Critical-Sensitive includes access

to information classified at the Top Secret level, Noncritical-Sensitive includes access to
Secret information, and Confidential and Non-Sensitive apply to all other positions. In
addition to positions with access to national security information, Sensitive positions in-
clude those that are policy making or policy determining, investigative, fiduciary, or
involve the public trust or public contact. Positions that have a major responsibility with
computer systems, or which have access to computer systems so as to be able to cause
major damage, are also considered Sensitive positions.82

Background investigations for Sensitive positions in the Department of Defense

are covered by DoD's Personnel Security Program Regulation, 5200.2-R. Investigative
requirements for such positions are described in Chapter 3 of the regulation. OPM con-
ducts investigations for sensitive positions in non-Defense agencies, except the FBI and
the CIA. Investigative requirements are described in the Federal Personnel Manual,
Chapter 732.83
 CHAPTER 3

Security Clearance Investigations by the Defense Security Service

Organization of the Defense Security Service

As a result of a defense reform initiative in 1997, the Defense Investigative Serv-

ice (DIS) was renamed the Defense Security Service ( D S S ) . ~DSS
~ investigators are
responsible for conducting personnel security investigations (PSIs) to carry out the DoD
Personnel Security ~ r o g r a m . ~DSS
' also administers the National Industrial Security Pro-
gram on behalf of DoD. (See Chapter 11.)86DSS employs approximately 2,500 people
consisting of approximately 1,200 Special Agents located throughout the United States
and Puerto Rico and approximately 200 Industrial Security (IS) Representatives also
located in offices throughout the United States; in Brussels, Belgium; and in Mannheim,
~erman~.~~

Under the PSI Program, DSS has responsibility for conducting PSIs on DoD
military, civilian and contractor personnel, and employees of other organizations per-
forming research and development for DoD. If DSS encounters evidence of espionage or
subversion, the matter must be referred to a military department counterintelligence
agency or the F B I . Allegations
~~ of possible criminal conduct arising during a personnel
security investigation must be referred to the appropriate Department of Defense criminal
investigative agency or civilian j u r i ~ d i c t i o nDSS
. ~ ~ may not refer allegations of private
consensual sexual acts between adults to law enforcement agencies or military depart-
mcl~ts(OIIILI than a departmental central adjudication facility (CAF) for security clear-
ance adjudications) except if those acts are openly in public view, for compensation,
aboard a military vessel or aircraft, or with a subordinate while on active military or
reserve duty. Information about a person's sexual orientation, or that he or she is a homo-
sexual or bisexual, may not be reported for any purpose except to a CAF for an adjudica-
tion of whether that person would be sub.ject to blackmail if trying to conceal that
informati~n.~~

In addition to its investigative functions, DSS maintains the Defense Clearance

and Investigations Index (DCII), one of the central repositories of information on security
clearances files for government and industry personnel. The DCII is more fully discussed
in Chapter 9.

Personnel Security Investigations

DSS conducts about 40 percent of the personnel security investigations performed

each year by the Federal government. The Office of Personnel Management Investiga-
tions Ser also does about 40 percent, and thc FBI and the CIA each do about half the
\.ic.t:

remainder.'' DSS's personnel investigations arc conducted both by its Special Agents
who are government employees, as well as by private contract investigators, as is done by
other government agencies.92
 DSS conducts more than 150,000 personnel security investigations annually,
which are used by DoD adjudicative facilities to determine an individual's suitability to
enter the armed forces, access classified information, or hold a sensitive position within
DoD. In addition to initial investigations, DSS conducts Periodic Reinvestigations (PRs)
to determine if it is still consistent with national security standards for a subject to con-
tinue to have access to Classified information or to be retained in a sensitive position. The
scope and frequency of a PR depends on the initial investigation conducted and the type
of information to which the subject will have access or the sensitive nature of their posi-
tion. PRs may be initiated at any time following completion of, but not later than 5 years
for Top Secret, 10 years for Secret, and 15 years for Confidential.

As a result of policy changes affecting the frequency and scope of PRs and the
upsurge in information technology positions in government and industry requiring clear-
ances, there is a significant backlog of PRs within DoD resulting in an increased investi-
gative workload within DSS. In order to meet requirements, DSS has initiated an
approach to augment its investigative workforce with the use of private industry
contractors and military reservists. Additionally, in a memorandum dated September 19,
1999, the Assistant Secretary of Defense (C3I), mandated that all investigations for DoD
civilian personnel, except for overseas investigations, be conducted by the Office of Per-
sonnel Management beginning October 1, 1999. This arrangement will be reviewed at the
end of FYOO and each subsequent fiscal year until the Periodic Reinvestigation backlog is
resolved. Presidential appointees in DoD who require security clearances are investigated
by the FBI. Although the National Security Agency and the National Reconnaissance
Organization are "carve outs" from DSS's investigative authority, DSS also does the
investigations for all but the most sensitive positions at NSA?~

Contractor employees in private industry who require security clearances are

investigated by DSS under the Industrial Security Program, not only for DoD but also for
2 1 other govemnient agenciesY4

A personnel security investigation must be requested by electronically submitting

a DD Form 1879 and a Questionnairefor National Security Positions, Standard Form 86,
completed by the person for whom a clearance is required. A request may be submitted
by a defense agency, the security officer of a contractor or by a government entity. The
requester must certify that the individual for whom a personnel security investigation is
requested is assigned to a job that requires access to classified information.

Once a request is received, case analysts at the DSS Personnel Investigations

Center (PIC) scope the investigative leads to various DSS field offices throughout the
country. Investigations are conducted according to the policy outlined in the ROD5200.2-
R (Personnel Security Program) and the procedures in the DSS Personnel Security Inves-
tigative Manual, DSS Manual ~ O - I - MFollowing
.~~ completion of the investigation, the
investigative results or Report for Adjudication is forwarded to the appropriate DoD
Central Adjudicative Facility (CAF).

DSS uses polygraphs during security clearance investigations when unresolved is-
sues have arisen during the investigation. It does not do counterintelligenceinvestigations
or clearance investigations that require a polygraph as part of the initial clearance proc-
ess. The polygraphs may be used as a personnel security screening measure only in those
limited instances authorized by the Secretary of Defense in DoD Directive 5210.48.~~
Participation by the individual being investigated in a polygraph for a "collateral," i.e.,
Confidential, Secret or Top Secret clearance, is voluntary, and no inference may be
drawn simply from the person's refusal to take one. However, if issues remain that have
not been resolved in the individual's favor, the investigation will go forward in that
status, and inferences will be drawn against granting a security clearance based on those
unresolved issues. The use of polygraphs during security investigations is more fully dis-
cussed in Chapter 8.

Pursuant to the Privacy Act of 1974, most of the information contained in the
DSS investigative file is available to the Subject, but only after the investigation is com-
pleted. Some material such as confidential source information, third agency information,
medical information which a physician has determined would be harmfd if released to
the Subject, and information which would constitute an unwarranted invasion of the per-
sonal privacy of another person (e.g., spouse NAC information) may be exempt from the
mandatory disclosure provisions of the Privacy Act and therefore may not be released to
the Subject. A request for investigative files should be directed in writing to the Defense
Security Service, Privacy Act Branch, P.O. Box 46060, Baltimore, MD 21 240-6060. The
request should be signed by the Subject of the file, notarized and contain the Sub'ect's
social security number, date of birth, and address where the file is to be mailed.91)

The adjudicative agency for contractors is the Defense Office of Hearings and
Appeals. For members of the military or civilian employees of the DoD, the investigation
is referred to their respective cAFs.~*The decision whether a person is sufficiently trust-
worthy to hold a clearance is initially made by those offices. If the decision is unfavor-
able, an appeal by a military member or government employee may be taken from the
CAF to the Personnel Security Appeals Board of the Department concerned, or for a
contractor employee to the Defense Office of Hearings and Appeals for a final decision
(See Chapters 6 and 7).

Facility Clearances

The Industrial Security Program includes the Defense portion of the National
Industrial Security Program; the Arms, Ammunition, and Explosives (AA&E) Program;
and the Critical Infrastructure Protection (CIP) Program. The National Industrial Security
Program (NISP) was established to ensure that private industry and colleges/universities
properly safeguard classified information in their possession while performing on U.S. or
foreign government classified contracts or research and development. The AA&E Pro-
gram provides protection for conventional arms, ammunition, and explosives in the cus-
tody of DoD contractors. The CIP provides for the protection and assurance of Depart-
ment of Defense Critical Assets and Infrastructures in the private sector throughout the
world to support national security preparedness responsibilities during peace, crisis, and
war.
 Under the NISP, DSS is responsible for granting facility clearances and for
ensuring the protection of classified information in industry. A facility clearance is an
administrative determination that a company is eligible for access to classified informa-
tion or for an award of a classified contract.99Facility clearances are more fblly discussed
in Chapter 11. Periodic reviews of cleared companies are accomplished by DSS Indus-
trial Security Specialists who are trained in the requirements of the NISPOM.

Investigations of Foreign Ownership, Control, or Influence (FOCI)

As part of the facility clearance process and continuing eligibility assessment,

DSS is responsible for determining whether U.S. companies are under foreign ownership,
control, or influence (FOCI). DSS also prescribes responsibilities in FOCI matters and
outlines security measures that may be considered to negate or reduce the FOCI to an
acceptable level. A U.S. company is considered to be under foreign ownership, control,
or influence when a foreign interest has the power, direct or indirect, whether or not exer-
cised, to direct or decide matters affecting the management or operations of the company
in a manner which may result in unauthorized access to classified information or may
adversely affect the performance of classified contracts. The factors outlined in paragraph
2-302a, National Industrial Security Program Operating Manual, are considered in the
aggregate when determining if a U.S. company is under FOCI."' A U.S. company
determined to be under FOCI is ineligible for a facility security clearance, and a U.S.
company with an existing facility security clearance will have its clearance suspended
unless security measures are taken 40 mitigate the FOCI to an acceptable level. FOCI
investigations are more fully discussed in Chapter 11.
 CHAPTER 4

Security Clearance Investigations by the

Office of Personnel Management

Jurisdiction and Operations of the Office of Personnel Management (OPM)

OPM's Office of Personnel Management Investigations Service now conducts

about 45,000 national security investigations annually, which are 40 percent of the total
personnel security investigations for the federal government.'01It also conducts nonsecu-
rity "suitability" investigations and other types of investigations related to OPM's role in
personnel management and debt c o l l e ~ t i o n . ' ~ ~

OPM began conducting personnel security investigations in 1953 as a result of the

authority given it by Executive Order 10450. In 1954, it obtained additional authority to
conduct personnel security investigations under the Atomic Energy Act for the Depart-
ment of Energy and the Nuclear Regulatory Commission. OPM currently is responsible
for personnel security investigations, including Single Scope Background Investigations
(SSBIs), for most of the non-Defense civilian government agencies. It also does investi-
gations for those DoD civilian employees requiring no higher than a National Agency
Check (NAC) with local agency checks and credit (NACLC) investigations for Secret or
Confidential clearances.

Until 1996, the Investigations Service conducted its investigations with a gov-
ernment staff of about 750 personnel. Now, all of its investigations are contracted out to
USIS, Inc., a private corporation formed with government approval, comprised of former
OPM staff investigators. The Investigations Service, now with a staff of about 50, man-
ages and does quality assurance checks on the investigations done by USIS, Inc. The
Investigations Service operates on a revolving fund basis, charging its customer agencies
for the cost of its investigations. These currently run fiom about $60 for a National
Agency Check to $2,995 for a Single Scope Background Investigation with rush
service.'03

Investigations of contractor employees under the Industrial Security Program are

conducted by OPM only for the Department of Energy and the Nuclear Regulatory
Commission, the remainder being done by the Defense Security Service for the Depart-
ment of Defense and for 20 non-DoD agencies. OPM investigates but does not "adjudi-
cate," i.e., determine an individual's eligibility for a security clearance, except for its own
employees.104Once an investigation is completed by USIS, Inc. and accepted by OPM,
the information that has been collected on an individual is forwarded to the agency that
has requested the investigation. It is that agency which "adjudicates," i.e., evaluates the
information and determines whether to grant a security clearance. Adjudications of gov-
ernment employees and appeals of those adjudications are performed under the provi-
sions of Executive Order 12968. (See Chapter 6.) Adjudications and appeals of contractor
employees' clearances are in accordance with the processes provided by Executive Order
10865. (See Chapter 7.)
 OPM maintains the Security Investigations Index (SII) which is a listing of all
security investigations conducted by that or any other civilian agency. (See Chapter 9.) It
ia now starting another data base that will list all security clearances granted or revoked
throughout the civilian agencies of the government, information not included in the SII.
The new index appears to overlap the DCII maintained by the Defense Security Service.

OPM characterizes all investigations on a scale of "A" through "D," "A" cases
being those with no substantial issues, and " D cases being those with very substantial
issues of concern. The cases are rated based upon a matrix of standards established by
OPM that it calls "issue codes" and "seriousness codes."'" Code ratings are assigned by
the investigator to any questionable conduct relevant to the uniform Adjudicative Stan-
dards, the ratings are tallied and the case is assigned an overall rating. If a completed
investigation is coded "D" when forwarded by OPM to the requesting agency for adjudi-
cation, the agency must report back to OPM within 30 days of what action it has taken. If
the agency takes no action, OPM may revoke the employee's eligibility for government
employment, based on a determination of "unsuitability."

The number of investigations done by OPM, and the results of those investiga-
tions has remained remarkably consistent fiom year to year.106Noteworthy is how many
contain "actionable" issues. Less than half the Single Scope Background Investigations,
Background Investigations and Limited Background Investigations show no "actionable"
issues. For Periodic Reinvestigations of those people already holding security clearances,
slightly more than half show no actionable issues. Individuals having National Agency
Check with Inquiries investigations for the lowest level clearances fared the best with the
least number of issues of concern.

In fiscal years 1996 through 1998, OPM conducted, on yearly average, 4,276
SSBIs for Top Secret clearances. Of those, only 45.8 percent of the individuals investi-
gated had no actionable issues, 35.2 percent had minor to moderate issues, and 6.3 per-
cent of individuals investigated had substantial major issues of security concern in their
b a c k g r ~ u n d .The
' ~ ~ record was even worse for the 18,477 Background and Limited
Background investigations conducted annually. Of those, only 38.8 percent had no
actionable issues, 43.1 percent had minor to moderate issues of concern, and 10.6 of the
investigations raised substantial major issues of concern. Surprisingly, investigations for
the lowest level clearances resulted in 61.7 percent of the applicants having no issues of
concern and only 0.5 percent with major issues.

Periodic reinvestigations of previously cleared persons who currently held secu-

rity clearances disclosed that a substantial number had issues of concern. Of the annual
average of 23,334 such investigations, only 63.8 percent had no issues of concern, while
30.2 percent had fiom minorlmoderate to substantiallmajor issues, including 2.4 percent
in the worst category. The results of the periodic reinvestigations show a need for con-
stant vigilance, as almost one-third of those reinvestigated showed issues of concern in
their background investigation.
OPM Investigations

Currently, regulations pertaining to OPMYsnational security investigations are

found at 5 C.F.R. Parts 732 and 736.'08 These regulations, in turn, refer to Chapter 732 of
the Federal Personnel Manual (which was abolished in 1993) for the investigative re-
quirements for each position sensitivity level.Io9The current regulations were adopted
prior to L ~ I Cissuance of Executive Order 12968 and do not incorporate its new standards
and procedures.

Proposed revisions to Parts 732 and 736 were published in January 1996 but as of
January 1999 were still under consideration.' l o The proposed revisions incorporate the
parts of the FPM, such as the investigative requirements and sensitivity levels of posi-
tions, included only by reference in the current regulations.

The granting of confidentiality to a source is far more restricted under the pro-
posed regulations. Whereas now, there is no limitation on promising that a source's iden-
tity will be kept confidential, as proposed, a pledge of confidentiality could only be
granted "in the most compelling circumstances and only upon specific request by the
source." A pledge of confidentiality could not be assumed and, if granted, would extend
only to the identity of the source or any information that might reveal the source's
''
identity.'

OPM investigations are conducted in accordance with the OPM investigator's

handbook, FPM Supplement 736-1, Conducting and Reporting Personnel Investigations
(February 1999). In general, the criteria and standards in the handbook for each type of
investigation are those described in the former Federal Personnel Manual. The handbook,
however, is much more extensive than the FPM, covering in detail how an investigation
is to be conducted, including how to distinguish truthful responses from deceit. It
addresses the requirements for each type of investigation, how to conduct the field work
portion of the investigation, how to conduct the personal interview of the subject of the
investigation, and how to obtain information from record sources and from interviews
with persons other than the individual being investigated. The handbook describes the
process for evaluating and assigning seriousness codes to the information produced by
the investigation.

The proposed regulations also incorporate the provisions regarding the use of the
polygraph, formerly in the FPM."~Its use under either the former FPM or the proposed
regulations is limited to those Executive Branch agencies which have a highly sensitive
intelligence or counterintelligence mission directly affecting the national security, "e.g., a
mission approaching the sensitivity of the CIA." All other Executive Branch departments
and agencies are prohibited from initiating a polygraph examination for em loyment
screening purposes for applicants or appointees to the competitive ser~ice.''~Agencies
desiring to use the polygraph for preemployment screening must obtain the prior approval
of OPM and must adopt regulations in accordance with strict OPM standards specifying
how the polygraph is to be used.'14 OPM does authorize the use of polygraphs during
preemployment investigations of certain personnel in the Drug Enforcement Administra-
tion, including Special Agents and Intelligence Analysts. Some GSA employees assigned
to DoD communications and certain selected positions in the Secret Service and the
Bureau of Alcohol, Tobacco, and F i r e m s are also polygraphed.

OPM allows its investigators to conduct only 10 percent of its investigations by

telephone and continues to check on applicants' residences, finding that that produces
substantial information.
 CHAPTER 5

Adjudicative Guidelines for Determining Eligibility

for Access to Classified Information

Development of the Guidelines

Before a prospective government employee, contractor employee, or member of

the military can have access to national security information, that person must first un-
dergo a background investigation. If anything questionable results, there will be an adju-
dication to determine whether the person is sufficiently trustworthy to hold a security
clearance. The individual must meet certain criteria, known as the Adjudicative Guide-
lines, relating to their honesty, character, integrity, reliability, judgment, mental health,
and association with undesirable persons or foreign nationals. In judging the person
against the criteria, traits that might make the person susceptible to coercion, bribery or
pressure, or cause him to act in a manner contrary to the best interest of the national secu-
rity are examined. An employee or military member must continue to meet these criteria
after being granted a clearance to remain eligible for access to classified information.

Although the United States Government has long had programs to protect national
security secrets, it was not until 1953, with the issuance of Executive Order 10450, that
the criteria for judging a person's eligibility for a security clearance were first formalized.
That executive order remains in effect. The criteria formulated in Executive Order 10450,
although often reworded and reworked, are essentially the same today as they have been
for more than 45 years.

Because Executive Order 10450 is applicable to only government employees,

Executive Order 10865 subsequently established guidelines for safeguarding classified
information within industry. The later executive order did not establish separate suitabil-
ity standards, so by directive of DoD the adjudicative criteria of the earlier executive
order were made applicable to non-government employees."5

Over the years as administrations changed, each would issue its own executive
order modifying and adjusting the systems, standards, and procedures for protecting
national security inf~rmation."~ Also, each agency dealing with classified information
applied its own interpretations to thc standards for clearances of Executive Order 10450.
Within DoD alone, interpretation and application of the standards fluctuated over time
from very general to very specific to rather general again.

Because of inconsistencies among government agencies, resulting in agencies

having to get multiple clearances for the same employee using different standards, legis-
lation in 1994 required the Executive Branch "to establish uniform minimum require-
ments governing the scope and frequency of background investigations of all employees
in the Executive Branch of government who require access to classified information as
part of their official duties."'" That requirement was binding on all departments,
agencies and offices of the Executive Branch for their employees, but did not apply to
contractor employees.

The requirements of the statute were implemented by the issuance of Executive

Order 12968 on August 2,1995, which directed the Security Policy Board to develop a
common set of adjudicative standards for background investigations for access to classi-
'*
fied information.' It also extended the application of the law to the nongovemment
workforce. Under the Executive Order, agencies were allowed to use any lawful investi-
gative procedure to resolve issues that might arise during an investigation. The statutory
mandate was further accomplished by the Security Policy Board's issuance of its Uni-
form Adjudicative Guidelines on March 24, 1997."~

Although not required by statute, the Executive Order and the Security Policy
Board's Uniform Guidelines apply not only to all U. S. government civilian and military
personnel, but also to consultants, contractors and their employees, and licensees and
grantees of the govemment.'20The Guidelines apply to collateral clearances, i.e., Confi-
dential, Secret, and Top Secret, to determinations for access to Sensitive Compartmented
Information and to Special Access Programs, and to " Q and "L"accesses under the
Atomic Energy Act.

The Security Policy Board also adopted Uniform Investigative Standards for all
access investigations. Those standards allow for enhanced investigative requirements for
certain Special Access Programs that may be specifically approved under Executive
Order 12958.'2' The Uniform Standards require that investigations that meet the require-
ments at a given level must be mutually and reciprocally accepted by all agencies.'22

The Uniform Adjudicative Guidelines

The Uniform Adjudicative Guidelines for determining access eligibility apply to

all persons in the Executive Branch except the President and Vice President. They also
apply to consultants, contractors and their employees, licensees, certificate holders and
grantees and their employees, and to any other person acting for an agency who requires
access to classified information, to Sensitive Compartmented Information, or to Special
Access Programs. The application of the guidelines has been extended to the Judicial
Branch, except for justices of the Supreme Court and judges who are exempt, by proce-
dures established by the chief ~ u s t i c e .The
' ~ ~ guidelines apply not only to persons being
considered for initial eligibility for access to classified information including applicants
for employment, but also to those already having an access who have a continued need.
Persons seeking or having access to Sensitive Compartmented Information and Special
Access Programs are also judged by them. They are used by government departments and
agencies in all final clearance determination^.'^^

The following bbUniformGuidelines," "Adjudicative Process," "Concerns," "Gen-

eral Considerations," "Disqualifying Conditions" and "Mitigating Conditions" are essen-
tially as stated in the Adjudicative Guidelines issued by the Security Policy Board. The
"Comments" following each guideline are those of the author.
 The Uniform Guidelines

The guidelines for evaluating a person's eligibility for a clearance or access to

classified information are the following:'25

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
Misuse of information technology systems

The Adjudicative Process

Determining a person's eligibility for access to classified information is more than

just a mechanicd application of the Adjudicative Guidelines. Eligibility is predicated not
only upon an individual's meeting these personnel security guidelines, but on an exami-
nation of a sufficient period of a person's life to be able to make an affirmative determi-
nation that the person would not be a security risk. There must be a carehl "common
sense" weighing of a number of variables, known as the "whole person concept," in
reaching a determination. This includes information both past and present, favorable and
unfavorable ab\,i~lthe person.

In evaluating the relevance of an individual's conduct, an adjudicator must con-

sider the following factors:

The nature, extent, and seriousness of the conduct;

The circumstances surrounding the conduct, to include knowledgeable

participation;

The frequency and recency of the conduct;

The individual's age and maturity at the time of the conduct;

The voluntariness of the person's participation;

The presence or absence of rehabilitation and other pertinent behavioral

changes;

The motivation for the conduct;

 (8) The potential for pressure, coercion, exploitation, or duress; and

(9) The likelihood of a continuation or recurrence of the ~ 0 n d u c t . l ~ ~

The Adjudicative Guidelines require that each case must be judged on its own
merits, but that any doubt must be resolved against granting access to classified informa-
tion. In the end, there must be a finding that it is clearly consistent with national security
to grant an individual a clearance and access.

Although adverse information concerning a single guideline may be insufficient

to require an unfavorable determination, an individual may be disqualified if information
reflects a recent or recurring pattern of questionable judgment, irresponsibility or emo-
tionally unstable behavior. Notwithstanding the "whole person" concept, an investigation
may be terminated if significant, reliable, disqualifying, adverse information becomes
apparent. The final determination remains the responsibility of the Department or agency
having the classified inf~rmation.'~~

When information of a security concern becomes known about an individual who

currently holds an eligibility for access to classified information, the adjudicator must
also consider whether the person:

(1) Voluntarily reported the information;

(2) Was truthful and complete in responding to questions;

(3) Sought assistance and followed professional guidance where appropriate;

(4) Resolved or appears likely to favorably resolve the security concern; and

(5) Has demonstrated positive changes in behavior and employment;

After evaluating the information of security concern, the adjudicator may consider
temporarily suspending the person's access pending a final adjudication. Where the in-
formation is not serious enough to warrant a revocation of a security clearance, the clear-
ance may be continued with a warning that future incidents of a similar nature may result
in revocation of access.12*

The importance of the "whole person" concept cannot be over emphasized. Con-
duct by one person that is unacceptable might not disqualify another. For example, the
use of a variety of drugs by a person in high school or college, even to a substantial de-
gree, might not disqualify that person, while a single use of marijuana by an adult while
that person held a security clearance would probably cause loss of a clearance. Also, a
person active in his community and with a record of service to others would be more
likely to retain his clearance after being caught shoplifting during a period of emotional
stress, than someone with a series of minor traffic offenses and arrests for public disorder
involving alcohol.130Someone with a diligent work record and a history of adherence to
rules and regulations would be more likely to retain his clearance after a single violation
of security regulations than someone with the same violation who habitually disregarded
work rules.

In an adjudication of an alleged violation of the guidelines, testimony or affidavits

by a spouse, parent, clergy, physician, supervisor, coworker, or neighbor, as appropriate
to the situation, can often provide information about the individual's "whole person"
which would not be found in the investigative file of the alleged violation of the guide-
'"
lines.

Guideline A-Allegiance to the United

The Concern. An individual must be of unquestioned allegiance to the United

States. The willingness to safeguard classified information is in doubt if there is
any reason to suspect an individual's allegiance to the United States.

Disqualifying Conditions:

Involvement in any act of sabotage, espionage, treason, terrorism, sedition,

or other act whose aim is to overthrow the Government of the United
States or alter the form of government by unconstitutional means;

Association or sympathy with persons who are attempting to commit, or

who are committing, any of the above acts;

Association or sympathy with persons or organizations that advocate the

overthrow of the United States Government, or any state or subdivision,
by force or violence or by other unconstitutional means; or

Involvement in activities which unlawfully advocate or practice the com-

mission of acts of force or violence to prevent others from exercising their
rights under the Constitution or laws of the United States or of any state.

Mitigating Conditions:

(1) The individual was unaware of the unlawful aims of the individual or
organization and severed ties upon learning of these;

(2) The individual's involvement was only with the lawful or humanitarian
aspects of such an organization;

(3) Involvement in the above activities occurred for only a short period of
time and was attritdable to curiosity or academic interest; or

(4) The person has had no recent involvement or association with such
activities.
 Comments

Guideline A is probably the least-used guideline for denying or revoking a clear-

a n ~ e .The
' ~ ~Defense Security Service is required, if it discovers involvement with sabo-
tage, espionage, treason, or efforts to overthrow the govemment by unconstitutional
means, to turn the matter over to the appropriate counterintelligence agency or the FBI
for investigation and ultimately criminal prosecution.'34More problematic is a person's
involvement with organizations whose aim is to prevent others from exercising their con-
stitutional rights, such as the Ku Klux Klan or anti-abortion groups that engage in acts of
physical violence. The line between opinion and action is often a fine one, and the guide-
line draws that line at "involvement in activities." No such line is drawn, however, when
it comes to sabotage, espionage, or treason. In that case, "sympathy" with persons
attempting to commit such acts is sufficient grounds to resolve "any doubt in favor of the
national security."

An issue sometimes arises with organizations having both a violence-advocating

arm and one that provides humanitarian relief. While involvement with only the humani-
tarian aspects of such an organization is not grounds for losing a clearance, the argument
is made that contributions for such purpose permits the organization to divert funds, oth-
erwise used for humanitarian relief, to acts of violence.

Guideline &Foreign ~nfluence'~~

The Concern. A security risk may exist when an individual's immediate family,
including cohabitants and other persons to whom he or she may be bound by
affection, influence, or obligation are not citizens of the United States or may be
subject to duress. These situations could create the potential for foreign influence
that could result in the compromise of classified information. Contacts with
citizens of other countries or financial interests in other countries are also relevant
to security determinations if they make an individual potentially vulnerable to
coercion, exploitation, or pressure.

Disqualifying Conditions:

An immediate family member, or a person to whom the individual has

close ties of affection or obligation, is a citizen of, or resident or present
in, a foreign country;

Sharing living quarters with a person or persons, regardless of their citi-

zenship status, if the potential for adverse foreign influence or duress
exists;

Relatives, cohabitants, or associates who are connected with any foreign

govemment;

Failing to report, where required, associations with foreign nationals;

 (5) lhauthorized association with a suspected or known collaborator or em-
ployee of a foreign intelligence service;

(6) Conduct which may make the individual vulnerable to coercion, exploita-
tion, or pressure by a foreign government;

(7) Indications that representatives or nationals from a foreign country are

acting to increase the vulnerability of the individual to possible future
exploitation, coercion or pressure; or

(8) A substantial financial interest in a country, or in any foreign-owned or

foreign-operated business that could make the individual vulnerable to
foreign influence.

Mitigating Conditions:

A determination that the immediate family mernber(s) (spouse, father,

mother, sons, daughters, brothers, sisters), cohabitant, or associate(s) in
question are not agents of a foreign power or in a position to be exploited
by a foreign power in a way that could force the individual to choose
between loyalty to the person(s) involved and the United States;

Contacts with foreign citizens are the result of official United States Gov-
ernment business;

Contact and correspondence with foreign citizens are casual and infre-
quent;

The individual has promptly complied with existing agency requirements

regarding the reporting of contacts, requests, or threats from persons or
organizations from a foreign country; or

Foreign financial interests are minimal and not sufficient to affect the
individual's security responsibilities.

Comments

As with Guideline A, any concerns regarding contacts with foreign intelligence

organizations or exploitations by foreign governments would be referred to a counterin-
telligence organization of the United States Government or the FBI for investigation and
possible criminal prosecution. From a clearance standpoint, what is frequently at issue are
first- or second- generation Americans who have family living with them who have not
become naturalized, or who still have close relatives living in foreign countries. It is not
the allegiance of the person with the clearance that is the concern, addressed in Guideline
A, but the possibility that a foreign government would attempt to coerce that person by
threatening the safety or welfare of the relatives living abroad. The closer the family tie,
the greater the possibility of i n f l ~ e n c e . ' ~ ~
 Also of concern are the actions of a person traveling in a foreign country that
might make them subject to coercion after returning home, such as an illicit sexual rela-
tionship or the use of drugs. Using agent provocateurs to secretly photograph otherwise
well-intentioned persons in compromising situations for use in blackmail to acquire gov-
ernment secrets is not unknown to foreign governments.

Guideline C-Foreign reference'^^

The Concern. When an individual acts in such a way as to indicate a preference
for a foreign country over the United States, then he may be prone to provide
information or make decisions that are harmful to the interests of the United
States.

Disqualifying Conditions:

The exercise of dual citizenship;

Possession andlor use of a foreign passport;

Military service or a willingness to bear arms for a foreign country;

Accepting educational, medical, or other benefits, such as retirement and

social welfare, from a foreign country;

Residence in a foreign country to meet citizenship requirements;

Using foreign citizenship to protect financial or business interests in an-

other country;

Seeking or holding political office in the foreign country;

Voting in foreign elections; or

Performing or attempting to perform duties, or otherwise acting, so as to

serve the interests of another government in preference to the interests of
the United States.

Mitigating Conditions:

(1) Dual citizenship is based solely on parents' citizenship or birth in a foreign

country;

(2) Indicators of possible foreign preference (e.g., foreign military service)

occurred before obtaining United States citizenship;

(3) Activity is sanctioned by the United States; or

(4) The individual has expressed a willingness to renounce dual citizenship.

 Comments

Becoming a naturalized United States citizen does not automatically end foreign
citizenship, as many foreign countries permit dual citizenship. Also, some countries grant
automatic citizenship to the offspring of their citizens regardless of where the children are
born. It is the exercise of rights under a foreign citizenship or the acceptance of benefits
from a foreign government because of that citizenship that is of ~oncern.'~' Those acts
are indicators of possible dual loyalty or possible coercion through the termination of for-
eign benefits. While renunciation of a foreign citizenship is not absolutely required, it is
the clearest indicator of a single loyalty to the United

Guidance D--Sexual ~ e h a v i o r ' ~ '

The Concern. Sexual behavior is a security concern if it involves a criminal

offense, indicates a personality or emotional disorder, subjects the individual to
coercion, exploitation, or duress, or reflects lack of judgment or discretion. Sexual
orientation or preference may not be used as a basis for or a disqualifying factor
in determining a person's eligibility for a security clearance.

Disqualifying Conditions:

(1) Sexual behavior of a criminal nature, whether or not the individual has
been prosecuted;

(2) Compulsive or addictive sexual behavior when the person is unable to stop
a pattern of self-destructive or high-risk behavior or that which is symp-
tomatic of a personality disorder;

(3) Sexual behavior that causes an individual to be vulnerable to coercion, ex-

ploitation, or duress; or

(4) Sexual behavior of a public nature andlor that which reflects lack of dis-
cretion or j ~ d g n e n t . ' ~ '

Mitigating Conditions:

(1) The behavior occurred during or prior to adolescence, and there is no evi-
dence of subsequent conduct of a similar nature;

(2) The behavior was not recent, and there is no evidence of subsequent con-
duct of a similar nature;

(3) There is no other evidence of questionable judgment, irresponsibility, or

emotional instability; or

(4) The behavior no longer serves as a basis for coercion, exploitation, or

duress.
 Comments

Sexual behavior as a basis for denying or revoking a security clearance is fraught

with the most uncertainty of any of the guidelines. Behavior that is legal in one state
might be illegal in another, such as cohabitation by unmarried consenting adults. Adul-
tery may be considered the exercise of poor judgment, but if the spouse forgives or ac-
cepts such behavior, it is questionable whether, in the mores of today's society, it should
be a reason for denying a security clearance.'" It is unquestionable, however, that this
guideline prohibits clearly criminal behavior, such as pedophilia or incest."' In address-
ing these issues, the "whole person" concept and the "common sense determination" of
the adjudicative authorities become most important.144

This guideline (and Executive Order 12968) specifically excludes sexual orienta-
tion or preference as a basis for denying a clearance."' However, if one's sexual orienta-
tion or preference is not openly acknowledged, that becomes a security concern because
of the potential for ~ 0 e r c i o n .That
l ~ ~ concern for coercion is not limited to only homosex-
ual activity but also to heterosexual activity such as adultery which might be cause for
blackmail.

Whether to disclose a homosexual or lesbian relationship can be a Hobson's

choice in relation to keeping a security clearance. Under the "Don't ask-Don't tell" pol-
icy of the military, disclosure of a homosexual or lesbian relationship, except in the con-
text of a security clearance investigation, would lead to dismissal from military service,
but failure to openly acknowledge such a relationship could result in the loss of a security
clearance necessary for a military assignment.147Disclosure of some types of sexual con-
duct during the course of a security clearance investigation may be reported to the mili-
tary service, which could lead to a criminal investigation or an administrative discharge.
In the case of an officer, failure to disclose would cause the loss of a security clearance
that surely would lead to dismissal from military service, as a clearance is a prerequisite
to such service.

Guideline E-Personal

The Concern. Conduct involving questionable judgment, untrustworthiness, un-

reliability, lack of candor, dishonesty, or unwillingness to comply with rules and
regulations could indicate that in an unfavorable clearance action or administra-
tive termination of further processing for clearance eligibility:

(1) Rehsal to undergo or cooperate with required security processing,

including medical and psychological testing; or

(2) Refusal to complete required security forms, releases, or provide full,

frank and truthful answers to unlawhl questions of investigators, security
officials, or other official representatives in connection with a personnel
security or trustworthiness determination:
Disqualifying Conditions:

Reliable, unfavorable information provided by associates, employers,

coworkers, neighbors, and other acquaintances;

The deliberate omission, concealment, or falsification of relevant and

material facts from any personnel security questionnaire, personal history
statement, or similar form used to conduct investigations, determine em-
ployment qualifications, award benefits or status, determine security clear-
ance eligibility or tiustworthiness, or award fiduciary responsibilities;

Deliberately providing false or misleading information concerning rele-

vant and material matters to an investigator, security official, competent
medical authority, or other representative in connection with a personnel
security or trustworthiness determination;

Personal conduct or concealment of information that may increase an

individual's vulnerability to coercion, exploitation, or duties, such as
engaging in activities which, if known, may affect the person's personal,
professional, or community standing or render the person susceptible to
blackmail;

A pattern of dishonesty or rule violations, including violation of any writ-

ten or recorded agreement made between the individual and the agency; or

Association with persons involved in criminal activity.

Mitigating Conditions:

The information was unsubstantiated or not pertinent to a determination of

judgment, trustworthiness, or reliability;

The falsification was an isolated incident, was not recent, and the individ-
ual has subsequently provided correct information voluntarily;

The individual made prompt, good-faith efforts to correct the falsification

before being confronted with the facts;

Omission of material facts was caused or significantly contributed to by

improper or inadequate advice of authorized personnel, and the previously
omitted information was promptly and fully provided;

The individual has taken positive steps to significantly reduce or eliminate

vulnerability to coercion, exploitation, or duress;

A refusal to cooperate was based on advice from legal counsel or other

officials that the individual was not required to comply with security proc-
 essing requirements, and, upon being made aware of the requirement, fully
and truthfully provided the requested information; or

(7) Association with persons involved in criminal activities has ceased.

Comments

Guideline E is a catchall for any types of conduct not otherwise prescribed and is
an overlap of all of the other guidelines. This guideline is a combination of former Crite-
rion "I" which barred "acts of omission or commission that indicated poor judgment, un-
reliability, and untrustworthiness," and former Criterion "0"which barred "any knowing
and willful falsification, cover-up, concealment, misrepresentation, or omission of a
material fact" from any written or oral statement given to the government. Because a
violation of any other guideline is also a violation of this one, it is the government's
practice, when charging a violation of any of the other guidelines to generally also charge
a violation of Guideline E . ' ~ ~

Failure to cooperate with a personnel security investigation is virtually an auto-

matic di~~ualifier.'~' Also, providing false or misleading information during the investi-
gation will most likely disqualify the ~ubject."' To overcome that disqualifier, the sub-
ject of the investigation must show that he misunderstood the request for information or
had some reasonable explanation, such as embarrassment if his employer learned of the
information, or that he wanted to make a full personal disclosure to the government
investigator. Disclosures made during a polygraph after repeated evasions are not likely
to overcome the disqualifier.

Any omitted facts must be material. For example, if in providing an employment

history, a part-time job during high school was omitted, it would not be grounds for de-
nying a clearance to a Ph.D. physicist, unless there was something at the job, such as
criminal involvement, which the applicant sought to hide.

A frequent reason for denying of a clearance under this guideline is the failure to
file federal and state income tax returns. Though no taxes may be owed, the failure to file
is considered an unwillingness to follow rules and regulations and a violation of criminal
law. Generally, if a person completes his filings by the time of the adjudication, a clear-
ance will be granted. However, if there are subsequent failures to file, as often occurs, the
clearance will generally be revoked.

This guideline permits an open-ended inquiry when disqualification can be based

on "reliable, unfavorable information provided by associates, employers, coworkers,
neighbors, and other acquaintances." A disgruntled neighbor may report the unkempt
state of the subject's front lawn or that his house was not regularly painted to neighbor-
hood standards. Supervisors may report that the person did not take direction well or did
not socialize with coworkers. Subjective reports such as these in the record of investiga-
tion have been used as a basis to charge that a person should not have a security clearance
because of questionablejudgment.
 Guideline F-Financial ~onsiderations'~~

The Concern. An individual who is financially overextended is at risk of having

to engage in illegal acts to generate funds. Unexplained affluence is often linked
to proceeds from financially profitable criminal acts.

Disqualifying Conditions:

(1) A history of not meeting financial obligations;

(2) Deceptive or illegal financial practices such as embezzlement, employee

theft, check fraud, income tax evasion, expense account fraud, filing de-
ceptive loan statement, and other intentional financial breaches of trust;

(3) Inability or unwillingness to satisfy debts;

(4) Unexplained affluence; or

(5) Financial problems that are linked to gambling, drug abuse, alcoholism, or
other issues of security concern.

Mitigating Conditions:

(1) The behavior was not recent;

(2) It was an isolated incident;

(3) The conditions that resulted in the behavior were largely beyond the per-
son's control (e.g., loss of employment, a business downturn, unexpected
medical emergency, a death, divorce or separation);

(4) The person has received or is receiving counseling for the problem, and
there are clear indications that the problem is being resolved or is under
control;

(5) The affluence resulted from a legal source; or

(6) The individual initiated a good-faith effort to repay overdue creditors or

otherwise resolve debts.

Comments

History has shown that the need for money has often been the cause of traitors re-
vealing national security information. Excessive debt is viewed as one of the most serious
possible sources of coercion. As the guideline indicates, debt itself is not as critical as the
reasons for one's being in debt and the efforts being taken to resolve it.Is3 Filing for
bankruptcy does not cause an automatic revocation of a clearance. If the bankruptcy
resulted from a profligate use of credit for purchasing luxuries, it will be viewed as re-
sulting from poor judgment and lack of concern for others.'54 If, on the other hand, it was
caused by factors beyond the debtor's control, such as unexpected medical bills, the filing
may be viewed positively since excessive debt will have been eliminated as a possible
source of coercion. Debt alone will not cause the revocation of a clearance if the person is
making good-faith efforts to repay the debt within their means."'

Unexplained affluence as a basis for denying or revoking a clearance is, as has

been previously, in the Adjudicative Criteria. Had it been applied in the case of former
CIA employee, Aldrich Ames, who was able to buy, unnoticed, a $540,000 house for
cash on a mid-level government salary, some of his espionage might have been pre-
vented. Statutes and regulations requiring financial disclosure as a condition for a secu-
rity clearance enacted since his exposure should prevent a reoccurrence.

Guideline G--Alcohol ~ o n s u r n ~ t i o n ' ~ ~

The Concern. Excessive alcohol consumption often leads to the exercise of

questionablejudgment, unreliability, failure to control impulses and increases the
risk of unauthorized disclosure of classified information due to carelessness.

Disqualifying Conditions:

Alcohol-related incidents away from work, such as driving while under

the influence, fighting, child or spouse abuse, or other criminal incidents
related to alcohol use;

Alcohol-related incidents at work, such as reporting for work or duty in an

intoxicated or impaired condition or drinking on the job;

Diagnosis by a credentialed medical professional (e.g., physician, clinical

psychologist, or psychiatrist) of alcohol abuse or alcohol dependence;

Evaluation of alcohol abuse or alcohol dependence by a licensed clinical

social worker, who is a staff member of a recognized alcohol treatment
program;
Habitual or binge-consumption of alcohol to the point of impaired judg-
ment; or

Consumption of alcohol, subsequent to a diagnosis of alcoholism by a cre-

dentialed medical professional and following completion of an alcohol re-
habilitation program.

Mitigating Conditions:

(1) The alcohol-related incidents do not indicate a pattern;

(2) The problem occurred a number of years ago, and there is no indication of
a recent problem;
 (3) Positive changes in behavior supportive of sobriety; or

(4) Following diagnosis of alcohol abuse or alcohol dependence, the individ-

ual has successfully completed inpatient or outpatient rehabilitation along
with aftercare requirements, participates frequently in meetings of Alco-
holics Anonymous or a similar organization, has abstained from alcohol
for at leas! 12 months, and received a favorable prognosis by a credenti-
aled medical professional or a licensed clinical social worker who is a staff
member of a recognized alcohol treatment program.

Comments

Alcohol, drug abuse and financial instability are the three most common reasons
for denial or loss of a security c ~ e a r a n c e .The
' ~ ~ government need not show that the indi-
vidual is :ti1 ;ilcoholic, an alcohol abuser, or alcohol dependent. Several incidents of alco-
hol-related incidents at or away from work are sufficient to question a person's judgment
or reliability.'58 The more serious the incident the fewer incidents will be required to re-
voke a clearance. Even if there have been no incidents, excessive consumption alone can
be the basis for denial or loss of a clearance.

The disqualifying conditions of this guideline are the easiest in theory and the
hardest in practice to overcome. Ideally, if a person enters and successfully completes an
alcohol rehabilitation program, and abstains from alcohol for at least 12 months, the
clearance should be restored. Accomplishing that, however, is sometimes extremely dif-
ficult. Despite the minimum of a year's abstinence as stated in the guideline, adjudicative
authorities generally look for at least two to three years before they will restore a clear-
ance. 159

Guideline H-Drug ~nvolvement'~~

The Concern. Improper or illegal involvement with drugs raises questions

regarding an individual's willingness or ability to protect classified information.
Drug abuse or dependence may impair social or occupational functioning,
increasing the risk of an unauthorized disclosure of classified information.

Drugs are defined as mood- and behavior-altering substances, and include (a)
drugs, materials, and other chemical compounds identified and listed in the Controlled
Substances Act of 1970, as amended (e.g., marijuana or cannabis, depressants, narcotics,
stimulants, and hallucinogens), and (b) inhalants and other similar substances. Drug
abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from
approved medical direction.

Disqualifying Conditions:

(1) Any drug abuse;

(2) Illegal drug possession, including cultivation, processing, manufacture,

purchase, sale, or distribution;
 Diagnosis by a credentialed medical professional (e.g., physician, clinical
psychologist, or psychiatrist) of drug abuse or drug dependence;

Evaluation of drug abuse or drug dependence by a licensed clinical social

worker, who is a staff member of a recognized drug treatment program; or

Failure to successfully complete a drug treatment program prescribed by a

credentialed medical professional. Recent drug involvement, especially
following the granting of a security clearance, or an expressed intent not to
discontinue use, will almost invariably result in an unfavorable
determination.

Mitigating Conditions:

(1) The drug involvement was not recent;

(2) The drug involvement was an isolated or aberration event;

(3) A demonstrated intent not to abuse any drugs in the future; or

(4) Satisfactory completion of a prescribed drug treatment program including

rehabilitation and aftercare requirements, without recurrence of abuse, and
a favorable prognosis by a credentialed medical professional.

Comments

Drug involvement is a security concern because of the possible impairment of

judgment and because of its indicativeness of a person's selective adherence to the law.
While some would argue that smoking a marijuana cigarette to relax on the weekend is
no more impairing than drinking a beer, the fact remains that marijuana is illegal and
alcohol is not.

Any illegal drug use, possession, purchase, sale, or distribution is grounds for
denial or revocation of a clearance. While the former Adjudicative Criteria were very
specific in listing the recency of use and the amount and type of illegal substance used as
factors to be considered in mitigation, the current guideline simply requires that it was
"not recent," and "an isolated or aberration event."161 Wide latitude is left to the adjudi-
cative body to consider mitigating facts, and there is no assurance of consistency from
board to board or case to case.16*

Finding anyone graduating from college today who has not used illegal sub-
stances at some time is difficult. If the test were that only a person who never used or
abused drugs could get a clearance, there would probably be few people in government or
the defense industry under the age of 60. For that reason, much latitude is given to sub-
stance abuse in high school and c 0 1 l e ~ e .Once
l ~ ~ a person has graduated, however, the
assumption is that he has entered the working world and matured.164Much less leeway is
given after that time.
 When prior substance abuse is self-reported in a personnel security questionnaire,
the individual will be asked during a personal interview whether he intends to refrain
from the use of any illegal substances in the future. Unless an unqualified "yes" is given,
he will be denied a clearance.

No leeway will be given to any drug abuse while one holds a clearance.lG5The
government adheres to a zero-tolerance drug policy. Drug abuse after a clearance is
granted is considered a willhl breach of security regulations and will be grounds for
revocation of the clearance and loss of a job, if it is a job for which a clearance is
necessary. 166

Guideline I-Emotional, Mental, and Personality ~ i s o r d e r s ' ~ '

The Concern. Emotional, mental and personality disorders can cause a signifi-
cant deficit in an individual's psychological, social, and occupational hnctioning.
These disorders are of security concern because they may indicate a defect in
judgment, reliability, or stability. A credentialed mental health professional (e.g.,
clinical psychologist or psychiatrist), employed by, acceptable to, or approved by,
the government, should be utilized in evaluating potentially disqualifying and
mitigating information fully and properly, and, particularly, for consultation with
the individual's mental health care provider.

Disqualifying Conditions:

(I) An opinion by a credentialed mental health professional that the individual

has a condition or treatment that may indicate a defect in judgment, reli-
ability, or stability;

(2) Information that suggests that an individual has failed to follow appropri-
ate medical advice relating to treatment of a condition, e.g., failure to take
prescribed medication;

(3) A pattern of high-risk, irresponsible, aggressive, antisocial, or emotionally

unstable behavior; or

(4) Information that suggests that the individual's current behavior indicates a
defect in his judgment or reliability.

Mitigating Conditions:

(1) There is no indication of a current problem;

(2) Recent opinion by a credentialed mental health professional that an indi-

vidual's previous emotional, mental, or personality disorder is cured, un-
der control, or in remission, and has a low probability of recurrence or
exacerbation;
 (3) The past emotional instability was a temporary condition (e.g., one caused
by a death, illness, or marital breakup), the situation has been resolved,
and the individual is no longer emotionally unstable.

Comments

In the past, individuals holding positions requiring access to classified inforrna-

tion were often afraid to get or to report any type of psychological counseling for fear that
any contact with a mental health counselor would result in the loss of a clearance. Execu-
tive Order 12968 specifically addressed that concern stating: "No negative inference...
may be raised solely on the basis of mental health counseling. Such counseling can be a
positive factor in eligibility determinati~ns."'~~If mental health counseling is indicated,
the executive order allows further inquiry to determine if the Adjudicative Guidelines
have been satisfied.

The guideline recognizes that mental health counseling may be necessary and
temporary at times of personal stress, such as a death in the family, illness, or marital
problems. It fkther recognizes that many mental health problems that in the past were
intractable are now curable or can be controlled by medication. Nevertheless, serious
mental disorders that do not respond to medical treatment will bar an individual from
access to classified information.

Behavior that does not rise to the level of a serious mental disorder can still result
in the loss of a clearance, and it is this category that is the most problematic. Included
among this concern are "personality disorders" that can cause "a significant deficit in an
individual's social and occupational functioning." The disqualifying conditions may be
"a pattern of high-risk, irresponsible, aggressive, antisocial, or emotionally unstable
behavior." Assessment of behavior in this category is the most subjective and may
depend as much on the personality of the investigator as on the applicant for a clearance.
Under the guideline, theoretically an engineer who liked to race motorcycles on the
weekend might be considered to exhibit "high-risk, irresponsible" behavior, or a physicist
who was unconcerned about his clothing fashion might be viewed as showing a deficit in
social functioning, or a computer programmer who did not socialize with his coworkers
might be considered to have a deficit in his occupational functioning. In general, how-
ever, only if a credible credentialed mental health professional were to say that the per-
sonality characteristics affected the person's judgment and reliability in ways that made
him untrustworthy would the clearance be denied or revoked. This is a difficult of line to
draw, and one that could eliminate the most brilliant from working on the national
defense, if judged by their eccentric and nonstandard habits. A common sense approach
becomes most important in separating behavior that simply varies from social standards
to that which is an identifiable mental health condition.

Guideline J--Criminal

The Concern. A history or pattern of criminal activity creates doubt about a per-
son's judgment, reliability and trustworthiness.
 Disqualifying Conditions:

(I) Allegations or admissions of criminal conduct, regardless of whether the

person was formally charged; or

(2) A single serious crime or multiple lesser offenses.

Mitigating Conditions:

(1) The criminal behavior was not recent;

(2) The crime was an isolated incident;

(3) The person was pressured or coerced into committing the act, and those
pressures are no longer present in that person's life;

(4) The person did not voluntarily commit the act, andlor the factors leading
to the violation are not likely to recur;

(5) Acquittal; or

(6) There is clear evidence of successful rehabilitation.

Comments

Conviction of a serious crime will certainly cause the denial or revocation of a

security clearance.I7O What becomes questionable is when there has been no convic-
tion.I7' Often, criminal charges will not be reported by the individual involved because
the charge has been dismissed, or the conviction was later expunged. The charge may be
later discovered as part of a personnel clearance investigation of local criminal records or
FBI indexes, thus creating further problems for the subject in explaining why their
response to the Security Questionnaire was incomplete.

For the purposes of a security clearance, it is not the outcome of the charge that is
important, but the nature and gravity of the underlying conduct and the reason for the
dismissal or expungement of the charge.17*If a dismissal is for technical reasons, such as
untimeliness in bringing the charge or as a result of a policy of leniency for first offend-
ers, the underlying charges will be considered as part of the security review.'73 If the
dismissal or acquittal was because there was no factual basis to the charge, that, too, will
be considered.

Multiple, less serious offenses, or offenses that might be considered "administra-

tive," may also be reason for denying or revoking a clearance. Among these is failure to
file state or Federal income tax Though no taxes may have been owed, and the
taxing authorities imposed only civil penalties, because there are statutes that do provide
for criminal penalties, a violation on this basis may be sustained. A series of minor traffic
offenses, each of which individually would not be considered sufficient, in the aggregate
might also be considered a violation of this guideline as evidencing at least a disregard of
societal rules.

Guideline K S e c u r i t y ~ i o l a t i o n s ' ~ ~

The Concern. Noncompliance with security regulations raises doubt about an

individual's trustworthiness, willingness, and ability to safeguard classified
information.

Disqualifying Conditions:

(1) Unauthorized disclosure of classified information; or

(2) Violations that are deliberate or multiple or due to negligence.

Mitigating Conditions:

Actions that:

(1) Were inadvertent;

(2) Were isolated or infrequent;

(3) Were due to improper or inadequate training; or

(4) Demonstrate a positive attitude towards the discharge of security

responsibilities.

Comments

Failure to comply with security regulations is viewed as among the most serious
of violations of the guidelines, as it goes to the very heart of the security process.'76 Will-
ful disclosure of classified information will certainly lead to the revocation of a clearance
and may result in criminal prosecution, even if not done with subversive intent.'77 Re-
peated unintentional infractions, even if minor, may also lead to the revocation of a clear-
ance.I7' Examples are inadvertently shredding a classified document without properly
accounting for it or leaving a computer disc in a desk drawer at the end of the day, rather
than locking it in an authorized safe.17' Such conduct is considered indicative of a lack of
the diligence required for the protection of classified information. While a first or second
violation may result in a reprimand, subsequent infractions of security regulations, even if
unintentional and not causing a compromise of classified information, will likely lead to
the revocation of a clearance.

Guideline &Outside ~ctivities"~

The Concern. 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.

Disqualifying Conditions:

Any service, whether compensated, volunteered or employed, with:

(1) A foreign country;

(2) A foreign national;

(3) A representative of any foreign interest; or

(4) A foreign, domestic, or international organization or person engaged in

analysis, discussion, or publication of material on intelligence, defense,
foreign affairs, or protected technology.

Mitigating Conditions:

(1) Evaluation of the outside employment or activity indicates that it does not
pose a conflict with an individual's security responsibilities; or

( 2 The individual terminates the employment or discontinues the activity

upon being notified that it is in conflict with his security responsibilities.

Comments

Activities most likely to cause concern under this guideline are memberships in
scientific and technical professional ~ r ~ a n i z a t i o n s .Such
' ~ ' organizations fiequently pub-
lisl~research that, although not classified, may relate to the classified work being done by
the cleared individual. Of concern is the possibility of disclosure, at meetings or sympo-
sia, of unclassified information gained through classified research, being combined with
other unclassified information to give insight into classified work. Obtaining prior
authorization by the cleared individual to attend meetings or to make such presentations
is probably the safest way to avoid the possibility of a violation of this guideline.

Guideline M-Misuse of Information Technology ~ ~ s t e m s ' * *

The Concern. 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. Information technology systems
include all related equipment used for the communication, transmission,
processing, manipulation, and storage of classified or sensitive information.

Disqualifying Conditions:

(1) Illegal or unauthorized entry into any information technology system;

 (2) Illegal or unauthorized modification, destruction, manipulation, or denial
of access to information residing on an information technology system; or

(3) Removal or use of hardware, software, or media from any information

technology system without authorization, when specifically prohibited by
rules, procedures, guidelines, or regulations.

Mitigating Conditions:

(1) The misuse was not recent or significant;

(2) The conduct was unintentional or inadvertent;

(3) The introduction or removal of media was authorized;

(4) The misuse was an isolated event; or

(5) The misuse was followed by a prompt, good-faith effort to correct the
situation.

Comments

Although it would appear that the information technology systems to which this
guideline refers are those used for classified or sensitive systems, in the several reported
cases from DOHA and DOE it has been applied to nonclassified and nongovernrnent
computers and to commercial copyrighted software.'83The use of a nonclassified gov-
ernment computer for viewing "adult" material on the Internet has been the basis for
denying a security clearance.'" Like the other guidelines, willful and criminal violations
of this guideline will assuredly cause loss of a clearance. The unintentional or noncrimi-
nal violations are more frequently the subject of a security investigation.

The occasional use of a personal computer for preparing a shopping list or a per-
sonal letter, while an unauthorized use of government property, is far from a rarity. The
use of Tempest-shielded computers for such a purpose, however, puts the use on an
information technology system that the guideline specifically addresses. Although the
preparation of a personal letter or shopping list is a violation of the guideline, it is the
more serious misuse of equipment used to process, manipulate, or store classified or sen-
sitive data that is of greater concern. Taking home a computer disc containing classified
information to work on it, though well-intentioned, is a prohibited violation. Failing to
remove and secure a hard drive containing classified information at the end of the work-
day is another violation. It is such actions, although well-intentioned or inadvertent, that
are a cause of security concern.
 CHAPTER 6

Military and Defense Civilian Employee Appeals

of Adverse Clearance Determinations

Basis of Authority for Program

The Supreme Court in Departmetzt of the Navy v. Egan has held that "no one has
a right to a security clearance" and that "the grant of a clearance is an affirmative act of
discretion ... only when clearly consistent with the interests of the national security."'85
That decision reflects what has been the policy and practice of the Executive Branch of
the govemment since at least the modem origin of the government's program. It was first
formalized in Executive Order 10450 in 1953. That Executive Order, still in effect, deals
only with security requirements for civilian government employees. Similar standards
and criteria have also been applied by Defense Department regulations to applicants for
government employment, to military personnel, and to contractor employees under the
Industrial Security Program. The present system for determining who will have access to
classified information, how those determinations are made, and how decisions may be
appealed was formulated in Executive Order 12968, signed by President Clinton in 1995.
For Department of Defense civilian employees and military personnel, this system is
implemented by DoD Directive 5200.2 and its corollary regulation, DoD 5200.2-R. Each
of the military departments has its own regulation.'86

Prior to the issuance of Executive Order 12968, DoD Regulation 5200.2-R pro-
vided that when a person's clearance was denied or revoked, he would be given: (a) a
detailed statement of why the unfavorable action was being taken, (b) the opportunity to
reply in writing to the authority that issued the statement of reasons, (c) a written re-
sponse to the reply stating the final reason for the decision to deny or revoke a clearance,
and (d) the right to appeal in writing to a higher authority in the DoD component con-
cerned. There was no right to a personal appearance, no right to see or challenge the evi-
dence on which the decision was based, no right to know or cross-examine the accuser,
and no right to present testimony, either personally or by witnesses, to counter the accu-
sations or to support the continuation of a clearance. This was the system approved by the
Supreme Court in the Egan case. The Court never addressed the issue of due process be-
cause, it held, that there was "no right" to a security clearance, and without an enforce-
able right, there is no particular process due.Is7

The current standards embodied in Executive Order 12968 resulted from more
than 11 years of discussion by two administration^.'^^ In March 1983, President Reagan
signed National Security Decision Directive 84 that directed, among other things, that a
study group be formed to review the federal personnel security system and recommend
revisions to existing Executive Ordcrs and regulations. The study resulted in a report to
the Secretary of Defense known colloquially as the Stilwell Commission report, recom-
mending various changes.lS9A draft executive order was circulated to various agencies in
January 1989 that would have authorized significant cutbacks in the procedural rights
then afforded govemment employees and applicants. Opposition from members of
Congress, federal employee unions, the American Bar Association, and other groups
caused the Executive Branch to reconsider and finally withdraw the proposal. With the
change in administrations in 1992, a new study was undertaken which led to the amend-
ment of the National Security Act of 1947, requiring uniform adjudication standards and
procedures.190In 1995, Executive Order 12968 was adopted to carry out the requirements
of the new law.

The new executive order did not provide to government employees all of the pro-
cedural safeguards already afforded to contractor employees, notably the right to a hear-
ing. It did, however, for the first time provide government employees and applicants for
employment the opportunity to present their side of the case and to have it heard outside
the security establishment. Executive Order 12968, while not fully satisfying either those
advocating a full due-process hearing or the security offices' desire for a quick and eco-
nomical decision, balanced the need to protect the nation's secrets with an individual's
right not to be unfairly deprived of his employment or professional career.

Rights and Procedures Under Executive Order 12968

E.O. 12968 makes a number of significant changes in the way security clearances
are considered and granted or denied. For the first time, it imposes uniform standards on
government agencies in granting security clearances and access to classified information.
It directs the Security Policy Board to issue implementing standards within 180 days.lgl
The executive order also makes the uniform standards applicable to applicants for gov-
ernment employment, members of the Armed Forces, and civilian government employees
(as well as contractor employees). It prohibits discrimination based on race, sex, color,
religion, national origin, disability, or sexual preference in the granting of access to clas-
sified information.lg2

Specific procedures for reviewing unfavorable access determinations are also

provided by the executive order.lg3It provides that if an applicant or employee is deter-
mined not to have met the standards for access to classified information, the person will
be: (a) given a written explanation for that conclusion, as detailed and comprehensive as
permitted by the national security; (b) provided within 30 days, upon request, any docu-
ments, records, or reports upon which the denial or revocation was based, to the extent
such documents would be available under the Freedom of Information Act (5 U.S.C. 552)
or the Privacy Act (5 U.S.C. 552a); (c) informed of their right to counsel at their own
expense; (d) informed of the right to request the entire investigative file to the extent
permitted by national security or other law, which if requested, must be provided prior to
the time allowed for a written reply; (e) provided a reasonable time to reply in writing
and to request a review of the determination; (f) provided with written notice of and the
reasons for the results of the review and the identity of the deciding official and the right
to appeal the review; (g) provided an opportunity to appeal in writing to a "high level
panel" appointed by the agency head, comprised of at least three members, two of whom
are outside the security field; and (h) provided the opportunity to appear personally and to
present relevant documents, materials, or other information "at some point in the process"
before an adjudicative or other authority, other than the investigative authority, which can
be before the appeal panel itself. If the personal appearance of the individual is before
anyone other than the appeal panel, a summary or recording must be made to become part
of the individual's security record. The decision of the appeal panel will be in writing and
final unless the agency head personally exercises the appeal authority based on the rec-
ommendations of the appeal panel.

Although an applicant or employee now has the right to a personal appearance,

that is not the same trial-type hearing afforded to contractor employees. There is no right
to hear the live testimony of the government's witness or to cross-examine those wit-
nesses, no right to present witnesses to testify on behalf of the employee or applicant, no
right to see classified information that may be the basis of the denial, and no right to
know of the identities of persons who may have given information with the promise of
confidentiality. Where there is a personal appearance before a hearing officer or adjudi-
cative authority other than the appeal panel, the finding and conclusions are not binding
but are only recommendatory to the appeal panel. There does not have to be any record of
evidence or testimony kept if the personal appearance is before the appeal panel itself.

The executive order provides the right to a personal appearance by the applicant
or employee, with counsel, to testify and to present written evidence before a fact-finding
body and the right to a decision by a panel composed of a majority of members outside
the security field.

Appeals of SAP and SCI Access Decisions

Appeals of denials of access to Special Access Programs (SAPS) for government

employees or military personnel are not required by Executive Order 12968, which
leaves it to each agency that creates the SAP to establish procedures dealing with them.'94
To the extent possible and consistent with the national security, the executive order
directs that the agency procedures bc consistent with the standards and procedures of the
order.''' Most often, however, the person will never know that he has even been consid-
ered for access and rejected. The lack of any "due process" procedures in the SAP arena
for government employees, like that of contractor employees, comes from the Supreme
Court's decision in Green v. McElrop, which suggested that the President might have in-
herent authority to deprive a person of his employment in these special situations so long
as it was done explicitly.'96The Supreme Court's suggestion was adopted for government
employees of the Executive Branch and military personnel by Section 2.2(b) of Executive
Order 12968, and by DoD Regulation 5200.2-4, paragraphs 7-102 and 8-200. The exclu-
sion of appeals of SAP access decisions by contractor employees is provided under
Executive Order 10865. (See Chapter 7.)

Denials of access to Sensitive Compartmented Information to government

employees are appealable under procedures established in Director of Central Intelligence
(DCID 614) (See Chapter lo.)

Security Standards and Procedures Under DoD 5200.2-R

The vast majority of individuals employed by the government who are required to
have national security clearances are civilian employees of the Department of Defense
and members of the armed forces. Their clearances are controlled by Department of
Defense Personnel Security Program Regulation, DoD 5 2 0 0 . 2 - ~ .Chapters
'~~ 6,7 and 8
of that regulation address adjudications, the issuance of clearances, and accesses and
appeals of unfavorable clearance and access decisions.

Before a clearance or access is granted, the standard that must be met is that
entrusting the person with classified information or assigning the person to sensitive
duties is clearly consistent with the national security. That decision must be reached by
using an overall common sense evaluation of all relevant information, both favorable and
unfavorable, including prior experience in similar cases.'98 To ensure uniformity, the
military departments and some other DoD components are required to establish a Central
Adjudication Facility (CAF), to make personnel security determinations, and a Personnel
Security Appeals Board (PSAB) to hear appeals of those determinations. Any proposed
unfavorable determination must be signed by a civilian, of at least grade GS-11 or 12 or a
military officer of rank 0-4.199

Each of the military departments has supplementing regulations establishing its

Central Adjudication Facility and Personnel Security Appeals ~ o a r d . ~ "

The relevant factors that must be considered for government employees and
applicants are the same as those for contractor employees. They are: (a) the nature and
seriousness of the conduct, (b) the circumstances surrounding the conduct, (c) the fie-
quency and recency of the conduct, (d) the age of the individual, (e) the voluntariness of
participation, and (f) the absence or presence of rehabilitati~n.~"

Detailed adjudication guidelines are found in Appendix I to the DoD Regulation.

This appendix was developed from the criteria first formulated in 1953 in Executive
Order 10450, i.e., (a) allegiance to the United States; (b) foreign influence; (c) foreign
preference; (d) sexual behavior; (e) personal conduct; (f) financial considerations; (g)
alcohol consumption; (h) drug involvement; (i) emotional, mental, and personality disor-
ders; (j)criminal conduct; (k) security violations; and (1) outside activities. These guide-
lines match the Uniform Adjudicative Guidelines approved by the White House on
March 24, 1997. The DoD Guidelines include an additional category "M," of misuse of
information technology systems.

The DoD regulation refers to DCID 614 for the adjudication policy for access to
SCI.~O~

Appeals of Unfavorable DoD Determinations

Under DoD Regulation 5200.2-R, an interim suspension of a security clearance

may be imposed by the commander or head of an organization, "if information exists
which raises serious questions" about a person's ability or intent to protect classified in-
formation. No fixed time is mandated to end a suspension, but the regulation requires that
suspensions exceeding 180 days must be closely monitored and managed until finally
resolved.203There is also no appeal of a suspension. However, during a suspension the
employee is kept on the payroll and assigned duties that do not require access to classi-
fied information.

No final unfavorable personnel security clearance determination or access deter-

mination (except access to SAPS) may be made regarding a member of the armed forces,
a civilian employee or a consultant of the DoD, or any person affiliated with the DoD
without affording that person the appeal rights provided in DoD 5200.2-R. The person
must be provided with a written statement of reasons (SOR) setting forth why the unfa-
vorable administrative action is being taken. Upon request, the individual must be pro-
vided with copies of all releasable records or advised where to write to obtain such
records.204

The individual may respond in writing to the appropriate CAF within 30 days
from receipt of the SOR. The time for response is quite limited. The individual must give
notice of his intent to respond within 10 days after receipt of the SOR, and must file a
written response within 30 days. Any extension for more than 30 days must be by written
request to the employing organization. Requests can only be granted by the CAF.~" Fail-
ure to submit a timely response will result in forfeiture of all fkther appeal rights.

If the individual's response is not persuasive, the CAF will issue a Letter of
Denial stating the final reasons for taking the unfavorable action as specifically as
privacy and national security considerations permit. Denial of a clearance or access may
be expected between 60 and 90 days after the CAF's response. Following the CAF7s
denial, the person may appeal without a personal appearance directly to the component's
Personnel Security Appeals Board (PSAB) or may have a personal appearance by
requesting one before the Defense Office of Hearings and Appeals (DOHA). The per-
sonal appearance will be heard by an administrative judge of DOHA, the same judges
who also conduct full administrative hearings on the record for defense contractor
employees.

DOHA will schedule a personal appearance and will provide its "recommenda-
tions" to the appropriate PSAB, generally within 60 days following receipt of the request
for the personal appearance.206 he findings and conclusions of the DOHA administrative
judge are recommendations only, which the PSAB may accept, reject, or modify as it
sees fit. Following receipt of the appeal, or if there is a personal appearance, receipt of
the recommendations of the DOHA administrative judge, the PSAB will provide a writ-
ten decision including its rationale for the decision, normally within 30 to 60 days. The
decision of the PSAB is final and not appealable.207

Personnel Security Appeals Boards consist of three members of at least military

grade 0 - 5 or civilian grade GMIGS-14. At least one member of the board must be equal
or senior in grade to the appellant.208Although the regulation requires that one member
of the board be a permanent member, and have knowledge and experience in the field of
personnel security to provide consistency in decisions, in practice, the "permanent mem-
ber" is sometimes a military officer assigned for a short period and then replaced, so there
is no real institutional memory and often no consistency in decisions. One of the three
board members must be an attorney unless the board has access to legal counsel, and not
more than one member may be from the security career field. Officials of the CAF may
not serve on a PSAB or communicate with it on the merits of any open case. The PSAB's
decision, either sustaining or overturning the original CAF determination, is final and
concludes the process.

Personal Appearances Before DOHA

If an individual requests a personal appearance, the matter will be referred to

DOHA which will assign the case to an administrative judge, who will schedule the per-
sonal appearance, generally within 30 days from the date of the request.209The personal
appearance will be scheduled at the individual's duty station, or close to it if within the
lower 48 states. If not, the hearing may be scheduled at the person's place of employment
or at DOHA'S offices in Arlington, VA, or the Los Angeles, CA, area.

The regulations establishing the procedures for the conduct of the personal
appearances are very perfunctory. They simply require that the administrativejudge con-
duct the proceeding "in a fair and orderly manner." The appellant may be represented by
legal counsel or by a non-lawyer personal representative. Approximately three percent of
individuals seeking a personal appearance before DOHA are represented by
The individual, either personally or through counsel, may make an oral presentation and
may respond to questions by his counsel, his personal representative or by the adminis-
trative judge. No DoD department or agency currently provides legal counsel for its
civilian employees, but the Navy, unlike the other military departments, does provide
legal counsel for its military personnel.

The appellant may submit documents relevant to whether the adverse determina-
tion should be overturned but may not present witnesses. Because the government's wit-
nesses will not be present, the appellant will have no opportunity to cross-examine them.

On completion of the proceeding, the administrative judge will provide a written

recommendation to the PSAJ3 along with any documents submitted by the appellant. The
regulations do not make the administrative judge's recommendation either presumptively
correct or binding, so the PSAB can accept, reject, or modify it at as it chooses.

Although DOHA's administrativejudges apply the same standards to all cases

referred to them, the outcome appears to depend on which military department referred
the case. From December 1995, the beginning of the program, to April 1997,514 cases
have been referred for a personal appearance. Of those cases, DOHA has recommended
reversing 32 percent of the initial CAF decisions and affirming 63 percent.2" In those
cases in which DOHA recommended affirmance of the initial CAF decision, the PSABs
accepted its recommendation'96 percent of the time and reversed it in only 4 percent.
Overall, the department's PSAB's accepted only 48 percent of DOHA's recommenda-
tions to reverse the initial CAF decision, choosing to accept the remainder of the CAF
decisions.

A breakdown of these statistics by military departments shows an uneven treat-

ment of DOHA's recommendations. The Anny P S B agreed with DOHA in 59 percent
of its recommendations to reverse the initial CAF decision, while the Air Force agreed
with only 39 percent of DOHA's recommendations. Overall, of the first 326 personal
appearance cases that have reached a conclusion, 78 percent have resulted in the affir-
mance of the initial CAF decision to withdraw or deny the clearance or access.

Timeliness is another area where actuality does not meet expectation. According
to DoD 5200.2-R, DOHA is to provide a recommendation to the PSAB within 60 days
after its receipt of a request for a personal appearance, and the PSABs are to issue a final
decision within 30 to 60 days after receipt of the recornmendati~n.~'~ DOHA is thus do-
ing better than the expected standard, averaging 49 days from receipt of notice of intent
to appeal to decision. The PSABs do less well, averaging 87 days from their receipt of
DOHA'S recommended decision to their own final decision.213While that is the average,
many final decisions take from 130 to 170 days.

Although the DoD regulation requires that the PSABs provide the reasons for
their decision, whether it be sustaining or overturning the original CAF decision, for the
most part they do not."' Generally, the final PSAB decision will simply be a statement
affirming or reversing the CAI? decision with no reason given and no explanation as to
why a contrary DOHA recommended decision was

DOHA does not provide a copy of its recommended decision to the employee or
applicant before submitting it to the PSAB so there is no opportunity for that person to
file objections or to note any errors. The PSABs also generally do not provide the
employee with a copy of DOHA's recommended decision with their final decision since
it is not required by regulation. DOHA does, however, automatically send a copy of its
recommended decision to the employee or applicant after the final PSAB decision is
issued.
 CHAPTER 7

Contractor Employee Appeals of Adverse Clearance Determinations

Basis of Authority for Program

The right of employees of government contractors to appeal adverse security

clearance determinations stems from the 1951 Supreme Court Decision, Green v.
McElroy. That case held that absent a clear statement by Congress or the President
declaring that such procedures are not needed, an individual is entitled to a full hearing to
confront his accusers when faced with the loss of a security clearance that would deprive
him of his right to follow his chosen profession.2'6To implement the court's ruling,
President Eisenhower in 1960 issued Executive Order 10865, which was further carried
out by Department of Defense Directive 5220.6. Both the 1960 Executive Order and the
DoD Directive, as amended, remain in effect to this day.

The provisions of DoD Dir. 5220.6 have, by mutual agreement, been extended to
20 other federal departments and agencies?I7 Absent, however, are the Central Intelli-
gence Agency, the National Reconnaissance Organization, the Federal Bureau of Investi-
gation and the Department of Energy, all of which have their own contractor review pro-
cedures. Since the DoD Directive by its terms excludes cases dealing with access to
Sensitive Compartment Information (SCI) and access to Special Access Programs
(SAPS), the lack of inclusion of the CIA and NRO from its coverage has no real effect on
contractors with those agencies, as everything they do falls within one or both of those
categories.218The Department of Energy, having jurisdiction under the Atomic Energy
Act, conducts its own security review program that offers procedural protections similar
to those in the DoD Directive. DOE'S program is discussed in Chapter 13. Procedures for
appealing decisions denying access to SCI under Director of Central Intelligence Direc-
tive 614 (DCID 614) are discussed in Chapter 10.

There are no formal procedures for protesting a denial of access to a SAP. Gener-
ally, the person whose access is denied will never know that he or she has even been con-
sidered and rejected. This lack of any "due process" procedures in the SAP arena also
arises fi-om Green v. McElroy, which suggested that the President might have inherent
authority to deprive a person of his employment in these situations so long as it was done
explicitly?19The Supreme Court's suggestion, as it applied to contractor employees, was
adopted by the Executive Branch in Executive Order 10865, $ 9 , and DoD Directive
5220.6, Paragraph B.6. Government employees are also explicitly excluded from
appealing SAP access decisions by Executive Order 12968.

The Preliminary Determination to Deny a Clearance

On completion of a security clearance investigation by the Defense Security

Service (DSS), the investigative file is referred to a branch of that agency, the Defense
Industrial Security Clearance Office (DISCO) in Columbus, OH, for review. If no, or
minimal, questionable information is found, the person is granted a clearance. However,
if sufficient derogatory information exists to question a person's suitability to hold a
clearance, the case is referred to the Defense Office of Hearings and Appeals (DOHA)
for hrther adjudication.220If the potentially disqualifying information precludes DOHA
security specialists from concluding that it is clearly consonant with the national interest
to grant a security clearance, a Statement of Reasons (SOR), analogous to a civil com-
plaint or a criminal indictment will be prepared, stating in some detail the factual and
legal bases for proposing to deny the clearance. The legal bases are couched in terms of
the Uniform Adjudicative Guidelines issued by the Security Policy Board (as hrther dis-
cussed in Chapter 5).22' The person seeking the clearance, i.e., the applicant, is sent the
SOR and given 20 days to file a written answer under oath, either admitting or denying
the charges. He may elect to have a hearing before an administrative judge or to have the
case decided on the written record. The procedures at DOHA are specified in DoD Dir.
5220.6 and its three enclosures, which are sent to the applicant along with the S O R . ~ ~ ~

Procedures at DOHA

The SOR consists of a series of numbered paragraphs, each a mixture of factual

allegations and legal conclusions.223The factual allegations often cover numerous events
over a long period. The conclusions of law charge that the alleged facts violate one or
more of the Adjudicative Guidelines or federal statutes and regulations. Based on those
charging paragraphs, the SOR will conclude that the applicant is unsuitable to hold a
clearance because it is not in the national interest.224

DOHA requires that the applicant submit a "detailed written answer to the SOR
under oath." A general denial of the charges is insufficient. Because the SOR often mixes
factual allegations and legal conclusions, unless an applicant intends to admit that he is
unworthy of holding a security clearance, he must deny each paragraph individually and
admit only those particular facts he does not intend to contest. An applicant may choose
to not contest some or all of the factual alle;;ations, but defenses and mitigating circum-
stances may exist which, if raised, would avoid a finding of unsuitability. If an applicant
files an answer admitting to the entire SOR, including the legal conclusions, and then on
reflection or after retaining counsel amends his answer admitting only to those facts that
are truly uncontested, both the first and second answers may be considered by the
administrative judge in reaching a determinati~n.~~'

An applicant, in answering the SOR, may request a hearing before an administra-

tive judge. If that right is waived, or if a hearing is not requested with the answer, the
case will be decided by an administrative judge based on the written record. DOHA is
fairly liberal in allowing late requests for hearings, particularly when an applicant, who
initially answers pro se, waives a hearing, but later retains counsel who requests it.

Hearings are normally held within a metropolitan area near the applicant's place
of employment or residence. Since the administrative judges and the government's attor-
neys, referred to as "Department Counsel," are based at one of the three DOHA offices in
Arlington, VA, Van Nuys, CA, or Boston, MA, they are fairly flexible in determining the
location of a hearing. A hearing may be in a Federal office building or a local or federal
courthouse at a place selected for the convenience of the applicant, witnesses for both
sides and counsel.

DOHA procedures provide for "at least 15 days notice of the hearing date," but
that, too, is reasonably flexible to allow for the convenience of the appellant, appellant's
counsel, Department Counsel, the availability of witnesses, and the administrative
judge's schedule.

Discovery
Discovery is quite limited. The DOHA Procedural Guidance requires that where
an administrative hearing is not requested, Department Counsel shall give the applicant
"all relevant and material information that could be adduced at a hearing."226In practice,
Department Counsel provides only those documents that it intends to introduce as evi-
dence in its case and does not provide any exculpatory or favorable character evidence
that could be used by the applicant in presenting his case. Department Counsel always
has the complete DSS investigative file that invariably contains some favorable informa-
tion, but will not provide that file unless a specific discovery request is made for it. Often
a request is made too late for effective use to be made of the file. The DSS investigative
file is available to the applicant at any time after the conclusion of the investigation by
making a written request to the DSS Baltimore, MD, office under the Privacy Act. If a
DOHA hearing has been scheduled and that is noted in the request, DSS will expedite
providing the file.

DOHA procedures limit discovery by the applicant to bbnon-privilegeddocuments

and materials subject to control by DO HA."^^^ Normally, documents in the possession of
a "client" are not protected from discovery simply because they have not been turned
over to their attorney. This is not true at DOHA. Department Counsels, who are employ-
ees of DOHA, take the position that although they are representing the interests of an
agency in the Department of Defense or some other agency which may grant the security
clearance, unless the documents are actually in DOHA's possession, they are not "subject
to its control" and are, therefore, protected from discovery. This results in documents
which are held by DSS or one of the agencies administering the applicant's classified
contract being protected from discovery. If DSS omits or "redacts" a part of the inveati-
gative file before delivering it to DOHA, Department Counsel's position is that the appli-
cant must file a Freedom of Information Act or Privacy Act appeal with DSS to get the
remainder of the file. As a practical matter, that would result in years of litigation in the
federal courts, making that avenue of discovery quite illusory in DOHA proceedings.
Thus far, Department Counsel's position has been sustained by the administrative

Discovery requests by Department Counsel for information from the applicant is

discretionary with the administrativejudge and may be granted only on a showing of
good cause.229

DOHA's procedures require that "as far in advance as practical," Department

Counsel and the applicant exchange proposed documentary evidence.230Since the
procedures do not specify any time limits, the government's documents are often not pro-
vided until very shortly before the hearing. The administrative judges handle this in a
variety of ways, some leaving it to the parties to resolve, some requiring a prehearing
conference, and others issuing very specific pretrial orders setting dates for exchange of
documents and for other aspects of the preparation for hearing.

The Hearing

The hearing is held on the record with a verbatim transcript being made of the
proceedings, a copy of which is supplied to the applicant.23' Department Counsel may
make an opening statement followed by the applicant, who may also give an opening
statement, delay it until after the government presents its case, or waive it.

The government has the initial burden of proof and presents its case first. It need
only make aprima facie case before the applicant must go forward with the defense.
Since the ultimate issue is "whether it is clearly consistent with the national interest to
grant or continue [the applicant's] security clearance," and since "any doubt is to be
resolved in favor of the national security and considered final," the government's burden
to make aprima facie case is slight.232

Following the presentation of the government's case, the applicant has the
opportunity to present witnesses and other evidence on his behalf. Not only must evi-
dence be presented in response to the specific charges of the SOR, but equally important
is to present evidence in mitigation and evidence of the applicant's character and standing
in the community. Adjudications under DoD Dir. 5220.6 apply the "whole person" con-
cept, and the directive itself requires that each clearance decision be a "fair and impartial
common-sense determination based on all relevant and material information."233Also,
each of the Adjudicative Guidelines lists circumstances and conditions that may mitigate
the proscribed conduct.234While the administrative judge may find that the alleged con-
duct did occur, he may nevertheless find that, considering the mitigating evidence and
character, it is clearly consistent with the national interest to grant or continue the clear-
ance and rule in favor of the applicant.

DOHA procedures allow for the Federal Rules of Evidence (28 U.S.C. 1010 et.
seq.) to "serve as a guide," but they are not slavishly Hearsay evidence is
permitted, as in other administrative hearings, with consideration given to the weight to
be afforded the evidence.236

Although an applicant is generally allowed to cross-examine witnesses and to ex-

amine documents and other physical evidence, an exception is made when the evidence
or testimony to be offered by the government contains classified information or is from a
confidential informant, or where the witness is unavailable due to death, severe illness or
some other similar cause.237Before such evidence can be considered by the administra-
tive judge, the DoD General Counsel must determine that such evidence is relevant and
material and that failure to consider the information would be substantially harmful to the
national security. In the case of a confidential informant, the head of the department or
agency in possession of the informant's identity must certify that the disclosure of the
informant's identity would be substantially harmful to the national interest. Because such
undisclosed evidence is so inimical to the fundamental due- process right to confront
one's accuser, DOHA makes every effort to avoid its use. To the present, Department
Counsel has never applied for permission to use an oral or written statement without
giving the applicant the opportunity to cross-examine."*

If the applicant intends to use classified evidence, advance written application

must be made to the administrative judge so that a secured facility and a cleared court
reporter may be obtained. Use of classified evidence in a case involving a contractor's
employee case is rare; it is more often used in cases involving military and government
personnel. In the unusual case where classified evidence is submitted, every effort is
made to write the decision in an unclassified form. In only one case has it been required
to classify the final decision because reference to the classified evidence was
~navoidable.'~~

An applicant can apply for restoration of lost earnings if there is a final favorable
clearance decision concerning a clearance that had previously been denied, suspended, or
revoked.240The applicant must show that the earlier action was as a result of the gross
negligence of the Department of Defense and not due to the applicant's failure or refusal
to cooperate. Reimbursement is not authorized for counsel's fees or costs related to the
appeal to DO HA.^^'

The grant or denial of a clearance is an all-or-nothing matter. A clearance may not

be denied at a higher level while retained at a lower level such as Secret or Confidential.
Also, there is no authority to grant a conditional, deferred, or probationary clearance. Any
request for time needed to undergo some form of treatment, or for a period of probation,
to meet the criteria for holding a clearance, will be denied.242

At the applicant's request, hearings may be open to the public. DOHA proceed-
ings are covered by the Privacy Act, and no information produced in the proceedings can
be released outside the government. Even the contractor's security officer can receive
only the ultimate result. Decisions are published with all identifying information
redacted.

Appeal to the DOHA Appeal Board

Either the applicant or the government may appeal a decision of an administrative

judge by filing a notice of appeal with the DOHA Appeal Board within 15 days of the
judge's decision.243A written appeal brief must be filed with the Appeal Board within 45
days after filing the notice of appeal, citing the specific issues raised, and the specific
portions of the record supporting the claimed

The scope of review on appeal is whether: (a) the findings of fact of the adminis-
trative judge are supported by substantial relevant evidence; (b) the procedural require-
ments of Executive Order 10865 and DoD Directive 5220.6 were followed, or (c) the
findings and conclusions are arbitrary, capricious, or contrary to law. In reaching its deci-
sion, the Appeal Board defers to credibility determinations of the administrative judge.245
 The Appeal Board does not hear oral argument, as it construes the current Direc-
tive to preclude such authority. It may affirm or reverse the decision or remand the case
to the administrative judge to correct an identified error. In doing so, the Appeal Board
may specify the action to be taken on remand.246

Once the determination of the administrative judge is affirmed by the Appeal

Board, it is final. Although judicial review is theoretically possible to challenge constitu-
tional error, as a practical matter that is not a realistic c~nsideration.~~'
The courts will
not review factual determinations in national security clearances. Because DOHA has
been at this process for so long, there is virtually no likelihood of success of a constitu-
tional "due process" argument based on procedural defects. The possibility of a constitu-
tional challenge based on grounds yet to be discovered by a creative attorney, of course,
always exists.

A final decision by the Appeal Board is not a permanent bar. After a year from
the time the initial unfavorable decision becomes final, an applicant may reapply and, if
appropriate justification is supplied, the clearance may be granted.248If necessary treat-
ment is obtained, or if the proscribed activity, such as alcohol or drug abuse, is avoided
during that time, the likelihood that the clearance will be reinstated will increase. The
decision to reinstate is made by the Director of DOHA, but Department Counsel may
participate in the determination depending on the nature of the original allegations.

There is a higher probability of a security clearance being denied without a hear-

ing than with one. From 1992 to 1997 in cases decided without a hearing, a clearance was
granted in 23 percent of the cases and denied in 77 percent. With a hearing, it was
granted in 53 percent of the cases and denied in 48 percent.249A hearing probably does
not fully account for the difference. Appellants with cases unlikely to succeed will more
likely opt for a decision on the written record and not spend the time and money for a
hearing. Also, once counsel is involved, there is a greater likelihood for a hearing than
simply a submission of documents and a decision on the written record.

Sources for Research of DOHA Decisions

DOHA has never published in print either its administrative judges' or its Appeal
Board decisions, but does make copies of both available for public inspection and copy-
ing at its headquarters in Arlington, V A . ~ ~The
' decisions are maintained in chronological
loose-leaf binders and may be read and copied by advance appointment with the DOHA
headquarters' staff or may be requested by mail.

In 1997, DOHA began posting its decisions on the Internet, and they are currently
available from 1996 to the present. The URL address is www.defenselink.mil/dodgc/doha/
industrial, The cases are posted, in full, in chronological order based on the date of the
decision. A search engine allows for systematic research of the cases. The Appeal Board
cases are indicated by the suffix "A" added to the case number. Decisions of the
administrative judges are indicated by the suffix "H."
 DOHA publishes in print two indices and a "case citator" each year. The first in-
dex is of all administrative judge and Appeal Board decisions arranged by the adjudica-
tive criteria considered in the case. Each case listed gives a synopsis of the case, the case
number and date of the decision. The second index is a supplement of Appeal Board de-
cisions only. It is organized by the major principles of law discussed in the cases. The
"case citator" is a numerical listing of all cases decided by the Appeal Board, giving the
date of the adminiswative judge's decision, the date of the Appeal Board decision, and the
final action taken. It does not, as the name would imply, give citations to later cases, so
unlike other case citators, one cannot research forward to find later cases addressing the
same point of law. The indices and the case citator are available without charge by writ-
ing to the Office of the Clerk, DOHA, PO Box 3656, Arlington, VA 22203.
 CHAPTER 8

Use of the Polygraph in Security Clearance Investigations

Background and Current Practice

On March 3 1, 1998, a divided Supreme Court, in United States v. Scheffer, held

that the results of a polygraph exam could be banned from use in a criminal trial by either
side because there is simply no consensus that polygraph evidence is reliable. The court
found that the scientific community and the state and federal courts are extremely polar-
ized on the matter.251The Scheffer case resulted from a court martial in which the defen-
dant had attempted to introduce the results of a polygraph in support of his testimony that
he did not knowingly use drugs. The government in that case argued against its reliabil-
ity. Five of the concurring and dissenting justices noted: "there is much inconsistency
between the Government's extensive use of polygraphs to make vital security determina-
tions, and the argument it made in that case stressing the inaccuracy of these tests."252
The majority of the court found nothing inconsistent, however, in the polygraph's use by
the government for personnel screening and as a tool in criminal and intelligence investi-
gations because, it said, such limited out-of-court uses of polygraph techniques differ in
character from, and carry less severe consequences than, the use of polygraphs as evi-
dence in a criminal

The court noted that between 1981 and 1997, the Department of Defense con-
ducted over 400,000 polygraph examinations to resolve issues arising in counterintelli-
gence, security, and criminal investigations. Justice Stevens, in a dissenting opinion, sup-
ported its use by DoD because, he said, its polygraph operators were trained in its own
Polygraph Institute, "which is gen~rallyconsidered the best training facility for polygraph
examiners in the United ~tates."~"Tho Supreme Court's opinion has put to rest any ar-
gument against the continued use of this technique as a tool in national security investi-
gations.

The courts are divided on whether to admit evidence obtained during a polygraph,
some disallowing it on the basis that it is not scientifically valid, others leaving it to the
discretion of the trial judge. The Supreme Court continues to leave the question of its
admissibility to the individual courts, deciding only that a blanket exclusion in criminal
proceedings is not unconstitutional.

In a criminal case, statements made during a polygraph exam are not admissible
unless given voluntarily, because of the Constitutional protections of the Fifth and Four-
teenth amendment^.'^^ However, the denial of a security clearance or of access to classi-
fied information, or the denial or loss of employment because of the withholding of a
security clearance, is not a criminal sanction, so the Fifth Amendment right against self-
incrimination offers no protection even if a polygraph test is required as a prerequisite.
Use in Security Investigations

The use of the polygraph in security clearance investigations has a long and con-
troversial history. Even before the Scheffer case, there was a well-reported divergence of
opinion regarding its validity. The 1997 Report of the Commission on Protecting and Re-
ducing Government Secrecy summarizes this divergence of opinion stating:

Senior officials from agencies that use the polygraph see it as a significant tool
because of its utility in generating admissions of wrongdoing, either during the pre-test,
test, or post-test period. The polygraph saves time and money, and it serves as a deterrent
by eliminating some potential applicants from seeking a highly sensitive position in the
first place. The polygraph examination is conducted before the background investigation,
saving additional resources should the applicant be rejected as a result of polygraph
admissions. According to a May 1993 NSA letter to the White House, over 95% of the
information the NSA develops on individuals who do not meet federal security clearance
guidelines is derived via voluntary admissions from the polygraph process.256

The report notes that not only do many senior Intelligence Community officials
believe that the polygraph is useful, but they also believe that it is scientificallyvalid. It
firther notes the reservations that many others have for using the polygraph as a fact-
finding tool stating:

Although the polygraph is useful in eliciting admissions, the potential also exists
for excessive reliance on the examination itself. A related concern is that too much trust
is placed in polygraph examiners' skills, creating a false sense of security within agencies
that rely on the polygraph. The few Government-sponsored scientific research reports on
polygraph validity (as opposed to its utility), especially those focusing on the screening of
applicants for employment, indicate that the polygraph is neither scientifically valid nor
especially effective beyond its ability to generate admissions (some of which may not
even be relevant based on current adjudicative criteria).257

A 1989 Department of Defense Polygraph Institute (DoDPI) study found that 60

percent of subjects were incorrectly cleared in a test that measured the subject's knowl-
edge or guilt of a crime. The results of this test concluded that the ability to identify those
guilty or knowledgeable of a crime was significantly worse than chance.258The Supreme
Court, in the Scheffer case, referred to various studies that placed accuracy from 50 per-
cent to 90 percent.259

Use of the Polygraph by Federal Agencies

The use of the polygraph in federal personnel investigations was formalized in an

interagency report dated July 29,1966, with the concurrence by Memorandum of Presi-
dent Lyndon B. Johnson. The rules adopted then continue today.260An Executive Branch
agency, which has a highly sensitive intelligence or counterintelligence mission directly
affecting the national security, may use the polygraph for employment screening and per-
sonnel investigations. First, its use must receive approval of OPM, and then, its regula-
tions governing the use of the polygraph must be approved by OPM. A later National
Security Decision Directive, NSDD-84, approved the use of the polygraph for screening
individuals with access to code word i n f ~ r m a t i o n . ~ ~ '

The Presidential memorandum required that an agency's regulations must provide

that the person to be examined be informed: (a) as far in advance as possible of the intent
to use the polygraph, (b) of other devices such as voice recording that will be used
simultaneously with the polygraph, (c) the effect the polygraph examination or the refusal
to take it will have on eligibility for employment, (d) that a refusal to consent would not
be made a part of the personnel file, (e) the characteristics and nature of the polygraph
machine and examination and an explanation of its physical operation and (f) the proce-
dures to be followed during the polygraph and the disposition of the information devel-
oped.262Agency regulations further must require that no polygraph examination be given
unless the subject voluntarily consents in writing after having been informed of the above
requirements that the questions asked be relevant to the inquiry. A number of federal
agencies require applicants to undergo a polygraph exam as part of the hiring process for
employment screening; they are thc Central Intelligence Agency, the Defense Intelli-
gence Agency, the Drug Enforcemrnt Agency, the Federal Bureau of Investigation, the
National Security Agency, and the National Reconnaissance A few positions in
the Department of Justice Command Center also require preemployment polygraphs
because of their access to cryptographic information. Positions having access to certain
Special Access programs also require a polygraph. The White House, National Security
Council, State Department, and Congress have not adopted polygraph screening. Even
among the agencies that use the polygraph, the scope, methods, and procedural safe-
guards may diverge.264

Use of the Polygraph by the Department of Defense

The use of the polygraph for any Department of Defense program is governed by
DoD Directive 5210.48, which states the DoD policy. DoD Regulation 5210.48-R
implements that policy. This directive and regulation apply not only to the military de-
partments but also to the Defense Intelligence Agency and the National Security Agency,
components of DoD. They do not cover its use by the other agencies dealing with na-
tional security information, except to the extent that DoD personnel may be assigned or
detailed to them.

A polygraph examination is mandatory for employment by or assignment to the

DIA and the NSA, and for assignment or detail of DoD employees to the CIA.^^^ It is
also mandatory for employment, assignment, or detail to some DoD "Special Access
~rograms."~"It may only be used for any other personnel security investigation to re-
solve serious credible derogatory information, and then only with the consent of the ex-
aminee.267Moreover, no adverse action may be taken solely on the basis of a polygraph
examination that indicates deception, except upon the written finding by the Secretary or
Under Secretary of Defense, or a Secretary of one of the military departments, that the
classified information in question is of such extreme sensitivity that access under the cir-
cumstances poses an unacceptable risk to the national security.26% addition to the above
uses, polygraph csaminations are authorized by DoD in connection with security clear-
ance matters only in certain situations. They can be used to supplement investigations of
 federal felonies, of unauthorized disclosure of classified information or of alleged acts of
terrorism. They can also be used to determine eligibility of foreign nationals for access to
classified information, or when requested by the subject of a personnel security investi-
gation, for exculpation with respect to allegations arising in the investigation.269

i DoD Procedures for Administering a Polygraph

The procedures for administering polygraphs for DoD programs are specified in
Part D of DoD Directive 5210.48-R. There is no requirement that a person undergo a
polygraph for any reason; however, the refusal to do so may be a bar to employment by
certain of the DoD agencies such as the DIA or NSA, or assignment to the CIA. It may
bar employment in any Special Access Program.

The person to be interviewed must consent in writing, must be given timely ad-
vance notice of the time and place of the polygraph and of the right to have counsel
pres??ent, and must be advised of the privilege against self-incrimination and of the right
to terminate the examination at any time.270This information, however, is often given to
the person being examined after,he is already in the examining room - too late to be
effective. The person, who may have traveled some distance to attend the examination, is
placed in the position of having to reschedule, or worse in his own eyes, of appearing to
be uncooperative and having something to hide. Frequently, given the timing and context,
the person chooses not to have counsel, often to their later regret.

The DoD regulation spells out the exact manner in which the examination must be
conducted. No relevant question may be asked during the polygraph examination that has
not been reviewed with the person to be examined before the examination, and all ques-
tions must have a special relevance to the inquiry. Certain "validating" questions may be
asked without prior disclosure to establish a baseline from which the examiners can judge
the validity of the answers to the relevant questions. The probing of a person's thoughts
or beliefs, or questions on subjects that are not directly relevant to the investigation, such
as religious or political beliefs or beliefs and opinions about racial matters, are
prohibited.271

The examining room where the test is conducted will generally contain only a
desk in which the polygraph instrument is installed if an older mechanical model, or on
which a modem computer version is placed. The modem version of the instrument con-
sists of a computer which generates lines on a video screen, duplicating the lines drawn
by a series of pens on a moving scroll of graph paper on the older mechanical versions.

In addition to the desk, the room will generally contain only a chair for the
operator, and chairs for the person examined and his counsel. An observation room is
normally adjacent to the examination room connected by a one-way mirror. The observa-
tion room will contain a speaker connected to the examination room and listening and
recording devices to record the examination. The examination may be, but is not always,
witnessed by another investigator from the adjacent room. It may be recorded.
 The role of counsel is limited but important. Counsel may not answer for the per-
son being examined, but that person and his counsel may adjourn to discuss a response
before it is given. Of course, any adjournment during the questioning will be noted in the
report of the polygraph operator. Counsel's presence is also important to advise on possi-
ble self-incrimination issues. Counsel can be in the examining room during the prelimi-
nary questioning and may sometimes be allowed to remain during the actual running of
the polygraph. At other times counsel may be required to observe the actual testing
through the one-way mirror connecting the adjacent room. Since all of the questions
asked during the actual test will have been reviewed prior to the person being attached to
the polygraph machine, there will have been ample time for counsel and the person ex-
amined to object to any question.

The presence of counsel cannot be overestimated. It has a restraining effect on

overly aggressive polygraph examiners and a calming effect on the examinee. In the end,
however, it will not create truthful answers out of deceptive ones, nor allow a dishonest
person to "beat the machine." If legal counsel is retained, it should be as early as possible
in the process so that counsel can advise on the necessity, if any, of taking the examina-
tion and on any areas of possible self-incrimination. In general, from an applicant's point
of view, unless it is one of those circumstances where a polygraph examination is abso-
lutely required, one is better off declining since a refisal to take one cannot be the basis
for any adverse action or denial of a security clearance.

The National Security Agency also requires a preemployment polygraph as a

condition of employment. It requires periodic five-year repolygraphs thereafter. The
polygraph covers both life-style and counterintelligence issues. All polygraph examina-
tions are tape-recorded. Copies of the recordings or transcripts of the recordings are gen-
erally denied to the employee or applicant if there is a decision to deny or revoke access
to classified information. However, NSA reports that in rare instances where the decision
to remove a clearance raises a direct challenge to what was said during the polygraph, the
person appealing the decision has been provided with the relevant portions of the tape
recording of the interview.

Use of the Polygraph by Other Agencies

The CIA requires polygraphs of all applicants and regularly repolygraphs all em-
ployees on a periodic basis. It does not allow counsel to be present during any part of the
investigative process or during the polygraph. The agency feels that the presence of coun-
sel makes the investigation more difficult and less productive. The CIA does not disclose
transcripts of the polygraphs, all of which are recorded, and does not disclose the charts
or the questions asked, as it believes that this would compromise its investigative meth-
o d ~ . ~ 'If* someone challenges the rejection of his clearance or access based upon the
polygraph test, the CIA will review the polygraph results to consider the person's objec-
tions, but will not disclose the exact responses given by the individual.

On December 17, 1999, the Department of Energy adopted a polygraph examina-

tion regulation in response to charges of laxity in security at some of its facilities
handling nuclear materials and atomic secrets.273As of July 16,2000, of the 800
polygraph examinations administered, all had passed.274

The Polygraph as Evidence in Administrative Appeals

Federal agencies deciding appeals of actions affecting employees deal with results
of the person's polygraph exam in a number of ways. The Defense Office of Hearings
and Appeals (DOHA), which decides appeals of security clearance decisions, has held
that admissions by an applicant made during a polygraph examination may be admissible
in evidence even though the results of polygraph examination are not."' Such ''results"
would include the polygraph charts and the polygraph operator's interpretation of those
charts. The DOHA Appeal Board has held that Paragraph D.6 of DoD Directive 5210.48,
which states that "no adverse action will be taken solely on the basis of a polygraph ex-
amination chart that indicates deception," does not bar the use in evidence of the appli-
cant's admissions.276

Whether an applicant can use a nongovernment, private polygraph examiner to

present exculpatory evidence is, at the time of this writing, uncertain. In a 1998 Initial
Administrative Judge's decision, it was held that the report of a privately hired polygraph
operator offered by the applicant was inadmissible.277The DOHA Appeal Board reversed
that decision on September 3,1998, holding that an applicant for a clearance may offer in
evidence a polygraph report administered by a private polygraph operator, but has the
burden of proving its admissibility.278On remand, the administrative judge declined to
follow the Appeal Board's ruling, disallowing the report of the private polygrapher on the
basis that the Appeal Board's decision did not comport with applicable DoD policy
allowing only polygraph examinations conducted by federal agencies conforming to DoD
standards.279On further appeal, the DOHA Appeal Board overruled the administrative
judge's finding that the polygraph examination was prohibited by DoD regulation. The
Appeal Board, however, held in this case the applicant had failed to show that his
polygraph examination was reliable.280The effect of the Appeal Board's decision is to
allow an applicant to present evidence of a favorable polygraph examination upon a
proper showing of reliability. Government counsel in this case indicated that at the time
of the hearing, there was a proposed revision to DoD Regulation 5210.48-R, "Department
of Defense Polygraph Program," which if adopted would bar the use as evidence of an
applicant-sponsored polygraph examination.

The Merit Systems Protection Board (MSPB), another federal agency which hears
appeals of adverse employment actions, does allow the results of polygraph tests into
evidence if a foundation is laid establishing the test's reliability. While finding that poly-
graph results may be admissible, the MSPB does not hold that the result of such tests
must be accepted into evidence.28'It leaves to the presiding official whether to admit the
test and to decide what weight is to be given such evidence.'82 In a 1980 case, the MSPB
listed a number of factors to be considered in determining the reliability of polygraph
evidence. The rigorous test of "reliability" established in that case was substantially
diminished in a 1997 case which allowed into evidence an investigator's summary of the
results of a polygraph test given by someone else. The investigator's summary was of
what he had found in the files of an earlier police investigation. The basis for admitting
the summary in the 1997 case was that it was a "public record or report" admissible under
Rule 803(8) of the Federal Rules of Evidence. The MSPB held that the problem of "dou-
ble hearsay" went simply to the weight, not the admissibility, of the evidence.283

The MSPB allows both the employee and the government to bolster its case with
polygraph evidence, but tends to give more weight to tests which support the govern-
ment's case than those which support the employee's version of the Use of poly-
graph evidence in MSPB proceedings has been affirmed by the Federal Circuit Court of
Appeals, which has held that it is within the province of the presiding official's credibil-
ity determination^.^^^
 CHAPTER 9

Central Security Investigation Indices

A frequently asked question is whether information about a person obtained by

one agency during a security investigation is available to other agencies. The answer is
yes. A central repository of information was first authorized in 1953 by Executive Order
10450. That order directed the Office of Personnel Management to establish a central
security investigations index containing the name of all persons about whom a security
investigation had been conducted. It also required for each such person, adequate identi-
fying information and a reference to each department or agency that conducted the inves-
tigation, or suspended or terminated the employment of such persons.286That index is
known as the Security Investigations Index (SII).

A similar index, known as the Defense Clearance and Investigations Index

(DCII), is maintained by the Department of Defense. The DCII is the single automated
central repository that identifies investigations conducted by DoD investigative agencies
and personnel security determinations made by DoD adjudicative authorities.287Both the
SII and DCII document investigations and federal employees, applicants for federal em-
ployment and on employees of firms working for the federal government under contract.

A third central repository of information is the FBI, which maintains files on all
of its investigations and a central fingerprint file. All of these indices are checked at the
beginning of any clearance investi ation as part of the National Agency Check (NAC),
the first step in any hvestigation.2 L

The Security Investigations Index (SII)

The Office of Personnel Management maintains the SII, a compilation of infor-

mation on all investi ations conducted under Executive Order 10450, as well as other
OPM investigations!89 The SII contains a record of the agency conducting the investiga-
tion; the reason for any subsequent dissemination of information, the date of the case, the
name and social security number of the subject of the investigation, and other identifying
data.290Files are maintained in this index for 15 years unless a case has resulted in sub-
stantially actionable issues such as an adverse adjudication or a debarment, in which case
the file will be maintained for 25 years. OPM is now starting another database that will
list all security clearances granted or revoked throughout the civilian agencies of the gov-
ernment, information not presently included in the SII. The new index appears to parallel
the DCII (see Chapter 4.)

When an agency makes a request, OPM will conduct a search of the SII and will
provide the requesting agency with information from the index as well as from any in-
vestigative files it maintains.291The requesting agency must notify OPM of any adjudi-
cative action taken on the subject within 90 days of receipt of the file. Also, any agency
conducting its own personnel security investigation must notify OPM of the initiation of
the investigation and of the final adjudicative action.292
 If OPM conducts an investigation and its search of the SII reveals that an investi-
gation of the subject has reviously been conducted, it must obtain a copy of the previous
investigation for review. P,,

The Defense Clearance and Investigations Index (DCII)

The DCII, although operated and maintained by the Defense Security Service, is
available to other federal agencies with adjudicative, investigative, or counterintelligence
missions, and is used throughout the intelligence community. Certain agencies may be
authorized to be "contributors" to the DCII, while others may be authorized to have
"Read Only" access. The security requirements for both contributors and "Read Only"
activities are the same.

Although the DCII is an unclassified system and contains only unclassified in-
formation, positions having a direct access to a DCII terminal are considered ADP-1
Critical Sensitive due to the sensitive nature of the information in the index. Individuals
having access to the DCII terminals must, therefore, have a favorably adjudicated back-
ground investigation. Because of the sensitivity of the information, DCII terminals are
afforded the physical protection normally reserved for classified information. The termi-
nals must be in a locked, guarded, and alarmed area, and when operational, access to the
terminals is limited to authorized persons.

When a DOD contributor to the DCII becomes aware of significant, unfavorable

information about an individual about whom clearance or access information has been
entered by another DoD component, it must immediately notify the other component and
send it copies of all relevant information. Although the DoD regulation covers only De-
fense organizations, non-DoD organizations also use the DCII, and they are also notified
by DoD of unfavorable information. They, in turn, notify DoD and each other of unfa-
vorable information.

The DCII database consists of an alphabetical index of personal names and occu-
pational titles. Personnel security adjudicative determinations are also maintained by the
subject's name.294The database includes information not only from personnel security
investigations, but also information from investigations conducted by DoD criminal, in-
telligence, and fraud activities. The indexed names are not only those of the subjects of
investigations, but also of cosubjects, victims, and cross-referenced "incidental" subjects.
For entries related to personnel security investigations, the DCII lists the clearance eligi-
bility and access status of an individual and the presence of any adjudicative file.

Investigative data in the DCII includes all information resulting from an investi-
gation, when an investigation was opened and when it was completed. Changes are made
to existing files whenever appropriate.

"Adjudicative" data is entered on all personnel with access to classified informa-

tion and on those performing sensitive duties. Specifically, an entry is made immediately
upon the suspension of access; when an interim access has been authorized; immediately
following the grant, denial, or revocation of a clearance or access; and any new informa-
tion received subsequent to any earlier clearance or access determination.

Although an adjudicative determination may be deleted two years after employ-

ment or clearance eligibility ends, the data is maintained in a historical file for a mini-
mum of five years after deletion from the ~ ~ 1 1 . ~ ~ '

Release of information in the DCII is tightly controlled. All releases of informa-

tion from a DoD to a nonDoD agency must be recorded. A contributor may only disclose
DCII data originated by that contributor. Any requests by individuals for release of in-
vestigative reports or adjudicative files on themselves are handled as Privacy Act re-
quests. The release of such information can only be authorized by the agency contributing
that information.
 CHAPTER 10

Sensitive Compartmented Information and Special Access Programs

There are only three levels of classification of national security information: Con-
fidential, Secret, and Top Secret. Those levels define, respectively, information, the dis-
closure of which could reasonably be expected to cause "damage," "serious damage," or
"exceptionally grave damage" to the national security. No other terms may be used to
identify classified information.296Certain information, however, is deemed so important
that greater investigative standards and controls are placed on the "access" a person has
to such information. In that category is certain classified information dealing with intelli-
gence sources, methods, or activities known as Sensitive Compartmented Information
(SCI), access to which is governed by standards established by the Director of Central
Intelligence (DCI). SCI is held throughout the government, but to a lesser degree than in
the past. In the 1980s there were an estimated 800 SCI compartments in the Department
of Defense. By 1997 that was down to roughly 300 compartments.297

There is another class of information that imposes higher safeguarding and access
requirements than "normally required for information at the same classification level."
Such information is held in programs known as Special Access Programs SAPS).*^^

Sensitive Compartmented Information

The National Security Act of 1947 requires the DCI to protect "intelligence
sources and methods from unauthorized disclosure."299Executive Order 12333 further
requires the DCI to protect intelligence sources and methods and to issue appropriate
directives to implement the From those anthorities has emanated Director of
Central Intelligence Directive No. 614 (DCID 6/4), Personnel Security Standards and
Procedures Governing Eligibility for Access to Sensitive Compartmented ~nforrnation.~~'
DCID 614 defines Sensitive Compartmented Information as "classified information con-
cerning or derived from intelligence sources, methods, or analytical processes requiring
handling exclusively within formal access control systems established by the Director of
Central ~ n t e l l i ~ e n c e Neither
. " ~ ~ ~ the National Security Act of 1947 nor E.O. 12333 or any
other L ~ ~ c u t i Order
v e has defined what is a "source" or "method." The use of these
authorities to sometimes classify not only closely held information, but also newspaper
articles, public broadcasts, and other open information in the public domain has been the
subject of ftequent criticism.303However, the right of the CIA to classify such informa-
tion has been upheld by the Supreme

The criteria under DCID 614 for approving an individual for access to SCI are the
Uniform Adjudicative Guidelines issued by the Security Policy Board. They are incorpo-
rated as L i i i l C~ ~to~ DCID 614. In general, the person must be: "stable, trustworthy, reli-
able, of excellent character, judgment and discretion, and of unquestioned loyalty to the
United All exceptions to these standards must be "common sense determina-
tions" that the risk to the national security "is manageable" in the specific case for which
the exception is granted.306In arriving at the decision of whether to grant access, all
doubts must be resolved in favor of protecting classified information. The ultimate con-
clusion in every case must be that the granting of access is "clearly consistent with the
interest of national security," using "an overall common sense determination based on all
available information."307

The investigation conducted on an individual under consideration for access to

SCI will conform to the Uniform Investigative Standards for Single Scope Background
Investigations (SSBI) established by the Security Policy Board. (See Chapter 2.) These
have been incorporated verbatim into DCID 614 as Annex A. "Quality Control Guide-
lines" for conducting the SSBI are included in DCID 614 as Annex B. These Quality
Control Guidelines are broad directions to investigators concerning the scope of informa-
tion sought.

Individuals considered ineligible for access to SCI will not, solely for that reason,
be denied access to other classified information. Conversely, individuals who are author-
ized access to SCI under an exception to the requirements of DCID 614 will not, solely
for that reason, be considered eligible for access to any other class of information. The
person requiring access to SCI must be a U.S. citizen as, in general, must his family. An
exception will be made for a family member only for compelling reasons where it is de-
termined that the security risk is negligible.308The lack of U.S. citizenship of a family
member may be a factor. If the person seeking the clearance has lived outside the United
States for a substantial period of his life, that may prevent a complete investigation of the
individual which would preclude the granting of access.

Except in extremely rare situations, a comprehensive background investigation

will be conducted before access to SCI is granted.30g(Temporary eligibility investigative
requirements are more fully discussed in Chapter 2.) The CIA now uses Standard Form
86, Questionnaire for National Security Positions (sometimes called a Personal Security
Questionnaire or PSQ) as the basis for beginning all investigations and no longer uses its
own form.

Appeals of Adverse SCI Access Decisions

The past practice of the CIA under earlier versions of DCID 614 had been to deny
almost all requests for an appeal and almost all requests for the reasons for denial of ac-
cess. With the issuance of E.O. 12968, that was no longer possible. The procedures for
appealing decisions denying or revoking access to SCI are now described in Annex D to
the current DCID 614. They apply government-wide not only to the "intelligence com-
munity" but to every other agency or government entity dealing with SCI.~"Every per-
son considered for initial or continued access to SCI (except in Special Access Programs)
can utilize those procedures. This includes government civilian employees, military per-
sonnel, employees of government contractors, and applicants for government or industry

The directive provides that the senior official of each Intelligence Community or-
ganization (the SOIC) or his designee may designate an individual to be the Determining
Authority to decide cases regarding access to SCL)'* The appeals procedures state the
law eslablished by judicial decision, that the denial or revocation of access under the
Directive will not be considered the denial of a constitutional property or liberty interest
in any claimed right to access to classified i n f ~ r m a t i o n . ~ ' ~

The right to appeal does not begin until there has been a final decision denying or
revoking access."' In the past, to avoid giving an employee notice of any problem, or any
opportunity to appeal, many government security officers simply directed the sponsoring
contractor or government organization to withdraw the employee's nomination for SCI
access. In such cases, the employee never knew that access was not or would not be
approved. Even if the employee did know, that person could do nothing to protest be-
cause he no longer had a "need" for access. That practice is no longer permissible. E.O.
12968 guarantees a right to appeal a decision denying access to any other classified in-
formation, including SCI, with the exception of Special Access Program information.

Although present CIA policy is to provide an appeal in every case of a denial of

SCI access, it is reported that some contractors and some agencies are still following the
former practice, despite the language of E.O. 12968 and the DCID 614. Contractor secu-
rity officers will frequently, with no notice to the employee, withdraw their nomination
for a position requiring SCI access to remain in the good graces of their government
counterpart who can exercise great control over a contractor. While access can no longer
be summarily revoked for persons already having an access, it can be suspended indefi-
nitely. Since an appeal is available only after a final decision and there are no time limits
on reaching a final decision, the person is simply assigned other duties during an indefi-
nite suspension.

The appeal begins after a final decision is made and there is a stay of an access
decision pending the outcome of the appeal. Thus, any uncertainty regarding a person's
qualifications is resolved by preventing access unless and until the appeal establishes that
an improper decision was made.

Under the appeals procedures of Annex D to DCID 614, an individual is to be

given a comprehensive, written explanation of the basis for the denial of access in as
much detail as the national security permits. Classified information is not disclosed. The
person has opportunity to appeal to a three-member appeal panel and to appear personally
at some point in the process.

Appeal rocedures at the CIA itself are described in CLA Administrative Regula-
tion AR-10-16.P" Although E.O. 12968 and DCID 614 require only that an agency pro-
vide an individual the investigative file if asked, the CIA does provide the investigative
file to CIA employees at the time it provides the written explanation. It will not provide
any polygraph document^.^'^ An applicant for employment or a contractor employee
must still request the file, and to him, the CIA will only provide a redacted summary
memorandum, deleting, among other information, the name of the deciding official even
though Executive Order 12968 requires its disclosure.

Appeals procedures for CIA employees differ from those for applicants and for
contractor employees. An appeal by a CIA employee goes to a higher-level panel than
one provided to applicants and contractors employees on the belief that employees al-
ready have access to secure information and, therefore, closer scrutiny must be given to
determine whether their security clearance should be revoked. CIA employees are enti-
tled to a personal appearance before a member of the security staff who is generally a
GS-12 to GS-14 level employee. The recommendations of the staff member based on the
personal appearance are reviewed by the Associate Deputy Director for Administra-
tion/Security. The final level of appeal is to an Appeal Panel comprised of the Agency
Executive Director who chairs the Panel, the Associate Deputy Director for Operations
for Counterintelligence, and the head of the employee's career service or office. The de-
cision of the Appeal Panel is final.

For CIA applicants and contractor employees and applicants, the personal appear-
ance is before a senior security officer not involved in the original revocations decision,
and the appeal is to a lower-level panel. The chair of that Appeal Panel is the Director of
Security for contractors, or a senior staff member of the Security Office for applicants.
The other panel members are a counterintelligencerepresentative or a human resources
representative and the chief of the component office sponsoring the application for
access.

Adjudication Guidelines under DCID 614

Previously, the Adjudication Guidelines used to determine the qualifications of a

person allowed access to SCI differed in many respects from those adopted by DoD for
granting a Confidential, Secret, and Top Secret. Now, the uniform, government-wide
Guidelines adopted by the Security Policy Board are incorporated in DCID 614 as Annex
B. Because the Director of Central Intelligence is a member of the Security Policy Board,
those Uniform Guidelines were prepared to meet the stringent requirements for access to
SCI. The Uniform Guidelines are discussed in detail in Chapter 6.

Special Access Programs (SAPs)

Special Access Programs (SAPs) are defined by E.O. 12958 as a "specific class of
information that imposes safeguarding and access requirements that exceed those nor-
mally required for information at the same classification A SAP is also defined
by the DoD as any program imposing "need-to-know" or access controls beyond those
normally provided for access to Confidential, Secret, or Top Secret inf~rmation.~'~ It is
elsewhere defined by the DoD as a program or activity employing "enhanced security
measures exceeding those normally required for collateral information at the same level
of cla~sification."~'~
Such programs may impose additional or special clearance and adju-
dication procedures, investigative requirements, and material dissemination restrictions.
They may also impose special lists of persons with a "need to know."320

The basis for the creation of Special Access Programs has been provided by a
succession of executive orders and has been used to generally encompass not only DoD
weapons programs, but also SCI programs and other programs within the Departments of
Energy and State, programs for the protection of the President, for the continuity of gov-
ernment operations, and for covert actions operated from within the Executive Office of
thc i resident.^^' Special Access Programs can concern research, development, and acqui-
sition activities, or intelligence or military operations, and can be funded by one agency
and managed by another. While some programs are publicly acknowledged, others are
unacknowledged. For such programs, their very existence and purpose are classified and
may not be disclosed to any person without authorized access to that program.322Among
such unacknowledged SAPS, therc are programs even more sensitive called "waived pro-
grams." Those are considered so sensitive that they are exempt from the standard report-
ing requirements to Congress and are made known only to the Chairperson and Ranking
Minority Member of the appropriate Congressional Committee with oversight
authority.323

There are approximately 150 DoD-approved SAPs currently in operation, down

from about 200 in the late 1 9 8 0 s . Because
~ ~ ~ of the lack of accountability, central over-
sight or coordination of such programs, and because of the especially high cost of secu-
rity for such programs, E.O. 12958 requires an annual review and validation of all
SAPS.^^^ That review is carried out in DoD by the Special Access Program Oversight
Committee (SAPOC) and within the Intelligence Community by the Controlled Access
Program Oversight Committee (cAPoc).)'~

Executive Order 12958 for the first time formalized the requirements for the es-
tablishment of Special Access Programs. Unless authorized by the President, they can be
created only by the Secretaries of Defense, State, and Energy, and the Director of Central
Intelligence. These officials are directed to keep such programs "at an absolute mini-
mum." They are to limit such programs to those in which the number of persons having
access "ordinarily will be reasonably When SAPs are applied to the creation of
major weapons systems such as a new bomber, or major facilities such as an unacknow-
ledged air base, the term "reasonably small" becomes quite elastic.

Before a SAP can be established, there must be a specific finding by the appropri-
ate Secretary or the Director of Central Intelligence that: (a) the vulnerability or threat to
the information is exceptional and the normal criteria for determining eligibility for ac-
cess to such information are not sufficient to protect it from unauthorized disclosure, or
(b) the program is required by statute.328

In the ~ e ~ a r t m ebnf t~ e f e n s ethe

, classification and protection of SAP informa-
tion are controlled by DoD Regulation 5200. l - ~A SAP . ~ may~ only
~ be initiated by the
Secretary or Deputy Secretary of Defense, and then not until the appropriate Defense
Committees of Congress are notified and 30 days have elapsed after notification is
received.330Every SAP must be assigned an unclassified "nickname," and may also have
a classified "code word" or words.33' A nickname is a combination of two unclassified
words, while a "code word" is a single

For DoD SAPs there are cases where the mere knowledge of a particular contract
or its association with a SAP is classified. In those instances the agencies normally per-
forming functions associated with the Industrial Security Program, such as the Defense
Security Service for personnel or facility security, or the Defense Contract Audit Agency
for financial review, may be "carved out," i.e., relieved of their normal responsibilities.
Those functions will then be performed by the sponsoring component-level SAP Central
Office. In those cases, a written security plan including security review procedures must
be prepared for that particular SAP.'^' 1f a SAP is terminated or placed in a lower classi-
fication status, it becomes " d e - ~ a ~ ~ e d . " " ~

The type of background investigation to be conducted for each of the various

types of De artment of Defense SAPSis specified in DoD's Personnel Security Program
Regulation!35 If the Special Access Programs involve SCI, Presidential support activi-
ties, duties associated with nuclear weapons, North Atlantic Treaty Organization infor-
mation, or "Single Integrated Operational Plan-Extremely Sensitive Information" (SIOP-
ESI), the nature of the personnel background investigation required to authorize access is
specifically stated in the Uniform Investigative Standards which may be supplemented by
the DoD Regulation. For any other SAP the special investigative requirements in excess
of the minimum requirements are established on a program-by-program basis depending
on their sensitivity.

Appeal of SAP Access Decisions

There is no appeal required by statute or executive order of a denial or removal of

access to a SAP. However, E.O. 12968 encourages the use of the appeals procedures
authorized for other types of classified information.336Green v. McElroy, which is the
basis for any "due process" procedures in the Industrial Security program, suggested that
the President might have inherent authority to deprive a person of his employment in this
area so long as it was done This suggestion was adopted and applied to con-
tractor employees by Executive Order 10865, $9, and DoD Directive 5220.6, Paragraph
B.6. It was also applied to government employees by Executive Order 12968.

It is not required that there be appeals of SAP access decisions. However, they
may nevertheless be permitted (or, in the case of DoD, required) by agency regulation. If
allowed they may differ from the procedures for appealing decisions denying access to
SCI or to nonSAP programs.338Any such special procedures for DoD programs must be
approved by the Secretary or Deputy Secretary of ~ e f e n s e . ~ ~ ~

Although a person whose previously granted access was revoked would know of
the loss, there would be no appeal, as such decisions, either for government and contrac-
tor employees, are entirely discretionary with the program administrator. A person who
had not previously been approved for access would, in most cases, never know that he
was considered and rejected for SAP access, or even that a program-access request had
been conducted.

The denial or loss of access to a SAP will not, of itself, cause a loss or denial of
any clearance at the Confidential, Secret, or Top Secret level. However, the underlying
conduct that was the basis of the SAP denial may also be a basis for the loss of a collat-
eral clearance. Before such further loss of a collateral clearance could occur, the affected
individual would have all appeal rights associated with that type of clearance-if for a
contractor employee it would include the right to a full hearing, or for a government em-
ployee or applicant or member of the armed forces, the right to personal appearance.
 CHAPTER 11

Physical Security, Facility Clearances, and the NISPOM

Tl~tputection of national security secrets is like a three-legged stool: one leg is

proper identification of the information, i.e., classification; the second is control of per-
sons with access, i-e., personnel security; and the third is physical protection of the in-
formation, i.e., safeguarding. Each leg is necessary, or the security stool collapses. This
chapter discusses physical security.

As discussed in Chapter 1, until a few years ago each department and agency, and
frequently subunits within the departments, had its own requirements for safeguarding
classified information. Each had regulations which were as particular as specifying the
type of safe that was required to protect a particular item. Contractors doing business
with different agencies of the government had to meet different requirements to protect
the same type of information.

In April 1990, the President directed the National Security Council to explore the
development of a single, integrated industrial security program that could result in cost
savings and improved security protection. This resulted in a report from the Secretaries of
Defense and Energy, and the Director of Central Intelli ence that recommended the es-
tablishment of a National Industrial Security Program?" They reported that 2 1 depart-
ments and agencies each had their own industrial security program - in the Department
of Defense alone there were 47 different standards, manuals, and directives supplement-
ing the basic executive orders and legislation. This diversity created a significant burden
on both industry and government, and the increased cost was passed on to the govern-
ment. The report found that standardization could reduce duplication by at least 20 per-
cent.341It recommended that a National Industrial Security Program be created under the
direction of the Department of Defense, with the Secretary of Energy continuing to have
the authority to protect nuclear materials and the Director of Central Intelligence the
authority over Sensitive Compartmented Information. From those recommendations
came a government-wide consolidation of physical industrial security requirements
known as the National Industrial Security Program (NISP).

On January 6, 1993, Executive Order 12829 was issued, formally establishing the
National Industrial Security Program which was to serve as a single, integrated, cohesive
program to safeguard federal government classified information released to contractors
and to licensees and grantees of federal agencies. The program is mandatory for all Ex-
ecutive Branch departments and agencies. The executive order directed the National
Security Council to provide overall policy direction, the Information Security Oversight
Office (ISOO) to oversee the implementation of the executive order, and the Secretary of
Defense to issue a National Industrial Security Program Operating Manual (NISPOM).
Specific requiremerits were to be prescribed by the manual for safeguarding classified
information by contractors, licensees, and grantees during all phases of the contracting
process. The Secretary of Energy and the Chairperson of the Nuclear Regulatory Com-
mission were given responsibility for that portion of the manual dealing with nuclear
energy, and the Director of Central Intelligence was made responsible for the portion
dealing with intelligence sources and methods, including Sensitive Compartmented
Information. A NISP Advisory Committee, consisting of representatives of both govern-
ment and industry, was also established under the executive order to consider policies
under the NISP and recommend changes to it.

Executive Order 12829 concerned only the safeguarding of information released

to government contractors but not the broader problem of safeguarding government-held
classified information, a far greater amount of information. That problem was addressed
two years later by the issuance of Executive Order 12958 on April 17,1995, which pre-
scribed a uniform system for classifying, declassifying, and safeguarding information
applicable to both government and industry?42Parts 1,2 and 3 of the executive order
concern the classification and declassification of information. Part 4 addresses safe-
guarding the information, i.e., measures and controls to protect classified information.
The Security Policy Board was directed to draw up recommendations for the handling,
storage, distribution, transmittal, destruction of, and accounting for classified
information.343

The National Industrial Security Program Manual (NISPOM)

The NISPOM was issued in January 1995 under the mandate of Executive Order
12829.A ~ ~supplement
~ was issued in December 1994, providing enhanced security re-
quirements for Critical Restricted Data (RD), Special Access Programs (SAPS), Sensitive
Compartmented Information (SCI) and other compartmented programs that protect intel-
ligence sources and methods.345The NISPOM replaced the DUDIndustrial Security
Manual for Safeguarding CIassGed Information previously in use. It applies not only to
DoD but to all Executive Branch departments and agencies and cleared contractor
facilities.

Under the NISPOM, every contractor must appoint a Facility Security Officer
(FSO) to supervise security measures implementing the manual. The FSO also must be
cleared as part of the facility clearance. Written contractor procedures may be required by
the government security office monitoring the contract but are not required in every
case.346Periodic security reviews are conducted, normally on advance notice, to the con-
tractor. Unannounced reviews may be conducted at the discretion of the government.

Contractors are required to continually review their security procedures and to re-
port any security infractions. To ensure that contractors do so, security hotlines also are
maintained by the concerned government agencies so that contractor employees can di-
rectly report any security irregularities to the government. Contractors must inform their
employees of the availability of these hot line^.^^^

Stringent reporting requirements are imposed on the contractor.348Any concerns

of possible espionage, sabotage, or subversive activities must be immediately reported in
writing to the FBI. Information of a less-serious nature must be reported to the Cognizant
Security Agency. This includes "any adverse information" coming to the contractor's at-
tention concerning any of its cleared employees, such as suspicious contacts or evidence
that an employee no longer wishes to work on classified matters. Also to be reported are
changes affecting the facility clearance such as a change in ownership, change in storage
capability, the discovery of classified information the contractor is not authorized to have,
or actual or suspected compromise or loss of classified information. Contractors must
also establish a system of "appropriate administrative and disciplinary action" to be taken
with respect to employees who violate the NISPOM. Any such discipline must also be
reported to the government.349

Facility Clearances

A facility clearance is an administrative determination that a company is eligible

for access to classified information or for an award of a classified contract.350Facility
clearances are registered centrally by the government, and valid clearances are now fully
and mutually recognized by all federal departments and agencies, a great step forward
from the days when each agency conducted and issued its own facility clearance. A con-
tractor cannot apply for his own clearance, but must be sponsored by a government
agency, either before or after the award of a classified contract.35'

To be eligible for a facility clearance, a contractor must (a) have need for access
to classified information in connection with a government requirement; (b) be organized
under the laws of one of the states, the District of Columbia, or Puerto Rico; (c) be in the
United States or its territories or possessions; (d) have a reputation for integrity and law-
ful conduct of its business and not be barred from participating in any U.S. Government
contracts; and (e) not be under foreign influence, ownership, or control such that the
granting of the facility clearance would be inconsistent with the national interest.

The senior management official and the facility security officer must also be
cleared to the level of the facility clearance. Officers, directors, and senior managers who
are excluded from holding a clearance must be specifically designated by the organiza-
tion's board of directors or executive body. Where there are multiple facility locations,
the home office must have a facility clearance at least to the highest level of any of the
cleared facility locations. If there is a parent-subsidiary relationship, the parent must gen-
erally have a clearance at least equal to any cleared subsidiary. Where a parent facility
can be excluded from a need for access to classified information, it will not be granted a
clearance.352

It is the contractor's responsibility to request personnel clearances for only those

employees for whom access to classified information is essential to their work. This re-
quest must be kept to a minimum, and requests to establish "pools" of employees are
prohibited. If an employee is cleared by one agency, the contractor need only submit
identifying data to the new agency to verify the clearance without having to request an
entirely new investigation and clearance. Contractors are no longer permitted to grant
clearances.353Clearances granted to former government employees may be converted to
industrial clearances, and previously terminated clearances may be reinstated without a
new background investigation if no more than 24 months have elapsed and there is no
known adverse information.354
Foreign Ownership, Control, or Influence (FOCI)

The determination of whether a company is under FOCI is the responsibility of

the Defense Security Service and is done on a case-by-case basis. It entails the balancing
of the United States' interest of encouraging foreign investment in this country with the
need to ensure that foreign firms cannot undermine United States security by having ac-
cess to critical technology and classified information.355

A U.S. company under FOCI is ineligible for a facility clearance. However,

efforts may be taken to isolate or quarantine those foreign interests to permit the company
to continue doing classified government business. The government may impose restric-
tions and controls on a company short of removing its facility clearance to preclude the
unauthorized disclosure of classified information within the company.356Subjective fac-
tors are considered, such as the type and sensitivity of the protected information and the
company's record of compliance with U.S. law. Additionally considered are whether
n0nU.S. citizens hold management positions, or the ownership of 3 per cent or more of
the company's voting securities, or 25 percent of a particular class of stock, or 25 percent
of nonvoting securities.357Details of loan arrangements between the company and a for-
eign person, details of financial arrangements that allow a foreign person to demand re-
payment, interlocking offices and directorships by foreigners, and any other factor dem-
onstrating a capability of a foreign interest to influence the operation or management of
the company are also factors in determining whether there is ~ 0 ~ 1 . ~ ~ '

When a company holding a facility clearance enters negotiations for a proposed

merger, acquisition, or takeover by a foreign person, the government must be notified
with all details of the transaction. If it is determined that a company is under FOCI, the
primary consideration is the safeguarding of classified information.359If it is determined
that the company is under FOCI, the facility clearance will be suspended until protective
measures are implemented. Where it appears that foreign influence or control may occur,
the company will be asked to submit a "negation plan," providing positive measures to
prevent foreign persons fiom obtaining access to classified information. Such a plan may
include a voting trust agreement and proxy agreement where the voting rights of the for-
eign citizen are vested in cleared U.S. citizens who can act on corporate matters without
control by the foreigner.360

The government may require a Special Security Agreement imposing industrial

security and export control measures on the company. It may also require a Technology
Control Plan prescribing security measures necessary to preclude access by n0nU.S. citi-
zens to classified information. Failure of the company to ensure compliance with any
approved security arrangement may be grounds for revocation of the facility ~ l e a r a n c e . ~ ~ '
A sample FOCI Special Security Agreement is found at Appendix I.

Physical Safeguarding of Classified Information

Both the NISPOM and the DoD Information Security Program Regulation go into
great detail on how classified material is to be safeguarded.362Not only do the regulations
prescribe how documents and physical objects are to be protected, they also give detailed
procedures for preventing oral discussions from being overheard or i n t e r ~ e ~ t e d .End-
~"
of-the-day security checks and perimeter controls over entry points are mandated.364
Contractors (but not government agencies) are required to maintain an accountability
system for To Secret documents, with each document being numbered and
inventoried. 36P

Documents must be stored in approved safes or filing cabinets meeting specified

GSA requirements, and Top Secret documents must have supplemental protection such as
intrusion detection systems, security guards, or "security in depth.'y366Control of safe
combinations and approved methods of repair are also specified.367If the volume of clas-
sified material is large, an entire area of a room, floor, or building may be designated as a
Closed Area. These areas must be built to meet specific requirements with approved in-
trusion detection devices, and access to them is limited to authorized personnel with ap-
propriate security clearances and need-to-know for the classified information.368Un-
cleared visitors in such areas or those without the need-to-know must be escorted at all
times.

The methods for transmission of classified material are also specified in detail in
both the NISPOM and the DoD Information Security Program ~ e ~ u l a t i oMarking,
n.~~~
packaging, method of shipment, designation of authorized carriers, modes of electronic
transmission, use of couriers or escorts, and the use of commercial passenger aircraft are
all specified in great detail.370

Reproduction and disposition of classified documents are also specified in detail

for contractors and to a much lesser degree for government users.37' For contractors,
rec??ords of all copying of Top Secret documents must be maintained for a period of
years. At the end of their need, classified documents held by contractors must either be
returned to the government agency providing them or be destroyed by approved methods
of pulverizing, burning, or other methods that totally disintegrate the documents. The
destruction must be witnessed, for Top Secret Documents by two witnesses, and
recorded.372These requirements for witnesses and recording do not apply to government
users. Nevertheless, government employees still have accountability for Top Secret
documents.

Automated Information Systems

Protection of classified information on automated information systems (AIS), i.e.,

computers, has become one of the most significant areas of concern to the government,
particularly with the frequent reports of "hackers" trying to break into classified govern-
ment systems. The NISPOM states in only the briefest detail directions for AIS security.
The contractor must promulgate an AIS Policy and an AIS Security Plan and must ap-
point an Information Systems Security Representative to implement the policy and plan
and to maintain contact with the contracting agency.373These responsibilities include en-
suring physical safeguards for the AIS equipment and ensuring that access to it is only by
authorized personnel. Security measures must be implemented for the use of the AIS
equipment and for its repair and maintenance. Protection of AIS used for Sensitive Com-
partmented Information and Special Access Programs is controlled by the NISP Supple-
ment, Chapter 8.

Presumably, government buildings and installations are inherently more secure

than contractor facilities, requiring less control of individual items of equipment in those
locations. For government users of AIS, the regulation states only that activities using
such equipment must adopt security procedures that will prevent unauthorized access,
will ensure the proper removal and destruction of machine parts containing classified in-
formation, and will ensure that equipment is inspected by cleared personnel before being
removed from protected areas.)"

Many types of common AIS equipment, such as computers and printers, emanate
electronic signals that can be intercepted from a distance and interpreted to determine
what information is being generated on those systems. The government program to in-
vestigate and prevent the interception of such signals is known as TEMPEST.)^' When it
is determined that classified information may be exposed to TEMPEST collection, it is
the responsibility of the government contracting authority dealing with the contractor to
perform threat assessments and vulnerability studies. If necessary, the government may
provide TEMPEST shielding and TEMPEST-shielded equipment, with all costs associ-
ated with such measures being recoverable as a direct charge to the contract.376

The protection of the information systems themselves is a vast and continuing

government undertaking, a detailed discussion of which is beyond the scope of this book.
Authority for the protection and regulation of information systems is found in the Com-
puter Fraud and Abuse Act of 1986, the Computer Security Act of 1987, and in OMB
Circular A-1 30, Management of Federal Information, Appendix 111, Security of Federal
AISs. This is an area of concern of the National Telecommunications and Information
Systems Security Office and the National Computer Security Center. Their publications,
and those of the DoD and the Director of Central Intelligence on the subject, are com-
piled in Appendix A, Sources on the Protection of National Security Information. The
protection of such equipment on a national scale has been addressed in a 1998 Presiden-
tial Decision Directive 63, Protecting America 's Critical ~nfrastructure.~~~

The DoD Information Security Program Regulation implements not only Execu-
tive Order 12958 for classified national security information but also prescribes proce-
dures for protecting sensitive information that is not classified but which requires some
type of protection or Among such information is that exempt from disclosure
under the Freedom of Information Act (FOIA) which the regulation designates as "For
Official Use Only" ( F O U O ) . The
~ ~ ~regulation also creates a category of "Sensitive But
Unclassified" (SBU) information described as also being exempt under FOIA, but the
regulation does not spell out how that information differs from " ~ 0 ~ 0 . " ~ ~ ~

Also included as protected information under the DoD Regulation is Drug En-
forcement Administration Sensitive Information, DoD Unclassified Controlled Nuclear
Information, sensitive information under the Computer Security Act of 1987, i.e., "un-
classified information that could adversely affect the national interest or the conduct of
Federal programs," and "technical d o c ~ m e n t s . ' ~Although
~' the DoD regulation carefully
states that its requirements apply only to national security information, it suggests the use
of "controls and protective measures" to prevent the disclosure of other such unclassified
information.382
 CHAPTER 12

Security Clearances at the National Security Agency

Legal Authority for the NSA Security Program

Although the National Security Agency is an agency of DoD, because of the

highly sensitive nature of its intelligence and cryptographic activities, higher security
standards are applied for obtaining or keeping employment there. Policies and procedures
specifically addressing NSA personnel security are governed by P.L. 86-36, "NSA Offi-
cers and Employees;" P.L. 88-290, "NSA Personnel Security Procedures;" Executive Or-
ders 10450 and 12333, DoD Directive 52 10.45, "Personnel Security in the National Secu-
rity ~ ~ e n cand ~ DoD
, " ~5200.2-R,
~ ~ The use of polygraph examinations, which are
generally limited for employment purposes in the DoD, is required for initial or continued
access to sensitive compartmented information (SCI) at the N S A . ~ ~ ~

No person may be employed by, detailed to, or assigned to NSA unless his access
to the agency's classified information is "clearly consistent with the national interest."385
Employment depends on the successful outcome of a full-field investigation. While a
person can be provisionally employed pending the outcome of the investigation, he may
not have access to sensitive cryptologic information until the investigation is successfully
completed.386The full-field investigation may be temporarily waived if the Director of
NSA personally determines in writing that such an action is clearly consistent with and
advisable in the national.interest.387

All NSA affiliates must be eligible for access to SCI which is governed by the
standards and procedures of DCID 614. NSA has issued implementing procedures for
adjudicating denials or revocations of access or security clearances in accordance with
E.O. 12968 and DCID 614.~~' The NSA regulation covers not only NSA employees, but
also "affiliates," which collectively refers to applicants for employment, contractors, con-
sultants, and experts. The adjudication procedures provided by the NSA regulation have a
particular importance to employees of the agency. Since access to SCI is mandatory for
employment at NSA, a revocation of access means automatic processing for termination
of employment.

Each year about 25 new applications for access are denied, and one or two ac-
cesses by current holders are revoked. Because a decision to deny or revoke SCI access
means denial or loss of employment, NSA takes particular care not to use the access re-
view process as a substitute for procedures for handling disciplinary problems. Decisions
to use one or the other process are made centrally by senior human resources personnel in
consultation with personnel from the Office of Security to ensure that employees whose
performance is not viewed favorably by unit managers are not removed by using the
more summary security access procedures.
Preemployment Security Review

Preemployment screening of an applicant requires not only a full-field back-

ground investigation, but also a polygraph examination and a psychological examination.
Since a full- field investigation is the most expensive and time-consuming part, the hiring
process is divided into two phases. An applicant, after completing a personal security
questionnaire, is first given a polygraph examination covering counterintelligence, seri-
ous crimes, and drug use. Counter-intelligence issues concern whether the person being
examined has ever engaged in or has knowledge of espionage against the United States,
has ever been approached to sell or has sold classified materials to unauthorized ersons,
or has had unauthorized contacts with a representative of a foreign The
applicant will also be given a psychological examination by an NSA psychologist. If the
first phase is successfidly completed, a background investigation will then be initiated.

Investigations of NSA employees and of military personnel working at NSA are

conducted by the Defense Security Service. There is only one standard for access, and no
higher standards exist for any of the various compartments at NSA. Once employees are
cleared for SCI access, all other determinations are based on a need-to-know. Interim ap-
pointments are rarely granted, and if so, for only a short period.

Appeals of Adverse Security Determination

An employee or affiliate who has been denied access or whose access has been
revoked is entitled to the procedures provided under NSAICSS Reg. No. 122-07.~~' That
Regulation implements the requirements of Executive Order 12968 concerning access to
sensitive cryptologic information, to include SCI. For an employee, notice of the decision
to revoke access also serves as notice of the proposal to remove the employee from fed-
eral service at NSA."' Debarment from NSA facilities while an appeal is pending poses
no great problem with respect to an applicant or a contractor's employment. However,
current employees who appeal an access decision are entitled to remain on the federal
payroll until the appeal is decided. In those cases, they may be placed on administrative
leave if unclassified duties are unavailable.

The Chief, Adjudicative Services, is responsible for the initial decision to deny or
revoke access and for providing written notice of the decision and proposal to remove the
employee whose access has been denied. A review of the initial decision, if requested by
the employee or affiliate, will be made by the Chief, Adjudicative and Security Informa-
tion Services. If a review is not requested, the determination of the Chief, Adjudicative
Services, is final. In the case of an employee, a referral will be made to the Assistant Di-
rector for Support Services (ADS) or designated Deciding Official for a decision regard-
ing the proposal to remove the employee from employment.392

The decision to deny or revoke can be appealed to an Access Appeals Panel

( A M )appointed by the ADS. The AAP shall consist of at least three but not more than
five voting members and shall include one minority and one female member.
 When a determination has been made to deny or revoke access, the employee or
affiliate will be provided as comprehensive and detailed a written explanation of the basis
for determination, suitably redacted to protect classified information on which the deci-
sion is based. The person will also be provided with notice of the right to be represented
by counsel at his own expense, to request the entire investigative file, to request a review
of the decision, and to appeal if the review of the decision is s~stained.~"NSA7spolicy is
to immediately provide the investigative file with the notice of the decision. Written re-
plies and requests for review must be postmarked within 45 days from the date the em-
ployee or affiliate receives the decision to deny or revoke access. In the case of an em-
ployee, the notice to revoke access also serves as a notice of proposed removal from
employment by NSA. The failure to request review will result in a referral to the ADS
proposing termination of employment.

A review of the decision to deny or revoke access will be made by the Chief,
Adjudicative Services. In a request for review at that point, an employee may submit only
written materials. If the Chief, Adjudicative and Security Information Services, sustains
the initial decision, the employee or affiliate may appeal that decision within 30 days to
the Access Appeals Panel. The employee or affiliate may appear in person before the
panel, with or without a representative who may be an attorney, to make a personal pres-
entation and present "relevant documentation and material information, but shall not pre-
sent or question witnesses."394The panel will consider "any new information provided in
writing or in person, by the employee or affiliate." New information may be subject to
verification and adjudication. The panel may request additional agency support personnel
to be present to assist at the hearing.395

The decision of the panel to sustain or not to sustain the denial or revocation of
access will be based on a majority vote of the members and will be final. In the case of a
"senior7' employee, the panel makes only findin s of fact and a recommendation. It is the
Director of NSA who makes the final decision.3 k

The employee or affiliate will be provided with a final written decision specifymg
the reasons on which the decision was based, and for veterans-preference eligible em-
ployees, advising of the right to appeal to the MSPB.~'~

NSA formerly had another statutory avenue available for removing an employee
whom it considered to be a security threat. Former Section 303 of Public Law 88-290
permitted the Secretary of Defense to terminate the employment of any officer or em-
ployee of NSA when he: (a) considered such action to be in the interest of the United
States, and (b) determined that the procedures in other provisions of law authorizing
termination could not be invoked consistent with the national security.398
 CHAPTER 13

Department of Energy Security Clearance Program

The Department of Energy's (DOE) Security Program

DOE operates its security program under the authority of the Atomic Energy Act
of 1954, as amended (AEA), and Presidential executive orders to protect nuclear-related
information, materials, and facilities and national security information.399The origins of
DOE's security program date back to the Manhattan Engineer District, the World War I1
pr gect that developed the atomic bomb. The authority to protect nuclear-related infor-
I

mation devolved from it to the Atomic Energy Commission, then to the short-lived En-
ergy Research clnd Development Administration (ERDA), and from there to DOE. The
Nuclear Regulatory Commission (NRC) was created at the same time as ERDA to regu-
late the civilian nuclear power industry and is responsible for security regulations per-
tainin to its employees and to the civilian nuclear power and fuel fabrication indus-
tries.4%0

The AEA established particular requirements for the protection of nuclear-related

information. Those requirements are the bases for 80 to 90 percent of all classification
decisions now made by DOE.^" The AEA provides for the classification of information
covering the "design, manufacture or utilization of atomic weapons.. .the production of
special nuclear material.. .or the use of special nuclear material in the production of en-
ergy," all of which are collectively termed "Restricted Data" (RD).~'~Such information is
classified from origin and is often referred to as "born classified."

When information which relates primarily to the military use of atomic weapons
can be safeguarded as defense information, it may be removed from the RD category and
becomes known as "Formerly Restricted Data" (FRD).~'~Declassifying this type of in-
formation by DOE must have the concurrence of the Department of Defense. FRD, like
National Security information classified an executive order, can be classified as Confi-
dential, Secret, or Top It is protected in the same way as National Security in-
formation. However, dissemination of classified FRD information to foreign countries is
strictly controlled.405In that case, FRD reverts back to its status as Restricted Data.

DOE's personnel security program implements not only the AEA but also the re-
quirements and standards of Executive Order 10450, Executive Order 10865 pertaining to
government contractors, and Executive Order I2968 pertaining to government employees
and applicants. The DOE criteria and appeals procedures are identical for both its em-
ployees and its industrial contractors. Unlike the separate procedures afforded by DoD
and other agencies dealing with National Security information, DOE's employees and
applicants, like their industrial counterparts, have the right to a full administrative hearing
when their access authorization is in question.

DOE has its own separate system authorized under the AEA for granting "access
authorizations," which is similar to that of other agencies that grant Confidential, Secret,
and Top Secret clearances or SCI access. Most DOE employees receive either a " Q
access authorization equivalent to Top Secret, or an "L"access authorization equivalent
to Confidential or A " Q access authorization permits an individual to have
access, on a need-to-know basis, to Top Secret, Secret, and Confidential levels of Re-
stricted Data or Formerly Restricted Data, and to National Security information or infor-
mation concerning Special Nuclear Material. An "L" access authorization permits an
individual to have access, on a need-to-know basis, to Confidential Restricted Data,
Secret, and Confidential Formerly Restricted Data, and to Secret and Confidential
National Security information. Access to classified information marked as "COMSEC,"
"CRYPT0 or "SCI" at any classification level requires a " Q access authorizationPo'

The majority of DOE access authorizations are granted to DOE contractors and
subcontractors. The number of persons with DOE access authorizations has declined
steadily since 1988, to now almost half the 1988 number. Most of the drop is attributable
to a reduction in "Q" access authorizations. In 1988 there were 150,000 " Q access
authorizations and 50,000 "L" access authorizations. By June 1998, that number had
dropped to 70,000 " Q access authorizations and 40,000 "L" access authorizations.

The number of cases under administrative review has also dropped in like propor-
tion. In 1995 there were 222 cases closed. Of those, 103 review6 were withdrawn before
decision, and 93 clearances were either denied or revoked. Only three were granted. In
1997 of a total of 99 cases, 41 were canceled without decision, 54 were denied or re-
voked, and only 1 was granted. The figures for the first half of 1998 are consistent.408

Of accesses denied or revoked between 1995 and 1998,3O percent were for falsi-
fication, 25 percent were for alcohol use, 19 percent were for drug use, 5 percent were for
alcohol and drugs, 7 percent were for mental health problems, and 13 percent were for
reasons of mental health with substance abuse. There were no revocations under any of
the other criteria in those years.409

DOE Policy and Regulations

The criteria for determining DOE access eligibility are found at Title 10, Code of
Federal Regulations, Part 7 10, Subpart A. That regulation also provides the procedures
for administrative review when unresolved questions remain concerning a person's eligi-
bility for access authorization.

DOE regulations cover access to both classified matter and to Special Nuclear
Material, i.e., plutonium, uranium enriched in isotope 233 or 235, or other "specially de-
termined materials" but not "source materials."410They apply to employees and appli-
cants for employment with DOE, to agents or contractors of DOE:" and to "access per-
mittees," i.e., individuals whom DOE has permitted to have access to Restricted Data
applicable to civilian uses of atomic energy?l2

DOE background investigations for access eligibility are conducted by OPM and
the FBI and are as vigorous as those of any other agency. DOE may conduct additional
inquiries, such as personnel security interviews and mental evaluations by medical
examiners to determine access eligibility. Unlike procedures in other agencies, the inves-
tigative process itself may be challenged during the investigation if an employee or appli-
cant believes it is inappropriate as, for example, a belief that a mental examination is
unwarranted. If an individual declines to undergo such inquiries, the processing of the
access authorization will be suspended, or in the case of a person already holding
authorization, administratively terminated. The suspension or termination may be ap-
pealed to the Director, Office of Safeguards and Security, by filing a written appeal
within 30 days of the investigative action. After inquiry, the Director, DOE Office of
Safe ards and Security, must determine whether the particular inquiry was appropri-
ate.4b
If the Director determines that it was not, he will direct the process for access
authorization to continue or order the access authorization be reinstated without the
objectionable line of inquiry.

DOE prohibits the threat of loss-of-access eligibility to coerce or retaliate against

anyone exercising his rights under any statute, regulation, or DOE policy. It provides that
any officer or employee of DOE violating that policy will be subject to disciplinary ac-
tion."' DOE regulations prohibiting such actions are explicit. Its policy, however, has not
always been followed in practice, as shown by a number of newsworthy cases reporting
on nuclear power plant contractors who retaliated against their whistle-blower
employees.415

Remedies for retaliation by nongovemment managers are found in the federal

whistle-blower laws.4i6DOE contractor employees who believe that they are being sub-
jected to a review or investigation in retaliation for whistle-blowing are advised to con-
tact the DOE Office of Contractor Employee Protection, a unit of the DOE Office of In-
spector General. DOE employees with similar claims are advised to report such treatment
or actions directly to the DOE Office of Inspector ~ e n e r a l . ~ ' ~

DOE regulations grant to government employees more rights during the review of
access determinations than are required by Executive Order 12968. They do not, how-
ever, conform to the executive order in every respect.4i8DOE is at the time of this writing
revising its regulations to conform to the executive order. It is expected to retain the ad-
ditional procedural safeguards for its employees now in its regulations beyond those re-
quired by the executive order.419New rules are forthcoming in 2000.) On December 17,
1999, DOE adopted a polygraph examination regulation in response to charges of laxity
in security at some of its facilities handling nuclear materials and atomic secrets.420As of
July 16,2000, of the 800 polygraph examinations administered, all had passed.42'

DOE Access Criteria

The criteria for determining eligibility for access to DOE-protected information

under the Atomic Energy Act are essentially the same as those used by other Executive
agencies to protect National Security information and Sensitive Compartmented Infor-
mation. Those criteria include consideration of treason, terrorism, or involvement with
the unconstitutional overthrow of the government; family members in countries with in-
terests inimical to those of the United States; falsification or misrepresentation during the
access investigation; failure to safeguard classified information or to follow regulations;
serious mental illness, drug, or alcohol abuse; financial irresponsibility; criminal behav-
ior; or other conduct demonstrating dishonesty, unreliability, or untrustworthiness or that
the individual may be subject to duress or e~~loitation."~ The specifically listed criteria
are not considered exhaustive and DOE may consider any information that in its judg-
ment raises a question about an individual's eligibility for access.

DOE'S regulations, like those of other agencies, specifically state that any access
authorization will be made based on a comprehensive, common sense judgement consid-
ering all relevant information, both favorable and unfavorable. Such information includes
the seriousness of the conduct; the surrounding circumstances; the frequency and recency
of the conduct; the individual's age, maturity, motivation, and voluntariness at the time of
the conduct; the potential for rehabilitation or reformation and the potential for pressure
and duress on the individual.423

DOE Adjudicative Guidelines

When DOE revised its personnel security regulations in 1994, they included Ad-
judicative Guidelines interpreting the criteria for the grant or continuation of access to
material classified under the AEA and to special nuclear material. They are similar to Se-
curity Policy Board's Uniform Guidelines in that they addressed the "Concerns," the
"Disqualifying Factors" and the "Mitigating Factors for each criterion.'A24The criteria in
the 1994 DOE Guidelines are: (a) allegiance; (b) relatives; (c) falsification; (d) secu-
ritylsafeguards responsibilities; (e) emotional, mental and personality disorders; (f) re-
fusal to testify; (g) alcohol abuse; (h) drug abuse; and (i) honesty, reliability and trust-
worthiness (including criminal behavior, deviant sexual activity, foreign preference,
financial irresponsibility, and violation of commitment). The guidelines also address dis-
crimination in the workplace (EEO) and whistle-blower concerns.

DOE states that it now follows the Uniform Adjudicative Guidelines issued by the
Security Policy Board. However, its regulations have not yet been revised to reflect
this!25 In reviewing DOE adjudicated cases, those issued prior to the adoption of the Uni-
form Guidelines may be of more limited precedential value than those decided based on
the new guidelines.

DOE's 1994 Adjudicative Guidelines differ in many respects from the Security
Policy Board's Uniform ~ u i d e l i n e s . 4 ~
he~DOE version contains guidelines on "rela-
tives," "refusal to testify" and "violation of commitment" not found in the Security Policy
Board's Uniform Guidelines. DOE's guidelines are far more specific, giving the adjudi-
cator less flexibility, a format that is abandoned in the Security Policy Board's Uniform
Guidelines. For example, DOE's mitigating factors regarding drug abuse state that miti-
gation will be considered if: (a) the drug abuse was within the past 12 months, but was
only an isolated incident or of infrequent enough incidents to warrant acceptance of the
individual's assurance that he will not be involved with the drug while holding a DOE
access authorization; or (b) the drug involvement was more than 12 months ago, and the
individual is willing to offer assurance that he will not be involved with drugs while
holding DOE access authorization. The Security Policy Board's Uniform Guideline for
mitigation of drug abuse, by contrast, is simply that the drug involvement "was not re-
cent," "was an isolated or infrequent event," that there is a demonstrated intent not to use
drugs in the future, and that there has been a satisfactory completion of a drug treatment
program.

Another difference in the guidelines is that DOE has a criterion of "violation of

commitment" for which the disqualifying factors are violating the terms of a DOE Drug
Certification form, or violating "any commitment or promise made to DOE or any other
agency or department of the federal government upon which DOE previously relied to
favorably resolve an issue of access authorization eligibility." Such an inflexible criterion
is difficult to rationalize, unless meant to serve as a "last chance agreement" for a person
with prior infractions. If that is its purpose, DOE can use it to avoid readjudicating an ac-
cess eligibility for repeat offenders.

The DOE guidelines admonish its Personnel Security Specialists not to make
moral judgments and not to determine an individual's guilt or innocence, but to compare
the information available on an individual with the DOE guidelines to decide whether the
person is an acceptable security risk. The Personnel Security Specialists are advised to
note and evaluate all derogatory information about the individual on a Case Evaluation
Sheet to be maintained in the Personnel Security File (PSF). The DOE guidelines further
note that the PSF will be available to the individual, either through the administrative re-
view procedures or the Privacy Act, and advise the Security Specialists not to include any
references to sources that have provided information or testimony under a pledge of con-
fidentiality. They advise the Security Specialists that the PSF is unclassified and no
longer considered as "sensitive," "For Official Use Only information" and that it may be
released on written or verbal request of the concerned individual.427

Although the DOE guidelines admonish the adjudicators not to make "moral
judgments," the Guidelines themselves seem to do so. For example, "disqualifying" sex-
ual activity is defined as sexual activity that is "criminal in nature (regardless of whether
the individual has been, or is being, prosecuted for the commission of such acts)." Ac-
tivities so broadly described can create a variety of problems. In some states, sex between
consenting adults of the same gender is illegal, while in other states sex between unmar-
ried consenting adults of the opposite gender is illegal. In still other states, certain sexual
acts between consenting adults of the opposite sex who are married to each other are ille-
gal. Another disqualifying factor is the "commission of sexual acts for money or other
reward," an activity that is legal in some states. Under the DOE guidelines, it becomes
virtually impossible for adjudicators to make determinations without making moral
judgments.

The DOE Adjudicative Guidelines enforce the agency's concern for reprisals for
whistle blowing and for other protected activity, such as EEO complaints. Appendix A to
the DOE guidelines establishes numerous levels of oversight in the security review proc-
ess designed to prevent reprisals. It notes that adjudications will be in the Office of
Hearings and Appeals, a separate DOE activity. It advises Security Specialists to be
aware of conduct by DOE managers and contractors which might indicate that there was
not truly a security concern but indicate that the managers or contractors simply want to
be rid of troublesome employees. The DOE guidelines emphasize the importance of de-
termining the motivation of supervisors who are proposing to remove an employee.

The Review and Appeals Process

The review and appeals process is the same for DOE employees, applicants for
DOE employment, contractor applicants, and contractor employees. If an investigation
reveals substantially derogatory information, the Director of Security of the local DOE
field office will review the information and may conduct further interviews, require a
mental evaluation, or use other means the Director deems appropriate to further investi-
gate. If the local Director of Security is still not satisfied that access is appropriate and
that the derogatory information is unresolved, the matter will be referred to the Manager
of the field operation or to the Director of the Office of Safeguards and Security, for
Washington, DC, area cases. Ultimately, all unresolved cases will be referred to the
Director of the Office of Safeguards and Security who will make the final determination
whether to grant access or to institute administrative review procedures.428At that point
an individual may request a hearing on the record.

Within 30 days after it is determined to institute an administrative review, the in-

dividual is provided a "notification letter" stating the reasons why substantial doubt exists
concerning his eligibility for access authorization, "which shall be as comprehensive and
detailed as the national interest permits.'A29The individual may choose to have a deter-
mination on the written record or a hearing before a Hearing Officer who must be a DOE
attorney or a senior management official appointed by the Director, Office of Hearings
and ~ ~ ~ e a l s .At
' ~any
' hearing the individual has the right to counsel who, for DOE em-
ployees, may be a union representative. DOE counsel will represent the department.43'

The Hearing Officer has much broader powers than an administrative

judge in the Defense Office of Hearings and Appeals (DOHA), most importantly, the
power to issue subpoenas for witnesses and do~urnents.'~~ The Hearing Officer may ad-
minister oaths and take sworn testimony, sequester witnesses, and control the dissemina-
tion or reproduction of any record or testimony including correspondence, documents,
and information in computerized systems held by the subpoenaed person!33 Unlike
DOHA hearings which are open unless requested to be closed, all DOE hearings are
closed except to DOE Counsel and the individual and his counsel, unless authorized to be
open by the Hearing officer.'"

The individual may testify and present witnesses and other evidence on his behalf.
All witnesses are subject to cross-examination. DOE regulations impose an affirmative
duty on DOE Counsel not only to represent the department, but to assist the Hearing
Officer in developing a full administrative record in bringing out a full and true disclo-
sure of all facts, both favorable and ur~favorable!~~Although formal rules of evidence do
not apply in DOE hearings, the Federal Rules of Evidence serve as a guide to assure the
production of the most probative evidence. That evidence must be material, relevant, and
competent. Hearsay evidence is admissible "for good cause shown" and is afforded as
much weight "as the circumstances ~arrant.""~
 Only in certain instances may oral or written statements of government witnesses
be received without allowing the opportunity to cross-examine. The first is when the head
of the agency supplying the statement certifies that the person providing the statement is
a confidential informant engaged in gathering intelligence information, and that the dis-
closure of his identity would be harmful to the national interest. The second is when the
Secretary of DOE or his designee determines that (a) the information is reliable and mate-
rial and failure to receive it would be harmfil to the national interest; and (b) the person
could not appear to testify due to death, illness, or similar cause or "due to some other
specified cause determined by the [supplying agency's] head to be good and suffi-
~ i e n t . "Classified
~ ~ ~ records may also be put into evidence without showing them to the
individual if (a) the Secretary of DOE or his designee determines that the records are
material to a controverted issue, and the failure to consider such evidence would be harm-
ful to the national security; and (b) a summary of the records or evidence is made avail-
able to the individual "to the extent that the national security permits."438

The Hearing Officer may request the local Director of Security to conduct a fir-
ther investigation on unresolved issues. A written transcript of the proceedings must be
made and furnished to the individual without cost.439At the close of the hearing, the
Hearing Officer will render an opinion with findings of fact and reasons supporting those
findings. Only if the Hearing Officer determines that the grant of continued access to
protected information "would not endanger the national defense and security and would
be clearly consistent with the national interest" can he find in favor of the individual. The
possible impact on any DOE program by the loss of an individual's access authorization
may not be considered by the Hearing

Either DOE or the individual may appeal an unfavorable decision to the DOE
Office of Hearings and Appeals within 30 days after receipt of the decision. The record is
not necessarily closed at the completion of the administrative hearing. The Director,
Office of Hearings and Appeals, may initiate an investigation of any statement made in
the request for review, may solicit and accept submissions, i.e., briefs from either side,
and "may consider any other source of information that will advance the evaluation" so
long as both parties are allowed to respond to the third party submission^.^^' Within 45
days after the final close of the administrative record the Director, Office of Hearings and
Appeals, will make specific findings based on the record of each issue on appeal. If the
Director finds that it "would not endanger the national defense and security and would be
clearly consistent with the national interest," he will render an opinion in favor of access
authorization or reinstatement. If he cannot, an opinion will be rendered denying or re-
voking access a u t h ~ r i z a t i o n . ~ ~ ~

Where a decision is based on testimony of witnesses whom the individual has not
been allowed to cross-examine, only the Secretary of DOE may make a final determina-
tion denying or revoking access authorization. After the case is closed, an individual may
request reconsideration, but only if there is a new bonafide offer of employment requir-
ing access and there is either relevant and material new evidence of which the individual
was not previously aware, or there is convincing evidence of reformation and
rehabilitati~n.~~~
Sources of DOE Authority and Precedent

Since 1994, decisions of the DOE Office of Hearings and Appeals have been
published and are available on the Internet at www.oha.doe.gov/persec2. htm. They are
published in h l l (with personal identifying information redacted) including the date,
number of the decision, name of the hearing officer, and any subsequent determinations
affirming or overruling. The Web site has a search engine that allows the cases to be
searched both by adjudicative criteria and by key words. The decisions are "linked" to
other cited cases simplifying legal research.

DOE regulations and adjudicative criteria, including all updates, may also be
found on the Internet at www.oha.doe.gov/persecl.htm. This Web site also contains a list
of questions and answers for the general guidance of persons with questions about their
access determination.
 CHAPTER 14

Department of Justice and the Federal Bureau

of Investigation Security Clearance Program

Department of Justice (DOJ) Security Program

All positions at DOJ are categorized at various levels of sensitivity from Special-
Sensitive to non-Sensitive, but not all require national security clearances. Positions re-
quiring access to Top Secret national security information or SCI are designated Special-
Sensitive. Those positions with access to Secret or Confidential information are Critical-

The Assistant Attorney General for Administration is the designated senior

agency official for national security matters and is responsible for the overall national
security information program of D O J . Functions
~~~ concerning classified national security
information have been delegated to a designated Department Security Officer, who pres-
ently is the Director, Security and Emergency Planning Staff. Implementation of the
security program has been hrther delegated to the Security Program Managers of each of
DOJ's components.446A Department Review Committee has been established to resolve
all issues dealing with classified information except its compromise and questions con-
cerning the eligibility of persons for access to such

The Director, Security and Emergency Planning Staff, as the Department Security
Officer, has the authority to grant, deny, suspend, or revoke an applicant's or employee's
access to classified information.448That responsibility has been redelegated to the Secu-
rity Programs Manager (SPM) of five of the DOJ components which initially determine
an employee's eligibility for access to classified information.

Clearances for DOJ Employees and Applicants

As required by Executive Order 12968, DOJ regulations provide appeal proce-

dures for government employees and applicants for government employment for whom it
has been determined do not meet the standards for access to classified information. Under
the regulations, such persons are to be provided a comprehensive, detailed, written expla-
nation of the bases for denial of access and 30 days in which to request the records on
which the denial or revocation was based. The regulations further require that the records
be provided within 30 days to the extent such documents would be provided if requested
under the Freedom of Information Act or the Privacy Act and to the extent that the na-
tional security interest and other laws permit.449Upon receipt of that information, an
applicant or employee may file a written reply to the initial deciding authority and, if un-
successful, request review and reconsideration of the adverse determination.450The initial
deciding authority is either the Director, Security Planning Staff, or the designated Secu-
rity Program Manager who has been delegated the responsibility for making eligibility
determinations.
 If a component agency such as the FBI, the Drug Enforcement Administration, or
the United States Marshals Service denies or revokes a security clearance, an appeal of
that decision may be taken by the applicant or employee to DOJ. Reconsideration may
first be requested to the authority that revoked the clearance prior to the appeal to the
ARC. The employee will be provided with a written notice of the final decision and rea-
sons for the decision. If the decision is adverse, there will also be notice of the right to
appeal that decision.

If the denial or revocation of eligibility for access to classified information is

sustained, a further and final appeal may be taken by the affected individual within 30
days to the DOJ's Access Review Committee ARC).^^' The ARC consists of three
members, who are presently an Deputy Assistant Attorney General, the Counsel in the
Office of Intelligence Policy Review, and a Deputy Assistant Attorney General for
Human ~ e s o u r c e s . 4There
~ ~ are no security professionals on the committee.

Executive Order 12968 and implementing DOJ regulations provide that an appli-
cant or employee may "request the opportunity" to appear ersonally before the ARC and
to present relevant documents, materials, and information& There is no provision for
presenting witness testimony or for cross-examining any persons who gave information
upon which the department's adverse decision was based. At a personal appearance be-
fore the ARC, an applicant or employee may be represented by an attorney or other rep-
resentative of the employee's choice, but at his own expense.454Although Executive
Order 12968 permits agencies to provide additional review procedures beyond those
required by the executive order, DOJ has not done so.455

In any appeal to the ARC, the Department Security Officer or designated SPM
Program Manager may present relevant written information and, if the applicant or em-
ployee appears personally, may also appear personally. Only if the ARC determines that
it is consistent with the national security may written submissions by the Security Officer
be shown to the appellant, or may the appellant be present during a personal presentation
of the Security Also, the Attorney General may bar any particular procedure
under DOJ's regulations fiom being made available to an appellant if it would reveal
classified information. The Attorney General may dispense with the appeal procedure
entirely, if it cannot be invoked "in a manner consistent with the national security.'A57

A decision of the ARC is discretionary. Access to classified information will be

granted only where the ARC determines that access is "clearly consistent with the
national security interests of the United Unless the Attorney General requests
recommendations fiom the ARC and personally exercises appeal authority, the ARC'S
decisions are fina1.4~~

Procedures for appeal are spelled out in a brief, two-page statement issued by the
~ ~ c They
. 4 ~provide
' that appeals filed outside the 30-day time limit for appeal will not
be accepted, unless there are "compelling reasons" beyond the appellant's control to pre-
vent timely filing. The ARC may request additional information from the appellant, from
the Department Security Officer, or from any other source. Personal appearances will
take place at the Main Department of Justice Building. If the appellant is an employee,
travel expenses and reasonable per-diem costs for the appearance will be born by the em-
ploying DOJ component. For applicants, contractors and appellant's representative, travel
and other costs are the responsibility of the appellant.

No recording or transcription of the personal appearance before the ARC may be

made other than those approved by the ARC. Statements are not made under oath, and
there is no right to present or cross-examine witnesses. Only the appellant, his personal
representative, the Department Security Officer, or designated representative and its
counsel are permitted to attend. Unless the ARC requests further supplementation, the
record will be closed at the conclusion of the appellant's personal appearance. As of
August 1998, the ARC had decided three cases with two more pending.461

DOJ regulations concerning the standards for access to classified information

essentially repeat the requirements of Executive Order 12968. They require that a person
must meet the standards for eligibility for access in accordance with the executive order,
have a demonstrable need-to-know, and sign an approved nondisclosure agreement.462
employee granted access to classified information must also provide written consent
permitting access to his financial records maintained by a financial institution and access
to his credit reports and records pertaining to travel outside the United Such
information may be requested by DOJ only if it has reasonable grounds to believe that the
employee or former employee may be illegally disclosing classified information to a for-
eign power or has incurred excessive indebtedness or acquired unexplained affluence or
had the capability or opportunity of disclosing classified information when such informa-
tion is known to be lost or compromised to a foreign

Clearances for Contractor Employees

Matters under the industrial security program affecting facility and contractor
clearances (except personal service contracts) are referred to the Defense Security Serv-
ice for investigation and approval.465An appeal of a proposal to deny or revoke a security
clearance of a contractor's employee is heard by the Defense Office of Hearings and Ap-
peals. (See Chapter 7.) If a clearance is granted and DOJ does not a ee with that deci-
sion, the department may deny the persm access to its informationg This DOJ policy
appears to conflict with the requirements of Executive Order 12968 which, for contractor
employees as well as government employees, refers not to clearances, but to "eligibility
for access to classified information." For a contractor employee to be cleared for access
to classified information but denied access to the facility where the information is
located, appears to subvert the purpose and intent of the executive order.

Small personal service contractors, such as court reporters or persons providing

services directly to the courts under the Classified Information Procedures Act, are in-
vestigated and cleared directly by D O J . AS
~ ~noted
~ above, the ARC allows only a per-
sonal appearance and does not permit the presentation or cross-examination of witnesses.
Limiting contractors to a personal appearance appears to be contrary to Executive Order
10865 governing contractor employee appeals, which gives such persons the right to a
full hearing including presenting witnesses and cross-examining the government's wit-
nesses as occurs at DOHA. The rights provided by Executive Order 10865 are expressly
preserved by Executive Order 12968,$ 7.2(c). At the time of this writing, there have
been no contractor appeals to the Access Review

Polygraphs

Preemployment polygraphs are not required for anyone in DOJ, except 12 of its
employees in the Justice Command Center who have access to cryptoIogical information.
Polygraphs are used by several components of DOJ. The FBI uses them for preemploy-
ment investigations of its entire staff, and the Drug Enforcement Administration uses
them for its intelligence research analysts and special agents.

Sensitive Compartmented Information

DOJ acts under delegated authority from the CIA regarding the safeguarding of
Sensitive Compartmented Information. DOJ has the authority to grant or suspend SCI
access. If derogatory information is adduced, an employee's or applicant's appeal is un-
der the procedures provided by the CIA in DCID 614. (See Chapter 1 0 . 1 DOJ
~ ~ ~follows
the requirements for the physical protection of SCI found in DCID 1/21.

The Federal Bureau of Investigation (FBI)

The FBI, although a component of DOJ, has a security clearance program far
larger than its parent department!70 The FBI accounts for approximately 10 percent of
the security clearance investigations of the entire federal All of its em-
ployees are required to hold a Top Secret clearance, regardless of whether they handle
national security information.472Unlike most nondefense agencies whose security clear-
ance investigations are done by OPM, the FBI does all of its own. The investigations are
done, for the most part, by former or retired FBI agents as part of the Background Inves-
tigation Contract Service (BICS).

The FBI also conducts background security investigations for individuals needing
access to classified information under the Classified Information Procedures Act (CIPA)
(see Chapter 16), the Foreign Intelligence Surveillance Act of 1978 (FISA), and nonFBI
members of Joint Task Forces. It also conducts investigations for others needing access to
FBI facilities and classified information, such as attorneys representing FBI employees in
personnel matters, staffs of Federal Independent Counsel, Special Consultants, Federal
Legislative and Judicial Branch personnel, and chaplains and doctors counseling or
treating FBI staff!73 The FBI unit dealing with personnel security is divided into three
sections, one section handling clearances for FBI employees including those with SCI
clearances, a second section handling clearances for contractor employees, and a third
dealing with clearances for persons who are not employees or contractors, but who need
access to FBI facilities, such as police officers or attorneys.474

FBI regulations governing security clearance investigations are found in its Sec-
tions 67,259, and 260 of the FBI Manual of Investigative Operations and Guidance
(MIOG). Further requirements are described in its Manual for Administrative Operating
Procedures (MAOP).~~' Section 67 of the MIOG deals with the investigative require-
ments for applicants for FBI employment and prescribes how such investigations are to
be conducted. Investigative procedures described under Part 260 for contractor personnel
are quite different.

FBI Employees and Applicants

Executive Order 12968 requires agencies to limit their requests for access eligi-
bility to only those with a demonstrated foreseeable need. It prohibits them fiom re-
questing or approving eligibility in excess of actual requirements. However, it excepts
agencies fiom that limitation where eligibility for access is a mandatory condition of em-
ployment.476The FBI is one of those agencies. The FBI's rationale is that it is a "reac-
tive" agency that frequently has to respond to emergencies requiring security clearances.
It asserts that it must be able to easily transfer personnel among assignments, some of
which may require dealing with classified national security information. For that reason,
FBI requires all of its employees to have a Top Secret security clearance regardless of
whether they have access to national security information.

The standards for adjudicating access decisions affecting FBI employees are ap-
parently listed in the MAOP. They are described as detailed and particular, similar to the
former Department of Defense adjudicative standards previously found in its regulation,
DoD 5200.2-R. For example, the FBI standards addressing "experimental" or "regular"
drug use specify the precise number of times and the recency of use for each type of ille-
gal substance. In contrast, the much more general Adjudicative Guidelines now used
throughout the government state that any drug use is disqualifying, but allows mitigation
for events that are "not recent," "are isolated," or are "an aberration event."477The more
general guidelines give greater latitude to the adjudicating authority to consider individ-
ual circumstances, but there is less certainty in the outcome.

Like the DOJ, the FBI makes two determinations for each applicant and em-
ployee, trustworthiness and suitability, the former being determinative of eligibility for a
security clearance. A trustworthiness investigation is not begun until the applicant has
been dctern~inedto be suitable. Security investigations of FBI applicants are concerned
with character, loyalty, reputation, and associations.478Where derogatory information
obviously disqualifies the applicant, the investigation is ended. Various FBI indices are
checked, not only on the applicant, but on the applicant's close relatives, references,
roommates, close social friends, and others with whom the applicant has been closely as-
sociated during his adult life. Former spouses are interviewed, and if the applicant is to be
married, the future spouse and future immediate relatives are also investigated. Organi-
zations listed by the applicant are also checked against FBI indices. Neighbors and
roommates for the past five years are interviewed, and if derogatory information is devel-
oped, the interviews continue to the indefinite past.479References and neighbors are
questioned not only about the applicant but about the applicant's close relatives and asso-
ciates. If derogatory information is developed, inquiries are made to "informants and reli-
able sources."480If allegations of disloyalty or subversive activities are received, appro-
priate security informants are contacted.481

All employments, including part-time and of any duration, are verified, and peri-
ods of unemployment must be accounted for. Supervisors and a representative number of
coworkers are interviewed. Law enforcement records are checked in detail on both the
applicant and close relatives. Credit checks are done for seven years, and if bankruptcy is
admitted, checks go back 10 years. Persons interviewed are questioned about the appli-
cant's lifestyle and whether he appears to be living beyond apparent means.

The background investigation of applicants for employment is a lifetime check

going back to age 18. Records before age 18 or juvenile records are not checked. The FBI
investigation exceeds the Uniform Investigative Standards for the Single Scope Back-
ground Investigation (SSBI) which requires a check of criminal records for only the prior
10 years, and employment for only the prior seven years.482Because of that, applicants
for FBI employment are required to submit the FBI's own form, FD-140, rather than a
Standard Form 86, because the SF-86 requests information going back only 10 years. FBI
questionnaire form FD-8 14 is used for five-year reinvestigations.

The FBI both investigates and adjudicates the security clearances of its employees
and applicants for employments. An appeal of the FBI's decision to deny or revoke a
security clearance or access to SCI may be taken by the individual affected to the De-
partment of Justice for adjudication under its procedures as described earlier in this
chapter. Reconsideration may first be requested to the initial decision authority in the
FBI. If the FBI's decision is sustained, a W h e r and final appeal may be taken to the DOJ
Access Review Committee.

FBI Employment Polygraphs

All applicants for FBI employment are polygraphed.483Polygraphs are not used
for reinvestigations, except for certain assignments dealing with espionage cases. All
employees detailed to the CIA are repolygraphed. FBI regulations provide that failure to
submit to a polygraph or to cooperate is not an automatic disqualifier but may be consid-
ered with other factors in determining whether an individual should be hired!84 The
regulations do not state what other factors might be considered.

Employees of Contractors with the FBI

The FBI is, by agreement between DOJ and DoD, a user agency of the Defense
Investigative Program. Under that agreement the FBI conducts the investigations of
employees or applicants of contractors doing business with the FBI after which they are
referred to the Defense Security Service (DSS) for an adjudication, and if warranted, for
the granting of a clearance by the D S S . ~ ~They
' include persons working on contracts for
the construction or modification of FBI facilities, for installation or servicing of equip-
ment, and vendors with access to FBI offices and consultants.486These personnel investi-
gations are covered by Part 260 of the MIOG. In certain cases contractor clearances may
be sought from the DOJ rather than DSS, for example, for Special Investigators for the
FBI's Background Investigation Contract Service. In those cases the completed FBI in-
vestigation will be presented to the DOJ Security Officer for an adjudicative determina-
tio11.4~~
If there is an unfavorable determination, the case will be referred to the Defense
Office of Hearings and Appeals for an administrative hearing. (See Chapter 7.)
 Under current FBI regulations, a determination of trustworthiness for contractor
employees will be made in accordance with the standards set forth in Department of De-
fense Regulation 5200.2R, Appendix I, "Adjudication Policy - ~ e n e r a l . ' *These
~ ~ are the
Uniform Ad-judicativeGuidelines approved by the White House on March 24, 1 9 9 7 . ~ ' ~
Notwithstanding that a prospective contract employee has the requisite DSS clearance,
the FBI can conduct its own trustworthiness investigation and determine whether to place
the contract employee in a FBI project.490If a clearance is granted by DSS, and the FBI
does not agree with it, like DOJ (as described earlier in this chapter), FBI will deny the
individual access to its faci~ities.'~'The FBI can also remove a contract employee from
i
an FBI pro ect if it determines that his employment is not in the best interest of national
security.49 As noted above, this policy appears to conflict with the requirements of Ex-
ecutive Order 12968 which address "eligibility for access" to classified information, both
for government employees and for contractor employees and applicants. To be granted a
clearanw 5 'tccess to classified information but denied access to the facility where the
1,

informatio~iis located, appears to subvert the purpose and intent of the executive order.

Contractor employees apply for a clearance by submitting a Standard Form 86,

"Questionnaire For Sensitive positions" and two copies of an FD-258, "Applicant Fin-
gerprint ~ a r d . " " ~contractor employees or applicants are not generally polygraphed but
may be in the case of a specific project requirement.

Because the FBI is concerned with any non-bureau employee having access to its
facilities, information, or employees, anyonc, even if not dealing with national security
information, must be investigated and cleared for access to FBI facilities.494For example,
people in this category are electrical, plumbing, or vending machine service personnel
and cleaning workers. For individuals with only "escorted" access, only a limited back-
ground investigation is conducted, but for persons having "unescorted" access to FBI
facilities, a SF-86 must be submitted and a 10-year background investigation con-
d ~ c t e dDeterminations
.~~~ of eligibility for facility access for such persons are made by
the Security Program Manager taking into consideration criteria set forth in Executive
Order 10450 and DCI/D 6 1 4 . ~ ~ ~

Facility Clearances

As noted in Chapter 11, a facility clearance is an administrative determination that

a facility is eligible, fiom a security standpoint, for access to national security informa-
tion. The FBI refers all facility clearance investigations to the Defense Security Service
and relies on the DSS to conduct the appropriate inspections, issue the requisite facility
clearances, and do follow-up monitoring.497Requests by the FBI, like any other con-
tracting agency, are made to DSS by submitting a Form DD 254. Facility clearance
requirements are those specified by the NISPOM. (See Chapter 11.) There may be cir-
cumstances where the FBI's Contract Security Officer may wish to exclude all or a
portion of a project fiom DSS inspection, which is known as a "carve out." In such event,
the Security Officer must certify at least once a year that the project has been inspected
and meets appropriate security requirements.498
 CHAPTER 15

Removal from Government Employment

for Security Reasons Under 5 U.S.C. 5 7532

5 U.S.C. 5 7532 provides a summary procedure for removing from government

employment a person considered to be a security risk. This section was intended to be
invoked "only where there is an immediate threat of harm to the national security in the
sense that the delay from invoking normal dismissal procedures could cause serious dam-
age to the national security."499It applies only to positions that are directly connected to
the nation's safety, i.e., those concerned with protecting the nation from internal subver-
sion or foreign aggression, as distinguished from those concerned only with the general
welfare.500The summary process under Section 7532 is available only to certain agencies
that are particularly concerned with military and diplomatic affairs, i.e., the Departments
of State, Commerce, Justice, and Defense, the military departments, the Coast Guard, the
Atomic Energy Commission, the National Aeronautics and Space Administration, the
National Security Agency, the Defense Intelligence Agency, and the National Imagery
and Mapping Agency (formerly the Defense Mapping ~ ~ e n c ~ ) . ~ "

Summary procedures available under 5 U.S.C. 5 7532 are not intended to replace
other statutory avenues for removing a government employee, either for general or for
security-related considerations. Their use is not mandatory even where national security
considerations are the basis for removal. The general personnel laws also may be used to
remove an employee for "cause" when there is a reasonable doubt as to loyalty.502The
language of Section 7532 is permissive, and even though a removal could be taken under
that section, it was not intended to preempt the procedures available under 5 U.S.C. 5
75 13 or other statutes.503For example, NSA may rely on the National Security Act of
1959 or the Act concerning NSA Personnel Security Procedures to effect a person's
removal.504

The summary process under Section 7532 differs in several respects from Execu-
tive Order 12968 which provides government-wide procedures for revoking an em-
ployee's access to classified information. First, 5 U.S.C. $ 7532 applies to all government
employees regardless of whether they hold a clearance, while the executive order applies
only to those already holding a clearance. Second, it allows for the immediate suspension
without pay of the employee before any appeals procedures are provided. In contrast, un-
der Executive Order 12968, the employee ordinarily would remain on the government
payroll even though his access to classified information is suspended until his appeal
rights under the executive order had been exhausted.505Third, upon loss of a security
clearance under the executive order, if the agency has adopted regulations requiring such
a reassignment, a government employee has the right to reassignment to another position
not requiring a clearance.506Under Section 7532, an employee has no such right. Finally,
if an employee's right to access is revoked under the executive order and his position
requires a security clearance, and there are no agency regulations requiring reassignment,
the employee would still have a right to appeal to the Merit Systems Protection Board if
he was terminated, on the ground that the agency failed to follow procedural require-
ments in revoking the clearance.507Under 5 U.S.C. $ 7532 the head of the agency taking
the action may suspend an employee without pay when he considers it necessary in the
interests of national security and may remove the suspended employee if he determines it
to be necessary or advisable in the national interest.508The decision of the agency head is
final with no further appeal.

After suspension, but before termination, an employee does have certain appeal
rights under 5 U.S.C. 9 7532. The employee must be notified of the reasons for the sus-
pension but only to the extent that the agency head determines that it is in the interest of
national security. Within 30 days after notification, the employee may submit statements
or affidavits showing why he should be restored. For some employees that is the extent of
their appeal rights. Only if an employee is a United States citizen, has completed his trial
or probationary period, and has a permanent or indefinite appointment are there addi-
tional rights of appeal. In that case, the employee is entitled, after suspension and before
removal, to a written statement of the charges against him as specific as security consid-
erations permit and an opportunity to answer the charges and submit affidavits. The citi-
zen-employee is also entitled to a hearing before an agency authority constituted for that
purpose, a review of the case by the agency head or his designee before a final adverse
decision, and a written statement of the decision of the head of the agency.509Although
the nature of the hearing is not defined by the statute, it probably means a full trial-type
hearing allowing for the presentation and cross-examination of witnesse~."~

If a hearing is necessary, OPM has established procedures for the composition of

agency security hearing boards.511OPM will obtain nominations for security hearing
board members whose selection, after investigation, have been determined to be "clearly
consistent with the interest of national security." Persons sitting as board members must
be competent and disinterested government employees from outside the agency con-
cerned. Personnel security officers and personnel investigators may not serve as board
members because of the requirement that the board be di~interested.~'~ When an agency
wants to establish a security hearing board, it will request from OPM a list of names of
approved persons from which to make its selection.513

A removal under Section 7532 permanently bars a person from employment by

the agency from which he was removed. However, he may be restored to duty at that
agency at the discretion of the agency head.514It does not automatically exclude him
from employment by any other federal government agency, but if another agency seeks to
employ that person, it must first consult with the Office of Personnel Management. It is
OPM, and not the employing agency, that has the final authority to determine whether the
person is eligible for further employment in another agehcy.515

Because of the stringent limitation on the use of Section 7532 and the availability
of summary procedures under other statutes, executive orders or agency regulations, this
statutory authority has fallen into disuse. Another reason for its disuse is that a summary
dismissal also has the practical drawback of the government losing control of the person
considered a security risk. If the person is deemed a security threat, but there is insuffi-
cient evidence for a criminal prosecution, agencies will often try avoiding putting an em-
ployee in a desperate position. To minimize any potential security breach and prevent the
suspected employee from fleeing or selling the information he has, the agency may keep
the employee on the payroll but insulate that person from further contact with sensitive
information until the classified information he does possess can be neutralized.
 CHAPTER 16

Classified Information in Judicial Proceedings

and the Classified Information Procedures Act

Criminal Prosecutions

The protection of national security information is of concern not only within the
Executive Branch of the government and in industry, but also, at times, in court pro-
ceedings. It can be involved in both criminal cases, particularly those involving espio-
nage, and in civil suits, for example, discrimination complaints by government employees
working in intelligence agencies. The disclosure of classified information is of particular
concern in criminal prosecutions because of the conflict of the interest of protecting gov-
ernment secrets with the right of defendants to be confronted with the evidence used
against them. In this regard, Congress has enacted the Classified Information Procedures
Act (CIPA) to protect classified information in criminal

The purpose of CIPA was to harmonize a defendant's right to obtain and use ex-
culpatory material at trial, with the government's right to protect classified information in
the nation's interest.517CIPA establishes procedures for permitting and protecting the use
of classified information during a criminal trial, including the use of protective orders and
sanctions. Sanctions vary and may be as severe as dismissal of an indictment if the gov-
ernment refuses to produce information that the court determines to be essential to the
defense.518

The specific criminal trial procedures provided by the CIPA are beyond the scope
of this review. However, of interest here are the personnel security procedures required
by CIPA in such cases. Because of separation of powers concerns for the independence
of the Judiciary, Section 9 of CIPA mandated that the Chief Justice of the United States,
in consultation with the Attorney General, the Director of the CIA, and the Secretary of
Defense, prescribe rules for the protection of unauthorized disclosure of classified infor-
mation in the custody of the United States district courts, courts of appeal, or Supreme
Court. Those rules were published in February 1981 and are found as a note to 18 U.S.C.
App. 3, 8 9.5'9

The security procedures established by the Chief Justice require that, in any
criminal case where classified information is expected, a Court Security Officer shall be
appointed who has a demonstrated competence in security matters.520The Court Security
Officer must be recommended by the Attorney General and certified by the DOJ's Secu-
rity Officer as cleared for the level and category of classified information involved. That
per ,( l i r may come from the Executive Branch but is responsible to the court for informa-
tion, physical, personnel, and communications security.

Any court personnel, i.e., persons appointed by the court or providing service to it
requiring access to classified information, must first be cleared. A clearance is not re-
quired for justices and judges.52' CIPA does not absolutely require that defense counsel
and other "persons associated with the defense," e.g., experts, secretaries, and law clerks,
be cleared (although normally a background investigation is done on everyone). How-
ever, even if they will not submit to an investigation, the government may obtain infor-
mation about their trustworthiness" by any lawful means," and may bring that informa-
tion to the attention of the court for its consideration in framing appropriate protective
orders.522While a defendant may select anyone for his defense team, if a person on the
defense team is not considered sufficiently trustworthy to protect national security infor-
mation, a protective order may prevent their having access to necessary information.

CIPA places juries on the same level of unquestioned trustworthiness as Justices

of the Supreme Court. No investigation or security clearance is required of any member
of the jury, nor may its functions, including access to classified information introduced as
evidence, be interfered While CIPA makes the jury sacrosanct, in reality the gov-
ernment can use its peremptory challenges or its challenges for cause to prevent the seat-
ing of any juror it considers untrustworthy.

The Court Security Officer is responsible for marking all court documents con-
taining classified information with the appropriate level of classification and with any
special access controls.524Every document filed by the defendant must be filed under seal
and promptly turned over to the Court Security Officer who, in consultation with the
government's attorney or an agency representative, determines whether it contains classi-
fied information. If it does contain classified information, the appropriate classification
marking will be placed on the document and it will remain under seal.

DOJ Litigation Security Section

Court Security Officers in practice are provided by the Litigation Security Sec-
tion, a unit within the DOJ Security and Emergency Planning staff, which is under the
direct supervision of the DOJ Security This section consists of five security
specialists and their support staff whose primary function is to provide security to the
federal courts under CIPA. It acts as advisor to the courts in criminal cases, creating secu-
rity procedures and initiating personnel investigations, as required. It will also, on request
of government attorneys, provide advice and assistance in criminal cases in state courts
and in civil proceedings involving classified national security information.

The Court Security Officer will clear defense counsel and their staff, court per-
sonnel, court reporters, judges' assistants, court clerks, and other court personnel other
than justices and judges, who are involved with classified information, using the same
adjudicative and investigative standards that apply to all government personnel.526Each
person needing access to classified information is required to fill out a SF 86, two finger-
print cards, an IRS tax waiver, and a DOJ credit information waiver form. The security
investigation itself is conducted by the FBI.

Determinations of document classification are not made by the Court Security

Officer. All documents that need to be classified or declassified are forwarded by the
Court Security Officer to the originating agency for classification decisions.
 Although the Litigation Security Section is a part of the DOJ and is located in the
Main Justice Department Building in Washington, DC, it has no contact with DOJ per-
sonnel regarding litigation strategy. The section advises the courts only, creating a "wall"
between it and the prosecuting attorneys to avoid any semblance of favoritism by the
government. Once appointed by the court, it may also act as security advisor to defense
counsel when requested. The section has, at times, provided secure facilities to defense
attorneys in the courthouse itself or space in private buildings where no other security
facilities were available.

The Litigation Security Section may get involved in state criminal cases, if re-
quested by a federal government attorney, where classified information is involved. An
example is a California court case in which the defendant was convicted of murder that
had occurred on the premises of a contractor doing classified government work. During
the sentencing phase, the defendant wanted to introduce information concerning a classi-
fied position he had previously held with an intelligence agency.

The pending workload of the Litigation Security Section at the time of this writ-
ing is 32 criminal cases and 21 civil cases. The section receives, on average, four to five
new cases per year. Each of the five security specialists is designated as a Court Security
Officer so that any of them can assist any court needing the Section's services.

Civil and Administrative Proceedings

Civil and administrative cases involving classified information are not covered by
cIPA.'~~ When those situations arise, at the request of the government's attorneys, the
Litigation Security Section will notify the court and offer its assistance. Although courts
are not obligated to accept, they generally do. The section will not respond to requests for
assistance fi-om private counsel until a Court Security Officer is appointed by the court in
a particular case.

Access to classified information by participants in noncriminal proceedings is ad-

dressed in DOJ regulations.528Except for members of Congress, justices of the Supreme
Court, and judges of United States district courts and courts of appeal, all other legislative
and judicial personnel who require access to classified information must be determined to
be eligible by the DOJ Security Officer under the Uniform Adjudicative ~ t a n d a r d s . ' ~ ~

Persons other than employees of the Executive Branch involved in litigation with
the government who require access to classified information, classified either by DOJ or
in its custody, must be investigated and cleared by DOJ. Employees of government con-
tractors who have already been cleared by the Defense Security Service under the Indus-
trial Security Program do not need further clearance unless a higher level of clearance is
needed for the litigation.s30Since all information connected to litigation with the federal
government eventually come into the custody of the DOJ, its control over litigation secu-
rity is comprehensive.

The standards for determining eligibility for access to classified information are
the same for nongovernment personnel as for DOJ employees. DOJ regulations provide
that "no person" may be given access unless that person has been determined to be eligi-
ble under the standards of Executive Order 12968 (which applies to government employ-
ees or contractors), has a demonstrated need-to-know, and has signed an approved non-
disclosure agreement.53'

Civil litigation involving classified information can be in many contexts. Claims

arising from classified government contracts is one area. Suits by government employees
of agencies doing classified work such as the CIA or the FBI, who claim discrimination
in the workplace are another. While the claim might involve an issue as mundane as a
poor-performance evaluation, or failure to be selected for promotion, the location of the
workplace or the names of the supervisors might be classified. Freedom of Information
Act suits or denaturalization proceedings are other examples.532Although the government
cannot forbid litigants from selecting attorneys of their choice, it can, if not satisfied with
the trustworthiness of counsel, refuse to disclose classified information unless ordered by
the court.

If classified information is involved in litigation before administrative agencies,

such as the Equal Employment Opportunity Commission, clearances for administrative
judges, attorneys, and support personnel are required. In those cases, since the agency
involved, rather than DOJ, conducts the litigation, the investigations and clearances are
provided by the litigating agency. The litigating agency will provide, as necessary, secure
hearing rooms, cleared court reporters, and working and storage facilities for the litigant's
counsel to prepare their case and to store classified information. Since the litigant's coun-
sel does not normally have approved facilities for the storage of classified information,
the agency will provide declassified or redacted copies of documents, including tran-
scripts and documentary evidence for counsels' use in their offices. Where the names of
the parties are classified, such as for covert employees of the CIA, cases will be filed un-
der a pseudonym.

Before a clearance is granted, a standard Classified Information Secrecy Nondis-

closure Agreement is required of In conjunction with that agreement, a pro-
tective order will be entered requiring nongovernment counsel to submit pleadings to the
Court Security Officer for review before filing. The time of that submission is considered
the time of filing with the court. Certain agencies such as the CIA use their own form of
Secrecy/Nondisclosure Agreement which, itself, requires that before the filing of any
court pleading or other documents that may contain national security information, csun-
sel must notify the agency granting the clearance "so that appropriate security protection
can be sought." Where the proceedings are before an administrative agency, such as the
EEOC, rather than in a court and where all parties have been previously cleared and
where the hearing is held in secure facilities, it is not required that all submissions first be
presented to the agency for declassification before being submitted to the hearing officer.
 About the Author

Sheldon I. Cohen has been in the private practice of law in Washington, DC, and
Arlington, VA, since 1964. He has handled government and private employment cases
throughout that time, with emphasis on national security law for the last 20 years. Mr.
Cohen was Chair of the American Bar Association, Administrative Law Section, Com-
mittee on National Security Interests, from 1990 through 1994. He was Chair of the
American Bar Association (ABA), Administrative Law Section, Government Personnel
Committee, from 1989 to 1993. He also served as Vice Chair of the ABA Committee on
Contracting with National Security Requirements of the Public Contracts Law Section.
As Chair and Vice Chair of those Committees, the author headed the ABA's efforts in
defeating a proposed 1989 Presidential Executive Order that would have eliminated all
appeal rights for government employees whose security clearances were threatened. He
coordinated the ABA's involvement in the drafting of the National Industrial Security
Operating Manual. The author also spearheaded the ABA7sefforts to obtain additional
appeal rights in employee security clearance cases which were included in Executive
Order 12968 in 1995 and headed the ABA7sparticipation in the drafting of the Uniform
Adjudicative Guidelines issued by the Security Policy Board in 1997.

The author regularly practices before the Defense Office of Hearings and Appeals
representing contractor employees and handles classified personnel matters before vari-
ous government agencies.
 Notes
Halperin vs. CIA, 629 F.2d 144, 154-162 (D.C. Cir. 1980).

U.S. Constitution, Art. 11, 8.2. Dept. ofNavy v. Egan, 484 U.S. 518,527 (1988);
Totten v. United States, 92 U.S. 105 (1876). See United States v. Reynolds, 345
U.S. 1 (1953); Weinberger v. Catholic Action of Hawaii, 454 U.S. 139 (1981).

A good historical review is found in Quist, Security Classzjkation of Information,

Vol 1, Chap. 2, (U.S. Department of Energy, 1989). It is posted on the Web site of
the Federation of American Scientists, www.fas.org/sgp/library/quist.

E.O. 9835 (1947), as amended by E.O. 10237 (1% 1).

E.O. 11652 (1972); E.O. 12065 (1978); E.O. 12356 (1982) and E.O. 12958
(1995).

Compare Executive Orders 12065 and 12958 with Executive Orders 11652 and
12356.

E.O. 10450 (1953).

E.O. 10865 (1960).

40 Stat. 217, as amended.

61 Stat. 496 (50 U.S.C. 401-432).

68 Stat. 919 (42 U.S.C. 2161-2169).

108 Stat. 3435 (50 U.S.C. 801).

5 U.S.C. 552.

50 U.S.C. 403(d)(3). This authority is further implemented by Executive Order

12.333 §1.5(h).

See Report of the Commission on Protecting and Reducing Government Secrecy,

pp. 23-24 (Government Printing Office, 1997) (hereinafter referred to as the
Secrecy Commission Report). Information protected under the Atomic Energy Act
is termed "Restricted Data (RD)" and when used in connection with military use
of atomic weapons is referred to as "Formerly Restricted Data (FRD)."

108 Stat. 3435 (50 U.S.C. 801).

E.O. 12958, 8 1-1.

Id., 8 1.3.
Id., $5 4.l(h), 4.4.

10 U.S.C. 119(e)(2). See Secrecy Comnlission Report, p. 26 (1997).

61 Stat. 496 (50 U.S.C. 401 et seq); E.O. 12333,46 Fed. Reg. 59941, Dec. 4,
1961.

E.O. 12958, $4.2.

Id., $ 4.4.

E.O. 12968, $ 3.1.

The Security Policy Board is the Board established by the President to consider,
coordinate, and recommend policy directive for the U.S. security policies,
procedures, and practices. It was established by Presidential Decision
Directive/NSC-29, (PDD-29) (Sept. 16, 1994), and is referred as the cognizant
authority for issuing the uniform standards in E.O. 12968 $1.1(j).

See DoD Directive 5200.2-R. Appendix I.

DCID 614.

The National Industrial Security Program, A Report to the President by the

Secretary of Defense, p. 2 1, November 1990 (hereinafter cited as the Industrial
Security Program Report), Secrecy Commission Report, p. 10.

A comprehensive discussion of the earlier case law is found in: Haag and Denk,
Due Process in Matters of Clearance Denial and Revocation (Defense Personnel
Security Research and Education Center, 1988)(PERS-TR-88-004).

See Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886 (196 1).

"Certainly, it is not reasonably possible for an outside nonexpert body to review

the substance of such a judgment and to decide whether the agency should have
been able to make the necessary affirmative prediction with confidence. Nor can
such a body determine what constitutes an acceptable margin of error in assessing
the potential risk" [quoting Dept of Navy v. Egan, 484 U.S. 5291. . . These
decisions are based on grounds of institutional competence, separation of powers
and deference to the Executive on national security matters. Stehney v. Perry, 101
F.3d 925,931-32 (3rd. Cir. 1996).

Webster v. Doe, 486 U.S. 592,603 (1988).

Ibid.

In an undated (circa 1997) "Discussion Paper" of a "working group" in the

Department of Justice, the arguments for and against judicial review of
discrimination claims in security clearance cases were reviewed. The group
concluded that Webster v. Doe appeared to require judicial review of equitable
constitutional claims, but agreed that any remedy should not permit a court to
order the Executive Branch to grant a security clearance. The discussion paper,
Judicial Review of discrimination in Security Clearance Decisions, is available on
the Internet wet site of the Federation of Government Scientists, Government
Secrecy Project: www.fas.org/spg.

See, Able v. United States, 155 F.3d 628 (2nd Cir. 1998); Jackson v. Air Force
(unpublished) 1997 W.L. 759144 (9th Cir. 1997); Holmes v. California Army
National Guard, 124 F.3d 1126 (9th Cir.1997).

E.O. 12968, § 3.l(c).

Compare Greene v. McElroy, 360 U.S. 474,496 (1959) with Vitarelli v. Seaton,
359 U.S. 535 (1951) and Dept. Of Navy v. Egan, 484 U.S. 518 (1988).

360 U.S. 496 (1959).

484 U.S. 528.

E.O. 12968, 8 5.2.

E.O. 12968, 9. 5.1.

Industrial Security Program Report.

Industrial Security Program Report, pp. 8-9.

National Security Directive 63 remains classified, but there is an unclassified

"Fact Sheet" summarizing the Directive's requirements which is discussed in
Chapter 3.

DoD Report on Personnel Security, FY 1993, p. 9 (Defense Personnel Security

Research Center).

See GAO Report, Background Investigations, Impediments to Consolidating

Investigations and Adjudicative Functions, Mar. 1995, (GAO/NSIAD-95-101).

The NISPOM is now designated as DoD Manual 5220.22-M.

Counterintelligence and Security Enhancements Act, P.L. 103-359, § 801,108

Stat. 3434, Oct. 14, 1994 (50 U.S.C. 435).

H.R. Conf. Rep. No. 103-753, 103rd Cong. 2d. Sess., Sept. 27, 1994.
E.O. 12968, Sec. 3.2(b). The Security Policy Board was created by Presidential
Decision Directive 29. A "Fact Sheet" describing the contents of that Directive is
found at the Security Policy Board Web site: www.spb.gov.

63 Fed. Reg. 4572, Jan. 30.1998,32 C.F.R. Part 147

The Department of Defense has included the uniform standards in DoD 5200.2-R.
Appendices I and N. The Central Intelligence Agency has incorporated them in
DCID 614, Annexes A and C.

The Commission was created by P.L. 103-236, Title IX, 108 Stat. 525, Apr. 30,
1994 (50 U.S.C. 435, note).

S. 712, 105th Cong. 2d sess.

Hearings were held on Mar. 25,1997 and May 7 1998 by the Senate Committee
on Governmental Affairs. They are available on the Web site of the Federation of
American Scientists, www.fas.org/spg/congress. The Committee issued its report,
S. Rep. 105-258, 105th Cong., 2d Sess. on Jul. 22, 1998.

S. 22, 106th Cong. 1st. Sess.

National Security Directive 63 may be found at the Federation of American

Scientists Web site: www.fas. org/spg/othergov.

Counterintelligence and Security Enhancements Act of 1994, P.L. 103-359, Sec.

801(a)(2), Oct. 14, 1994; (50 U.S.C. 435).

E.O. 12968, $3.2(b).

63 Fed. Reg. 4572, Jan. 30,1988; 32 C.F.R. Part 147, Subpart B. The Uniform
Guidelines and Standards are issued as part of the DoD regulations as that
Department has the administrative responsibility for supporting the Security
Policy Board.

32 C.F.R. $ 147.18.

E.O. 12958, § 4.4,60 Fed. Reg. 19825 (Apr. 20, 1995).

"Q" and "L" designations used by the Department of Energy under the Atomic
Energy Act are technically known as "accesses," but for the sake of simplicity in
this book are here referred also as clearances. "Q" is the equivalent to Top Secret
and "L" is the equivalent to Confidential.

32 C.F.R. $ 147.19.

32 C.F.R. $ 147.24.
See, DoD 5200.2-R, $$ 1-312,1-313,2-302;Chap. 11, Sec. 2; Chap. 111, App B.

32 C.F.R. Part 147, Subpart B, Attachment A.

32 C.F.R. Part 147.

32 C.F.R. Part 147, Subpart B, Attachment A.

32 C.F.R. Part 147, Subpart B, Attachment B.

32 C.F.R. Part 147, Subpart B, Attachment C.

E.O. 12968, $ 3.3.

32 C.F.R. $ 147.29.

32 C.F.R. Subpart C.

DoD Directive 5200.2-R, App. G , Para. B.

Ibid.

Id., Para. D.3.

See Chapter 5.

E.O. 10450, $3(b).

OPM regulations on national security investigations are found at 5 C.F.R. Parts

732 and 736. They mention only the lower three sensitivity levels, but refer to the
Federal Personnel Manual, Chapter 732, which defines all four sensitivity levels
and prescribes the investigative requirements for each. The FPM was officially
abolished in 1993 but the procedures described in it are still followed by OPM. 5
C.F.R. Parts 73 1,732 and 736 are currently under revision because they were
adopted prior to Executive Order 12968 and do not incorporate its new standards
and procedures. Proposed revisions to Part 731 were published on Jan. 28, 1999.
64 Fed. Reg. 4336-4342. Proposed revisions to Parts 732 and 736 were last
published on Jan. 5, 1996.61.Fed.Reg, 384-402. The investigative requirements
formerly found in the FPM are also expected to be incorporated in the new
regulations (see Chapter 4).

F.P.M. Chap. 732, Subchap. 2.

See Chapter 4.
The Defense Security Service now also includes the DoD Polygraph Institute
(DODPI). The former DoD Security Institute (DoDSI) was disestablished in Sept.
1998, and its functions have been assumed by the DSS Academy. The DSS
Charter is DoD Directive 5 105.42.

DoD Directive 5200.2. The DoD Personnel Security Program is detailed in DoD
5200.2-R, codified at 32 CFR 154.

DoD Directive 5220.22. The National Industrial Security Program Operating

Manual ("NISPOM") is DoD 5220.22-R.

The organization of DSS is described on its Web site, www.dss.mil. Unless

otherwise referenced, infonnation concerning DSS was provided during an
interview with representatives of DSS's Office of General Counsel and of its
investigative branches.

DoD Directive 5200.2-R, Par. 2-401

DoD Directive 5200.2-R, Par. 2-402.

Ibid.

Information provided during an interview with the Office of the Associate

Director, OPM Investigations Service.

OPM Investigations Service uses USIS, Inc., which is made up of former OPM
investigators. NRO uses a private organization, USIS, Inc., to do its
investigations. OMNISEC, an organization comprised of retired CLA agents, does
some investigations for the CIA. The FBI also uses a group of former and retired
FBI agents that it calls the Background Investigations Contract Service (BICS).

DoD Directive 5200.2-R, Par. 2-400; DoD Directive 5100.2-3, Administrative

Arrangements for the National Security Agency, May 17, 1967.

DoD Directive 5220.6; Par. B.3.

DSS Manual 20-1-M is designated "For Official Use Only." It is probably similar
in content to the OPM investigator's handbook, Conducting and Reporting
Personnel Investigations, FPM Supplement 736-7 1.

DoD Directive 5200.2-R, Par. 2-205.

DSS has a form for requesting an individual's file that is available on its Web site
at www.dss.mil.

There are seven CAF's: Army, Navy, Air Force, Joint Staff, Washington
Headquarters Services, Defense Intelligence Agency, and National Security
Agency. See Audit Report of the DoD Inspector General, No 97-196, Personnel
Security in the Department of Defense, Jul. 25, 1997.

NISPOM, Par. 2- 100.

Overseas personnel investigations are conducted by the appropriate military

department investigative organization under the direction and control of DSS.
DoD 5200.2-R, Par. 2-404.

OPM conducts 40 percent of federal personnel security investigations, the

Defense Security Service conducts 40 percent, the FBI and the NSA do about 10
percent, and other agencies do the remaining 10 percent. Unless otherwise
indicated, information concerning the operations of the OPM Investigations
Service was provided by the OPM Office of the Associate Director for
Investigations.

OPM does approximately 345,000 investigations a year, of which 45,000 are

national security investigations. Many of the nonsecurity investigations are done
to a level suitable for a national security investigation, due to the sensitivity of the
position for which the individual is being considered.

OPM Federal Investigations Notice, Letter No. 99-08, Aug. 12, 1999.

OPM does adjudicate "suitability" determinations for all agencies for which it
does such investigations.

OPM investigator's handbook, FPM Supplement 736-1, Conducting and

Reporting Personnel Investigations, Appendix C (Feb. 1999).

Data on the results of OPM's investigations for Fiscal Years 1996 through 1998
was supplied by the OPM Investigations Service.

The difference between the data cited and 100 percent reflects "other issues"
raised during the investigation.

Regulations covering suitability determinations are found at 5 C.F.R. Part 73 1.

The latest proposed revision to this Part was published at 64 Fed. Reg. 4336,
Jan.28, 1999.

5 C.F.R. §732.201(c).

Proposed revisions to 5 C.F.R. Parts 732 and 736 were published on Jan. 5,1996
at 61 Fed. Reg. 394. They are still under consideration by OPM as noted at 64
Fed. Reg. 4336, Jan. 28,1999.

Compare 5 C.F.R. § 736.103 with proposed 5 736.201,61. Fed. Reg 401

Proposed 5 736.203,61 Fed. Reg. 401

Ibid. See investigator's handbook, Subchap. I.B.

Proposed 736.203.

DoD Directive 5220.6.

Secrecy Commission Report, pp. 11-12, Government Printing Office, 1997.

Counterintelligence and Security Enhancements Act of 1994, P.L. 103-359, Sec.

801(a)(2), Oct. 14, 1994 (50 U.S.C. 435).

E.O. 12968, Sec. 3.2(b). The Security Policy Board was created by Presidential
Decision Directive 29. A "Fact Sheet" describing the contents of that Directive is
found at the Security Policy Board Web site: www.spb.gov.

63 Fed. Reg. 4572, Jan. 30, 1988; 32 C.F.R. Part 147, Subpart B. These guidelines
were issued as part of the DoD regulations because that Department has the
responsibility for administratively supporting the Security Policy Board.

32 C.F.R. 5 147.18.

E.O. 12968 $5 3.l(f), 3.2(b) authorizes varying standards for differing levels of
access, including those for special access programs. The Security Policy Board's
guidelines further address these special requirements. 32 C.F.R. 5 147.19(a).
Special access programs are authorized by E.O. 12958, Sec. 4.4,60 Fed. Reg.
19825 (Apr. 20,1995).

32 C.F.R. 5 147.23.

Security Procedures Established Pursuant to P.L. 96-456. 18 U.S.C. App. 3, 5 9,

note. (Oct. 15, 1980). See Chapter 17.

32 C.F.R. 5 147.1.

32 C.F.R. 55 147.3-147.15.

32 C.F.R. 5 147.2.

Ibid.

bid.

The only reported decisions are those of the Defense Office of Hearings and
Appeals (DOHA) affecting contractor employees as part of the Industrial Security
Program (see Chapter 7, and those of the Department of Energy Office of
Hearings and Appeals (see Chapter 13). DOHA decisions beginning in 1996 are
available at www.defenselink.mil/dodg/doha.Representative DOHA cases are
cited in this chapter. The cases are fact-intensive and are legion. Prior to 1996
DOHA was known as the Defense Industrial Security Review Board (DISCR).
For convenience, all earlier DISCR cases are here referred to as DOHA cases.

Department of Energy decisions are available at www.oha.doe.gov/persec2.htw.

Decisions of the military departments central adjudication facilities or any
department Personnel Security Appeals Board affecting military personnel or
government employees are not reported.

DOHA Case No. 98-0056, June 19, 1998 (clearance granted); DOHA Case No.
96-0649, Apr. 22, 1997 (clearance granted).

DOHA Case No. 97-0233, Aug. 11, 1997 (clearance granted).

32 C.F.R. $ 147.3.

There have been only two reported decisions of the Defense Office of Hearings
and Appeals under this guideline and its predecessors since 1972. DISCR OSD
Case No. 82-0130, Dec. 13, 1982, aff d July 22, 1983 (clearance granted); DISCR
OSD Case No. 88-1 198, Feb. 18, 1992 (clearance denied on other grounds).
Seven cases were brought between 1966 and 1969, four of them denying
clearance and three granting: OSD Case No. 66-488, Apr. 19, 1968; OSD Case
No. 66-580, Sept. 4, 1968; OSD Case No. 68-238, May 13, 1969; OSD Case No.
68-726, Dec. 17, 1969; OSD Case No. 68-254, Mar. 10,1970; OSD Case No, 68-
522N, Apr. 28, 1971; OSD Case No. 69-29, Mar. 23, 1970.

DoD Directive 5200.2-R, Par. 2-401. See Chapter 4.

32 C.F.R. $ 147.4.

DOHA Case No. 97-0699, June 25, 1998 (clearance denied).

32 C.F.R. $ 147.5.

DOHA Case No. 98-0254, Oct. 19, 1998 (clearance denied).

DOHA Case No. 98-03 13, Sept. 16, 1998 (clearance granted); DOHA Case No.
97-0356, Dec. 21, 1997 (clearance denied).

32 C.F.R. $ 147.6.

DOHA Case No. 98-01 13, Sept. 18, 1998 (clearance denied).

DOHA Case No. 96-0641, Aug. 12, 1997 (clearance denied).

DOHA Case No. 97-061 8, Mar. 3 1, 1998 (clearance denied); DOHA Case No.
98-0077, Jun. 25, 1998 (clearance granted).
DOHA Case No. 98-0247, July 30, 1998 (clearance granted).

DOHA Case No. 97-0605, July 8, 1998 (clearance denied).

DOHA Case No. 97-0737, Apr. 21, 1998 (clearance granted); DOHA Case No.
97-0465, Jan. 23, 1998 (clearance granted).

See, Able v. United States, 155 F.3d 628 (2d Cir. 1998); Jackson v. Air Force
(unpublished) 1997 W.L. 759144 (9th Cir. 1997); Holmes v. California Army
National Guard, 124 F.3d 1126 (9th Cir. 1997).

32 C.F.R. fj 147.7.

DOHA Case No. 98-0269, Oct. 14, 1998 (clearance denied); DOHA Case No. 98-
0202, Oct. 14, 1998.

DOHA Case No. 97-0457, Jun. 4, 1998 (clearance denied).

DOHA Case No. 98-0370, Oct. 2, 1998 (clearance denied); DOHA Case No. 98-
0303, Sept. 23,1998 (clearance denied); and DOHA Case No. 97-0830, June 6,
1998 (clearance denied).

32 C.F.R. fj 147.8.

DOHA Case No. 98-03 17, Sept. 1 1, 1998 (clearance granted).

DOHA Case No. 97-0783, Apr. 14, 1998 (clearance denied).

DOHA Case No. 98-0368, Sept. 3, 1998 (clearance granted); DOHA Case No.
98-0358, Sept. 16, 1998 (clearance denied).

32 C.F.R. fj 147.9.

The Department of Energy reports for Fiscal Years 1995 through 1997 that of 3 12
denials and revocations, 63 percent involved alcohol or drug abuse. (See Chapter
13.) DOHA decisions for 1996 through 1998, show of a total of 603 cases, 485 of
them involved financial considerations, drugs, alcohol, or a combination of them.

DOHA Case No. 98-0380, Oct. 13, 1998 (clearance granted).

DOHA Case No. 98-0266, Sept. 11, 1998 (clearance granted).

32 C.F.R. fj 147.10.

The FBI still follows the former practice of having very specific and detailed
regulations on the type, period of use and amount of substance used. See Chapter
14.
DOHA Case No. 98-0091, Jul. 6, 1998 (clearance granted); DOHA Case No. 98-
0066, Sept. 11, 1998 (clearance denied).

DOHA Case No. 98-0364, Sept. 25, 1998.

DOHA Case No. 98-0405, Oct. 22, 1998 (clearance denied).

DOHA Case No. 98-0303, Sept. 23, 1998 (clearance denied).

Both civilian employees and military members may be dismissed for drug use
even if there is no security clearance involved under applicable personnel
regulations.

32 C.F.R. $ 147.11.

E.O. 12968, $3.l(e), 60 Fed. Reg. 40250, Aug. 7, 1995.

32 C.F.R. 147.12.

DOHA Case No. 97-0798, Mar. 19, 1998 (clearance denied).

DOHA Case No.97-0676, Apr. 6, 1998.

DOHA Case No. 98-0247, Jul. 30,1998 (clearance granted); DOHA Case No. 97-
0184, Aug. 17, 1998 (clearance granted).

DOHA Case No. 98-0329, Sept. 2, 1998 (clearance denied).

DOHA Case No. 97-0419, Jan. 27, 1998 (clearance granted).

32 C.F.R. 147.13.

DOHA Case No. 97-0435, Jul. 14, 1998 (clearance denied).

Prosecution for disclosure of classified information is provided by 18 U.S.C. §$

793,798. See, DOHA Case No. 97-0087, Aug. 21, 1997 (clearance denied);
DOHA Case No. 97-0061, Jul. 1, 1997 (clearance denied).

DOHA Case No. 97-0435, Feb. 27, 1998 (clearance granted).

DOHA Case No. 96-0605, Jul. 23, 1997 (clearance denied); DOHA Case No. 93-
1234, Jan. 20, 1995 (clearance denied).

32 C.F.R. § 147.14.

There were no DOHA decisions applying Guideline L for 1996 through 1998.

32 C.F.R. § 147.15.
DOHA Case No. 96-0687, Apr. 10, 1997 (copying of commercial software
programs while in college) (clearance denied).

DOE Case No. USO-0122,26 DOE 7 82,777, May 2, 1997.

484 U.S. 518 (1988).

The Navy regulation is 0PNAV.INST 55 10.3OA (Mar. 10, 1999); the Army
regulation is AR 380-67 (Sept. 9, 1988, as amended by change 3); and the Air
Force regulation is AFINST 3 1-501 (May 2, 1994, as revised, Apr. 22, 1996). The
Office of the Joint Chiefs of Staff does not have its own regulation.

484 U.S. at 528.

The history of E.O. 12968 is discussed at length in a collection of papers prepared

for an American Bar Association Seminar: Security Clearance Practices:
Balancing the Interests of the Government and the Individual (Sept. 19, 1990).

Keeping the Nations Secrets: A Report to the Secretary of Defense by the

Commission to Review DoD Security Policies and Practices (1985) (The Stilwell
Commission). The report is posted on the Web site of the Federation of American
Scientists, www.fas.org/sgp/library.

P.L. 103-359, Title VIII, 108 Stat. 3434, Oct. 14, 1994 (50 U.S.C. 435).

See Statement by the White House Press Secretary accompanying the release of
E.O. 12968, Aug. 4, 1995. The Adjudicative Guidelines may be found on the
Security Policy Board Web site: www.spb.gov.

E.O. 12968, Secs. 1.l(b), 1.l(e), and 3.l(c).

Id., at Part 5, "Review of Access Determinations."

E.O. 12968. Sec. 2.2(b).

Ibid.

360 U.S. 474,508 (1959).

DoD 5200.2-R covers, in addition to access to classified national security

information, assignment to "sensitive position^'^ even though such positions do
not deal with classified information. A sensitive position is one in which the
occupant could have "a materially adverse effect on the national security." All
civilian positions are either critical-sensitive, noncritical-sensitive, or
nonsensitive. See DoD Directive 5200.2-R, Secs. 1-321,3-101 and Appendix K
(ADP Position categories).

DoD Directive 5200.2-R, Secs. 6-100,6- 102.

Id., at Sec. 6-101(b)(2).

See footnote 186.

Id., at Sec. 6-102.

Id., at Sec. 6-102.

Id., at Sec. 8-102.

Id., at Sec. 8-200.

Id., at Sec. 8-201.

Id., at Sec. 8-201(d).

Id., at Appendix M.

The structure and functioning of the PSABs is described in Appendix M to DoD

Directive 5200.2-R.

The structure and bctioning of the personal appearance before DOHA is

described in Appendix N to DoD Directive 5200.2-R.

Interview with the Office of DOHA'S Chief Administrative Judge.

Statistical results of DOHA personal appearances were provided by the Office of

DOHA's Chief Administrative Judge.

DoD Directive 5200.2-R, Sec. 8-201(d); Appendix M.

Statistical results of DOHA personal appearances were provided by the Office of

DOHA's Chief Administrative Judge.

DoD Directive 5200.2-R, Appendix M, Para. 8.

Interview with the Office of DOHA's Chief Administrative Judge.

360 U.S. 474,507 (1959).

DoD Directive 5220.6 applies to the Office of the Secretary of Defense, the
military departments, the Chairman of the Joint Chiefs of Staff and the Joint Staff,
the Inspector General of the Department of Defense and the Defense agencies. By
mutual agreement, it also extends to the: (a) Department of Agriculture, (b)
Department of Commerce, (c) Department of Interior, (d) Department of Justice,
(e) Department of Labor, (f) Department of State, (g) Department of
Transportation, (h) Department of Treasury, (i) Environmental Protection
Agency, (j) Federal Emergency Management Agency, (k) Federal Reserve
 System, (1) General Accounting Office, (m) General Services Administration, (n)
National Aeronautics and Space Administration, (0) National Science Foundation,
(p) Small Business Administration, (q) United States Arms Control and
Disarmament Agency, (r) United States Information Agency, (s) United States
International Trade Commission, and (t) United States Trade Representative. (Part
B.2).

DoD Directive 5220.6, Part B.6.

360 U.S. 474,508.

A detailed discussion of the organization and operations of DOHA, formerly

known as the Directorate for Industrial Security Clearance Review (DISCR), is
found in a collection of papers prepared for an American Bar Association
Seminar, "Security Clearance Practices: Balancing the Interests of the
Government and the Individual" (Sept. 19, 1990).

32 C.F.R., Part 147,63 Fed. Reg. 4572 (Jan. 30, 1998).

The three enclosures to DoD Directive 5220.6 are E.O. 10865, the Adjudicative
Guidelines for determining eligibility for a clearance and an Additional
Procedural Guidance for proceedings before DOHA (hereafter referred to as
DOHA Additional Procedural Guidance). (The Additional Procedural Guidance is
found at Appendix D).

An example of a Statement of Reasons and an Answer to the Statement of

Reasons are included as Appendix F.

The adjudicative criteria were first formulated in 1953 in E.O. 10450, "Security
Requirements for government Employees." The most recent formulation is the
Uniform Adjudicative Guidelines restated in the DOD Personnel Security
Regulation, 5200.2-R, Appendix I. (Included as Appendix B). Those guidelines
are included in DoD Directive 5220.6 provided with the SOR.

DOHA Case No. 97-0403, May 13, 1998 (Clearance denied).

DOHA Additional Procedural Guidance, Para. 7.

Id., Para. 11.

There are no DOHA Appeal Board decisions on this point.

DOHA Additional Procedural Guidance, Para. 11.

230. Id., Para. 13.

In addition to the DOHA "Additional Procedural Guidance," the parties are
provided a memorandum entitled: "Prehearing Guidance for DOHA Hearings,"
signed by the Chief Administrative Judge specifying, in detail, the conduct of the
hearing (Appendix E).

Department Of Navy v. Egan, 484 U.S. 518,531 (1988). E.g., DISCR OSD No.
89-1607 (Jul. 18, 1989).

DoD. Dir. 5220.6, Para. F.3.

DoD Dir. 5220.6, Enclosure 2.

DOHA Case No. 96-0785 (Sept. 3, 1998).

DOHA Case No. 97-0727 (Aug. 3, 1998); DOHA Case No. 97-0202 (Jan. 20,
1998).

DOHA Additional Procedural Guidance, Para. 22.

Interview with the Office of the Chief Administrative Judge.

Ibid.

DOHA Additional Procedural Guidance, Para. 42-46.

Id., Para. 44.

DOHA Case No. 97-0630 (May 28, 1998); DOHA Case No. 96-0152 (Jan. 14,
1997); DOHA Case No. 96-0228 (Apr. 3, 1997).

DOHA Additional Proecural Guidance, Para. 28.

Id., Para. 30.

Id., Para. 32.

Ibid.

E.g., Stehney v Perry, 101 F.3d 925 (3d Cir. 1996); Brazil v Department of Navy,
66 F.3d 193,197 (9th Cir. 1995); cert. denied 517 U.S. 1103 (1996); Dorfmont v
Brown, 913F.2d 1399 (9th Cir. 1990).

DOHA Additional Procedural Guidance, Para. 37-41.

Interview with the Office of the Chief Administrative Judge, Defense Office of
Hearings and Appeals.
The requirement of the Administrative Procedures Act, 5 U.S.C. 552(a)(2), for
public availability of agency opinions, technically had been met by having the
opinions available in its headquarters' library. There had not been a realistic
publication to DOHA'S nationwide audience until the recent posting of decisions
on the Internet.

523 U.S. 303,118 S.Ct. 1261,1264-1266,140 L.Ed 2d 413 (1998).

Id., 118 S.Ct. 1269. (Concurring Op.)

Id., 118 S.Ct. 1266.

Id., 118 S.Ct. 1272, f.n. 7. (Dissenting Op.)

South Dakota v. Neville, 459 U.S. 553, (1983); Schmerber v. Calfornia; 384 U.S.
757,764 (1966).

Secrecy Commission Report, 90.

Secrecy Commission Report, 90. The Secrecy Commission Report cites: House
Permanent Select Committee on Intelligence, Report on United States
Counterintelligence and Security Concerns (1986); Office of Technology
Assessment, Scientific Validity of Polygraph Testing: A Research Review and
Evaluation--A Technical Memorandum, OTA-TM-H-15 (Washington, D.C.:
Office of Technology Assessment, November 1983); House Permanent Select
Committee on Intelligence, United States Counterintelligence and Security
Concerns; and Department of Defense Polygraph Institute, Study of the Accuracy
of Security Screening Polygraph Examinations.

For additional information and examples of studies finding the polygraph to be

scientifically valid in certain applications, see Department of Defense Polygraph
Institute, Bootstrap Decisions Makingfor Polygraph Examinations, Final Report
of DODPERSEREC Grant No. NOOOl4-92-5-1795 prepared by Charles R. Honts
and Mary K. Ikvout (Grand Forks: University of North Dakota, 25\4 August
1992); Charles R. Honts, Theory Development and Psycho-physiological
Credibility Assessment (Boise State University, 1996); Charles R. Honts, 1994
Final Report: Field Validity Study of the Canadian Police College Polygraph
Technique, Science Branch: Supply and Services Canada, contract #M9010-3-
2219/01ST (Grand Forks: C. Honts Consultations, 1994); Christopher J. Patrick
and Williani G . Iscono, Validity and Reliability of the Control Questions
Polygraph Test: A Scientzfic Investigation, SBR Abstracts, Psychophysiology 24,
No. 5 (September 1987): 604-5.

Gordon Barland, Charles R. Honts, and Steven Barger, Studies of the Accuracy of
Security Screening Polygraph Examinations (Fort McClellan: Department of
Defense Polygraph Institute, 24 March 1989), iii. The Secrecy Commission
Report at p. 90, notes, however, that the DoDPI study was conducted in a
controlled setting and may not accurately reflect the conditions under which a
polygraph is normally taken.

118 S. Ct., 1265, f.n.6., 118 S. Ct. 1276 (Dissenting Op).

The concurrence of President Johnson was expressed in a "Memorandum to the

Heads of Departments and Agencies" which prohibited the use of the polygraph
in the Executive Branch except: (a) by Departments or Agencies having an
intelligence or counterintelligence mission directly affecting national security, the
use of which required the approval of the Chairman of the Civil Service
Commission (now OPM); (b) for use for criminal investigations which required
the approval of the Attorney General; and (c) in research and development which
required the approval of either OPM or the Attorney General depending on the
purpose. The memorandum explicitly limited conditions for its use and the rights
to be afforded a person being polygraphed. The details the memorandum are
essentially restated in the Federal Personnel Manual (FPM), Chap. 736, 5 2-6.
They have also been restated in proposed revisions to 5 C.F.R. Part 736, OPM's
regulations on personnel investigations. See, proposed 5 736.203 at 61 Fed. Reg.
394,396,401 (Jan. 5,1996). Although the FPM was abolished on December 31,
1993, it will remain a usefbl source of current law and procedure until the
proposed revisions are adopted. See, 64 Fed. Reg. 4336 (Jan. 28, 1999).

NSDD-84, approved by President Reagan on March 11,1983.

FPM, Chap. 736,g 2-6.

NSA's use of the polygraph for employment screening was approved in Stehney
v. Perry, 101 F.3d 925 (3d Cir. 1996).

Secrecy Commission Report, 90.

DoD Directive 52 10.48, Para. D.7, D.8.

A Special Access Program is defined as: "a program established for a specific
class of classified information that imposes safeguarding and access requirements
that exceed those normally required for information at the same classification
level." E.O. 12958, 5 4 . 1 0 (1995).

DoD Directive 5210.48, Para. D. 12(f).

DoD Directive 5210.48, Para. D.6, D.9 and G. 1.

DoD Directive 5210.48, Para. D.12.

DoD Directive 5210.48, Para. D.l to D.4.

DoD Directive 5210.48, Para. D.4.

Executive Order 12968, 4 5.2(a)(2) requires disclosure of the investigative file but
only to the extent that the documents would be provided under the Freedom of
Information Act (5 U.S.C. 552) or the Privacy Act (5 U.S.C.552a). Polygraph
records as a class have been exempted by the CIA from disclosure under the
Privacy Act. 32 C.F.R. $5 1901.61(a), 1901.62(a)(l). The CIA'S denial of
polygraph records has been upheld by two Federal Courts of Appeal. Blazy v.
Tenet, 1997 WL 3 15583 (D.C. Cir. 1998) aff'g, Blazy v. Tenet, 979 F. Supp. 10
(D.D.C. 1997); ViIIaneuva v. Dept of.Justice, 782 F. 2d 528 (5th cir. 1986).

DOE Polygraph Examination Regulation, 10 C.F.R. Part 709 (64 Fed. Reg.
70961-70980, December 17,1999.

The Washington Post, page A-8, Jul. 16,2000.

DOHA ISCR Case. No. 94-1057 (Aug. 11, 1995).

Ibid. DoD Regulation 5210.48-R, Chap. 1 Para. C.D.l, however, provides that the
"results of an analysis of the polygraph charts may be considered to have
probative value in administrative determinations."

DOHA ISCR Case No. 96-0785 (Initial Decision) (Apr. 16, 1998).

DOHA ISCR Case No. 96-0785 (Appeal Board Decision) (Sept. 3, 1998).

DOHA ISCR Case No. 96-0785 (Remand Decision of the Administrative Judge)
(Jan. 11, 1999).

DOHA ISCR Case No. 96-0785, Jun. 1, 1999.

Hillen v. Department of the Army, 35 MSPR 453 (987).

Meier v. Department of Interior, 3 MSPR 247 (1980).

Woodward v. Office of Personnel Management, 74 MSPR 389 (1997).

Compare cases favoring the government: Roberts v. Department of the Treasury,

8 MSPR 764 (198 1); Flores v. Department of Labor, 13 MSPR 28 1 (1982);
Waski.vgron v. Department ofNavy, 21 MSPR 370 (1984); Friedrick v.
Department of Justice, 52 MSPR 126, aff d Fed. Cir. No. 92-3219(10/07/92);91);
with cases favoring the employee: Prwz v. Department of the Navy, 4 MSPR 52
(1981); Williams v. Department of Hc ID, 23 MSPR 21 3 (1984); Moen v. Federal
Aviation Administration, 28 MSPR 556 (1985); Ballew v. Department of the
Army, 36 MSPR 400 (1988); Robancho v. Department of the Navy, 52 MSPR 425
(1992).

KunlJerman v. Department of the Navy, 785 F.2d 286 (Fed Cir. 1986).
Executive Order 10450, Sec. 9, Apr. 27, 1953.

DoD Directive 5200.2-R, Par. 12-100.

32 C.F.R. $ 147.24. See Chapter 2 for a further discussion.

Reference to the SII is found in the Chapters 732 and 736 Federal Personnel
Manual (FPM) which was abolished in 1993.

F.P.M., Chap. 732,§ 7-4.a.

F.P.M., Chap. 732, 7-4.c.

F.P.M. Chap. 732, § 7-7.

F.P.M. Chap. 736, $2-2.d.

DoD Directive 5200.2-R, Par. 12-200(c).

DoD Directive 5200.2-R. Par. 12-103.

E.O. 12958, $ 1.3, Apr. 20, 1995.

Secrecy Commission Report, 27.

E.O. 12958,s 4.l(h).

c. 343, Title I, §102,69 Stat. 497, Apr. 4. 1947.

E.O. 12333, $5 1.3,3.1.(l98l). This superceded an earlier executive order, E.O.

12036 (Jan. 24, 1978).

The latest version of DCID 614 (formerly numbered 1/14) was issued July 2,
1998. It is reproduced at Appendix C.

DCID 614, $ 1.h.

Secrecy Commission Report, 23.

United States v. Sims, 471 U.S. 159 (1985).

DCID 614, $ 5.d.

DCID 614, $ 6.

DCID 614, $ 10.

DCID 614, 6.c.

DCID 614, 8 8.

The Intelligence Community, established by E.O. 12333, 8 3.4 consists of 13

organizations: the Central Intelligence Agency, the Defense Intelligence Agency,
the National Security Agency, the National Reconnaissance Office, the National
Imagery and Mapping Agency, Army Intelligence, Navy Intelligence, Marine
Corps Intelligence, Air Force Intelligence, the Department of State, Bureau of
Intelligence and Research, the Department of Energy, the Treasury Department,
Office of Intelligence Support, and the Federal Bureau of Investigation. For a
more detailed description of the Intelligence Community, see the CIA Web site at
M IWW. odci.gov/ic.

DCID 614, Annex D, 8 2.

Id., 5 3.

Id., 8 1.

Ibid.

CIA Regulation AR 10-16, "Appeal of Personnel Security Decisions," is not

generally made available, but will be provided, if requested, to an individual
appealing a security decision or their counsel.

AR 10-16, 8 e(2)(a). See Chapter 8 above.

E.O. 12958, 5 4.l(h).

DoD 5200.1-R, Appendix By"Definitions."

Secrecy Commission Report, 26.

DoD 5200.1-R, Appendix By"Definitions."

10 U.S.C. 119(e), Secrecy Coinmission Report, 26.

Secrecy Commission Report, 27.

E.O. 12958, $8 4.4, 5.6(c).

Secrecy Commission Report, 27; DoD 5200.2-R, 5 8-101.

E.O. 12958, 8 4.4.

E.O. 12958, 5 4.4.

10 U.S.C. 5 119(e).

DoD 5200.1-R, 5 8- 1O3(e).

DoD 5200.2-R, Chap. 3,5 5.

E.O. 12968, 4 2.2(b).

360 U.S. 474,508 (1959).

Industrial Security Program Report.

Id., pp. 8-9.

The background of the adoption of Executive Order 12958 is more fully discussed
in Chapter 1. In summary, based on the recommendations of a Joint Security
Commission for a simplified, more uniform, and more cost-effective system,
Congress in 1994 amended the National Security Act of 1947 to require the
President to establish procedures to govern access to classified information
binding on the Executive Branch and Congress. As a result of that legislation, the
President signed Executive Order 12958 on April 17, 1995, establishing a uniform
system for classifying, declassifying, and safeguarding national security
information.

Executive Order 12958, $ 5.2.

The NISPOM has been issued as a Department of Defense Document, DoD

5220.22-M, as DoD was designated the executive agency for the program.

The physical safeguarding of SCI material in government is controlled by DCID

1/19, Security Policy and Security Policy Manual for Sensitive Compartmented
Information.

NISPOM, Para. 1-201, 1-202.

Id., Para. 102-8.

Id., Chapter 1, Section 3.

Id., Para. 3-104.

Id., Para. 2- 100.

Id., Para. 2-102.

Id., Chapter 2, Section 1.

Id., Chapter 2, Section 2.

Ibid.

Id., Chapter 2, Section 3.

Ibid.

Ibid.

Ibid.

Id., Para. 2-303.

Id., Para. 2-306.

Id., Para 2-3 11.

NISPOM, Chapter 5. A separate DoD regulation concerning the Information

Security Program, DoD 5200.2-R, was issued in January 1997 to implement
Executive Order 12958. Although binding only on the DoD, it is a model for other
agency regulations. Chapter 6 of the regulation covers physical security.

Id., 56-302.

NISPOM, Chap. 5, Sec. 2.

Id., Sec. 3.

DoD 5200.2-R, Appendix G.

NISPOM, Chapter 5, Secs. 3,8,9. DoD 5200.2-R, Appendix G gives very specific
requirements for the constructions of vaults, security rooms, intrusion detection
systems, and access controls, including "biometric devices", i.e., hand geometry,
retina scans, or voice recognition systems, for access to the most sensitive
information.

NISPOM, Chapter 5, Section 4; DoD 5200.2-R, Chapter 7.

NISPOM, Chapter 5, Section 4; DoD 5200.2-R, Chapter 7, Section 3.

DoD 5200.2-R, Chapter 6, Section 5.

Id., Chapter 8.

Ibid.

DoD 5200.2-R, $6-309.

NISPOM, Chapter 11.

Ibid.

Presidential Decision Directive 63 issued May 22, 1998 is classified. A public

Fact Sheet and White Paper explaining it in detail is available on the Web site of
the Federation of American Scientists at wwwlfas.org/irp/offdocs/.

DoD 5200.2-R, $1- 100.

DoD 5200.2-R, Appendix C, Sec. 2.

Id., Section 3.

Id., Sections 4 - 7.

The proliferation of protective markings for unclassified information was noted in

the 1997 Secrecy Commission Report, 28-29.

P.L. 88-290,78 Stat. 168, Mar. 26,1964; P.L. 86-36,73 Stat. 63, May 29, 1959,
50 U.S.C. 402, note; DoD Dir. 52 10.45, May 9,1964.

RODDirective 5210.48, $ D.13.a.

DoD Directive 5210.45, $11.

Id., $ 111.

Ibid.

NSAICSS Regulation No. 122-07, Mar. 13, 1998.

DoD Regulation 5210.48-R, App. B.

DoD Directive 5210.45 provides that a three-member board shall consider access
determinations under proceedings which shall not include notice to the individual,
a right to a hearing or appeal of an adverse determination. While this 1964
directive has not been withdrawn or revised, in practice it has been superceded by
NSCICSS Reg. No. 122-07 which implements Executive Order 12968.

NSAICSS Reg. No. 122-07, tj 111, Par. 5.

Id., 5 V.

Id., 5 VI.

Id., 5 VI, Par. 17.c.

Id., 5 VI, Par. 19.

Id., g VI, Par. 19.

Id., 5 VI, Par. 20.

50 U.S.C. 5 833 (repealed, P.L. 104-201, 5 l633(b)(2), 110 Stat. 2751 (1996)).
Atomic Energy Act of 1954, as amended, c.1073,68 Stat. 92 1,940, Aug. 30,
1954 (42 U.S.C. $9 201 1-2296).

Regulations of the Nuclear Regulatory Commission concerning criteria and

procedures for determining eligibility for access to restricted data or national
security information or on employment clearance are at 10 C.F.R. Part 10 (64
Fed. Reg. 15641, Apr. 1, 1999).

See Secrecy Commission Report, p. 23 (1997).

42 U.S.C. 9 2014(y).
42 U.S.C. 5 2162(d).
Secrecy Commission Report, p. 24.

Section 142(d) of the Atomic Energy Act.

Secrecy Commission Report, p. 76. Originally nuclear energy clearances were

classed as "A," "B," and "C," but these designations were abandoned because it
was felt that individuals might think that "B" and "C" clearances reflected on
their integrity. Clearances were then designated "Q," "S" and "P," derived by
reversing the first letters of the term "Personnel Security Questionnaire" (PSQ).
Only the "Q" designation has survived. A Review of the AEC Securiv Program,
1947-1973, p. 90 (Div. of Security, AEC). The "L" designation derives from a
"Limited" clearance that originated at the Oak Ridge facility many years ago.
DOE Order 472.1B, Personnel Security Activities (Mar. 24, 1997); DOE
Personnel Security Program Manual, DOE M 472.1-1 (May 22, 1998)

Statistics have been provided by the DOE Office of Safeguards and Security,
Office of Security Affairs. The subcategories are less than the total cases closed
due to other administrative actions being taken.

Ibid.

10 C.F.R. $710.5.

10 C.F.R. $ 710.1,.2.

DOE Order 472.1B, Personnel Security Activities (Mar. 24, 1997); DOE
Personnel Security Program Manual, DOE M472.1-1 (May 22,1998).

10 C.F.R. $ 710.6.

10 C.F.R. $ 704.4(B).

The case of Karen Silkwood, a whistle-blower in a nuclear power plant, made into
a popular movie, exemplifies this problem.

See Energy Reorganization Act of 1974, as amended, 42 U.S.C. $ 5851.

DOE Implementation Guidance to 10 C.F.R. Part 10.

Executive Order 12968, Part 5(c) allows agency heads to provide additional
review proceedings beyond those required by the order.

10 C.F.R. Part 710 is being revised to conform with Executive Order 12968 and
will be published in the Federal Register as a Notice of Proposed Rulemaking.
DOE will adopt the Adjudicative Guidelines used throughout the Executive
Branch which were approved by the President and issued by the Security Policy
Board. They will be included in the revised regulations as Appendix B.

DOE Polygraph Examination Regulation, 10 C.F.R. Part 709 (64 Red. Reg.
70961-7O98O), Dec. 17,1999.

The Washington Post, Page A-8, Jul. 16,2000.

10 C.F.R. $ 710.8.

10 C.F.R. 5 710.7.

See endnote 20.

63 Fed. Reg. 4572 (1978) (32 C.F.R. Part 147).

Adjudicative Guidelines issued by the Security Policy Board for government-
wide application are published at 63 Fed. Reg. 4572-4580, Jan. 30, 1998 (32
C.F.R. Part 147).

10 C.F.R. 5 71 O.Z(I).
10 C.F.R. 5 710.9.
10 C.F.R. fj 710.21.

10 C.F.R.5 710.5(a). Prior to the 1994 revision of the regulations, hearing officers
were non-government attorneys who heard the appeals on a contract basis. This
was changed as a result of a GAO report, which held that the hearing was a
governmental function which should be performed by government employees.
Dec. B-23756, Dec. 29, 1989.

10 C.F.R. 5 710.21,710.22,710.24.
10 C.F.R. 5 710.25(d). DoD hearings are conducted by the Defense Office of
Hearings and Appeals (DOHA). See Chapter 6 and 7.

Ibid.

10 C.F.R. 5 710.26(d).
10 C.F.R. 5 710.26(h).

10 C.F R . 5 710.26(1). A similar procedure is available under the rules of DOHA

but, according to the Chief Judge of DOHA, has never been invoked.

10 C.F.R. 5 710.26(0).

10 C.F.R. 5 710.26(q).
10 C.F.R. 5 710.27tb).

10 C.F.R. 5 710.28(c).

10 C.F.R. 5 710.28(e).

10 C.F.R. 5 710.31.
DOJ Employment Security Regulations, DOJ Order 2610.2A, Par. 8 (Aug. 21,
1990).
28 C.F.R. 5 17.11. DOJ's regulations concerning classified national security
information and access to classified information are found at 28 C.F.R. Part 17.
(AG Order No 2091-17) 62 Fed. Reg. 36984, July 10,1997. A detailed
description of each official's responsibilities with respect to national security
information is in DOJ's regulation concerning Security Programs and
Responsibilities, DOJ Order 2600.2B, (Jul. 10, 1989).

28 C.F.R. 5 17.12.

28 C.F.R. 5 17.14.
28 C.F.R. 17.1l(c).

28 C.F.R. 5 17.47(a).
28 C.F.R. 5 17.47(b).
28 C.F.R. 5 17.15.
28 C.F.R. 5 17.15.
28 C.F.R. 3 17.47(d).
28 C.F.R. 5 17.47 (e).

E.O. 12968, 5 5.2(c).

28 C.F.R. 5 17.47(g).
28 C.F.R. 5 17.47(h),(i).

28 C.F.R. 17.47.47(f).

28 C.F.R. 5 17.15.

The Procedures may be obtained from the Chair, Department of Justice ARC,
Room 1116, Main Justice Building, 950 Pennsylvania Ave. NW, Washington, DC
20530-0001.

Information provided during an interview with the DOJ Security and Emergency
Planning Staff.

28 C.F.R. 5 17.41.
According to DOJ, although consent to disclosure of financial information is a
requirement of E.O. 12968, issued in October 1995, as of May 1999 that
requirement has not been implemented government-wide because the financial
disclosure form had still not been finally approved and adopted.
28 C.F.R. 4 17.41(e).

DoD Directive 5220.6 (Jan. 2, 1996) refers to a memorandum of understanding

between DoD and the Department of Justice and 19 other departments and
agencies.

Information provided during an interview with the DOJ Security and Emergency
Planning Staff, Jul. 29,1998.

Information provided by the DOJ Security and Emergency Planning Staff.

Information provided by the Chair, Access Review Committee.

Information provided during an interview with the DOJ Security and Emergency
Planning Staff, Jul. 29,1998.

Information concerning the FBI's security program, unless otherwise referenced,

was provided by a personal interview with representatives of the FBI's Office of
General Counsel, Office of Public Affairs, and units dealing directly with
personnel security clearance issues.

Information provided by the Assistant Director, OPM Investigations Service.

Background employment investigations of FBI Special Agents and its other

employees are conducted in accordance with Part 67 of the FBI Manual of
Investigative Guidelines (MIOG).

These investigations are covered by Part 259 of the MIOG.

Personnel and facility clearances under the Industrial Security Program are
handled by the Industrial/ Facility Security Unit. Security Countermeasures
Section, National security Division. FBI employee security clearances are also
handled by that division.

See MAOP Part II,3-1.1 and 3-1.2. The FBI, at the time of this writing, has not
provided any part of its MAOP, so the description of its contents is based on
information provided at a personal interview with representatives of the FBI's
Office of General Counsel, Office of Public Affairs, and units dealing directly
with personnel security clearance issues, as well as references to it in the FBI's
Manual of Investigative Operations and Guidance (MIOG).

E.0.12968, Sec. 2.1(a)(2)(1995).

32 C.F.R. 4 147.10,63 Fed. Reg. 4576 (Jan. 30, 1998).

MIOG Part I, Subsec. 67-7.6

Id, Subsec. 67-7.8.

Ibid.

Ibid.

32 C.F.R. Part 147, Attachment C to Subpart B, 63 Fed. Reg. 4578 (Jan. 30,
1998).

The requirement for universal polygraphing of FBI applicants was begun on May
4, 1994 according to information provided during an interview with the DOJ
Office of Security and Emergency Planning. An FBI regulation, MIOG, Subsec.
76-7.9 issued earlier (1/11/85), provides that polygraphing is only to be on
approval of the Assistant Director of the Inspection Division, or some other
person designated by the Director, FBI, provided the exam would materially assist
in the resolution of questions concerning (a) relationship or allegiance to a foreign
power, (b) freedom from coercive forces, or (c) ability to abide by laws and
regulations and intent to use his or her employment for FBI purposes.

MIOG, Subsec. 67-7.9(b)(3).

MIOG, Subsec. 260-2.1.

MIOG, Subsec. 260-1.

MIOG Subsec. 260-2.3.

MIOG Subsec. 260-2.5.

See Chapter 1 for a discussion of the development of the Uniform Guidelines.

MIOG Subsec. 260-2.1(2).

Information provided by a personal interview with representatives of the FBI's

Office of General Counsel, Office of Public Affairs, and units dealing directly
with personnel security clearance issues.

Ibid.

MIOG Subsec. 260-2.4.

MIOG Subsec. 260-4.

MIOG Subsec. 260-4.2.

MIOG Subsec. 260-4.

MIOG Subsec. 260-3.

MIOG Subsec. 260-3.1

 Carlucci v. Doe, 488 U.S. 93, 102 (1 988).

Cole v. Young, 35 1 U.S. 536,542-43, (1956). (Reversing the removal of an FDA

food and drug inspector who was charged with being a Communist.)

5 U.S.C. 5 7531. NSA, DIA and the Defense Mapping Agency were added by
Memorandum of President Reagan, May 23, 1988,53 F.R. 26023 (5 U.S.C. 753 1,
note).

Cole v. Young, 351 U.S. 541

Carlucci v. Doe, 488 U.S. 104. The Supreme Court in Cole v. Young held that in
the absence of an immediate threat of harm to the "national security," the normal
dismissal procedures seem fully adequate, and the justification for summary
powers disappears. 351 U.S. 546.

Carlucci v. Doe, 488 U.S. 93.

If an employee's clearance has been suspended, an agency may suspend the

employee without pay indefinitely during the investigation of whether his
clearance should be continued. Holley v. Dept. of the Navy, 62 M.S.P.R. 300
(MSPB 1994).

Gri@ v. Defense Mapping Agency, 864 F.3d 1579, 1580 (Fed. Cir. 1989); Holley
v. Dept of the Navy, supra.

5 U.S.C. 5 7513. Department of the Navy v. Egan, 484 U.S. 518 (1988).
5 U.S.C. 5 7532(b).
5 U.S.C. 5 7532(c).
In dictum in Department of the Navy v. Egan, the Court stated: "Even assuming
he would be entitled to a [trial-type] hearing under 5 7532, we would still
consider the two procedures [comparing 5 U.S.C. 5 75131 not anomalous, but
merely different. 484 U.S. 533.

The Federal Personnel Manual, Chap. 732, Sec. 5-4. (The Federal Personnel
Manual was abolished in 1993. Chapter 732 of the Code of Federal Regulations is
currently under revision and is expected to contain many of the provisions that
previously appeared in the FPM).

Ibid.

Ibid.

514. 5 U.S.C. 5 3571

5 U.S.C. $ 7312.

P.L. 96-456,94 Stat. 2025, Oct. 15, 1980; 18 U.S.C. App. 3 , @ 1 - 16.

United States v. Pappas, 94 F.3d 795 (2d cir. 1996); United States v. Wilson, 571
F.Supp. 1422 (D.C.N.Y. 1983).

18 U.S.C. App. 3, $ 6(e).

Security Procedures Established Pursuant to P.L. 94-456, 94 Stat. 2025 by the

Chief Justice of the United Statesfor the Protection of Classijied Information.
(Hereinafter, "Security Procedures") (18 U.S.C. App. III,$9, note).

Security Procedures, $ 2.

Security Procedures, $ 4 .

Security Procedures, $ 5.

Security Procedures, $ 6 .

Security Procedures, $ 9.

Information concerning the DOJ Court Security Section was provided during an
interview with the Associate Director, Security and Emergency Planning Staff, in
August 1998.

Security Procedures, $ 4.

Bowers v. US. Dept. Of Justice, 690 F.Supp. 1483 (W.D.N.C. 1987) (inapplicable
to FOIA proceeding); United States v. Koreh, 144 F.R.D. 218 (D.N.J. 1992)(does
not apply in denaturalization proceeding).

28 C.F.R. $9 17.17, 17.46.

28 C.F.R. 8 17.46(c). Federal Magistrate Judges have their access eligibility

determined under an agreement between DOJ and the Judicial Conference of the
United States.

28 C.F.R. $ 17.46(d).

28 C.F.R. $ 17.41(a).

Eg., Bowers v. US. Dept. of Justice, supra; United States v. Koreh, supra.

Standard Form 3 12.

 Appendix A

Sources on the Protection of National Security Information

 Appendix A

Sources on the Protection of National Security Information

Statutes

National Security Act of 1947, as amended, c. 343,61 Stat. 496, Jul. 26,
1947 (50 U.S.C. 401-432).

Central Intelligence Agency Act of 1949, c. 227,63 Stat. 208 (50 U.S.C.
403a-403i) Jun. 20, 1949.

National Security Agency Act of 1959,73 Stat. 63, P.L. 86-36, May 29,
1959 (50 U.S.C. 402, note).

Act to Permit Summary Suspension and Removal of Employees for

National Security Reasons, c. 803,64 Stat. 476, Aug. 26, 1950 (5 U.S.C.
3571,7532).

Internal Security Act of 1950, as amended, c. 1024, Stat. 987, Sept. 23,
1950 (50 U.S.C. 783).

Atomic Energy Act of 1954, as amended, c. 1073,68 St. 919,940-943,

A u ~30,1954
. (42 U.S.C. 2161-2166).

National Security Agency Act of 1959 ( Personnel Security Procedures,

P.L. 88-290,78 Stat. 168-170, Mar. 26, 1964 (50 U.S.C. 831-835).

Foreign Intelligence Surveillance Act of 1978, P.L. 95-51 1,92 Stat. 783,
Oct. 25, 1978 (50 U.S.C. 1801-1811).

Classified Information Procedures Act, P.L. 96-456,94 Stat. 2025, Oct.

15,1980 (18 U.S.C. App. 3, § $ 1 - 16).

Counterintelligence and Security Enhancements Act of 1994, P.L. 103-

359, Title VIII, §802(a), 108 Stat. 3434, Oct. 14, 1994 (50 U.S.C. 435).

Executive Orders

1. E.O. 9835, Employees' Loyalty Program in the Executive Branch, Mar.

21, 1947 (12 Fed. Reg. 1935; 1947 US. Code Cong. Service 1997).

2. E.O. 10450, Security Requirements for Government Employment, Apr.

27, 1953. (5 U.S.C. 7311, note).

3. E.O. 10865, Safeguarding Classified Information Within Industry, Feb.

20, 1960 (50 U.S.C. 401, note).
 E.O. 10909, amending E.O. 10865, Jan. 17, 1961 (50 U.S.C. 401, note).

E.O. 11905, United States Foreign Intelligence Activities, 41. Fed. Reg.
7703, Feb. 18, 1976 (superseded by E.O. 12306).

E.O. 1 1935, Citizenship Requirements for Federal Employment, Sept. 2,

1976, 5 U.S.C. 3301, note).

E.0.12065, Classification and Declassification of National Security

Information and Material, Jun. 28, 1978,43 Fed. Reg. 28949 (superseded
by E.O. 12356).

E.O. 12333, United States Intelligence Activities, 46 Fed. Reg. 59941,

Dec. 4, 1981 (50 U.S.C. 401, note).

E.O. 12356, National Security Information, Apr. 2, 1982 (50 U.S.C. 401,
note) (superseded by E.O. 12958).

E.O. 12656, Assignment of Emergency Preparedness Responsibilities,

Nov. 18, 1988,53 F.R. 47491 (50 U.S.C. App. 2251, note).

E.O. 12829, National Lndustrial Security Program, 58 Fed. Reg. 3479, Jan.
6, 1993 (50 U.S.C. 435, note).

E.O. 12958, Classified National Security Information, Apr. 17, 1995 (50
U.S.C. 435, note).

E.O. 12968, Access to Classified Information, Aug. 2, 1995 (50 U.S.C.

435, note).

C. National Security Directives

National security directives have been given different names by each administra-
tion. They were called National Security Directives (NSDs) in the Bush administration,
National Security Decision Directives (NSDDs) in the Reagan administration, Presiden-
tial Directives (PDs) in the Carter administration, National Security Decision Memoranda
(NSDM) in the Nixon and Ford administrations, and National Security Action Memo-
randa (NSAMs) in the Kennedy and Johnson administrations. They are known as
President Decision Directives (PDDs) in the Clinton Administration. National Security
Council Intelligence Directives (NSCIDs) are Guidance to Entire Intelligence
Community.

1. PD-55, Jan. 10, 1980, Intelligence Special Access Programs:

Establishment of APEX Program.

2. NSD-63, Oct. 21, 1991, Single Scope Background Investigations.

 3. NSDD-19, Jan. 12, 1982, Protection of Classified National Security
Council and Intelligence Information.

4. NSDD-84, Mar. 11, 1983, SafeguardingNational Security Information,

(specified new security requirements for individuals permitted access to
code word information).

5. PDDINSC-29, Sept. 16,1994, Security Policy Coordination - Established

Security Policy Board.

6. PDDJNSC-62, May 22,1998, Combating Terrorism.

7. PDDINSC-63, May 22, 1998, Protecting America's Critical

Infrastructures.

D. Security Policy Board Policies

Personnel Security Policies for Granting Access to Classified Information;

Subpart A, Adjudicative Guidelines; Subpart ByInvestigative Standards.
32 C.F.R. Part 147 (63 Fed. Reg. 4572, Jan. 30, 1998).

National Policy of Reciprocity of Facilities and Guidelines for

Implementation of Reciprocity. 32 C.F.R. Part 148 (63 Fed. Reg. 4580,
Jan. 30,1998).

E. Director of Central Intelligence Directives

Directives from the Director of Central Intelligence are known as DCIDs and
have government-wide application. The Director of Central Intelligence, who is the
President's Chief Advisor on Intelligence, also serves in another role as the Director of
the CIA.

1. DCID 117, Security Controls on the Dissemination of Intelligence

Information, (For Official Use Only), Jun. 30, 1998.

2. DCID 1/19, Security Policy for SCI [Unclassified], Mar. 1, 1995.

3. DCID 1/20, Security Policy Concerning Travel and Assignment of

Personnel with Access to Sensitive Compartmented Information
[Unclassified], Dec. 29, 1991.

4. DCID 1/21, Manual for Physical Security Standards for Sensitive

Compartmented Information Facilities (SCIFs) [For Official Use Only],
Jul. 29,1994.

5. DCID 3/29, Controlled Access Program Oversight Committee, Jun. 2,

1995.
 6. DCID 612, Technical Surveillance Countermeasures [Confidential], Mar.
11,1999

7. DCJD 613, Protection of Sensitive Classified Information within

Information Systems and Networks [Secret], Jun. 5, 1999.

8. DCID 613 Supplement, Security Manual for Uniform Protection of

Intelligence Processed in Automated Information Systems and Networks
[Secret] (Supplement to DCID 613), Jun. 5, 1999.

9. DCID 614, Personnel Security Standards and Procedures Governing

Eligibility for Access to Sensitive Compartmented Information (SCI)
[Unclassified] with Annexes A - F. Jul. 2, 1998.

F. Department of Defense Directives, Regulations And Manuals

DoD Directive 1400.5, Policy for Civilian Personnel, Mar. 2 1, 1983.

DoD Instruction 1401.1, Personnel Policy for Nonappropriated Fund

Instrumentalities (NAFIS) Nov. 15,1985.

DoD 1401.1-M, Personnel Policy Manual for Nonappropriated Fund

Instrumentalities (NAFIS), Dec. 1998.

DoD Directive 5025.1, DoD Directives System, Jun. 24, 1994.

DoD Directive 5025.1-1, DoD Directives Systems Annual Index, Feb.

1996.

DoD Directive 5025.1-MyDoD Directives Systems Procedures, Aug. 1994.

DoD Directive 5 100.23, Administrative Arrangements for the National

Security Agency, May 17,1967.

DoD Directive 5 105.42, Defense Security Service, May 13, 1999.

DoD Directive 5145.3, Surveillance of DoD Security Programs, Oct. 19,

1962.

DoD Directive 5200.1, DoD Information Security Program, Dec. 13,

1996, (delegates authority and assigns responsibilities) (32 C.F.R. Part
159).

DoD 5200.1-H, DoD Handbook for Writing Security Classification

Guidance, Mar. 1986.

DoD 5200.1-1, Index of Security Classification Guides (For Official Use

Only - filed in Pentagon Library Army Studies Room), Sep. 1996.
DoD 5200.1-M, Acquisitions Systems Protection Program, Mar. 1994.

DoD 5200.1-R, Information Security Program Regulation, Jan. 1997 (32

C.F.R. PART 159a).

DoD Directive 5200.2, Personnel Security Program, Apr. 4, 1999 (32

C.F.R. Part 156).

DoD Dir 5200.2-R, Personnel Security Program Regulation, Jan. 1987, as

amended (32 C.F.R Part 154).

DoD Directive 5200.8, Security of Military Installations and Resources,

Apr. 25, 1991 (assignment of authority).

DoD Directive 5200.8-R, Physical Security Program, May 1991.

DoD Directive 5200.26, Defense Investigative Program, June 12,1979

(assignment of authority).

DoD Directive 5200.28, Security Requirements for Automated

Information Systems, Mar. 2 1, 1988.

DoD 5200.28-M, Automated Information System Security Manual.

DoD Directive 5200.30, Guidelines for Systematic Declassification

Review of Classified Information in Permanently Valuable DoD Records,
Mar. 21, 1983 (32 C.F.R Part 158).

DoD Directive 5200.32, Security Countermeasures (SCM) and Polygraph

Education, Training and Program Support, Feb. 26, 1996 (authorizes
DoDPI as the sole source of basic and advanced psycho-physiological
detection of deception).

DoD Directive 0-5205.7, Special Access Program (SAP), Policy, Jan. 4,

1989 (for official use only - filed in Pentagon Library Army Studies
Room).

DoD Directive 5210.2, Access to and Dissemination of Restricted Data,

Jan. 12,1978.

DoD Directive 5210.41, Security Policy for Protecting Nuclear Weapons,

Sept. 23, 1988.

DoD Directive 5210.42, Nuclear Weapon Personnel Reliability Program,

May 25,1993.

DoD Directive 5210.45, Personnel Security in the National Security

Agency, May 9,1964.
DoD Directive 5210.46, DoD Building Security for the National Capital
Region, Jan. 28, 1982.

DoD Directive 5210.48, DoD Polygraph Program, Dec. 24, 1984.

DoD Directive 5210.48-R, Polygraph Program Regulation, Jan. 9, 1985

(contains counterintelligence topics for polygraph).

UoD Directive 5210.55, DoD Presidential Support Program, Dec. 15,

1998.

DoD Instruction 5210.87, Selection of DoD Military and Civilian

Personnel and Contractor Employees for Assignment to Presidential
Support Activities, Nov. 30, 1998.

DoD Directive 5210.65, Chemical Agent Security Program, Oct. 15, 1986.

DoD Directive 52 10.79, DoD Personnel Security Research Center

(PERSEREC), Jul. 9,1992.

DoD Directive 5220.6, Defense Industrial Personnel Security Clearance

Program, Feb. 2, 1992 (32 C.F.R. Part 155).

DoD Directive 5220.22, DoD Industrial Security Program, Dec. 8, 1980.

DoD Directive 5220.22-M, National Industrial Security Program

Operating Manual (NISPOM), (replaces Industrial Security Manual for
Safeguarding Classified Information, 1991 ed.), Jan. 1995.

NISPOM Supplement (for SAP and SCI storage requirements), Feb. 1995.

DoD 5220.22-R, Industrial Security Regulation (establishes policies for

military and civilian employees and employees of Defense contractors),
Dec. 1985.

DoD Directive 5230.1 1, Disclosure of Classified Military Information to

Foreign Governments and International Organizations, Jun. 16, 1992.

DoD Directive 5230.21, Protection of Classified National Security

Council and Intelligence Information, Mar. 15, 1982.

DoD Directive 5230.22, Control and Dissemination of Intelligence

Information, Apr. 1, 1992 (for official use only - filed in Pentagon Library
Army Studies Room).

DoD 5240.1-R, Procedures Governing the Activities of DoD Intelligence

Components that Affect United States Persons, Dec. 1982.
 45, 32 CFR Part 158, Guidelines for Systematic Declassification Review of
Classified Information in Permanently Valuable DoD Records (See DoD
Dir 5200.30).

G. Other Agency Regulations and Directives

Air Force Instruction 3 1-501, Personnel Security Program Management,

May 2, 1994, revised, by implementing instruction, Apr. 22, 1996.

Air Force Regulation 0-2, Numerical Index of Standard and Recurring Air
Force Publications, Jul. 1,1992.

Air Force Regulation 200-7, Sensitive Compartmented Information (SCI)

Security System, Apr. 1987.

AFSPACECOM Regulation 200-2, The Security, Use and Dissemination

of Sensitive Compartmented Information (SCI), Aug. 3 1, 1990.

Air Force Technical Application Center (AFTAC), Regulation 0-2,

Numerical Index of Center Publications, Nov. 1986.

Army Intelligence and Security Command (INSCOM) Pamphlet 25-30,

Index of Administrative Publications and Command Forms, June 25,
1991.

Army Regulation 380-67, Personnel Security Program, Feb. 15, 1990,

amended by Ch. 3, Para. 8201.

Courts - Security Procedures Established Pursuant to P.L 94-456

(Classified Information Procedures Act) by the Chief Justice of the United
States for the Protection of Classified Information, (18 U.S.C. App. 111. 4
9, note).

CIA Regulation AR 10-16, Appeal of Personnel Security Decisions, July

30, 1998.

DIA Regulation 0-2, Index of DIA Administrative Publications, Dec. 10,

1982.

Defense Security Service 20-1-M, Manual for Personnel Security

Investigations, Jan. 1993.

Defense Intelligence Agency Regulation No. 22-7, Civilian Personnel

Adverse Actions, Apr. 7, 1986.

Defense Intelligence Agency Regulation No. 22-52, Civilian Personnel,

Aug. 24,1983.
Defense Intelligence Agency Regulation No. 50-8, Personnel Security
Program, Oct. 2, 1975.

Defense Security Service, DIS 3 1-4-R, Industrial Security Operating

Regulation (ISOR), Sept. 4, 1984.

Department of Energy Regulation, 10 C.F.R. Part 7 10, Criteria and

Procedures for Determining Eligibility for Access to Classified Matter or
Special Nuclear Material, July 8, 1994.

Department of Energy, Nuclear Classification, and Declassification

Regulation, 10 C.F.R Part 1045,62 Fed. Reg. 68501, Dec. 3 1, 1997.

Department of Energy Polygraph Examination Regulation, 64 Fed. Reg

70961-70980, DCC.17,1999.

Department of Energy Implementation Guidance for Title 10, Code of

Federal Regulations, Part 7 10, Subpart A.

DOE Order 472. lB, Personnel Security Activities, Mar. 24, 1997.

DOE, Personnel Security Program Manual DOE M 472.1-1, May 22,

1998.

Department of Justice Regulations Implementing E.O. 12958 and 12968,

"Classified National Security Information and Access to Classified
Information," 28 C.F.R. Part 17, $8 17.1-17.47; 62 Fed. Reg. 36984, July
10, 1997.

DOJ Order 2600.2BYSecurity Programs and Responsibilities, July 10,

1989.

DOJ Order 2610.2AYEmployment Security Regulations, Aug. 21, 1990.

Department of State Foreign Affairs Manual, 3 F.A.M. Subchap. 160,

Personnel Security, May 1, 1987.

FBI Manual of Investigative Operations and Guidance (MIOG), Secs. 67,

259, and 260.

FBI Manual for Administrative Operating Procedures (MIAP).

Information Security Oversight Office (ISOO), Directive No. 1.

Navy Personnel Security Program, Security Inst. 55 lO.3OAYMar. 10,

1999.

Navy Information Security Program, SECNAV Inst. 55 10.36, Mar. 17,

1999.
3 1. Office of Personnel Management, Personnel Security and Personnel
Investigations Regulations, 5 CFR Parts 732 and 736.

32. Office of Personnel Management, Federal Personnel Manual, Personnel

Suitability, Chap. 731, Personnel Security, Chap. 732, and Personnel
Investigations, Chap. 736 (all now abolished).

33. USSPACECOM Regulation 200-1, The Security, Use, and Dissemination

of Sensitive Compartmented Information (SCI), Apr. 15,1992.

34. USSAN Instruction 1-69, United States Security Authority for North
Atlantic Treaty Organization Affairs, Apr. 21, 1982 (Enclosure 2 to DoD
Dir 5100.55).

Interagency Agreements

Memorandum of Understanding between the Director, White House

Military Office and the Special Assistant to the Secretary and Deputy
Secretary of Defense, "White House Clearances," Jul. 30, 1980.

Defense Office of Hearings And Appeals Issuances

DOHA Additional Procedural Guidance (found as Enclosure 3 to DoD

Directive 5220.6 distributed by DOHA).

Index to Cases Under the Industrial Personnel Security Clearance Review

Program, DoD Directive 5220.6, dated Dec. 20, 1976, and prior versions,
(Vol. I-V, 1963-1986).

Index to Cases Under the Industrial Personnel Security Clearance Review

Program, DoD Directive 5220.6, dated Aug. 12, 1985 (Vol. VI- XIV,
1986-1992).

Index to Cases under the Industrial Personnel Security Clearance Review

Program, DoD Directive 5220.6, dated Jan. 2, 1992 (Vol. XV- XX, 1992-
1996).

Case Citator for Appeals Under the Industrial Personnel Security

Clearance Review Program, DoD Directive 5220.6, dated Aug. 12, 1985
(issued June 29,1995).

Review Program, DoD Directive 5220.6, dated Jan. 2, 1992 (issued Oct.
31, 1997).

Supplement to Index to Cases Under the Industrial Personnel Security

Clearance Review Program, DoD Directive 5220.6, dated Aug. 12, 1985,
(Decisions from January 1, 1989 - Dec. 30, 1994).
 8. Supplement to Index to Cases Under the Industrial Personnel Security
Clearance Review Program, DoD Directive 5220.6, dated Jan. 2, 1992,
(Decisions from Jan. 1, 1994 - Sept. 3 1, 1998).

J. General Accounting Office Reports

1. Improved Executive Branch Oversight Needed for the Government's

National Security Information Classification Program, LCD-78-125, dated
Mar. 9, 1979.

2. Continuing Problems in DoD's Classification of National Security

Information, LCD-80-16, dated Oct. 26, 1979.

3. The Central Intelligence Agency's Handling of Mandatory Review

Requests Under E.O. 12065, LCD-80-5 1, dated Apr. 11, 1980.

4. Systematic Review for Declassification of National Security

Information-Do Benefits Exceed Costs? LCD-81-3, dated Oct. 15, 1980.

5. Oversight of the Government's Security Classification Program-Some

Improvements Still Needed, LCD-8 1-13, dated Dec. 16, 1980.

6. DoD Should Give Better Guidance and Training to Contractors Who

Classify National Security Information, PLRD-81-3, dated Mar. 23, 1981.

7. Faster Processing of DoD Personal Security Clearances Could Avoid

Millions in Losses, GGD-81-105, dated Sept. 15,1981.

8. Review of Department of Defense Investigation of Leak of Classified

Information to The Washington Post, GAOIGGD-83-15, dated Oct. 7,
1982.

9. Further Improvement Needed in Department of Defense Oversight of

Special Access (Carve-Out) Contracts, GAOJGGD-83-43, dated Feb. 18,
1983.

10. Report Supplement to Above Report "For Official Use Only," GAOIGGD-
83-43 (A), dated Feb. 18, 1983.

11. Need for Central Adjudication Facility for Security Clearances for Navy
Personnel, GAOIGGD-83-66, dated May 18, 1983.

12. Effect of National Security Decision Dir-84, Safeguarding National

Security Information, GAOINSIAD-84-26, dated Oct. 18, 1983.

13. Polygraph and Prepublication Review Policies of Federal Agencies,

GAOINSIAD-84- 134, dated Jun. 11, 1984.
Concerns Regarding the National Security Agency Secure Telephone
Program, GAO/NSIAD-86-7, dated Oct. 15, 1985.

Department of Defense: DoD's Training Program for Polygraph

Examiners, GAONSIAD-86-33BR, Dec. 3 1, 1985.

DoD TEMPEST Protection: Better Evaluations Needed to Determine

Required Countermeasures, GAONSIAD-86-132, dated Jun. 27,1986.

Information Security: Need for DoD Inspections of Special Access

Contracts, GAONSIAD-86-191, dated Aug. 7,1986.

Information and Personnel Security: Data on Employees Affected by

Federal Security Programs, GAONSIAD-86-189FS, Sept. 29, 1986.

Information Security: Special Access Document Control at Northrop's

Advanced Systems Division, GAONSIAD-87-79, Jun. 23, 1987.

Polygraph Training: DOD Program Meets Standards but Expansion

Requires Better Planning, GAOINSIAD-87-161, Sept. 18, 1987.

National Security: DOD Clearance Reduction and Related Issues,

GAONSIAD-87-170BR, dated Sept. 18,1987.

Information Security: Actions Taken to Improve Lockheed's Special

Access Document Accountability, GAO/NSIAD-88-2BR, dated Nov. 16,
1987.

Information Security: Update of Data on Employees Affected by Federal

Security Programs, GAONSIAD-89-56FS, Mar. 7,1989.

Information Security: Controls over Unofficial Access to Classified

Information, GAO/NSIAD-89-145, Jun. 8, 1989.

Due Process: Procedures for Unfavorable Suitability and Security

Clearance Actions, GAONSIAD-90-97FS, dated Apr. 23,1990.

Information Security: Disposition and Use of Classified Documents by

Presidential Appointees, GAONSIAD-90-195, dated Sept. 28,1990.

Information Security: Federal Agency Use of Nondisclosure Agreements,

GAONSIAD-91-106FS, dated Jan. 18,1991.

Defense Research: Protecting Sensitive Data and Materials at 10 Chemical

and Biological Laboratories, GAONSIAD-91-57, dated Jul. 8, 1991.

Security Clearances: Due Process for Denials and Revocations by

Defense, Energy, and State, GAONSIAD-92-99, dated May 6, 1992.
 DoD Special Access Programs: Administrative Due Process Not Provided
When Access is Denied or Revoked, GAO/NSIAD-93-162, dated May 5,
1993.

Administrative Due Process: Denials and Revocations of Security

Clearances and Access to Special Programs, Testimony Before House
Subcommittee on Civil and Constitutional Rights, Committee on
Judiciary, GAO/P-NSIAD-93-14, dated May 5,1993.

Background Investigations: Lmpediments to Consolidating Investigations

and Adjudicative Functions, GAONSIAD-95-101, dated Mar. 24, 1995.

Intelligence Agencies: Selected Personnel Practices at CIA, NSA and DIA

Compared with Those of Other Agencies, GAO/NSIAD 96-6, dated Mar.
11, 1996.

Executive Office of the President: Procedures for Acquiring Access to and

Safeguarding Intelligence Information, GAOINSIAD-98-245, dated Sept.
30, 1998.

DOD Personnel: Inadequate Personnel Security Investigations Pose

National Security Risks, GAONSIAD-00- 12, dated Oct. 27, 1999.

K. DoD Inspector General Reports

Personnel Security in the Department of Defense: A Review of the

Processes for Conducting Personnel Security Investigations and
Adjudicating Security Clearances. Report No. 97-196, Jul. 25, 1997

L. Congressional Hearings and Reports

1. Hearings on Proposed Changes to Security Clearance Programs, Mar. 9,

1989, House Committee on Post Office and Civil Service, H.R.

2. Hearings on Standards and Due Process Procedures for Granting,

Denying, and Revoking Security Clearances, House Committee on Post
Office and Civil Service, Subcommittee on Civil Service, House
Committee on the Judiciary, Subcommittee on Civil and Constitutional
Rights; Oct. 5; Nov. 2, 16, 1989; Feb. 28, Mar. 8, 1990.

3. Hearings before the House Committee on the Judiciary, Subcommittee on

Civil and Constitutional Rights, and House Committee on Post Office and
Civil Service, Subcommittee on Civil Service Due Process in Security
Clearance Determinations, May 5, 1993.
 4. United States Counterintelligence and Security Concerns--1986. Report
by the Permanent Select Committee on Intelligence, House of
Representatives. H.R. Rep. 100-5,lOOth Cong., 1st Sess., Feb. 4, 1987.

5. Hearings on Standards and Due Process before the Subcommittee on

Legislation and National Security, House Committee on Government
Operations, Mar. 18, 1992.

M. Judicial Decisions

Other relevant cases are collected and reported in DoD Report on

Personnel Security 1993 on pp. 25-30. Older cases are collected and
reported in a 1988 Due Process study by PERSEREC. (See "R, Other
Sources.")

American Federation of Government Employees v. Schlesenger, 443

F.Supp.. 431 (D.D.C. 1978).

American Federation of Government Employees v. U.S. Railroad

Retirement Board, 742 F.Supp. 450 (E.D. I11 1990) (Security
Questionnaire).

Carlucci v. Doe, 488 US. 93 (1988) (termination of employment at NSA).

Cole v. Young, 351 U.S. 536 (1956) (discharge of employee under 5

U.S.C. 7532).

Department of Navy v. Egan, 484 U.S. 5 18 (1988) (Executive Branch

authority to grant security clearances).

Dorfmont v. Brown, 913 F.2d 1399 (9th Cir. 1990), cert. denied, 499 U.S.
905 (Appeal of DISCR Decision).

Greene v. McElroy, 360 U.S. 474 (1959) (contractor's right to a hearing).

Hill v. Department of Air Force, 844 F.2d 1407 (10th Cir. 1988), cert.
denied, 488

U.S. 825 (no right to a security clearance).

Kartseva v. Dept of State, 37 F.3d 1524 (1994, amended 1995)

(Constitutional right to a hearing).

National Federation of Federal Employees v. Greenberg, 789 F. Supp.

430 (D.D.C. 1989), order vacated, 983 F. 2d 286 (D.C. Cir. 1992) (review
of requirement to personal information on national agency questionnaire).

Stehney v. Perry, 101 F.3d 925 (3d Cir. 1996) (use of polygraph at NSA).
 United States v. Scheffer, 523 U.S. 303 (1998) (use of polygraph in court
and in connection with security clearances).

Vitarelli v. Seaton, 359 U.S. 535 (1959) (discharge of government

employee under 5 U.S.C. 7532).

Webster v. Doe, 486 U.S. 592 (1988) (authority of CIA to fire; decision
subject to judicial review for Constitutional claims).

Standard Forms

DIS Form 40, Alcohol and Drug Abuse Information Release and Consent
to Redisclosure, May 1990.

Standard Form 75, Request for Preliminary Employment Data, Jan. 1989.

DIS Form 85, Customer Consent [to Financial Records] and Authorization
for Access, Aug. 1988.

Standard Form 85, Questionnaire for Nonsensitive Positions, Sept. 1995.

Standard Form 85P, Questionnaire for Public Trust Positions, Sept. 1995.

Standard Form 86, Questionnaire for National Security Positions) Sept.

1995.

DD Form 254, Contract Security Classification Specification, Dec. 1990.

Standard Form 3 12, Classified Information Nondisclosure Agreement,

Jan.1991.

FD Form 140, Personnel Security Questionnaire (FBI).

FD Form 814, Personnel Security Questionnaire for 5-Year

Reinvestigations (FBI).

Form 444, Personal History Statement, Apr. 1988 (CIA).

DD Form 1847-1, Sensitive Compartmented Information Nondisclosure

Agreement, Dec. 1991.

DoD Form 1879, Request for Personnel Security Investigation, Aug. 1999.

Form 4193, Sensitive Compartmented Information Nondisclosure

Agreement, Aug. 24, 1983.

Indices of Agency Regulations

DoD Directive 5025.1-1, DOD Directives System Annual Index.

P. Books

1. The U.S. Intelligence Community, by Jeffrey T. Richelson, 3d Ed.

(Westview Press, 1995).

2. National Security Law, by Stephen Dycus, Arthur L. Bemey, William C.

Banks, & Peter Raven-Hansen, 2d Ed. (Little Brown & Co. 1997).

Q. Law Journal Articles and Presentation Papers

1. "ABA Seminar, Security Clearance Practices, Balancing the Interests of

the Government and the Individual," Sept. 18, 1990.

"Administrative Due Process in the Department of the Navy

Central Adjudication Facility," by Dan Jacobson. (Presentation
Paper)

"Applicant's Right to Backpay Resulting from Improper Loss of

Security Clearance," by Dan Stormer. (Presentation Paper)

"Background Investigations and Clearances in the U.S.

Department of Justice," by Jerry Rubino. (Presentation Paper)

"Department of Energy, Adjudication and Procedural Options for

Contractor Employees," by Ernest E. Wagner. (Presentation Paper)

"The DISCR Appeal Process: An Introduction and Overview," by

Emilio Jaksetic, Chairman, Appeals Board. (Presentation Paper)

"Mission of Defense Investigative Service," by John P. Edwards,

Assistant Deputy Director of Investigations. (Presentation Paper)

"Representing the Applicant at a DISCR Hearing," by William L.

Bransford. (Presentation Paper)

"The Role of Department Counsel in the DISCR Hearing Process,"

by Stuart Aly. (Presentation Paper)

"The Role of the Administrative Judge in DISCR Proceedings," by

Robert R. Gales, Chief Administrative Judge. (Presentation Paper)

2. "Fairness and Due Process in CIA'S SCI Access Determinations," by

Edmund Cohen, Deputy General Counsel, CIA, Aug. 9, 1992.
(Presentation Paper)

3. "Industrial Security Clearances: Heightened Importance In A World of

Corporate Acquisitions, Takeovers and Foreign Investment," by William
 L. Barton & Krista L. Peterson, 18 Public Contract Law Journal 392,
Mar. 1989.

4. "Security Clearance Determinations and Due Process," Emelio Jaksetic,

12 George Mason L. Rev. 171,1990.

5. "Q Clearance: The Development of a Personnel Security Program," by

Harold P. Green, Bulletin of the Atomic Scientists, May 1964.

6. "Oppenheimer: The Case Re-examined in the Light of Watergate," by

Harold P. Green, Bulletin of the Atomic Scientists, Sept. 1977.

R. Other Sources

A Research Survey of Privacy in the Work Place, by David F. Linowes;

University of Illinois at Urbana-Champaign, Apr. 1966.

Adjudicator's Desk Top Reference (ADR) (Security Research

Center),Version 99.1, Jan. 1999. Available at
www.dss.mil/trainirrg/pub/htm.

Department of Defense Report on Personnel Security, Fiscal Year 1993,

prepared by Defense Personnel Security Research Center (PERSEREC).

Due Process in Matters of Clearance Denial and Revocation: A Review of

rhe Case Law, by John Norton Moore, Ronald L. Plesser, & Emilio
Jaksetic; Defense Personnel Security Research and Education Center
(PERSEREC), Apr. 1988.

Due Process in Industrial Security Clearance Adjudication, A Report to

the Personnel Security Committee, National Industrial Security Program
by the Due Process Subcommittee, July 11, 1991.

Essentials of Industrial Security Management, Subcourse, DST2103,

Defense Security Institute, Mar. 1987.

Homosexuality and Personnel Security, by Theodore R. Sarbin, Defense

Personnel Security Research and Education Center (PERSEREC), Sept.
1991.

Industrial Security Letters (issued periodically by the Defense Security

Service to inform users of developments in industrial security).

Information Security Oversight Office, General Information Pamphlet

(undated).

Information Security Oversight Office (ISOO) Annual Report, 1989.

I S 0 0 Briefing Papers on Proposed Executive Order, Classified National .
Security Information (Now E.O. l2958), Jan. 19,1995.

Keeping the Nation's Secrets: A Report to the Secretary of Defense by the

Commission to Review DoD Security Policies and Practices, Nov. 1985.

Matrix of Scope of Investigations, Population, and Clearance Eligibility

(ENTNAC, Std NAC, NACI, SSBI, PR, Secret PR) (Printed in DoD
Report of Personnel Security), 1993.

Memorandum on Single Scope Background Investigation (SSBI), by Nina

J. Stewart, Assistant Secretary of Defense, Oct. 21, 1991.

National Security Strategy of the United States, White House, Aug. 1991.

A Review of the Atomic Energy Commission Security Program, 1947-

1973, Division of Security, AEC.

Questions and Answers on the Defense Industrial Security Program,

Defense Investigative Service, Jan. 4, 1982.

Redefining Security, A Report to the Secretary of Defense and the

Director of Central Intelligence by the Joint Security Commission, Feb.
28, 1994.

Report of the Commission on Protecting and Reducing Government

Secrecy (Pursuant to P.L. 236, 103d Cong.), 1997.

Scientific Validity of Polygraph Testing, A Research Review and

Evaluation, U.S. Congress, Office of Technology Assessment, Nov. 1983,

Security Classification of Information: Vol. 1, Introduction, History, and

Adverse Impacts; Vol. 2., Principles For Classification of Information, by
Arvin S. Quist, Oak Ridge K-25 Site, prepared for the Department of
Energy (1989). (Vols. 3 & 4 are in preparation and will discuss
Classification Management, and Control of Unclassified Information.)

SSBI Source Yield: An Examination of Sources Contacted during the SSBI,

by Ralph N. Carney, Defense Personnel Security Research Center
(PERSEREC), Mar. 1996.

Studies of the Accuracy of Security Screening Polygraph Examinations

Research Division, Department of Defense Polygraph Institute (DoDPI),
Mar. 24,1989.

The National Industrial Security Program, A Report to the President by the

Secretary of Defense, Nov. 1990.
 25. To Repair or Rebuild?: Analyzing Personal Security Research Agendas.
Report R-3652-USDP, Sept. 1988. Prepared for the Office of the Under
Secretary of Defense for Policy by RAND, National Defense Research
Institute.

S. Computer Security

1. Statutes

a. Computer Fraud and Abuse Act of 1986, 100 Stat. 1213, P.L. 99-
474, Oct. 16, 1986.

b. Computer Security Act of 1987, 101 Stat. 1724, P.L. 100-235, Jan.
8, 1998.

2. Office of Management & Budget

OMB Circular, Management of Federal Information Resources,

A130, Appendix 111, Security of Federal AISs.

3. National Telecommunications & Information Systems Security

(NTISS) Publications

a. COMPUSEC/l -87 Security Guideline.

b. NTISSAM Advisory Memorandum on Oflce Automation.

c. NTISSI 300 National Policy on Control of Compromising

Emanations.

d. NTISSI 7000 TEMPEST Countermeasures for Facilities.

e. NTISSIC 4009 National Information Systems Security

(INFOSEC) Glossary.

f. NACSIM 5000 TEMPEST Fundamentals.

g.. NACSIM 5201 TEMPEST Guidelines for Equipment/System

Design Standard.

h. NACSIM 5203 Guidelinesfor Facility Design and Red/Black

Installa tion.

1. NACSIM 7002 COMSEC Guidancefor ADP Systems.

4. National Computer Security Center (NCSC) Publications (The
Rainbow Series)

NCSC-WA-002-85 Personal Computer Security Considerations.

NCSC-TG-001 A Guide to Understanding Audit in Trusted

Systems [Tan Book].

NCSC-TG-002 Trusted Product Evaluation- A Guide for Vendors

[Bright Blue Book].

NCSC-TG-003 A Guide to Understanding Discretionary Access

Control in Trusted Systems [Orange Book].

NCSC-TG-004 Glossary of Computer Security Terms [Aqua

Book].

NCSC-TG-005 Trusted Network Interpretation [Red Book].

NCSC-TG-006 A Guide to Understanding Configuration

Management in Trusted Systems [Orange Book].

NCSC-TG-007 A Guide to Understanding Design Documentation

in Trusted Systems [Burgundy Book].

NCSC-TG-008 A Guide to Understanding Trusted Distribution in

Trusted Systems [Lavender Book].

NCSC-TG-009 Computer Security Subsystem Interpretation of

the Trusted Computer System Evaluation Criteria [Venice Blue
Book].

NCSC-TG-011 Trusted Network Interpretation Environments

Guideline-Guidance for Applying the Trusted Network
Interpretation [Red Book].

NCSC-TG-013 Rating Maintenance Phase Program Document

[Pink Book].

NCSC-TG-014 Guidelines for Formal Verification Systems

[Purple Book].

NCSC-TG-015 A Guide to Understanding Trusted Facility

Management [Brown Book].

NCSC-TG-017 A Guide to Understanding Identification and

Authentication in Trusted Systems [Lt. Blue Book].
 P. NCSC-TG-018 A Guide to Understanding Object Reuse in
Trusted Systems [Lt. Blue Book].

q. NCSC-TG-019 Trusted Product Evaluation Questionnaire [Blue

Book].

r. NCSC-TG-020A Trusted UNIX Working Group (TRUSIX)

Rationale for Selecting Access Control List Features for the UNIX
System [Gray Book].

s. NCSC-TG-02 1 Trusted Database Management System

Interpretation [Lavender Book].

t. NCSC-TG-022 A Guide to Understanding Trusted Recovery

[Yellow Book].

u. NCSC-TG-025 A Guide to Understanding Data Remanence in

Automated Information Systems [Green Book].

v. NCSC-TG-026 A Guide to Writing the Security Features User's

Guide for Trusted Systems [Peach Book].

w. NCSC-TG-027 A Guide to Understanding Information System

Security Officer Responsibilities for Automated Information
Systems [Turquoise Book].

x. NCSC-TG-028 Assessing Controlled Access Protection [Violet

Book].

y. NCSC C-Technical Computer Viruses: Prevention, Detection,

and Treatment Report 00 1.

z. NCSC C-Technical Integrity in Automated Information Systems

(Sept. 1991) Report 79-9 i.

aa. NCSC C-Technical The Design and Evaluation of INFOSEC

Systems: The Report 32-92 Computer Security Contribution to the
Composition Discussion.

5. Department of Defense Publications

a. NSNCSS Media Declassification and Destruction Manual.

b. NSNCSS, Section 5, Degaussing Level Performance Test

Procedures, Spec. LI4-4-A55.

c. Manual 130-2 Contractor Guidelines for AIS Processing of NSA

SCI.
 NSA Information Systems Security Products and Services
Catalogue.

DoD 5200.28-M Automated Information System Security

Manual.

DoD 5200.28 DoD Trusted Computer System Evaluation

Criteria.

DoD 5220.22-M Supplement to National Industrial Security

Program Operating Manual (NISPOM). Feb. 1995.

CSC-S TD-002-85 DoD Password Management Guidelines

[Green Book].

CSC-STD-003-85 Guidance for Applying the DoD Trusted

Computer System Evaluation Criteria in Specific Environments
[Yellow Book].

CSC-STD-004-85 Technical Rationale Behind CSC-STD-003-85:

Computer Security Requirements [Yellow Book].

CSC-STD-005-85 DoD Magnetic Remanence Security Guideline.

6. Director of Central Intelligence Directives

a. DCID 613 Protection of Sensitive Classified Information within

Information Systems and Networks [Secret], Jun. 5, 1999.

b. DCID 613 Supplement, Security Manual for Uniform Protection

of Intelligence Processed in Automated Information Systems and
Networks [Secret] (Supplement to DCID 6/3), Jun. 5, 1999.

c. DCID 31145 Annex B Intelligence Community Standards for

Security Labeling of Removable ADP Storage Media
[Unclassified].

7. Directives

National Security Decision Directive 298, National Operations

Security Program, Jan. 22,1988.
 Appendix B

Personnel Security Policies for Granting Access to Classified

Information, Interim Final Rule, Federal Register
4572 e 1998 I Rules and Regulations
Federal RegirterlVoL 63. No. 2OlFriday. ~ a n u 30.
-
APPENDIX B

DEPARTMENT OF DEFENSE
OMce of the Secretary
32 CFR Pat? 147
RIN 07904G54

Personnel Securitv Pollcies for

GanUng Access tb lassi if led
, IntormaUon
I AGENCY: Deparfment of Defense.
' ACnON: Interim final mle.

' SUMMARY: This d e is published to

streamline secunty pr&ices Lhmughout
the government. uniform adiudicative
gui&lines. investigative standards and
guidelines for temporary access are
being established This initiative will
simplify security processing and allow
I the deserving public to obtain a security
clearance in a faster. more efficient
manner.
DATES: This d e is effective March 24.
1997. Comments must be received by
M d 31.1998.
ADDRESSES: Forward comments to the
Security Policy Board Staff, 1215
JeffersonDavis Highway. Suite 1101.
Arlington. VA 22202.
FOR FURTHER INFORMATIONCONTACT:
Mr. T. Thompson. 703-602-9969.
SUPPLEMENTAT INFORMATION:
Executive Order 12868. Regulatory
, Plaaningand Rexiew
! It has been determined that this
i interim d e (32 CFR pan 147)is not a
I significant regulatory action. The rule
I does not:
I (1)Have an annual effect to the
economy of St00 million or more or
I adversely affect in a material way the
economy: a seaion of the economy:
, pmductivity: competition: jobs: the
, environment public healtb or safety: or
State. local. ortribal governments or
, communities:
(2)Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another Agency:
(3)Materially alter the budsetary
impact of entitlements. grants. user fees.
or loan pmgrams, or the rights and
obligations of recipients thereof: or
 Federal Register1 Vol. 63. No. 20 I Friday. January 30. l g 9 8 /Rules a n d Regulations 4573
- --
(4) Raise novel legal or policy issues 147.30 Tempomy aligtbill!yfar lccns a1 (5) The voiuntariness of participation:
-iring out of legal mandates. the Lhe t D N F l D E M L 4 L AND SECRET levah (8) The pmmnca or absence of
president's priorities. or the principles and tempomy elil~btlityfor "L" auerr rehabil~tationand other pertinent
authorintion - behavioral changes:
set forth in this Executiva Order. 147.31 Temponpl eligibility foracocrr at (7) The motivation for the conduct.
public Law 96-354. Regulatory rha TOP SE(RFTlevsir and tempow (8) The potential for pressure.
Flexibility Act (5 3.S.C 601) alig~bilityfor "Q' access authorization.
For someona who is the subject of L coercion. exploitation. or dumss:

-
favonble invatiptlnn not mwtingLhe (9) The likelihood of continuation of
It has been certified that this rule is
investigalivsstandards for accdn at racumnce.
not subject to the Regulatory Flexibility (b)Each case must be judged on its
Act (5 U.S.C. 6011 because it would not. thora l w s k
147.32 Tmpnmy eligibility for at own merits, and final determination
if pmmulgated, have a significant Ih* TOP S E m and SCI levels and remains the responsibility of the
economic impact on a substanlid temporary allglbility b r "Q" acoar specific department or agency. h y
number of small entities. This part will aulborintion: For someone who is not doubt as to whether access to classified
streamline personnel security clearance the subject of L currsnt. favorable information is dearly coruinent with
and make the p m c e u mom p o n n a l or pmnnal-security national security will be resolved in
efficienl inwnigrlian of any k i d .
147.33 Mditioorl rrqukments hy favor of the national security.
public Law 96511. Paperwork agander (c) The ultimate determination of
Reduction Act (44 US.C Chapter 35) Authority: EO. 12968 (60 FR 40245.3 CFR whether the granting or co$nuing of
1995 Chap.. p 3911. eligibility for a security clearance is
It has been certified that this patt does clearly consistent with the interests of
not impose any reporting or Subpart A-Adjudication pational security must be anoverall
recordkeeping requiremenu under the common sense determination based
Papework Raduction Act of 1995. 0 147.1 Introductlon upon careful considerationof the
The following adjudicativdguidelines .following. each of which is to be
List of Subjects in 32 (3FR Part 147 am established for all United Slates evalua'ted in the context of the whole,
Classified information. Investigations. Government civilian and military person. a s explained funher below:
Security measures. personnel. consultants, contractors. (11 Guideline A: Alleaiance to the
employees of contractors. licensees. United States.
Accordingly. Title 32 of the Code of certificate holders or grantees and their (2) Guideline B: Foreign influence.
Federal Regulations. Chapter I. employees and other individuals who (31 Guideline C: Foreign preference.
subchapter C is amended to add part require access to classified information. (4) Guideline D: Sexual behavior.
147 to read as follows: They apply to persons being considered ( 5 ) Guideline E: Personal conduct.
PART 147-ADJUDICATIVE GUIOEUNES for initial or continued eligibility for (6)Guideline F: Financial
FOR DETERMINING EUGIBILITY FOR a n z s s to classified information. to considerations.
ACCESS TO CLASSIFIED INFORMATION include sensitive compartmented (7)Guideline G: Alcohol
Subpart A-Adludicallve Guldellnel information and special access prognms consumption.
and am to be used by government (8) Guideline H: Drug involvement.
Sn. departments and agencies in all final (9) Guideline I: Emotional, mental.
147.1 lntmduct~on clearance determinations. and perionality disorders.
147 2 Adjudicative pmcess. (10) Guideline J: Criminal conduct.
147.3 Guideline A-Allegiance to the 9 147.2 AdlUdlCaUve process. (11) Guideline K: Security violations.
United Starerc (a) The adjudicative process is an
147.4 Guideline 8-Forcign influence. (12) Guideline L: Outside activities.
147.5 Guideline C-Foreign preference. examination 01 a s u f k i e n t period 01 a (131 Guideline M: Misuse of
147.6 Guideline D--Sexual behawor. person's life to make an affirmative Information Technology Systems.
147.7 Guideline E-Personal conduct. determination that the person is eligible (dl A l ~ o u g hadverse information
147.8 Guideline F-41oandal for a security clearance. Eligibility for concerning a single criterion may not be
considentions. access lo classified information is sulficient for an unfavorable
147.9 Guideline CNcohol co-rnprion. predicated upon the individual meeting deterrnination,me individual mav be
147.10 Guideline H-Drug involve men^ Ume personnel security guidelines. The disqualified if available informatibn
147.11 Guideline 1-Emoti~n.l.mental. and adjudicative pmcess is the careful reflects a recent or recurring pattern of
pmonality disorders. weighing of a number of variables questionable judgment. irresponsibility.
147.12 Guideline I--Criminal conduct known as the whole person concept. or emotionally unstable behavior.
147.13 Guideline K--Securityviolation%.
147.14 Guideline l.-Outsidc activities. Available, reliable information about the Notwithstanding, the whole perzon
147.15 Cuidelins M-Misue of information person. past and present. favorable and concept. pursuit of Further
technology qnemr. unfavorable. should be considered in investi~ationsmay be terminated bv an
reaching a determination. In evaluating a p p r o k a l e adjud.~cativoagency inihe
Subpan B-lnvesUgatlve Standards the relevance of an individual's face of reliable. sianificant.
147.18 (ntmdudioa conduct. the adjudicator should disqualifying. adterse info.rmation.
147.19 The rhns ~ t a a d d . consider the following adors: (el When information of security
147.20 hception lo periods of cowrage. (1) The nature. extent. and concern becomes known about an
147.21 Expanding invenigatioor seriousness of the conduct: individual who is currently.eligible for
147.22 Tnnsfanbility. (21 The circumstances surrounding access to classified information. the
147.23 8 m L in semias.
147.24 The national qancy cbeck the conduct. to include knowledgeable adjudicator should consider whether the
participation: person:
Subpart C - G u l d e l l n ~for Temporary (3) The frequency and recency of the (1)Voluntarily reponed the
Auau conduct: information:
147.28 LnMduRioa (4)The individual's age and maturity (21 Was fruthful and complete in
147.26 Ternporuy aligbiliiy for a c m l at the time of the conduct: responding to questions:
4574 Federal RegisterlVol. 63. No. 20 I Friday. January 30. 19981Rules and Regulations

' [3) Sought assistance and followed 5 147.4 Wd.llm B-Fonlgn Influen- (3) Contact and correspondence with
professional guidance. where [a) The concern. A security risk may foreign citizens are casual and
ap ro riato: exist when an individual's immediate
&solved or a p e e m l i h l y to family;includhg cohabitants and other (4) . . has pmmptly
indindual
favorably ~ 0 l v thee -ty comern: persons to whom he or she may be complied with existing agenq
(5) Has demonsmad eosltive changes bound by affedon. influence. or requirements regarding the reporting of
in behavior and employment- obligation are not citizens of the Untied contacts. feqUe~ts.Or h e a t s fmm
[6) Should have hip or her acatss persons or oqanizstions kom a foreign
hl States or may be subject to duress.
temporarily werid& These situations could m a t e h e Country:
adjudication
(O If aRer of the information.
informationof potential for foreign influence.that (5! Foreign financial interests an,
could -11 in ;he of m h a l and not sufficient to affect the
security concern. the adjudicator individual's secruity responsibilities.
clanrified information. &,,tacts with
that theto warrant a isnot
serious enough citizens of other counhies or T i c i a 1 5 147.1 Gddaline Mrslgn pn,enna
mommendation of dIssppmMl or , interests in other counaies are also (a) The concern. When an individual
revocation of the secuity clearance. it "levant sacurity determinations if acts in such a way as to indicate a
may be appropriate to recommend they maka an individual potentially
with a that hhtre vulnerable to coercion. exploitation. or preference
United foreign
for athen
States, he or she may Over the
be
incidents of a similar nature may result .-P prone to provide information or make
in revocation of access. (b) enditions that could mise o d&sions that are harmful to the
secunty concern and may be interests of the United States.
5 147.3 Guld.llne WllegianW 10 me . disqudifying include: (11An immediate (b) %nditioM that could raise a
.Uniled S o t e r family member. or a person to whom the security concern and may be
(a) The concern. An i=dividual must individual has clore ties of affection or include:
be of unquestioned alhiance to the obligation. is a citizen of. or resident or (I) The exenise of dual citizenship:
United Stater The willingness to present in. a foreign country: (2) Possession and/or use of a foreign
safeguard classified information is in (21 sharing wi in^ quaners with a passport:
if there is any to suspect person or penons. regardless of their (3) Milimy service or a willingness to
an the Untied citizenship status. if the potential for bear arms for a foreign country

-
(bl Conditions
States. could mise adverse foreign influence or duress. (4) Accepting educational. medical. or
exists: other benefits. such as retirement and
security concern and moy be social welfare, from a foreign country:
disqu~JiWngincJude:(l)Involvement (3) RelativeS. cohabitants. or
assodates who c o ~ & e dwith any (5) Residence in a foreign country to,
in any act of sabotage. espionage.
mason. terrorism. sedition. or other act f""im government: meet citizenship requirements:
whose aim is to ownhrow the (4) Failing to report. where required. 6)Using to
Government of the united stat=or alter associations with foreign nationals; pmtect Or business in
the form of government by 15) Unauthorized association with a * $ ~ M ~ ~ ~ h o I d i , political
B
unconstitutional means: suspected or known collaborator or in he foreign country:
(2) Association or sympathy with e m p l o p of a foreign intelligence (8) Voting in foreign elections:
persons who am attempting to commit. serviC% (9) Performing or attempting to
or who are committing. any of the above (61 Conduct which may make the perform duties. or otherwise acting, so
acts: individual vulnerable to coercion. as to serve the interests of another
(31Association or sympathy with exploitation. or pressure by a foreign government in preference to the
persons or oqanizations that advocate government: interests of the United States.
the ovenhmw of the United States (71 Indications that representatives or (cl Conditions h o t could mitigate
Government. or any state or subdivision. nationals from a foreign country an, security concerns include: (1)Dual
by force or violence or by other acting to inwase the vulnerability of citizenship is based solely on parents'
unconstitutional means: the individual to possible future citizenship or birtb.in a foreigncounuy;
(4) Involvement in activities which exploita~on,coehon or (21 Indicators of possible fore~gn
unlawfully advocate or prattice the (8) A substantial financial interest in preference [e.g.. foreign military service)
cornmiision a*s of force Or a country. or in any foreign owned or occurred before obtaining United States
to prevent others from exercising their operated business that could make the citizenship:
rights under the Conrtitution or laws of (3) Activity is sanctioned by the
the United States or of any stat?. individual vulnerable to foreign.
(c) Conditions that cou d rnltrgate influence' United States:
(c) Gndjtions that could mitigate (4) Individual has expressed a
security concerns include: [I) The willingness to renounce dual
individual was unaware of the unlawful Secu&'c"ncerns include: (1) A
aims individual or determination that the immediate family
and severed ties upon learning of these: membeds) (spouse- father. mother. Sons* 5 147.6 Guidance D--Sexualbehavior.
(21The individual's involvement was bmthers. risters). cohabitant. [a) The concern. Sexual behavior is a
only with the lawhrl or humanitarian O ' a ~ o d a t e ( ~in
) question not agents security concern if it involves a e m i n a l
as ects of such an organization: of a foreign power or in a position to be offense. indicates a personality or
f3) Involvement in the above activities exploited by a f o r e i p power in a way
occ-d for o g a *on period of c ~ m a that could force rh. ~ndivldualto choose f~~$I~~$~$~.$$5;'~,"," Or
and was ataibutable to curiosity or betwean loyalty to the person(s) duress. or reflects lack of judgment or
academic interest: involved and the United States: discretion.%Sexual orientation or
(41The person has had no recent (2) Contacts with foraign citizens am
invo~vementor a d a t i o n with such the rasuk of 0ffi~ial United States 'The adiudlutor should a h conrid.r y i d d i n u
activities. Government business: ponriningtocriminal condua IGuiddin. I) and
 Federal Re i s t e r Vol. 63. No. 2OIFr1day. January 30. 19981 Rules and Regulations 4575
.-

preference may not be used as a basis 12)The deliberate omission. having to engage in illegal acts lo
for or e disqualifying factor in concealment. or falsification of relevant generate funds. Unexplained affluence
determining a person's eligibility for a and material faas from any personnel is often linked to pnxeeds From
clearance. security questionnaire. personal history financially pmfitable criminal acts.
@) Conditions lhot could raise o statement, or similar form used to (b) Conditions tho( could mise o
security concern and rnoy be conduct ~nvestigauons.determ~ne security concern ond may be
disouolifvng include: (11 Sexual emolovment oualifiwtmns. award disqualifying indude: (11 A history of
b&viorof; criminal nature, whether bedefik or staius, determine security not meeting financial obli ations
or not the individual has been clearanca eligibility or uustworthiness. (2) Deceptive or illegal &ancia1
pmsecuted: or award Eduaary responsibilities: practiwa such as embezzlement.
( 2 ) Compulsive or addictive sexual (3) Delibrately pmviding false or employee theft. check fraud. income tax
behavior when the person is unable to misleading information concerning evasion. expense account h u d . Ellng
sto a pattern or selfdestructive or relevant and material m a n e s to an deceptive loan statements. and other
hi&-risk t+mvior or that which is investigator, security official. competent intentional financial breaches of trust:
sym tomauc of a penonally disorder. medical authority. or other (31 Inability or unwillingness to
( 3 ~ ~ e x ubehav~or
al that cnuses an representative in connection with a satisry debts:
individual to be vulnerable to coercion. penonnel security or trustworthiness (4) Unexplained affluence:
loitation, or duress; (51 Financial problems that am linked
eT 4) Sexual behavior of a public nature
and/or that which reflects lack of
determination:
(4) Personal conduct or concealmant
of information that may increase an
to gambling, drug abuse. alcoholism, or
other issues of security concern.
d i m t i o n or judgment. individual's vulnerability to coercion. (c) Conditions thot could mitigote
- (c) Conditions lhat could mitigate exploitation. or duties. such as engaging security concern include: (1) The
security concerns include: (1) The in activities which, if h o w n . may affect behavior was no1 recent;
behavior &during or prior to the person's personal, profekional, or ( 2 ) It was an isolated incident
adolescennt and there is no evidence of community standing or render the . (31 The conditions that resulted in the
subs uent conduct of a similar n a t u m penon susceptible to blackmail: b e h a ~ o were
r largely beyond the
(2)%ebehavior was not recent and
there is no evidence of subsequent . (5) A pattern of dishonesty or rule
violations, including violation of any
person's contml (e.g.. loss of
employment. a business downtsun.
conduct of a similar nature: 9 t t e n or recorded agreement made unexpected medical emergency, or a
(3) There is no other evidence of
questionable judgment, irresponsibility. letween the individual and the agency: death. divorce or separation);
(6) Association with persons involved (4) The person has received or is
or emotional instabilit receiving counseling for the problem
(4),The behavior no linger serves as in criminal activit
a basu for coercion, exploitation, or WConditions &t could mitigote and t h e n are clear indications h i t the
duress. security concerns include: (1) The problem is being resolved or is under
information was unsubstantiated or not contml:
5 147.7 Guldellm E--PenonaI conduct pertinent to a determination of (5) The amuence resulted from a legal
(a) The concern. Conduct involving judgment. uustworthiness. or reliability: source:
questionable judgment. (21 The falsification was an isolated (6) The individual initiated a good-
untmstwonbiness, unreliability. lack of incident, was not recent. and the faith effort lo repay overdue ueditors or
candor. dishonesty, or unwlli&ness to indindual h a subsequently provided otherwise resolve debts.
comolv with ru!es and repulations could correct information voluntarily: 5 147.9 Guldellna GAlcohol
indi&ie that the person ;ay not (3) The individual made prompt. good consurnpllon.
properly safeguard classified faith effons lo correct the falsification
information. Tho following will before being confmnted with the facts: (a) The concern. Excessive alcohol
(4) Omission of material facts was consumption often leads to the exercise
normally result in an unfavorable
clearance action or administrative caused or significantly contributed to by of questionable judgment. unreliability.
termination of further processing for improper or inadequate advice ol failure to control impulses. and
clearance elitibilitv: au~horizedpersonnel. and the inmaserr the risk of unauthorized
(I)~efusal-toi d e r g o or cooperate previously omitted information was disclosure of cGsi fied information due
with required s e m t y pmcessing. promptly and fully rovided: to carelessness.
including m e l d and psychological ( 5 ) he iodivlduaf has taken positive (b) Conditions thot could mise o
. .
testin ; steps to significantly reduce or security concern and rnoy be
(2) bfusal to complete required eliminate vulnerability to coercion. disqualifying include: (1) Alcohol-
security forms. teleases, or provide full, ex loitation, or duress: related incidents away kom work. such
bank and uuthful answers to lawful
quenions of investigators. s-ty
k) A refusal to cooperate was based
on advice fmm legal counrel or other
as driving while under the influence.
fighting. child or spouse abuse. or other
officials or other re~resentativesin officials that the individual was not aiminal incidents related to alcohol
connection wilh a personnel security or required to comply with security use;
trustworthiness determination. recessing requirements and. upon ( 2 ) Alcohol-related incidents at work.
(b) Conditions lhot could mise o Eeing made aware of the cequirtment. such a rePo"% for work Or duty in an
securitvconcern ond mov be
disquoiifrng also includ;: (1) Reliable.
.
fullv and hylhfullv, omvided h e
req;ested information:
intoxicated or impaired condition. or
dnnLung on the job:
~ ~~
-. --- omvided bv
unfavorable information . . Association with oenons involved
I71 (3) Diagnosis by a d e n t i a l e d
-2
~

sssodates, em loyers. coworkers. in criminal activities has ceased. medical prnfessional (e.g.. physician.

-
neighbors. end'other acquaintances;
*Wt!omaL mental md p.noluliv d h r d s n
ICuiblln. I1 Ln dnemuntq how io -lv. h a
I lr,,l Udllna
consldanUonr
clinical psychologist. or psychiatrist) of
alcohol abuse or alcohol dependence:
(4) Evaluation of alcohol abuse or
(a] The concern. An individual who is alcohol dependence by a licensed
m v con- m w d by -ud b h m o r . financially overextended is at risk of clinical social worker who is a staff
 Federal RcgisterIVol. 63. No. ZOIFriday. January 30. 19981 Rules a n d Regulations 4577

racuritv resoonsibilities and could 121The condun was unintentional or of Executive Order 12968 (60 FR 40245.
&ate in^^ risk of unauthorized in;dvertent: 3 CFR 1995 Comp.. p. 3911 and other
disclosum
- .. of classified ~nformeboe I31 'Iha iotmdunton or rumoval of applicable statutes and Executive
(b) Condilrans that could mise a media was authorized: Orden.
secunty concern and may be ( 4 The mtsuse was an isolated event: f 147.22 Tran8tanblllty.
disoualifvinn includc any sem'ce. (51 The misuse war followed by a
w h ; l h e i ~ ~ ~ ~ e n r a lwlunreer.
ed. or prompt. good faith effort to corn& the investigations that satisfy the
requimmeots of a given standard and
employment with: (1) A breign country: situation. us m a t mwl the investiaative
(2) Any fomign national: mquimments for all levels & i f l e d for
(3) A reprsrantative of any foreign Subpart ~ - l ' ' ; ~ r n u g a ~Standards
ve
interen: 5147.18 *mohKlfon
the s t a n d u d . Thev shall be mutuallv
~..
',
(41 Any fomign. domestic, or and racipmcally &apted by all
The following investigative standardr agencies.
international organization or penon & estahli&ed for u d t e d slates
engaged in anelysis, di-ion, or G~~~~~~ e.,ilian and f 147.23 Emaka In sarvlca.
publication of material on intelligence, personnel, cowltants, contracron. I f e panon who requires access has
defense- fore@ a i r s , or Protected employsar of contracton. licensees. been retired or separated from U.S.
technology. cartificate holden or grantees and their government employment for less than
[cl Conditions that could mitigafc employsar snd other bdiv,duals two pan and is the subject of an
s m m t y concerns include: (1) rsquire e a e u to dsssified information. investigation that is otherwise current.
Evaluation of the outside employment to indude sensitiat ~~~~~~~~~d the agency regranting the access will, as
or activity indicates that it does not pose ~ d ~and s ~p h a lt i ~ ~ a minimum. ieview an updated
a conflict with an individual's security ara to be 4by Standard F o m 86 and applicable
responsibilities: ~rograms, &partmenu
government a n t agencies rocords. A reinvestigation is not
(2) The individual terminates the a invartigativa baris for hl required unless the review indicates the
employment or diSC0ntinue~the activity delermiaations. However.. penon may no longer satisfy the
upon being notified h a t it is in conflict standards of Executive Order 12968 (60
with his or her security responsibilities. ~~e~~,"~b~"y~~~hibits an FR 40245.3 1995 Comp.. p. 3911:
6 147.t5 Guldellne H l s u s a of investigative procedures in addition to (Attachment D to this subpart. Table 2).
intor&tlon whn&y - i s . these riquirements in order to resolve $147.24 The nilUOlIal agency chact
la) j-he ~ ~ any issue ~ identified in the~ c o m e of a ~ The National ~ Agency Check ~ is a p a n l i
rules. omcedures. d d e h e s . or beckgmund investigation or of all investigations and
mgulaiions pertai&g to information reinv.Ftigation reinvestigations. It consists of a review
technology systems may raise security 5 147.10 ~ hthrw . ol:
concerns about an individual's There am three standards (Attachment (a) Investigative and criminal history
lrustworthiness. willingness. and ability D to this subpart s-arizes when files of the FBI. including a technical
to properly protect classified systems. to ute each one]: fingerprint sea&
networks, an4 informahon. Information la) The investination and (bl OPM's SecuritylSuitahility
Technology Systems tnclude all related reinvestigation &dards for "L" access Investigations Index:
equipment used for the communication. authonntions and for access to [c) DoD's Defense Clearance and
tran&nission, processing. manipulation, confidential and s&t (including all Investigations Index:
and storage of classified or sensitive secret-level Special Accau Programs not [dl Such other national agencies 1e.g..
information. specifically approved for snh'anced CIA. INS) as appropriate to the
(bl Conditions that could mise a invertigative requirements by an official individual's background.
security concern and may be authorized to establish Special Access
disqualifing include: (1)Illegal or P r o w by section in 4.4 offiecutive
unauthorized enlry into any information Order 129581 160 FR 19825.3 CFR 1995
technology system: Camp.. p. 33;:' la) Appliabil+ Shndud A applies to
(2) Illegal or unauthorized (b) The investigation standard for"Q invatigatiaos and reinvestigationsroc
modilication. destruction. manioulation access authorizations and for a a e s s to (11 Acnrs to CONFIDENTIALand SECRET
or denial of access to informatiin topsecret (including top secret Special (includingall SECRET-levelSpecial Access
residing on an information technology Access Pmgramsl and Sensitive P m p m not specificallyappmved lor
system:
,- . eohanced investigative mqukrnents by an
~

Compartmented Information: official auchnrized to esrabiish Spac~al

(3) Removal (or use1 of hardware. (cl The reinvestigation standard for
software. or media from any information continued access to the levels listed in Access Ro- bv sect 4.4 01Executive
Order 129iill(60 Fk 19825.3 CFR 1995
technology system without paragraph (bl of this seaion. Cnrnp.. p. 3331:
authorization. when specifically 121 "L" accns authonzatlans.
pmhibited by rules. procedures. f 147.20 ExcepUon lo p W s of cowrage (b) For Rainvertigolion: When to
guidelines or regulations: Some elements of standards specify a Reinwligntc. The minvestigation may be
(4) Introduction of hardware. period of coverage (0.8. seven yean). initiated at my tima following cnrnpletlon of.
software. or media into any information Where a<pmpriate, such coverage may but not latar lhrn ten yeam (fiftmo years for
technology system without be shortened to the period from the CONFIIlENllALl6urnlho date of. the
authorization. wheo specifially subject's eighteenth birthday to the prsnous lovutlgauoo or rs1nvmogauoo.
Pmhibited by rules, pmcedures. resent or to two yean, whichever is IAttachmant D to chis subput. Tabla 2.
guidelines or rrgulationr Ponger. rellnv tho spsaRcmq&rnanu for when to
[cI Conditions h o t could mitigate m u a t a rsinvwllaarlon. includina when
5 14711 Expanding lnwstlgaUona.
"cun'ty concerns include: (1) The Investigations and reinvestigations
m i s u ~ ewas not receot or significant: may be expanded under the pmvtsions lnvnligative rquirwrnenu am as follows:
4378 Federal Register1Vol. 63. No. 20 /Friday. January 30. 1998/Rules and Regulations

(I] ~omplaionojFoms:Cornpledon of ssrvlas, bduding dLtchyle type. For five yean 6um the date of. ths p w i o u t
stan.odud Form 06. including applicable military mambas. aU semias within one investigation (sea Attachmant D to h i s
n l m e s m d sup@g d~cumentatioe bnnsh of ths m a d f o n a will be considered subpart, Tabla 21.
(2) Notion01~ g s n c Checky Completion of u one smploymsn~@w of (cl Reinvcnigntiw Requirements.
a NaUond A B . ad ~ ruignmenu RsinvarM8atiw W i r e m e n o us as follow^:
[J] FinondolRsvia*:VeriBcation ofthe (Q Rejcrwnca: Four mfsrancm. of whom at (11 Complefion ofForms:Completion of
sububjan's Baancial stants, including credit lean two us developed: to the extent Standard Form 88. including applicable
bmauchecks tovaring aU locationr where pnaiable. all should h w lodal knowledge releases and supporthg doarmantation.
Ihssubject b r a i d e d . bsan employed. or of thr s u b e and
~ coUdvely spur at l a s t I21 N u t i o d Agency C h & Completion of
attended school for six months or mom for the ln sewn ygn. a N a t i o d Agsw Check (fin~srprintcarb
theput~yeuz (91 FmnerSpouw: An inlvviav of any us mqulrsd only if them hu not bssn a
(41 LWE and P l m ojBkth: Cormbontion bn-r r p o w d i d within the last e n . prwiour valid technical cheek of Ih.FBI].
of &to m d p h of birth thmugh msdi of ygn. (31National Agency CheJrfIv the Spouse
appropriate documsnlltto~~ if not completed (101 Neighborhwdr: ConRrmtion of all or Cohabiant [ifapplimblel:Completion of
in m y p r s v i w investigation: a check of resideam Em the last lbrw ynn rhmugh a Nariand Agmzy Chadc without fingerprint
Bumu of V(111 Statistla rscordr when m y appropriate intarview. with ~ i g h b o nand cudr. 6Jr tha s p ~ oremhrbitanr Tha
dlcrspurc).h found a &L thmughrafxd¶ravlan. National Agency Check fru the spoute or
(5) -1 Ageny U~ec&:At a minimum. (111 financial Revia*: Verification of the cohabitant is not rrquired if a h d y
d l investigations will indude checka of law subject's Bo.nci status. including credit m m p l d in coniunction with a pmviour
e n f o m e n t agencies baving jurisdiction h u ch& covering all h a t i o n s where investigation or minvatigation
wbem the subject h u lived, w o r m . and/or subiscl has resided. bean employed. andlor (41EmploymenEVerilication of all
atended A w l within rho last five yun. attended schml for six months or mom for employments since the last investigation
and. if appliable. of Ih.appropriate agency the k t W e n m. Attempts to interview a Nfeaent number of
for any idenlirred arm st^. (12) &en! Agency Check:A check of rourcm (supervisors. mworLsrs. or both] at
(dl fipnding the hvatiPtion: The a pmpriate criminal hiStory records COvEring all amploymats of six months or mom. For
i n ~ t i g a t i o nm y be expmded if uscarwry QL -when. ~hs e n
lubiectbu midad. bssn smpl0Pd. andlor
-. the militarymenixn. au -ices w i t h i one
M d o d m if vrau h clearly consistent btanch of the armed b m s will be mnsidered
with the ~ U o Murity. d attended schml for six mash or mom. u on? wnploymnt @su of
including cumnt resideam cegaadless of' assignmenb.
,umcbmDIll B lo Subput B-Sturdud B- duration. 151Rejerences: Interviews with two
s i i Smpa Backpund Investigation N o k If no residence. employment, or chmctsr mfmnces who am knowledgeable
cssm education u c d six months. local agency of the subicn: at least one will be a .
(a1 Applicobility. Standard B applia to cbalcr should be parformsd as deemed developed mfimnas. To the extent practical.
initial investigationr for. appmpdate. both should have said knowlsdge of the
(11 Access to TOP S a R E T (including TOP (1J) publie R ~ ~ verification
~ ~ & : of subiect and coUectiwly span the en*
SELlRET Special A-s -1 and dim, m p t d e s& , coun @od of the rainmtigation As appmpriate.
Sensitive Compamnent Information: cow civil or criminal. involving additional i n h ~ a may n be conducted.
(2) "Q" a c m r authorintiollr the subiea. including with cohabitants and relatives.
(b] Investigariva Requirements. (14) SubiUCl h*~'a*: A Sllhject inlcWieW. Netfiborhood+: InbIvim rm,
lnvestigatlveruquirsments us u follow.: by mipad d t y , inmtigative. noi@hn i n the vicinity of Ihssubject's most
(11 Completion ojF~ormr:Completion of or counte,.inte~i8ence ~ uthe ~ recent g raidanas of six montbr or more.
Standad Form 86. lncludlng applicable i n d g a w o . addieoosl =hie i n e M m s Confinnation of currant residmcs qardless
mf- and supporcine documntation may be conducted to c o u a relevant of length.
(21Nationdlyency CheJcComptation of information. to resolve signifbut (7) Finoneid Review:--Financial Sktus:
a National Agency Check inconrwncies. or both. sworn statements Verificacation of the subject's Enancial status.
(3) National AgenqChedr for the Spouse and unrwomdeclarations be tabs including credit buraau checks covering all
or Cahabitont (ifapplimble): Completion of when- appropriate. l o ~ t i o n whore
s subject bar midad. been
a National Agency Check without finprprint (151 polygmph [onlyin agencies ~ i t h employed. andlor attended school for six
cards. for the spouse or cobabitanL oppmvcd prsonnel securitypolygmph months or more for the period covered by the
(41Dala ondPI00 o/Birth:Cormbbtation pmgm&:~n depamrients or agencies with reinvesti&stioo:
of dam and p l r a of b i thmugb a check of policies sanctioning the use of the (i) Cheek of T r e n s u ~Finonciol
s Ibto
approprim documentation: a check of for p a o m e l rearrity purposes. the Bare: Agencies may q u a s t the Department
Bureau of Vital Stalinia rscmdr when any invesw&n indude a polygraph of the Traasury. under terms and conditions
discrepancy h found Lo ex*L anminrtion. conducted by a qualified p-bed by t h e S c r a of ~ the Trsknrry.
(5) CiUze~hip:For individuals born polygraph enminer. a s a d automatad data basn consisting of
ouutde the United States. d c a t i o n of US (c) f i p n d i n g the I n n ~ i o t i o n Tbe
. mpoN of c~umncyUansacrions by 6UaUci.d
citizenship dLastly from the appropriate investigation may tm expanded LI nacesmy. iprtitutioar, intermtioml traorponation of
rrgktntion mthoritr. vsriiicrrian of US At appmpriam. htet-viws with anyone able currancy or monetary insmunonu. foreign
dtirsnship or 1-1 status of torpign-born 10 provide info-thn or u, resolve issues. bank a d financial accounts. and transactions
immediate family memban [spouse. including but not limited u,cohabitants. under 510.000 that am m p o d as possible
cohabitant, father,mother. urns. daughten. mlativa, &iahisu. psychologisu. other money laundering violalioru
brothers. dsterrl. medical omfossionals. and law enforcement (81 h l Agency Check: A check of
I61 Educntion:Cormboration of most recent a m f i a r i o h --, -v ba-- cnnductsd.
------ - appmpnate cnminal history records mvenng-
or.;ost si8niBEant aiilncitiona when. during the period
d.- or diplonu Inlsrviaws of appropriate An*cn1 to Subput B-S'urdard C- covered by l a mimestigation. the subject
educufonal SO- if education is a pn- Sm@ B*d&ro-d InvatigaGon has resided. bean employed. a d o r attended
activitv of the subiect durina the most recent P ~ ~ i n v ~ g (SSBIqRI. * ~ o a
tbm iem. '.
(71 k n p l o p e n c VeriEotioo of all
(a) Applicability. Standard C applies to
minvastigation for.
school for six months or mom. indudmg
c m n t residence ngudless of duration
(Note: If no msidence. employment. or
employments for the p u t ravsn yean: (1) Aocsn fa TOPSECRET(induding TOP education ax- six months. 1-1 agency
persona1 interviews of snurc~~ ( ~ p v i s o n . SEQIETSpciol Accms Rogmms) and checks should be performed as deemed
cowakon. or both1 b r a c h emolovmant of
SIX months or mom, cormbont*n &rough
knsitim Commrunented Informotion:
I t ) .'Q' am& authonnu&.
.. aoomoriate.l
(9) ~ o r m e r ~ ~ o uAn
r eintervmw
: w t h any
records or sources of all pano& of (bt When fo Remmcrgoce The former spouse unless the divorce look place
unsmptoyment exceeding sixty days: mmwstIgation m y be trutiated at any tune befom the data of the last mvasugauon or
verifiiagon of all prior federal and milituy lollowing completion of. but MI later than minvestigation.
 Federal RegisterIVol. 63. No. 2 0 / F r i d a y . January 30. 1 9 9 8 f R u l e s a n d Regulations 4579
-
(101 h b l i c Records: Verification of minvcstigation. additional subject intewlews necessary. As appropriate, interviews wilh
divorces. banluptcics. and other corn may ba conducted to collect mlsvant anyone able In pmvlda inlomation or 10
whether cinl orcnrnml. involving infomat~on.to msolve significant ~ ~ o l issuw.
v e including but not limited to
,,,bid since tho data of iile laat incons~rtencies.or bath. Sworn statemeot~ cohabi~anu.mlativa. psychiaums.
and unsworn dsclantiohc may be taken p~ychologists.other madiul professionals.
invs.ugation. and law enforcement pmfess~onalrmay be
(111S u b l a Infernm: A subject interview whenever appmpnale.
wndUCted'
mnduaed by Intoed security, investigative. (dl Expanding h e Rr~nvcrc~gation: The
or countsnntelligenca personnel. During Ihe rrmvestigauon may be expanded as Atlacbent D to Subput ? h i s i o n Tabla

And ma peMn has mu mar me imw-

11!ha r e q u i r a . ! i~s lor Based on thin inveaiganon tipawn required Us1"4
is nandard

... A
Out 01 dam NACLC or
SSBI.
Conl. Sec; T
.. SSBl ................ B

M a c
Out of date SSBl
TS. SCI: -0' ...----...--. SSBI-PR C

TMLE REINVESTIGATION REQUIREMENTS

Type requued if mere has been a
Cfca* in serviw 01
I1 me requuement IS lor And the age 01 the !mesugat!on is
0-23 months monlh's
or more
QnfidentiaJ .. .... 0 la 14 yean. I1 mas None (note 1) NACLC
15 yn. or more . NACLC.
S w e c 'L- ..- 0 10 9 yn 11 mos .- + ............ None (not0 1).
10 yn. or more NAClC
TW Seoet. SCI; 'a' -.. 0 lo 4 yrs. 11 mas None (note 1) - SSBl
5 y n or more .---- SSBl-PR.
Now. As a mmnum, review an uodaled Standard Form &r and applible remrds. A reinvest~gation(NACLC or SSBCPR) is MI requlred un-
l e u me rmew mdicates ma person may no longer sausfy the srandards 01 Exwuve Oraef 12968.

S u b p a n C-Guidelines lor Temporary adjudication process. The temporary 6 147.31 Tomooraw allaiblllfv far access at
Access ihe top secret ieve~s'ani~emp'orary
elig~bilitywill be valid until completion
of the invesugauon and adjudicauon: ellglblllty lor "Q" a c c e u aulhorlnllon: For
5 147.28 Introduction. someone who Is the wblect of a lavorabla
however. the agency granting it may lnvestlgauon not meeting the Investlgatlve
The following minimum investigative revoke it at any time based o n Standards lor accaas at those bvelz
standards. implementing section 3.3 of unfavorable information identified in
Execuuve Order 12966. Access to hs a minimumctuch temporary
the course of the investigation. eligibility requires completion of the
Classified Information. am established
for all United States Government and 9 147.30 Temporary allglblllty lor access a1 applicableForm
Standard 66. including any
supponing documentation.
military personnel. consullanu. ma ConlldsnUal and wcrat levels and
contractors. subconuactors. employees temporary ellglblllty lor "L" a c w s s favorable review of the form by the
of conmctors. licenseas. cenificate authorlntlon. appropriate adjudicating authority. a n d
holders or grantees and their employees exoedited submission of a request for a
and other individuals who require As a minimum. such temporary Siigle Scope Background Investigation
access to classified information before eligibility requtres completion of Ihe [sserl.
the appmpriate investigation can be Standard Form 86, including any
( 147 32 Temporary ellglblllty lor access at
completed and a final determination applicable supponing docurnentatian. me top ~ c r eand l SCI levels and temporary
made. favorable review of the form by the ellqlblll~~ lor "Q" access authortwUon: For
appropriate adjudicating authority, and sohaon3 who Is not Ihe sublect 01 a
1I4739 Temporary allglblltly for a c c a u submission of a request for a n expedited currant. lavorabla pwtonnaior personnel-
Based on a iustified need meetinc the National Aasncv Cbeck with Local secu111y Investlgallon ol any klnd.
mquimnenu'of section 3.3 of ~ x e & t i v e Agency ~ h k ' a n dCredit (NACLCI. As a minimum, such temporary
Order 12968. temporary eligibility for eligibility requires completion of the
a c a s may be granted before Standard Form 86, including any
investigations are complere and applicable supporting documentation.
favorably adjudicated. when, official favorable review of the form by the
h c t i o l r s must be performed prior to appropriate adjudicating authority.
completion of the invesugauon and immediate submission o f a request for
4580 Federal Re&ter/Vol. 63. No. ZOIFriday. January 30. 1 9 9 8 / R u l e s a n d Regulations

immediate submission of a request for

an expedited Single Scope Backgmund
hvest~eation~SSBII.and completion
and fa;orable review by the appropriate
adjudicating authority of relevant
criminal history and investigative
k o r d s of the Federal Bureau of
Investination and of information in the
~ e c u r i $ ~ u i t a b i l i tInvestigations
~ Index
lSUl and the Defense Clearance and

5 1 4 7 . ~Addltlonal mqulmmenu by
agancles
Tempoary eligibility for access must
satisfy these minimum investigative
standards. but agency heads may
establish additional requirements based
on the sensitrvity of the particular.
identified cateaories of classified
information necessary to perform the
lawful and authorized functions that are
the basis for granting temporary
eligibility for access. However. no
additional requirements shall exceed
the common standards for background
investigations developed under section
3.Zb)of Executive Order 12968.
Temporary eligibility for access is valid
only at the agency granting it and at
other agencies who expressly agree to
accept it and acknowledee
u n d k a n d i n g of its inv&trgative bass.
It is further subiect to limitations
specified in seckons 2.4(d) and 3.3 of
.becutive Order 12968. Access to
Classified Informotion.
Dated: January22.1998.
LM. Bynum.

-
Altemole OSD Federnl Repster Lialron
Oflcer. Oepanment of Defense.
[FRDoc. 98-1955 Filed 1-29-98: 8:15 am1
BILLING W O E
 Appendix C

Director of Central Intelligence Directive 614,

Personnel Security Standards and Procedures
Governing Eligibility for Access to Sensitive
Compartmented Information (SCI)
 Unclassified

UNCLASSIFIED
Director of Central Intelligence Directive
Type : 6 Number: 4
Subject: PERSONNEL SECURITY STANDARDS
Category: 6 - Security
Effective Date: 07/02/98

DIRECTOR OF CENTRAL INTELLIGENCE DIRECTIVE 6 / 4 '

PERSONNEL SECURITY STANDARDS AND

PROCEDURES GOVERNING ELIGIBILITY FOR
ACCESS TO SENSITIVE COMPARTMENTED
INFORMATION (SCI)

This directive supersedes Director of Central Intelligence

Directive 1/14, as amended 12 August 1994.
A complete copy of DCID 6/4 now consists of the basic DCID and
Annexes A through E, as follows :

Annex A - Investicative Standards for Background

Investigations for Access to Classified Information.

Annex B - Quality Control Guidelines for the Single Scope

Background Investigation.

Annex C - Adjudicztion Guidelines for ~etermining

Eligibility for Access to Classified ~nformation.

Annex D - Appeals Procedures: Denial or Revocation of

Access.

Annex E - Standards for SCI Security Awareness Programs in

the US Intelligence Community.

Annex F - Reciprocity of SCI Eligibility ~eterminations

(Annex F was created subsequent to the creation of the
DCID. The DCI approved Annex F on 13 Oct 99.)

DCID 1/14 was renumbered 6/4 by the Director of Central Intelligence (DCI) and
the Deputy Director of Central Intelligence for Community Management on 13 Oct
99, to more closely align the X I D with the new category structure as defined in
DCID 111. This action was accomplished in conjunction with the DCI approving
the newly created Annex F, "Reciprocity of SCI Eligibility Determinations".
 Unclassified

The President approved the Adjudicative Guidelines, Temporary

Eligibility Standards and Investigative Standards required by
Executive Order 12968 on March 24, 1997. This revised DCID
incorporates the President's policy documents verbatim, at Annexes
A and C, to promote the use of these common and consistent
standards for government-wide security background investigations.
These two annexes should be read in the context of the Director of
Central Intelligence (DCI) special authorities governing access
eligibility to SCI, although the actual wording addresses a
broader application to clearance actions.
The DCI exercises authority derived from statute and executive
order over access eligibility to SCI and delegates this authority
to ~eterminationAuthorities through Senior Officials of the
Intelligence Community. (See Definitions.) Nothing in this
directive or its annexes shall be deemed to preclude the DCI or
the DDCI under the authority of the National Security Act of 1947,
as amended, from taking any actions regarding an individual's SCI
access.
Pursuant to the provisions of the National Security Act of 1947,
as amended, and Executive Orders 12333 and 12968, the following
personnel security guidelines, procedures, standards, and
continuing security programs are hereby established for all US
Government civilian and military personnel, consultants,
contractors, employees.6f contractors, and other individuals who
require access to SCI. Individual departments and agencies may
establish such additional security steps as may be deemed
necessary and appropriate to resolve issues and/or address
employment standards unique to them to ensure that effective
security is maintained.
1. Definitions .
a. Cohabitant--A person living in a spouse-like
relationship with the individual requiring SCI information.
b. Compelling Need--A signed determination by a Senior
Official of the Intelligence Community (SOIC) or his/her designee
that the services of an individual are deemed essential to
operation or mission accomplishment.
c. Risk Assessment--A written evaluation supporting the
adjudicative process, especially when a significant exception to a
Personnel Security Standard is being considered. This assessment
should consist of an evaluation from security,
counterintelligence, and other technical or management experts as
appropriate;and should contrast the compelling national security
benefit of an individual accessed to SCI with the risk.
d. Determination Authority--A designee of a SOIC with
responsibility for decisions rendered with respect to SCI access
eligibility or ineligibility.
 Unclassified

e. Immediate Family--The spouse, parents, siblings,

children, and cohabitant of the individual requiring SCI access.
f. Intelligence Community--Those US Government
organizations and activities identified in the National Security
Act of 1947, as amended, 50 USC 401a(4), EO 12333, or successor
orders, as making up such a Community.
g. Senior Officials of the Intelligence Community (S0ICs)--
The heads of organizations or activities within the Intelligence
Community, as defined by the National Security Act of 1947, as
amended, 50 USC 401a(4), and EO 12333.
h. Sensitive Compartmented Information--Classified
information concerning or derived from intelligence sources,
methods, or analytical processes requiring handling exclusively
within formal access control sy~tems~established by the DCI.
2. Purpose.
The purpose of this directive is to enhance the security
protection of SCI through the application of personnel security
standards, procedures, and continuing security programs.
3. Applicability.
The provisions of this directive will apply to all persons (other
than elected officials of the US Government, to include elected
State Governors as may be required on an individual basis, Federal
judges, and those individuals for whom the DCI makes a specific
exception) without regard to a civilian or military status, form
of employment, official rank or position, or length of service.
This directive does not apply to situations involving the duly
authorized disclosure of SCI to representatives of foreign
governments and international organizations,
4. General.
a. The granting of access to SCI will be controlled under
the strictest application of the "need-to-know"principle and in
accordance with the personnel security standards and procedures
set forth in this directive.
b. In accordance with DCID 1/19, "Security Policy for
Sensitive Compartmented Information," and its supplement, "DCID
1/19 Security Policy Manual," those approved for access to SCI are
required to sign a DCI-authorized nondisclosure agreement that
includes a provision for prepublication review as a condition of
access to SCI.
5. Personnel Security Standards.
 Unclassified

Criteria for security approval of an individual on a need-to-know

basis for access to SCI are as follows:
a. The individual requiring access to SCI must be a US
citizen.
b. The individual's immediate family must also be US
citizens.
c. Members of the individual's immediate family and any
other persons to whom he or she is bound by affection or
obligation should neither be subject to physical, mental, or other
forms of duress by a foreign power or by persons who may be or
have been engaged in criminal activity, nor advocate the use of
force or violence to overthrow the Government of the United States
or the alteration of the form of Government of the United States
by unconstitutional means.
d. The individual must be stable; .trustworthy; reliable; of
excellent character, judgment, and discretion; and of unquestioned
loyalty to the United States.
6. Exceptions to Personnel Security Standards.
Any exception to the Personnel Security Standards will be a common
sense determination baskd on the fact that the available
information supports a finding that the specific risk to national
security is manageable in the specific case for which the
exception is granted. The organization determining that an
exception is warranted will document their finding in the
individual's security record. As appropriate, a risk assessment,
normally directed by the Determination Authority, may be required
to aid in the determination of the appropriateness of granting an
exception to one of the Personnel Security Standards. If
accomplished, this assessment should become a part of the
individual's security record.
a. The DCI is the exclusive authority for granting an
exception to the requirement that the Subject be a US citizen.
b. The affected SOIC or specified designee may grant
exception to the standard requiring US citizenship for the family
members of an individual proposed for SCI access, as well as the
standard requiring individuals to which Subject is bound by
affection or obligation be free of any form of duress.
c. Exceptions to the US citizenship requirement for
individuals to be accessed to SCI and their immediate family
members shall require certification of a compelling need. This
exception should be based upon a specific national security
requirement and a certification of compelling need.
7. Investigative Requirements and Standards.
 Unclassified

a. The investigation conducted on an individual under

consideration for access to SCI will conform to the requirements
of a Single Scope Background Investigation (SSBI) as defined in
Annex A, "Investigative Standards for Background Investigations
for Access to Classified Information." Quality Control procedures
relevant to investigations are defined in Annex B, "Quality
Control Guidelines for the Single Scope Background Investigation."
b. When conditions indicate, investigation of immediate
family members will be conducted to the extent necessary to permit
a determination by the adjudicating agency that the provisions of
paragraph 5 of this directive are met.
c. Where a previous investigation has been conducted within
the past five years that meets the standards of Annex A, it will
serve as a basis for granting access approval except where there
is substantial information indicating that the employee may not
satisfy the adjudicative guidelines in Annex C. If a previous
investigation does not meet the Annex A standards, if it is more
than five years old, or if there is a break in SCI access of two
years or more, a current investigation will be required but may be
limited to that necessary to bring the individual's file up-to-
date in accordance with the investigative requirements set forth
in Annex A of this directive, paragraphs 6 and 10. The up-dating
process may be limited to review of applicable records, starting
with an updated SF-86, and involve reinvestigation only when it
appears the person may no longer satisfy standards for access
under this directive. Should new information be developed during
the current investigation that bears unfavorably on the
individual's activities covered by the previous investigation, the
current inquiries will be expanded as necessary to develop full
details of this information.
d. Programs will be instituted requiring the periodic
reinvestigation (PR) of personnel provided access to SCI. These
SSBI-PRs will be conducted in accordance with the procedures and
scope contained in the section of Annex A defining the SSBI-PR.
The SSBI-PR may be expanded as necessary to resolve outstanding
issues.
e. Notwithstanding the status of an individual's background
investigation, departments and agencies with policies sanctioning
the use of the polygraph for personnel security purposes may
require polygraph examinations when deemed necessary by the
department or.agency head to be in the national security interest
of the United States. Where they exist, such polygraph programs
shall be characterized by unified training and certification as
well as by coordination of scope, applicability and fairness
issues to promote consistency, reciprocity and due process.
f. In those cases in which the individual has lived outside
of the United States for a substantial period, a thorough
 Unclassified

assessment of the adequacy of the investigation in terms of

fulfillment of the investigative requirements and judicious review
of the information therein must be made before an exception is
considered.
8. Temporary Eligibility for Access to SCI.
a. In exceptional cases, including national emergency
situations and hostilities involving US personnel, the SOIC or his
designee may determine that it is necessary or advisable in the
national interest to authorize temporary access to SCI before
completion of the SSBI. In this situation, the procedures
contained in the Annex A section entitled "Investigative Standards
for Temporary Eligibility for Access" will be complied with before
temporary access is permitted. A personal interview of the
individual by trained security, investigative, or
counterintelligence personnel will be conducted wherever possible
and practicable. I

b. The SSBI and final evaluation dill be completed at the

earliest practicable moment unless an exception is granted by the
DCI. Temporary eligibility for access is valid only at the agency
granting it and other agencies which expressly agree to accept it
and acknowledge understanding of its investigative basis.
Therefore, certification to other organizations of individuals
authorized temporary acdess will include explicit notification of
the fact.
c. Temporary eligibility for access may be granted only to
SCI necessary for the individual to perform authorized functions.
Therefore, indoctrination briefings will be modified to the basic
information necessary to ensure protection of the SCI to which the
individual will be exposed, and appropriate nondisclosure
agreements signed.
9. Reporting Requirements.
Individuals who hold SCI access have special responsibilities and
obligations to report to their cognizant security officer, in
writing and when feasible in advance, activities, conduct or
employment that could conflict with their ability to protect
classified information from unauthorized disclosure or
counterintelligence threats. A more detailed explanation and a
listing of an individual's responsibilities and reporting
requirements are contained in Annex E. In addition, initial and
updated security documents (e.g. Statement of Personal History,
Questionnaire for National Security Positions, Security Clearance
Application) and security records shall include details of such
employment, activities, associations and/or conduct to facilitate
appropriate investigation and evaluation to determine whether the
circumstances create an unacceptable risk to the security of SCI
or of unauthorized disclosure. Annex C, Guideline L, "Outside
Activities," summarizes the concern.
 Unclassified

10. ~eterminationsof Access Eligibility.

The evaluation of the information developed by investigation of an
individual's loyalty and suitability will be accomplished by
trained professional adjudicators under the cognizance of the SOIC
concerned. When all other information developed on an individual
is favorable, a minor investigative requirement that has not been
met should not preclude a favorable access determination by an
authorized adjudicative authority. In all evaluations, the
protection of the national security is paramount. Any doubt
concerning personnel having access to SCI should be resolved in
favor of the national security, and the access should be denied or
revoked. The ultimate determination of whether the granting of
access is clearly consistent with the interest of national
security will be an overall common sense determination based on
all available information. The adjudicative guidelines for
determining eligibility for access to SCI are contained in Annex
C.
11. Appeals Procedures.
Annex D prescribes common appeals proce6ures to be followed when
an individual's SCI access has been denied or revoked.
12. Continuing Security Programs.
a. To facilitate attainment of appropriate standards of
personnel security and to augment both the access approval
criteria and the investigative requirements established by this
directive, member departments and agencies shall institute
continuing security programs based on risk management principles
for all individuals having access to SCI. In addition to security
indoctrinations (see Annex E, "Standards for SCI Security
Awareness Programs in the US Intelligence Community"), these
programs will be tailored to create mutnally supporting procedures
to identify and resolve issues which bring into question an
individual's loyalty and integrity or suggest the possibility of
his or her being subject to undue influence or duress through
foreign relationships or exploitable personal conduct. These
programs should include the capacity for member departments and
agencies to monitor the individual's performance in a tailored
program against the eligibility criteria and adjudicative
standards when unresolved concerns are present. When an
individual is assigned to perform sensitive work requiring access
to SCI, the SOIC for the department, agency, or government program
to which the individual is assigned will assume security
supervision of that individual throughout the period of his or her
assignment.
b. The continuing security program will include the
following:
 Unclassified

(1) Individuals are required to inform the department

or agency that grants their SCI access about any personal problem
or situation that may have a possible bearing on their eligibility
for continued access to SCI and to seek appropriate guidance and
assistance. Security guidance should be provided by an official
who understands both the eligibility issues involved, and the
unique sensitivities of the specific SCI program being supported.
As appropriate, tailored monitoring programs should be established
to ensure that individuals actively resolve problems which have
led to concern about their continued eligibility for access. An
individual participating in a monitoring program with a particular
department or agency does not meet the criteria for automatic
reciprocal acceptance of SCI eligibility as established by
Executive Order 12968. In these situations, each organization
should make their own determination of eligibility.
( 2 ) SCI security education programs of the member
departments and agencies will be est~blishedand maintained
pursuant to the requirements of Annex E of this directive.
(3) Security awareness programs for supervisory
personnel will be established and maintained to ensure that
supervisory personnel recognize and discharge their special
responsibility to safeguard SCI, including the need to assess
continued eligibility fpr SCI access. These programs will provide
practical guidance on indicators that may signal matters of
security concern. Specific instructions concerning reporting
procedures will be disseminated to enable the appropriate
authority to take timely corrective action to safeguard the
security of the United States as well as to provide all necessary
help to the individual concerned to neutralize his or her
vulneratility.
(4) Security review programs will ensure that
appropriate security authorities always receive and exchange, in a
timely manner, all information, including lead information,
bearing on the security posture of persons having access to SCI.
Personal history information will be kept current. Security and
related files will be kept under continuing review.
( 5 ) Where permitted by agency policy, security review
programs may include the use of polygraph examinations conducted
by a qualified polygraph examiner.
c. Whenever adverse or derogatory information is discovered
or inconsistencies arise that could impact on an individual's
security status, appropriate investigation will be conducted on a
timely basis. The investigation will be of sufficient scope
necessary to resolve the specific adverse or derogatory
information or inconsistency in question so that a determination
can be made as to whether the individual's continued utilization
in activities requiring SCI is clearly consistent with the
interest of national security.
 Unclassified

13. Implementation.
Existing directives, regnlations, agreements, and other guidance
governing access to SCI as defined herein will be revised
accordingly.

2 Julv 1998
Director of Central Intelligence Date
 Unclassified

DCID 6/4
ANNEX A
'
~nvestigative Standards for Background Investigations for Access
to Classified Information

1. Introduction.
The following investigative standards are established for all
United States Government civilian and military personnel,
consultants, contractors, employees of contractors, licensees,
certificate holders or grantees and their employees and other
individuals who require access to classified information, to
include Sensitive Compartmented Information (SCI) and Special
Access Programs (SAPS), and are to be used by government
departments and agencies as the investigative basis for final
clearance determinations. However, nothing in these standards
prohibits an agency from using any lqwful investigative procedures
in addition to these requirements in order to resolve any issue
identified in the course of a background investigation or
reinvestigation.
2. The Three Standards.
There are three standards (Table 1 in the Appendix summarizes when
to use each one) :
a. The investigation and reinvestigation standards for "L"
access authorizations and for access to CONFIDENTIAL and SECRET
(including all SECRET-level SAPs not specifically approved for
enhanced investigative requirements by an official authorized to
establish SAPs by sect. 4.4 of Executive Order 12958);
b. The investigation standard for "Q" access authorizations
and for access to TOP SECRET (including TOP SECRET SAPS) and SCI;
and
c. The reinvestigation standard for continued access to the
levels listed in para. 2 (b).
3. Exception to Periods of Coverage.
Some elements of standards specify a period of coverage (e.g.,
seven years). Where appropriate, such coverage may be shortened
to the period from the Subject's eighteenth birthday to the
present or to two years, whichever is longer.

'The content of this Annex is taken verbatim from the Presidentially approved
Investigative Standards and Temporary Eligibility Standards and should be read
in the context of access eligibility to SCI, although the actual wording
addresses a broader application to clearance actions.

10
 Unclassified

4. Expanding Investigations.
Investigations and reinvestigations may be expanded under the
provisions of Executive Order 12968 and other applicable statutes
and Executive Orders.

Investigations that satisfy the requirements of a given standard

and are current meet the investigative requirements of all levels
specified for the standard. They shall be mutually and
reciprocally accepted by all agencies.
6. Breaks in Service.
If a person who requires access has been retired or separated from
US Government employment for less than two years and is the
Subject of an investigation that is ~therwisecurrent, the agency
regranting the access will, as a minimum,.review an updated
Standard Form 86 and applicable records. A reinvestigation is not
required unless the review indicates the person may no longer
satisfy the standards of Executive Order 12968 (see Table 2).
7. The National Agency Check.
The National Agency Check is part of all investigations and
reinvestigations. It consists of a review of:
a. Investigative and criminal history files of the FBI,
including a technical fingerprint search;
b. OPM's Security/Suitability Investigations Index;
c. DoD's Defense Clearance and Investigations Index; and
d. Such other national agencies (e.g., CIA, INS) as
appropriate to the individual's background.

STANDARD A
National Agency Check with Local Agency Checks and Credit Check
(NACLC)

8. Applicability.
Standard A applies to investigations and reinvestigations for:
a. Access to CONFIDENTIAL and SECRET (including all SECRET-
level SAPs not specifically approved for enhanced investigative
requirements by an official authorized to establish SAPs by sect.
4.4 of Executive Order 12958), and
b. "L" access authorizations
 Unclassified

9. For ~einvestigations: When to Reinvestigate.

The reinvestigation may be initiated at any time following

completion of, but not later than ten years (fifteen years for
CONFIDENTIAL) from the date of, the previous investigation or
reinvestigation. (Table 2 reflects the specific requirements for
when to request a reinvestigation, including when there has been a
break in service.)
10. Tnvestigative Requirements.

Investigative requirements are as follows:

a. Completion of forms: completion of Standard Form 86,
including applicable releases and supporting documentation.
b. National Agency Check: completion of a National Agency
Check.
c. Financial Review: verification of the Subject's
financial status, including credit bureau checks covering all
locations where the Subject has resided, been employed, or
attended school for six months or more for the past seven years.
d. Date and Place of Birth: corroboration of date and
place of birth through check of appropriate documentation, if
not completed in any previous investigation; a check of Bureau of
Vital Statistics records when any discrepancy is found to exist.
e. Local Agency Checks: as a minimum, all investigations
will include checks of law enforcement agencies having
jurisdiction where the Subject has lived, worked, and/or attended
school within the last five years, and if applicable, of the
appropriate agency for any identified arrests.
11. Expanding the Investigation.

The investigation may be expanded if necessary to determine if

access is clearly consistent with the national security.

STANDARD B
Single Scope Background Investigation (SSBI)

12. Applicability.

Standard B applies to initial investigations for:

a. Access to TOP SECRET (including TOP SECRET SAPS) and
SCI; and
b. "Q" access authorizations.
 Unclassified

13. ~nvestigativeRequirements.
Investigative requirements are as follows:
a. Completion of Forms: completion of Standard Form 86,
including applicable releases and supporting documentation.
b. National Agency Check: completion of a National Agency
Check.
c. National Agency Check for the Spouse or Cohabitant (if
applicable): completion of a National Agency Check, without
fingerprint cards, for tke spouse or cohabitant.
d. Date and Place of Birth: corroboration of date and
place of birth through a check of appropriate documentation; a
check of Bureau of Vital Statistics records when any discrepancy
is found to exist.
e. Citizenship: for individuals born outside the United
States, verification of US citizenship directly from the
appropriate registration authority; verification of US citizenship
or legal status of foreign-born immediate faniily members (spouse,
cohabitant, father, mother, sons, daughters, brothers, sisters).
f. Education: cdrroboration of most recent or most
significant claimed attendance, degree, or diploma. Interviews of
appropriate educational sources if education is a primary activity
of the Subject during the most recent three years.
g. Employment: verification of all employments for the
past seven years; pereonal interviews of sources (supervisors,
coworkers, or both) for each employment of six months or more;
corroboration through records or sources of all periods of
unemployment exceeding sixty days; verification of all prior
federal and military service, including discharge type. For
military members, all service within one branch of the armed
forces will be considered as one employment, regardless of
assignments.
h. References: four references, of whom at least two are
developed; to the extent practicable, all should have social
knowledge of the Subject and collectively span at least the last
seven years.
i. Former Spouse: an interview of any former spouse
divorced within the last ten years.
j. Neighborhoods: confirmation of all residences for the
last three years through appropriate interviews with neighbors and
through records reviews.
 Unclassified

k. ~inancialReview: verification of the Subject's

financial status, including credit bureau checks covering all
locations where Subject has resided, been employed, and/or
attended school for six months or more for the last seven years.
1. Local Agency Checks: a check of appropriate criminal
history records covering all locations where, for the last ten
years, the Subject has resided, been employed, and/or attended
school for six months or more, including current residence
regardless of duration. (NOTE: If no residence, employment or
education exceeds six months, local agency checks should be
performed as deemed appropriate.)
m. Public Records: verification of divorces, bankruptcies,
and other court actions, whether civil or criminal, involving the
Subject.
n. Subject Interview: a Subject Interview, conducted by
trained security, investigative, or &ounterintelligence personnel.
During the investigation, additional Subject Interviews may be
conducted to collect relevant information, to resolve significant
inconsistencies, or both. Sworn statements and unsworn
declarations may be taken whenever appropriate.
o. Polygraph (only agencies with approved personnel
security polygraph progfams): in departments or agencies with
policies sanctioning the use of the polygraph for personnel
security purposes, the investigation may include a polygraph
examination, conducted by a qualified polygraph examiner.
14. Expanding the ~nvestigation.

The investigation may be expanded as necessary. As appropriate,

interviews with anyone able to provide information or to resolve
issues, including but not limited to cohabitants, relatives,
psychiatrists, psychologists, other medical professional, and law
enforcement professionals may be conducted.

STANDARD C
Single-Scope Background Investigation-Periodic Reinvestigation
(SSBI-PR)

15. Applicability.

Standard C applies to reinvestigations for:

a. Access to TOP SECRET (including TOP SECRET SAPS) and
SCI; and
b. "Q" access authorizations.
 Unclassified

16. When to Reinvestigate.

The reinvestigation may be initiated at any time following
completion of, but not later than five years from date of, the
previous investigation (see Table 2).
17. Reinvestigative Requirements.
Reinvestigative requirements are as follows:
a. Completion of Forms: completion of Standard Form 86,
including applicable releases and supporting documentation.
b. National Agency Check: completion of a National Agency
Check (fingerprint cards are required only if there has not be,on a
previous valid technical check of the FBI).
c. National Agency Check for che Spouse or Cohabitant (if
applicable): completion of a National Agency Check, without
fingerprint cards, for the spouse or cohabitant. The National
Agency Check for the spouse or cohabitant is not required if
already completed in conjunction with a previous investigation or
reinvestigation.
d. Employment: yerification of all employments since the
last investigation. Attempts to interview a sufficient number of
sources (supervisors, coworkers, or both) at all employments of
six months or more. For military members, all service within one
branch of the armed forces will be considered as one employment,
regardless of assignments.
e. References: interviews with two character references
who are knowledgeable of the Subject; at least one will be a
developed reference. To the extent practical, both should have
social knowledge of the Subject and collectively span the entire
period of the investigation. As appropriate, additional
interviews may be conducted, including with cohabitants and
relatives.
f. Neighborhoods: interviews of two neighbors in the
vicinity of the Subject's most recent residence of six months or
more. Confirmation of current residence regardless of length.
g. Financial Review:
(11 Financial Status: verification of the Subject's
financial status, including credit bureau checks covering all
locations where Subject has resided, been employed, and/or
attended school for six months or more for the period covered by
the reinvestigation;
(2) Check of Treasury's Financial Database: Agencies
 Unclassified

may request the Department of the Treasury, under terms and

conditions prescribed by the Secretary of the Treasury, to search
automated databases consisting of reports of currency transactions
by financial institutions, international transportation of
currency or monetary instruments, foreign bank and financial
accounts, and transactions under $10,000 that are reported as
possible money laundering violations.
h. Local Agency Checks: a check of appropriate criminal
history records covering all locations where, during the period
covered by the reinvestigation, the Subject has resided, been
employed, and/or attended school for six months or more, including
current residence regardless of duration. (NOTE: If no
residence, employment, or education exceeds six months, local
agency checks should be performed as deemed appropriate.)
i. Former Spouse: an interview with any former spouse
unless the divorce took place beforelthe date of the last
investigation or reinvestigation.
j. Public Records: verification of divorces, bankruptcies,
and other court actions, whether civil or criminal, involving the
Subject since the date of the last investigation.
k. Subject Interviews: a Subject Interview, conducted by
trained security, investigative, or counterintelligence personnel.
During the reinvestigation, additional Subject Interviews may be
conducted to collect relevant information, to resolve significant
inconsistencies, or both. Sworn statements and unsworn
declarations may be taken whenever appropriate.
18. Expanding the Reinvestigation.

The reinvestigation may be expanded as necessary. As appropriate,

interviews with anyone able to provide information or to resolve
issues, including but not limited to cohabitants, relatives,
psychiatrists, psychologists, other medical professionals, and law
enforcement professionals may be conducted.
 Unclassified

DCID 6/4
Appendix
Decision Tables
TABLE 1: WHICH INVESTIGATION TO REQUEST
If the And the pezson Based on this Then the in- Using
requirement has this investigation vestigation standard
is for access required is
CONFIDENTIAL none none NACLC A
SECRET; 'L" out of date NACLC
or SSBI
CONF,SEC;"L'
TOP none none SSBI B

I SECRET.
QSI;
--- "Q" I none; CONF,
SEC: "La
current or out of
date NACLC
out of date SSBI
I --
TS, SCI; "Q" SSBI-PR C
..

TABLE 2: REINVESTIGATION REQUIREMENTS

If the .And the age Type required if there
requirement
is for
of the in-
vestigation
is
service of -
has been a break in

0-23 24 months
months or more
CONFIDENTIAL 0 to 14 none NACLC
yrs. 11 (NOTE 1)
nos.
15 yrs. Or NACLC
more
SECRET; 'L" 0 to 9 yrs. none
11 (NOTE 1)
nos.
10 yrs. Or NACLC
more
I TOP SECRET,
SCI;
0 to 4 yrs.
11
aos .
none
(NOTE 1)
SSBI

5 yrs. Or SSBI-PR

NOTE 1: AS a minimum, review an updated Std.

Fm. 86 and applicable records. A reinvestigation
(NACLC or SSBI-PR) is not required unless the
review indicates the person may no longer
satisfy the standards of Executive Order 12968.
 Unclassified

Investigative Standards for Temporary Eligibility for Access

1. Introduction.
The following minimum investigative standards, implementing
section 3.3 of Executive Order 12968, "Access to Classified
Information", are established for all United States Government and
military personnel, consultants, contractors, subcontractors,
employees of contractors, licensees, certificate holders or
grantees and their employees and other individuals who require
access to classified information before the appropriate
investigation can be completed and a final determination made.
2. Temporary Eligibility for Access.
Based on a justified need meeting the requirements of section 3.3
of Executive Order 12968, temporary eligibility for access may be
granted before investigations are complete and favorably
adjudicated, where official functions must be performed prior to
completion of the investigation and adjudication process. The
temporary eligibility will be valid until completion of the
investigation and adjudication; however, the agency granting it
may revoke it at any time based on unfavorable information
identified in the course of the investigation.
3. Temporary Eligibility for Access at the CONFIDENTIAL and
SECRET Levels and Temporary Eligibility for "LW Access
Authorization.
As a minimum, such temporary eligibility requires completion of
the Standard Form 86, including any applic~~blesupporting
documentation, favorable review of the form by the appropriate
adjudicating authority, and submission of a request for an
expedited National Agency Check with Local Agency Checks and
Credit (NACLC).
4. Temporary Eligibility for Access at the TOP SECRET and SCI
Levels and Temporary Eligibility for " Q W Access ~uthorization: For
Someone who is the Subject of a Favorable Investigation not
Meeting the Investigative Standards for Access at those Levels.
As a minimum, such temporary eligibility requires completion of
the Standard Form 86, including any applicable supporting
documentation, favorable review of the form by the appropriate
adjudicating authority, and expedited submission of a request for
a Single Scope Background Investigation (SSBI).
 Unclassified

5. Temporary Eligibility for Access at the TOP SECRET and SCI

Levels and Temporary Eligibility for "Qn Access Authorization: For
Someone who is not the Subject of a current, favorable personnel
or Personnel Security Investigation of any kind.
As a minimum, such temporary eligibility requires completion of
the Standard Form 86, including any applicable supporting
documentation, favorable review of the form by the appropriate
adjudicating authority, immediate submission of a request for an
expedited SSBI, and completion and favorable review by the
appropriate adjudicating authority of relevant criminal history
and investigative records of the Federal Bureau of Investigation
and of information in the Security/Suitability Investigations
Index (SII) and the Defense Clearance and Investigations Index
(DCII).
6. Additional Requirements by Agencies.
1
Temporary eligibility for access must satisfy these minimum
investigations standards, but agency heads may establish
additional requirements based on the sensitivity of the
particular, identified categories of classified information
necessary to perform the lawful and authorized functions that are
the basis for granting temporary eligibility for access. However,
no additional requirements shall exceed the common standards for
background investigations developed under section 3.2(b) of
Executive Order 12968. Temporary eligibility for access is valid
only at the agency granting it and at other agencies who expressly
agree to accept it and acknowledge understanding of its
investigative basis. It is further subject to limitations
specified in sections 2.4(d) and 3.3 of Executive Order 12968,
"Access to Classified Information."
 Unclassified

DCID 6/4

Quality Control Guidelines

for the Single Scope Background Investigation

1. Guidelines.
In accordance with the requirements of DCID 6/4 , this document
sets out guidelines to maintain quality standards for the Single
Scope Background Investigation (SSBI). These guidelines assume
the adjudicator's perspective because the adjudicator is the
ultimate customer for the SSBI. The guidelines are divided into:

Definition of Quality

Conduct of the Interview

Collection Requirements (Coverage)

Quality Control Activities.

SOICs will ensure that investigative personnel employed by or
assigned or detailed to their agencies/departments receive
adequate initial and ongoing training in investigation and
interrogation techniques, as well as familiarization with
counterintelligence issues that may arise during investigation.
Training should also incorporate findings of contemporary research
in personnel security and medical disciplines and, in addition,
evolving legal issues that may impact investigation collection
requirements. As much as possible, training should be conducted
as a joint effort with other investigative entities supporting the
Intelligence Community, to facilitate information sharing and to
enhance reciprocity.
2. Definition of Quality.
A quality investigation is a thorough and comprehensive collection
of favorable and unfavorable information from a variety of
sources, past and present, that may include employment(s),
reference(s1, neighborhood(s), credit, police, and the Subject.
The determination of eligibility for access to sensitive
compartmented information is a discretionary determination using
the whole person concept that such access is clearly in the
interests of the national security. Accordingly, the
investigation will be comprehensive and in such detail so as to
affirmatively address unquestioned loyalty to the United States,
strength of character, trustworthiness, honesty, reliability,
discretion, and sound judgment, as well as freedom from
conflicting allegiances and potential for coercion, and
 Unclassified

willingness and ability to abide by regulations governing the use,

handling and protection of sensitive compartmented information.
3. Conduct of the Interview
The quality of the investigation depends on the investigator's
ability to elicit information from a source knowledgeable about
the Subject. This is basic to the conduct of any interview. The
investigator should plan and execute each interview so as to
obtain the maximum amount of information from a source, Available
sources should be selected from each area of coverage to ensure
that pertinent information about the Subject's entire background
is developed.
The investigator should conduct the interview in person and find a
suitable location that protects privacy. Telephonic interviews
are strongly discouraged; however, occasionally exigent
circumstances may dictate that the ipterviews be conducted by
telephone. If a telephonic interview is necessary, the report
should always state why the interview was not conducted in person.
The investigator should initially advise the source of the
reason/purpose for the investigation and should attempt to
establish a degree of confidence in the source(s) that will
promote a high level of.rapport and cooperation.
The investigator should also advise the source about the Privacy
Act of 1974, before completing the interview, since the source
needs to understand that the Subject of the investigation has the
right to review information provided by a source and has the right
to know a source's identitv,
- . -
unless the source reauests
confidentiality.
4. Collection Requirement (Coverage)
a. For all Sources.
Investigators should establish the duration and nature of
association between the source and the Subject to assess the
source's extent of knowledge. The investigator should always
secure the source's full name and any other appropriate
identifying data, particularly in the case of a source with a
common name. All derogatory or noteworthy information concerning
the Subject of the investigation that is provided by a source
should be fully explored in the interview, including elicitation
of the names of any corroborating sources or record information
that will substantiate any derogatory testimony provided by the
source. For all sources, the report should indicate what issue
areas were covered and whether the information provided was
favorable or unfavorable.
 Unclassified

b. For References and Neighbors.

Depending on the source's degree of association, investigators
should ask each reference or neighbor relevant information
regarding the Subject's:
(1) ~amily,citizenship, education, employment,
residence history, and military service.
( 2 ) Reputation, character, honesty, trustworthiness,
integrity, discretion, reliability, and temperament.
( 3 ) Financial stability, organizational affiliations,
and whether there is a history of mental, emotional, or physical
health problems.
( 4 ) Whether the Subject exhibits a pattern of excessive
use of alcohol or has ever used illeaal drugs or abused
prescription drugs.
(5) Activities which indicate a lack of discretion or
demonstrate poor judgment, a character flaw, or a personality
disorder.
(6) Participation in criminal activity or an
altercation with law enforcement agencies.
(7) Travels abroad for business or pleasure and degree
of contact with foreign nationals.
(8) Unquestioned loyalty to the United States
If a Subject has had access to classified information and a source
is in a position to know, the investigator should ask whether the
Subject properly handles classified information or has ever had a
security violation. Finally, the investigator should ask if the
source can recommend the Subject for a position of trust and
responsibility with the US Government or, in the case of a
contractor, can the Subject be trusted with classified
information. The investigator should conclude the interview by
asking the source to provide names of additional references.
c. Follow-up Questions.
If a source provides noteworthy or derogatory information to
questions in any of the above areas of consideration, the
investigator should ask follow-up questions as necessary to elicit
all available information. The investigator should report as
fully as possible:
(1) The nature, extent, and seriousness of the conduct.
 Unclassified

(2) The motivation for and the circumstances

surrounding the conduct.
(3) The frequency and recency of the conduct
(4) The Subject's age and maturity at the time of the
conduct.
(5) Whether the conduct was voluntary or whether there
was pressure, coercion, or exploitation leading to the conduct.
(6) Whether the Subject has been rehabilitated or has
exhibited other pertinent behavioral changes since the conduct.
If the Subject has ended the questionable conduct, the
investigator should attempt to determine the motivation for
positive change. The investigator should also attempt to
establish whether there may be personal animosity or bias towards
the Subject on the part of the source(s).. The investigator
should supply any available documentary evidence relating to the
conduct in addition to the report of the source.
d. For Employment References.
The investigator should identify and interview the best source(s)
available. These employment references should include, but are
not limited to, the Subject's immediate supervisor, coworker(s),
and other persons with frequent professfonal contact. Where
appropriate, the investigator should pursue the same line of
inquiry as with references and neighbors. In particular, the
investigator should inquire regarding:
(1) Whether the Subject is willing to abide by company
policies and regulations.
(2) Whether the Subject appropriately safeguards the
employer's proprietary/sensitive information.
(3) Whether the Subject is financially stable.
( 4 1 Whether the Subject has a history of substance ,

abuse, to include alcohol, and/or prescription drugs.

(5) Whether the Subject has been involved in any
criminal activity.
(6) Whether the Subject is reliable and eligible for
re-hire.
The investigator should obtain any available documentary evidence
to support the report of the source(s).
 Unclassified

e. For Subject Interviews.

The Subject is the best source of information about
himself/herself. Hence, the investigator should explore with the
Subject the same line of inquiry she/he pursues with a reference,
neighborhood, and employment source(s). The investigator should
obtain the Subject's version of the details surrounding all issues
arising either in the course of the interview or in other parts of
the investigation that have been completed by the time of the
Subject Interview and report them completely. The investigator
should inquire regarding:
( 1) What happened and why.
(21 Where, when, how, and how often it happened
(31 Who else was involved.
1
(4) Was the conduct voluntary..
Of particular value to the adjudicator is evidence that the
Subject is being contradictory or dissembling. If the Subject
claims to have ended the conduct, the investigator should attempt
to determine the motivation for positive change. The investigator
should report only the facts.
5. Quality Control Activities.

Quality control activities are designed to ensure that a high

quality investigation and report have been provided. The
following management tools can be used by investigative agencies
to ensure quality investigations, and other techniques may be
appropriate:
a. Case Review.
Case review consists of a supervisory review of the investigative
requirement6 and the investigation to ensure that all coverage has
been met using the best available sources. Depending on the
agency, the investigative review may be conducted by the
investigator's supervisor or by a quality assurance or assessment
team.
b. Ride-Along Program.
In ride-along programs, supervisors and/or senior agents accompany
the investigator, observing the investigator's performance,
focusing on whether the investigator:
(1) Uses proper/acceptable investigative techniques.
(2) Explores all relevant issues.
 Unclassified

(3) Possesses a demeanor that reflects positively on

the investigative agency.
c. Source Recontact.
The supervisory element may select from a sample of an
investigator's cases and contact some or all of the sources. The
source is queried regarding the investigator's professionalism,
line of questioning, adherence to established policies and
procedures, and thoroughness. Both written and telephonic re-
contact are acceptable.
These recommended monitoring activities ensure adequate training
of investigators, acceptable supervisory oversight, and proper
professionalism while conducting the investigation. They also
ensure that the standards of investigative coverage are
satisfactorily met.
 Unclassified

DCID 614
ANNEX C'

Adjudicative Guidelines for Determining Eligibility for Access to

Classified Information
1. Introduction.
The following adjudicative guidelines are established for all
United States Government civilian and military personnel,
consultants, contractors, employees of contractors, licensees,
certificate holders or grantees and their employees and other
individuals who require access to classified information. They
apply to persons being considered for initial or continued
eligibility for access to classified information, to include
Sensitive Compartmented Information (SCI) and Special Access
Programs (SAPS) and are to be used by government departments and
agencies in all final clearance determinations.
2. The ~djudicativeProcess.
a. The adjudicative process is an examination of a
sufficient period of a person's life to make an affirmative
determination that the person is eligible for a security
clearance. Eligibility for access to classified information is
predicated upon the indicidual meeting these personnel security
guidelines. The adjudicative process is the careful weighing of a
number of variables known as the whole person concept. Available,
reliable information about the person, past and present, favorable
and unfavorable, should be considered in reaching a determination.
In evaluating the relevance of an individual's conduct, the
adjudicator should consider the following factors:
(1) The nature, extent, and seriousness of the conduct;
(2) The circumstances surrounding the conduct, to
include knowledgeable participation;
(3) The frequency and recency of the conduct;
(4) The individual's age and maturity at the time of
the conduct;
(5) The voluntariness of participation;
(6) The presence or absence of rehabilitation and other
pertinent behavioral changes;
(7) The motivation for the conduct;
' The content o f this Annex is taken verbatim from the Presidentially approved
Adjudicative Guidelines and should be read in the context of access eligibility
to SCI, although the actual wording addresses a broader application to clearance
act ions.
 Unclassified

(8) The potential for pressure, coercion, exploitation,

or duress; and
(9) The likelihood of continuation or recurrence.
b. Each case must be judged on its own merits, and final
determination remains the responsibility of the specific
department or agency. Any doubt as to whether access to
classified information is clearly consistent with national
security will be resolved in favor of the national security.
c. The ultimate determination of whether the granting or
continuing of eligibility for a security clearance is clearly
consistent with the interests of national security must be an
overall common sense determination based upon careful
consideration of the following, each of which is to be evaluated
in the context of the whole person, as explained further below:
I
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;
GUIDELINE I: Emotional, mental, and personality
disorders;
(10).GUIDELINEJ: Criminal conduct;
(11) GUIDELINE K: Security violations;
(12) GUIDELINE L: Outside activities;
(13) GUIDELINE M: Misuse of Information Technology
Systems.
d. Although adverse information concerning a single
criterion may not be sufficient for an unfavorable determination,
the individual may be disqualified if available information
reflects a recent or recurring pattern or questionable judgment,
irresponsibility, or emotionally unstable behavior.
Notwithstanding the whole person concept, pursuit of further
investigation may be terminated by an appropriate adjudicative
 Unclassified

agency in the face of reliable, significant, disqualifying,

adverse information.
e. When information of security concern becomes known about
an individual who is currently eligible for access to classified
information, the adjudicator should consider whether the person:
(1) Voluntarily reported the information;
(2) Was truthful and complete in responding to
questions ;
( 3 ) Sought assistance and followed professional
guidance, where appropriate;
(4) Resolved or appears likely to favorably resolve the
security concern;
t
(51 Has demonstrated positlve changes in behavior and
employment;
( 6 ) Should have his or her access temporarily suspended
pending final adjudication of the information.
f. If after evaluating information of security concern, the
adjudicator decides that the information is not serious enough to
warrant a recommendation of disapproval or revgcation of the
security clearance, it may be appropriate to recommend approval
with a warning that the future incidents of a similar nature may
result in revocation of access.

Guideline A
Allegiance to the United States
3. The Concern.
An individual must be of unquestioned allegiance to the United
States. The willingness to safeguard classified information is in
doubt if there is any reason to suspect an individual's allegiance
to the United States.
4. Conditions that could raise a security concern and may be
disqualifying include:
a. Involvement in any act of sabotage, espionage, treason,
terrorism, sedition, or other act whose aim is to overthrow the
Government of the United States or alter the form of government by
unconstitutional means;
b. Association or sympathy with persons who are attempting
to commit, or who are committing, any of the above acts;
 Unclassified

c. Association or sympathy with persons or organizations

that advocate the overthrow of the United States Government, or
any state or subdivision, by force or violence or by other
unconstitutional means;
d. Involvement i~ activities which unlawfully advocate or
practice the commission of acts of force or violence to prevent
others from exercising their rights under the Constitution or laws
of the United States or of any state.
5. Conditions that could mitigate security concerns include:
a. The individual was unaware of the unlawful aims of the
individual or organization and severed'ties upon learning of
these ;
b. The individual's involvement was only with the lawful or
humanitarian aspects of such an orgqnization;
c. Involvement ir! the above activities occurred for only a
short period of time ane was attributable to curiosity or academic
interest;
d. The person has had no recent involvement or association
with such activities.

GUIDELINE B
Foreign Influence
6. The Concern.
A security risk may exist when an individual's immediate family,
including cohabitants ard other persons to whom he or she may be
bound by affection, influence, or obligation are not citizens of
the United States or may be subject to duress. These situations
could create the potential for foreign influence that could result
in the compromise of classified information. Contacts with
citizens of other countries or financial interests in other
countries are also relevant to security determinations if they
make an individual potertially vulnerable to coercion,
exploitation, or pressure.
7. Conditions that could raise a security concern and may be
disqualifying include:
a. An immediate family member, or a person to whom the
individual has close ties of affection or obligation, is a citizen
of, or resident or present in, a foreign country;
b. Sharing living quarters with a person or persons,
regardless of their citizenship status, if the potential for
adverse foreign influence or duress exists;
 Unclassified

c. Relatives, cohabitants, or associates who are connected

with any foreign government;
d. Failing to report, where required, associations with
foreign nationals;
e. Unauthorized association with a suspected or known
collaborator or employee of a foreign intelligence service;
f. Conduct which may make the individual vulnerable to
coercion, exploitation, or pressure by a foreign government;
g. Indications that representatives or nationals from a
foreign country are acting to increase the vulnerability of the
individual to possible future exploitation, coercion or pressure;
h. A substantial financial interest in a country, or
in any foreign owned or operated business that could make the
individual vulnerable to foreign influence.
8. Conditions that could mitigate security concerns include:
a. A determination that the immediate family member(s)
(spouse, father, mother, sons, daughters, brothers, sisters),
cohabitant, or associat&(s) in question are not agents of a
foreign power or in a position to be exploited by a foreign power
in a way that could force the individual to choose between loyalty
to the person(s) involved and the United States;
b. Contacts with foreign citizens are the result of
official United States Government business;
c. Contact and correspondence with foreign citizens are
casual and infrequent;
d. The individual has promptly complied with existing
agency requirements regarding the reporting of contacts, requests,
or threats from persons or organizations from a foreign country;
e. Foreign financial interests are minimal and not
sufficient to affect the individual's security responsibilities.

GUIDELINE C
Foreign Preference
9. The Concern.
When an individual acts in such a way as to indicate a preference
for a foreign country over the United States, then he or she may
be prone to provide information or make decisions that are harmful
to the interests of the United States.
 Unclassified

10. Conditions that could raise a security concern and may be

disqualifying include:
a. The exercise of dual citizenship;
b. Possession and/or use of a foreign passport;
c. Military service or a willingness to bear arms for a
foreign country;
d. Accepting educational, medical, or other benefits, such
as retirement and social welfare, from a foreign country;
e. Residence in a foreign country to meet citizenship
requirements;
f. Using foreign citizenship to protect financial or
business interests in another country;
g. Seeking or holding political office in the foreign
country;
h. Voting in foreign elections; and
i. Performing or attempting to perform duties, or otherwise
acting, sp as to serve tke interests of another government in
preference to the interests of the United States.
11. Conditions that could mitigate security concerns include:
a. Dual citizenship is based solely on parents1 citizenship
or birth in a foreign country;
b. Indicators of possible foreign preference (e.g., foreign
military service) occurred before obtaining United States
citizenship;
c. Activity is sanctioned by the United States;
d. Individual has expressed a willingness to renounce dual
citizenship.

GUIDELINE D
Sexual Behavior
12. The Concern.
Sexual behavior is a security concern if it involves a criminal
offense, indicates a personality or emotional disorder, may
 Unclassified

subject the individual to coercion, explpitation, or duress, or

reflects lack of judgment or discretion. Sexual orientation or
preference may not be used as a,basis for or a disqualifying
factor in determining a person's eligibility for a security
clearance.
13. Conditions that could raise a security concern and may be
disqualifying include:
a. Sexual behavior of a criminal nature, whether or not the
individual has been prosecuted;
b. Compulsive or addictive sexual behavior when the person
is unable to stop a pattern of self-destruction or high-risk
behavior or that which is symptomatic of a personality disorder;
c. Sexual behavior that causes an individual to be
vulnerable to coercion, exploitation( or duress;
d. Sexual behavior of a public nature and/or that which
reflects lack of discretion or judgment.
14. Conditions that could mitigate security concerns include8
a. The behavior occurred during or prior to adolescence and
there is no evidence of'subsequent conduct of a similar nature;
b. The behavior was not recent and there is no evidence of
subsequent conduct of a similar nature;
c. There is no other evidence of questionable judgment,
irresponsibility, or emotional instability;
d. The behavior no longer serves as a basis for coercion,
exploitation, or duress.

GUIDELINE E
Personal Conduct

15. The Concern.

Conduct involving questionable judgment, untrustworthiness,
unreliability, lack of candor, dishonesty, or unwillingness to
comply with rules and regulations could indicate that the person
may not properly safeguard classified information. The following
will normally result in an unfavorable clearance action or
administrative termination of further processing for clearance
eligibility:

' The adjudicator should also consider guidelines pertaining to criminal conduct
(Guideline J ) and emotional, mental, and personality disorders (Guideline I) in
determining how to resolve the security concerns raised by sexual behavior.
 Unclassified

a. Refusal to undergo or cooperate with required security

processing, including medical and psychological testing; or
b. Refusal to complete required security forms, releases, I
or provide full, frank and truthful answers to lawful questions of
investigators, security officials or other official
representatives in connection with a personnel security or
trustworthiness determination.
16. Conditions that could raise a security concern and may be
disqualifying also include:
a. Reliable, unfavorable information provided by
associates, employers, coworkers, neighbors, and other
acquaintances;
b. The deliberate omission, concealment, or falsification
of relevant and material facts from apy personnel security
questionnaire, personal history statement, or similar form used to
conduct investigations, determine employment qualifications, award
benefits or status, determine security clearance eligibility or
trustworthiness, or award fiduciary responsibilities;
c. Deliberately providing false or misleading information
concerning relevant and ~aterialmatters to an investigator,
security official, competent medical authority, or other official
representative in connection with a personnel security or
trustworthiness determination;
d. Personal conduct or concealment of information that may
increase an individual's vulnerability to coercion, exploitation,
or duress, such as engaging in activities which, if known, may
affect the person's personal, professional, or community standing
or render the person susceptible to blackmail;
e. A pattern of dishonesty or rule violations, including
violation of any written or recorded agreement made between the
individual and the agency;
f. Association with persons involved in criminal activity.
17. Conditions that could mitigate security concerns include:
a. The information was unsubstantiated or not pertinent to
a determination of judgment, trustworthiness, or reliability;
b. The falsification was an isolated incident, was not
recent, and the individual has subsequently provided correct
information voluntarily;
c. The individual made prompt, good-faith efforts to
correct the falsification before being confronted with the facts;
 Unclassified

d. omission of material facts was caused or significantly

contributed to by improper or inadequate advice of authorized
personnel, and the previously omitted information was promptly and
fully provided;
e. The individual has taken positive steps to significantly
reduce or eliminate vulnerability to coercion, exploitation, or
duress ;
f. A refusal to cooperate was based on advice from legal
counsel or other officials that the individual was not required to
comply with security processing requirements and, upon being made
aware of the requirement, fully and truthfully provided the
requested information;
g. Association with persons involved in criminal activities
has ceased.

GUIDELINE F
Financial Considerations
18. The Concern.
An indi-vidualwho is financially overextended is at risk 'of having
to engage in illegal acts to generate funds. Unexplained
affluence is often linked to proceeds from financially profitable
criminal acts.
19. Conditions that could raise a security concern and may be
disqualifying include:
a. A history of not meeting financial obligations;
b. Deceptive or illegal financial practices such as
embezzlement, employee theft, check fraud, income tax evasion,
expense account fraud, filing deceptive loan statements, and other
intentional financial breaches of trust;
c. Inability or unwillingness to satisfy debts;
d. Unexplained affluence;
e. Financial problems that are linked to gambling, drug
abuse, alcoholism, or other issues of security concern.
20. Conditions that could mitigate security concerns include:
a. The behavior was not recent;
b. It was an isolated incident;
c. The conditions that resulted in the behavior were
 Unclassified

largely beyond the person's control (e.g., loss of employment, a

business downturn, unexpected medical emergency, or a death,
divorce or separation);
d. The person has received or is receiving counseling for
the problem and there are clear indications that the problem is
being resolved or is under control;
e. The affluence resulted from a legal source; and
f. The individual initiated a good-faith effort to repay
overdue creditors or otherwise resolve debts.

GUIDELINE G
Alcohol Consumption

21. The Concern.

Excessive alcohol consumption often leads to the exercise of
questionable judgment, unreliability, failure to control impulses,
and increases the risk of unauthorized disclosure of classified
information due to carelessness.
22. Conditions that could raise a security concern and may be
disqualifying include:
a. Alcohol-related incidents away from work, such as
driving while under the influence, fighting, child or spouse
abuse, or other criminal incidents related to alcohol use;
b. Alcohol-related incidents at work, such as reporting for
work or duty in an intoxicated or impaired condition, or drinking
on the job;
c. Diagnosis by a credentialed medical professional (e.g.,
physician, clinical psychologist, or psychiatrist) of alcohol
abuse or alcohol dependence;
d. Evaluation of alcohol abuse or alcohol dependence by a
licensed clinical social worker who is a staff member of a
recognized alcohol treatment program;
e. Habitual or binge consumption of alcohol to the point of
impaired judgment;
f. Consumption of alcohol, subsequent to a diagnosis of
alcoholism by a credentialed medical professional and following
completion of an alcohol rehabilitation program.
23. Conditions that could mitigate security concerns include:
a. The alcohol-related incidents do not indicate a pattern;
 Unclassified

b. The problem occurred a number of years ago and there is

no indication of a recent problem;
c. positive changes in behavior supportive of sobriety;
d. Following diagnosis of alcohol abuse or alcohol
dependence, the individual has successfully completed inpatient or
outpatient rehabilitation along with aftercare requirements,
participated frequently in meetings of Alcoholics Anonymous or a
similar organization, has abstained from alcohol for at least 12
months, and received a favorable prognosis by a credentialed
medical professional or a licensed clinical social worker who is a
staff member of a recognized alcohol treatment program.

GUIDELINE H
Drug Involv,ement

24. The Concern.

a. Imprgper or illegal involvement with drugs raises
questions regarding an individual's willingness or ability to
protect classified information. Drug abuse or dependence may
impair social or occupational functioning, increasing the risk of
an unauthorized discloscre of classified information.
b. Drugs are defined as mood and behavior altering
substances, and include:
(1) Drugs, materials, and other chemical compounds
identified and listed in the Controlled Substances Act of 1970, as
amended (e.g.,marijuana or cannabis, depressants, narcotics,
stimulants, and hallucinogens), and
(2) Inhalants and other similar substances.
c. Drug abuse is the illegal use of a drug or use of a
legal drug in a manner that deviates from approved medical
direction.
25. Conditions that could raise a security concern and may be
disqualifying include:
a. Any drug abuse (see above definition);
b. Illegal drug possession, including cultivation;
processing, manufacture, purchase, sale, or distribution;
c. Diagnosis by a credentialed medical professional (e.g.,
physician, clinical psychologist, or psychiatrist) of drug abuse
or drug dependence;
 Unclassified

d. Evaluation of drug abuse or drug dependence by a

licensed clinical social worker who is a staff member of a
recognized drug treatment program;
e. Failure to successfully complete a drug treatment
program prescribed by a credentialed medical professional. Recent
drug involvement, especially following the granting of a security
clearance, or an expressed intent not to discontinue use, will
almost invariably result in an unfavorable determination.
26. Conditions that could mitigate security concerns include:
a. The drug involvement was not recent;
b. The drug involvement was an isolated or aberrational
event ;
c. A demonstrated intent not Po abuse any drugs in the
future;
d. Satisfactory completion of a prescribed drug treatment
program, including rehabilitation and aftercare requirements,
without recurrence of abuse, and a favorable prognosis by a
credentialed medical professional.

GUIDELINE I
Emotional, Mental, and Personality Disorders
27. The Concern.
Emotional, mental, and personality disorders can cause a
significant deficit in an individual's psychological, social and
occupational functioning. These disorders are of security concern
because they may indicate a defect in judgment, reliability, or
stability. A credentialed mental health professional (e.g.,
clinical psychologist or psychiatrist), employed by, acceptable to
or approved by the U.S. Government, should be utilized in
evaluating potentially disqualifying and mitigating information
fully and properly, and particularly for consultation with the
individual's mental health care provider.
28. Conditions that could raise a security concern and may be
disqualifying include:
a. An opinion by a credentialed mental health professional
that the individual has a condition or treatment that may indicate
a defect in judgment, reliability, or stability;
b. Information that suggests that an individual has failed
to follow appropriate medical advice relating to treatment of a
condition, e.g., failure to take prescribed medication;
 Unclassified

c. A pattern of high-risk, irresponsible, aggressive, anti-

social, or emotionally unstable behavior;
d. Information that suggests that the individual's current
behavior indicates a defect in his or her judgment or reliability.
29. Conditions that could mitigate security concerns include:
a. There is no indication of a current problem;
b. Recent opinion by a credentialed mental health
professional that an individual's previous emotional, mental, or
personality disorder is cured, under control or in remission and
has a low probability of recurrence or exacerbation;
c. The past emotional instability was a temporary condition
(e.g., one caused by a death, illness, or marital breakup) , the
situation has been resolved, and the,individual is no longer
emotionally unstable.

GUIDELINE J
Criminal Conduct

30. The Concern.

A history or pattern of criminal activity creates doubt about a
person's judgment, reliability and trustworthiness.
31. Conditions that could raise a security concern and may be
disqualifying include:

a. Allegations or admissions of criminal conduct,

regardless or whether the person was formally charged;
b. A single serious crime or multiple lesser offenses.
32. Conditions that could mitigate security concerns include:

a. The criminal behavior was not recent;

b. The crime was an isolated incident;
c. The person was pressured or coerced into committing the
act and those pressures are no longer present in that person's
life;
d. The person did not voluntarily commit the act and/or the
factors leading to the violation are not likely to recur;
e. Acquittal;
f. There is clear evidence of successful rehabilitation.
 Unclassified

GUIDELINE K
Security Violations

33. The Concern.

Noncompliance with security regulations raises doubt about an
individual's trustworthiness, willingness, and ability to
safeguard classified information.
34. Conditions that could raise a security concern and may be
disqualifying include:
a. Unauthorized disclosure of classified information;
b. Violations that are deliberate or multiple or due to
negligence.
35. Conditions that could mitigate security concerns include
actions that:
a. Were inadvertent;
b. Were isolated or infrequent;
c. Were due to improper or inadequate training;
d. Demonstrate a positive attitude towards the discharge of
security responsibilities.

GUIDELINE L
Outside Activities

36. The Concern.

Involvement in certain types of outside employment or activities
is sf 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.
37. Conditions that could raise a security concern and may be
disqualifying include any service, whether compensated, volunteer,
or employment with:
a. A foreign country;
b. Any foreign national;
c. A representative of any foreign interest;
d. Any foreign, domestic, or international organization or
 Unclassified

person engaged in analysis, discussion, or publication of material

on intelligence, defense, foreign affpirs, or protected
technology.
38. Conditions that could mitigate security concerns include:
a. Evaluation of the outside employment or activity
indicates that it does not pose a conflict with an individualls
security responsibilities;
b. The individual terminates the enployment or discontinues
the activity upon being notified that it is in conflict with his
or her security responsibilities.

GUIDELINE M
Misuse of Information Technology Systems

3 9. The Concern.
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. Informatiqn Technology Systems include all related
equipment used for the communication, transmission, processing,
manipulation, and storage of classified or sensitive information.
40. Conditions that could raise a security concern and may be
disqualifying include:
a. Illegal or unauthorized entry into any information
technology system;
b. Illegal or unauthorized modification, destruction,
manipulation or denial of access to information residing on an
information technology system;
c. Removal (or use) of hardware, software, or media from
any information technology system without authorization, when
specifically prohibited by rules, procedures, guidelines or
regulations;
d. Introduction of hardware, software, or media into any
information technology system without authorization, when
specifically prohibited by rules, procedures, guidelines or
regulations.
41. Conditions that could mitigate security concerns include:
a. The misuse was not recent or significant;
b. The conduct was unintentional or inadvertent;
 Unclassified

c. The introduction or removal of media was authorized;

d. The misuse was an isolated event;
e. The misuse was followed by a prompt, good faith effort
to correct the situation.
 Unclassified

DCID 6/4
ANNEX D
Appeals Pro : Denial or Revocation of Access

1. Policy.
This annex establishes common appeals procedures for the denial or
revocation of access to sensitive compartmented information (SCI)
by entities of the Intelligence Community after adjudication
pursuant to the provisions of DCID 6/4. This annex is promulgated
pursuant to Executive Order 12333, Executive Order 12968, and the
National Security Act of 1947, as amended. For the purposes of
this annex, all references to DCID 6/4 include the basic document
and all of its annexes. Any individual who has been considered
for initial or continued access to SCI pursuant to the provisions
of DCID 6/4 shall, to the extent provided below, be afforded an
opportunity to appeal the denial or revocation of such access.
This annex supersedes any and all other practices and procedures
for the appeal of the denial or revocation of SCI access. This
annex will not be construed to require the disclosure of
classified information or information concerning intelligence
sources and methods, nor will it be construed to afford an
opportunity to appeal before the actual denial or revocation of
SCI access. In addition, the provisions of DCID 6/4, or any other
document or provision of law, will not be construed to create a
liberty or property interest of any kind in the access of any
individual to SCI.
2. Applicability.
This annex applies to all US Government civilian and military
personnel, as well as any other individuals, including contractors
and employees of contractors, who are considered for initial or
continued access to SCI. This annex does not apply to decisions
regarding employment and will not be construed to affect or impair
public Law 88-290 or the authority of any entity to effect
applicant or personnel actions pursuant to Public Law 88-290,
Public Law 86-36, or other applicable law.
3. SCI Access Determination Authority.

Adjudications for access to SCI will be made in accordance with

DCID 6/4 by a Determination Authority designated by the Senior
Official of the Intelligence Community (SOIC) of each entity.
Access to SCI shall be denied or revoked whenever it is determined
that a person does not meet the security standards provided for in
DCID 6/4. Any doubt about an individual's eligibility for access
or continued access to SCI shall be resolved in favor of the
national security and access will be denied or revoked.
 Unclassified

4. Procedures.
a. ~ndividualswill be:

(1) Provided as comprehensive and detailed a written

explanation of the basis for that determination as the national
security interests of the United States and other applicable law
permit.
( 2 ) Informed in this written explanation of their right
to be represented by counsel or other representative at their own
expense; to request any documents, records or reports upon which a
denial or revocation is based; and, to request the'entire
investigative file as permitted by the national security and other
applicable law.
(3) Provided within 30 days, upon request and to the
extent the documents would be provided if requested under the
Freedom of Information Act (5 U.S.C. 552). or the Privacy Act (5
U.S .C. 552a), as applicable, any documents, records and reports
upon which a denial or revocation is based.
(4) Provided an opportunity to reply in writing within
45 days of receipt of relevant documentation to request a review
of the determination. .
(5) Provided written notice of and reasons for the
results of the review, the identity of the deciding authority in
accordance with operational requirements, and written notice of
the right to appeal.
( 6 1 Provided an opportunity to appeal in writing to a
high level panel, appointed by the SOIC, which shall be comprised
of at least three members, two of whom shall be selected from
outside the security field. Decisions of the panel shall be in
writing, and final, except when the SOIC chooses to exercise the
appeal authority personally, based on a recommendation from the
panel, and provided to the individual.
( 7 ) Provided an opportunity to appear personally and to
present relevant documents, materials and information at some
point in the process before an adjudicative or other authority,
other than the investigating entity, as determined by the SOIC. A
written summary or recording of such appearance shall be made part
of the applicant's or employee's security record, unless such
appearance occurs in the presence of the appeals panel described
in subsection a.(6) of this section, in which case the written
decision of the panel shall be made part of the applicant's or
employee's security record.
b. When a SOIC or their principal deputy personally
certifies that a procedure set forth in this section cannot be
made available in a particular case without damaging the national
 Unclassified

security interests of the United States by revealing classified

information, the particular procedure shall not be made available
This certification shall be conclusive.
c. Nothing in this annex shall prohibit a SOIC from
personally exercising the appeal authority in paragraph a.(6)
above based upon recommendations from an appeals panel. In such
case, the decision of the SOIC shall be final.
d. A SOIC may determine that the appeal procedures
prescribed in this annex cannot be invoked in a manner that is
consistent with the national security. In ouch cases, a SOIC may
deny an individual an appeal pursuant to this annex and the
authority delegated to the SOIC by the DCI under the National
Security Act of 1947, as amended. The SOIC's determination in
this regard shall be conclusive.
e. The DCI or DDCI may take a3y actions regarding an
individual's SCI access without regard to. any of the provisions of
this or any other regulation or directive. The DCI or DDCI may
consult with the agency head pertaining to any action to be taken
regarding an individual's SCI access.
f. This annex does not create nor confer on any person or
entity any right to administrative or judicial review of these
procedures, their implementation, or decisions or actions rendered
thereunder. It also does not create or confer any right, benefit,
or privilege, whether substantive or procedural, for access to
classified information. Finally, this annex does not create or
confer any substantive or procedural right, benefit, or privilege
enforceable by any party against the United States or any agency,
department, or instrumentality of the executive branch, its
officers or employees, for any other person.
 Unclassified

DCID 6/4
ANNEX E
Standards for SCI Security Awareness
Programs in the US Intelligence Community
Consistent with controls and procedures set forth in DCID 1/19,
"Security Policy for Sensitive Compartmented Information," and its
supplement, "DCID 1/19 Security Policy Manual," standards are
hereby established for the SCI security education programs
designed to enhance the security awareness of the US Government
civilian and military personnel and private contractors working in
the US Intelligence Community. Compliance with these standards is
required for all departments/agencies within the Intelligence
Community. Existing security awareness programs will be modified
to conform with these standards. Departments/agencies will
establish a documented program to ensure that training has been
presented to all personnel.
All individuals nominated for or holding -SCI access approval will
be notified initially and annually thereafter of their
responsibility to report to their'cognizant security officers any
activities or conduct such as described in Annex C that could
conflict with their ajility to protect classified information from ,

unauthorized disclosure, Any outside employment, activities or ,

conduct that could craate real or apparent conflicts with their
responsibility to procect classified information must b@ reported.
The security awareness requirements set forth herein are divided
into three phases. Phase 1 concerns the initial indoctrination of
individuals, which is normally administered before access to SCI.
Phase 2 concerns the continuing security awareness program
required to maintain an increased security awareness throughout
the period of access. Phase 3 sets forth the final guidelines and
instructions when access to SCI is terminated.
1. Initial Indoctrination.
As soon as practicablt after being approved for access to SCI,
personnel will receive an initial security indoctrination that
will include:
a. The need for and purpose of SCI, and the adverse effect
on the national security that could result from unauthorized
disclosure.
b. The intelligence mission of the department/agency to
include the reasons w3y intelligence information is sensitive.
c. The adminisxative, personnel, physical, and other
procedural security requirements of the department/agency and
those requirements peculiar to specific duty assignments,
 Unclassified

including information on who to consult to determine if particular

outside employment or activity might be of concern.
d. Individual classification management responsibilities as
set forth in appropriate directives and regulations to include
classification/declassification guidelines and marking
requirements.
e. The definitions and criminal penalties for espionage,
including harboring or concealing persons; gathering,
transmitting, or losing defense information; gathering or
delivering defense information to aid foreign governments;
photographing and sketching defense installations; unauthorized
disclosure of classified information (Title 18, U.S.C., Sections
792 through 795, 797, and 798), the Internal Security Act of 1950
(Title 50, U.S.C., Section 7831, the Intelligence Identities
Protection Act of 1982 (Title 50, U.S.C., Sections 421 through
426) and, when appropriate, the Atomic Energy Act (Sections 224
through 227) .
f. The administrative sanctions for violation or disregard
for security procedures.
g. A review of the techniques employed by foreign
intelligence organizatiqns in attempting to obtain national
security information.
h. ~ndividualsecurity responsibilities including:
(1) The prohibition against discussing SCI in a non-
secure area, over a non-secure telephone, or in any other manner
that permits access by unauthorized persons.
(2) The need to determine, before disseminating SCI,
that the prospective recipient has the proper security access
approval, that the SCI is needed in order to perform official
duties, and that the recipient can properly protect the
information.
(3) The need to exercise security in activities as
members of professional, commercial, scholarly or advocacy
organizations that publish or discuss information on intelligence,
defense or foreign affairs.
(4) The continuing obligation to submit for review any
planned articles, books, speeches or public statements that
contain or purport to contain SCI or information relating to or
derived from SCI, as specified by the nondisclosure agreements
that are a prerequisite for access to SCI.
(5) Obligation to report travel to or connections with
countries with aggressive proactive intelligence capabilities, or
contacts with foreign nationals under certain circumstances, or
 unclassified

attempts (including blackmail, coercion and harassment) by

unauthorized persons to obtain national security information,
physical security deficiencies, and loss or possible compromise of
SCI material.
(6) Obligation to report to proper authorities all
activities or conduct of an individual who has access to SCI which
relates to guidelines described in Annex C, such as:
(a) Involvement in activities or sympathetic
association with persons which/who unlawfully practice or advocate
the overthrow or alteration of the United States Government by
unconstitutional means.
(b) Foreign influence concerns/close personal
association with foreign nationals.
(c) Foreign citizenship or foreign monetary
interests.
(dl Sexual behavior that is criminal or reflects a
lack of judgment or discretion.
(el Unwillingness to comply with rules and
regulations or to coopqrate with security processing.
(f) Unexplained affluence or excessive
indebtedness.
(g) Alcohol abuse.
(h) Illegal or improper drug use/involvement.
(i) Apparent mental or emotional disorder(s1.
( j) Criminal conduct
(k) Noncompliance with security requirements.
(1) Engagement in outside activities which could
cause a conflict of interest.
(m) Misuse of information technology systems.
( 7 ) Identification of the elements in the
department/agency to which matters of security interest are to be
referred.
2. Periodic Awareness Enhancement.
Each department/agency will establish a continuing security
awareness program that will provide frequent exposure of personnel
to security awareness material. Implementation of a continuing
 Unclassified

program may include live briefings, audiovisual presentations

(e.g., video tapes, films, and slide/tape programs), printed
material (e.g.,posters, memorandums, pamphlets, fliers), or a
combination thereof. It is essential that current information and
materials be utilized. Programs should be designed to meet the
particular needs of the department/agency.
a. The basic elements for this program will include, but
are not limited to, the following:
(1) The foreign intelligence threat (including the
threats associated with foreign travel and foreign associations)
(2) The technical threat.
(3) Administrative, personnel, physical, and procedural
security.
(4) Individual classificaiion.management
responsibility.
( 5 ) Criminal penalties and administrative sanctions.
(6) Individual security responsibilities

(7) A review'of other appropriate department/agency

requirements.
b. Special security briefings/debriefings should supplement
the existing security awareness programs in the following
situations:
(1) When an individual is designated as a courier.
(2) When high risk situations are present,
specifically:
(a) When an individual travels, officially or
unofficially, to or through countries with aggressive/proactive
intelligence capabilities or with connection(s) to terrorism or
criminal activity, or:
(b) When an individual has, or anticipates contact
with a representative(s1 of the countries identified above.
( 3 ) When any other situation arises for which the SOIC
or designee determines that an increased level of protection is
necessary.
 Unclassified

3. Debriefing .
When a department/agency has determined that access to SCI is no
longer required, final instructions and guidelines will be
provided to the individual. At a minimum these shall include:
a. A requirement that the individual read appropriate
sections of Titles 18 and 50, U.S.C., and that the intent and
criminal sanctions of these laws relative to espionage and
unauthorized disclosure be clarified.
b. Th@ continuing obligation, under the prepublication and
other provisions of the nondisclosure agreement for SCI, never to
divulge; publish; or reveal by writing, word, conduct, or
otherwise, to any unauthorized persons any SCI, withouz the
written consent of appropriate department/agency officials.
c. A n acknowledgment that the,individual will report
without delay to the Federal Bureau of Investigation, or the
department/agency, any attempt by an unauthorized person to
solicit national security information.
d. A declaration that the individual no longer 2ossesses
any docuients or material containing SCI.
e. A reminder of 'the risks associated with foreign travel
and foreign association.
 Unclassified

DCID 6 / 4
ANNEX F'

Reciprocity of SCI Eligibility Determinations

1. Reciprocity Policy.

a. Within the Intelligence Community, subject to the

conditions set forth below, a favorable DCID 6 / 4 eligibility
determination for access to SCI made by one adjudicative authority
under SOIC cognizance is a favorable determination for all SOICs.
Reciprocity of eligibility determinations does not in itself
constitute reciprocity of need-to-know determinations. Need-to-
know determinations are always distinct and separate decisions.
b. Reciprocity requires adjudication by trained government
adjudicators under SOIC cognizance and a system for monitoring
continuing security eligibility. Eliqibility decisions, including
the presence of exceptions, must be a matter of record accessible
to the Intelligence Community's access granting authorities.
c. DCID 6 / 4 eligibility determinations are mutually
acceptable and will not be readjudicated if:
(1) They are made without exception, and
(2) No substantial issue information exists since the
most recent adjudication, and
( 3 ) The appropriate type of polygraph examination, if
one is required, has been satisfactorily completed.
d. Agencies may accept or reject DCID 6 / 4 eligibility
determinations where exceptions exist based upon their own
assessment of risk. Any agency rejecting another's determination
of eligibility where exceptions exist will notify, to the extent
it is able to do so, all adjudicative authorities having an
eligibility interest in the person of its decision. Those
authorities, in turn, may reassess the appropriateness of
continuing to hold the person eligible with an exception.
e. Where an agency or organization has additional but not
duplicative requirements, the actual granting of access is
contingent upon satisfying those requirements. Failure to meet an
additional but not duplicative requirement may not necessarily
adversely affect a person's continued eligibility for reciprocal
access with other organizations and agencies. However, the agency
that made the original eligibility determination may use new
information obtained by another organization to readjudicate the

'Annex F was signed by the DCI on 13 O c t 99. At that time, the number of DCID
1/14 was changed t o 6 / 4 to corr'espond to an appropriate section in DCID 1/1

50
 Unclassified

person's continued eligibility subject to restrictions placed on

use of the information by the organization that obtained it.
f. A person determined ineligible for SCI access will
remain ineligible for a minimum of one year. However, SOICs or
their designees may waive this requirement in individual cases
based on operational necessity and an assessment by the relevant
determination authority that there is no unacceptable security
risk in doing so.
g. This annex does not apply to suitability decisions for
employment.

a. Exception: An adjudicative decision to grant or

continue access eligibility despite a failure to meet adjudicative
or investigative standards. Regardtng SCI access eligibility,
only the DCI or, as appropriate, the concerned Senior Official of
the Intelligence Community (SOIC) or designee will make such
decisions. An exception precludes reciprocity without review of
the case by the gaining organization or program. There are three
types :
(1) Conditiqn: Access eligibility granted or continued
with the proviso that one or more additional measures will be
required. Such measures include additional security monitoring,
restrictions on access, and restrictions on the individual's
handling of classified information. Submission of periodic
financial statements, admonishment regarding use of drugs or
excessive use of alcohol, and satisfactory progress in a
government-approved counseling program are examples of conditions.
(2) Deviation: Access eligibility granted or continued
despite either a significant gap in coverage or stop@ in the
investigation or an out-of-date investigation. "Significant gap"
for this purpose means either complete lack of coverage for a
period of six months or more within the most recent five years
investigated or the lack of an FBI name check or technical check
or the lack of one or more relevant investigative scope components
(e.g., employment checks or a subject interview for an SSBI,
financial review for any investigation) in its entirety.
( 3 ) Waiver: Access eligibility granted or continued
despite the presence of substantial issue information that would
normally preclude access. The DCI, SOIC, or SOIC's designee
approve waivers'pursuant to their authorities outlined in DCID
6/4, paragraphs 6a and b, only when the benefit of access clearly
outweighs any security concern raised by the shortcoming. A
waiver may require special limitations on access, .additional
security monitoring and other restrictions on the person's
handling of classified information beyond normal need-to-know.
Paragraph 6 of DCID 6/4 governs the granting of waivers insofar as
 Unclassified

they pertain to SCI access eligibility. In the Intelligence

Community, waivers may be contemplated when the person under
consideration for SCI access is not a United States citizen, when
any member of that person's immediate family is not a US citizen,
or when any member of the immediate family or other person with
whom there is a bond of affection or obligation is subject to
duress.
b. Issue information: Any information that could adversely
affect a person's eligibility for access to classified
information. There are two types:
(1) Minor issue information: Information that meets a
threshold of concern set out in "Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information" (see
Annex C to DCID 6/4), but for which adjudication determines that
adequate mitigation, as provided for by the Guidelines, exists.
Minor issue information does not provide the basis for a waiver or
condition.
( 2 ) Substantial issue information: Any information, or
aggregate of information, that raises a significant question about
the prudence of granting access eligibility. Substantial issue
information constitutes the basis for granting access eligibility
with waiver or condition, or for denying or revoking access
eligibility. Granting access eligibility when substantial issue
information exists is predicated upon meeting the requirements of
paragraphs 12a and b of DCID 6/4 for tailored security programs
whose purpose is to resolve issues.
c. Need to know: A determination made by an authorized
holder of classified information that a prospective recipient
requires access to specific classified information in order to
perform or assist in a lawful and authorized governmental
function.
d. Reciprocity: Acceptance by one SOIC of an SCI access
eligibility determination made by another. It applies both to
granting access when another SOIC has approved and denying access
when another SOIC has denied or revoked. Reciprocity does not
include agency determinations of employment suitability. Nothing
precludes SOICs or their designees from exercising authority to
grant or to deny access for reasons of operational necessity
regardless of another SOIC's decision.
3. The Effect of the Polygraph on Reciprocity.

The Intelligence Community uses the polygraph in defined

circumstances to provide additional information to the
adjudicative process. Reciprocity of an SCI eligibility
determination when a polygraph requirement exists is conditional
upon satisfactory completion of that requirement.
 Unclassified

4. Review of Access Determinations.

All denials or revocations of access eligibility are subject to

the review proceedings outlined in Annex D, above.
 Appendix D

Defense Office of Hearings and Appeals,

Additional Procedural Guidance
 Jan 2, 92
5220.6 (Encl 3)

DEFENSE OFFICE OF -HEARINGS AND APPEALS

ADDITIONAL PR0CEDUEU.L GUTDANCE

1. When the DISCO cannot affirmatively find that it is

clearly consistent with the nationdl interest to grant or
continue a security clearance for an applicant, the case shall be
promptly referred to the DISCR.
2. .upon referral, the DISCR shall make a prompt
determination whether to grant or continue a security clearance,
issue a statement of reasons (SOR) as to wfiy it is not clearly
consistent w i t h the national intekest to do so, or take interim
actions, including but not limited toi
a. Direct further investigation.
b. Propound written interrogatories to the applicant or
other persons with relevant information.
c. Requiring the applicant to undergo a medical
eMluation by a DOD Psychiatric consultant .
d. Interviewing the applicant.
3. An unfavorable clearance decision shall not be made
unless the applicant has been provided with a written SOR that
shall be as detailed and comprehensive as the national security
permits. A letter of instruction with the SOR shall -lain that
the applicant or Department Counsel may request a hearing. It
shall also explain the adverse consequences for failure to
respond to the SOR w i t h i n the prescribed time frame.
4 . The applicant must sutimit a detailed written answer to
the SOR under oathor affirmation that shall adnit or deny each
listed allegation. A general denial or other similar answer is
insufficient. To be entitled to a hearing, the applicant must
specifically request a hearing in his or her answer. The answer
must be received by the DISCR within 20 days from receipt of the
SOR. Requests for an extension of t h e to file an answer may be
submitted to the Director, DISCR,.or designee, who in turn may
grant the extension only upoc a showing of good cause.

5 . If the applicant Coes not file a timely and responsive

answer to the SOR, the Director, DISCX, or designee, mzy
discontinue processing the case, deny issuance of the requested
security clearance, and direct the DISCO to revoke any security
clearance held by the applicant.
6. Should review of the.applicant's 'answer to the SOR
indicate that allegations are unfounded, or evidence is
insufficient for further processing, Department Counsel shall
take such action as appropriate under the circumstances,
including but not limited to withdrawal of the SOR and
transmittal to the Director for notification of the DISCO for
appropriate action.
7. If the applicant has not requested a hearing with his or
her answer to the SOR and Department Founsel has not requested a
hearing within 20 days of receipt of the applicant's answer, the
case shall be assigned to an Administrative Judge for a clearance
decision based on the written record. Department Counsel shall
provide the applicant with a copy of all relevant and material
information that could be adduced at a hearing. The applicant
shall have 30 days from receipt of the information in which to
suhmit a documentary resgonse setting forth objections, rebuttal,
extenuation, mitigation, or explanation, as appropriate.
8 . If a hearing is requested by the applicant or Department
Counsel, the case shall be assigned to an Administrative Judge
for a clearance decision based on the hearing record. Following
issuance of a notice of hearing by the ACministrative Judge, or
designee, the applicant shall appear in person with or without
counsel or a personal representative at a time and place
designated by the notice of hearing. The applicant shall have a
reasonable time to prepare his or her case. The applicant shall
be notified at least 15 days in advance of the time and place of
the hearing, which generally shall be held at a location in the
United States within a metropolitan area near the applicant's
place of employment or residence. A continuance may be granted
by the Administrative Judge only for good cause. Hearings may be
held outside of the United States in NATO cases, or in other
'cases upon a finding of good cause by the Director, DISCR, or
designee.
9 . The Administrative Judge may require a prehearing
conference.
10. The Administrative Judge may rule on questions on
procedure, discovery, and evidence and shall conduct all
proceedings in a fair, timely, an6 orderly manner.
 Jan 2, 92
5220.6 (Enel 31

11. Discoveryby the applicant is limited to non-privileged

documents and materials subject to control by the DISCR.
Discovery by Department Counsel after issuance of an SOR may be
granted by the Administrative Judge only upon a showing of good
cause.
12. A hearing shall be open except when the applicant
requests that it be closed, or when the Administrative Judge
determines that there ,isa need to protect classified information
or there is other good cause for .keeping the proceeding closed.
No inference shall be drawn as to i+e merits of a case on the
basis of a request that the hearing be.closed.
13. As far in advance as practical, Depar-aent Counsel -and
the applicant shall serve'one another with a copy of any
pleading, proposed documentary evidence, or other written
communication to be submitted to the Administrative Judge.
14. Department Counsel is responsible for presenting
witnesses and other evidence to establish facts alleged inlthe .
SOR that have been controverted.
15. The applicant is responsible far presenting witnesses and
other evidence to rebut, explain, extenuate, or mitigate facts
admitted by the applicant or proven by Department Counsel, and
has the ultimate burden of persuasion as to obtaining a favorale
clearance decision.
16. Witnesses shall be subject to cross-examination.
17. The SOR may be-amended at the hearing by the
Administrative Judge on his or her own motion, or upon motior. by
Department Counsel or the applicant, so as to render it in
conformity with the evidence admitted or for other good cause.
When such amendments are made, the Administrative Judge may grant
either party's-request for such additional time as the
Administrative Judge may deem appropriate for further preparation
or other good cause.
18. The Admi~istrativeJudge hearing the case shall notify
the applicant and all witnesses testifying that 18 U.S.C. 1001
(reference (c)1 is applicable.
19. The Federal Rules of Evidence ( 2 8 U.S.C. 101 et seq.
(reference (dl)) shall serve as a guide. Relevant and material
evidence may be received subjec: to rsbuttal, and technical rules
of midence may be relaxed, except as otherwise provided herein,
to permit the development of a,full and camplete record.
20. Official records or evidence campiled or created in the
regular course of business, other than DoD personnel background
reports of investigation (ROT), be received and considered by
the Administrative Judge without authenticating witnesses,
provided that such information has been furnished by an
investigative agency pursuant to-its responsibilities in
connection with assisting the Secretary of Defense, or the
~epartmentor Agency head.concerned, to safeguard classified
iafornration w i t b i n industry under E.O. 10865 (enclosure 1). An
ROI may be received with an authenticating witness provided it is
otherwise admissible under the Federal Rules of Evidence (28
U.S.C. 101 et seq. (reference (dl)).
21. Records that cannot be inspected by the applicant because
they are classified may be received and considered by the
Administrative Judge, provided the GC, DoD, has:
a. Made a p r e l k h a r y determination that such evidence
appears to be relevant and material.

b. Determined that failure to receive and consider such

evidence would be substantially harmful to the national security.
22. A written or oral statement adverse to the applicant on a
controverted issue nlay be received and considered by the
Administrative Judge without affording an opportunity to
cross-examine the person making the statement orally, or in
writing when justified by the circumstances, only in either of
the following circumstances:
.. a. If the head of the Department or Agency supplying the
statement certifies that the person who furnished the infornation
is a confidential informant who has been engaged in obtaining
intelligence information for the G o v e r n a t and that disclosure
of his or her ideptity would be substantially harmful to the
national interest; or

b. If the GC, DoD, has determined the statement

concerned appears to be relevant, material, and reliable; failure
to receive and consider the statement would be substantially
harmful to the national security; and the person who furnishec!
the information cannot appear to testify due to the following:
 Jan 2 , 92
5220.6 (Encl 3)

(1) Death, severe illness, or similar cause, in

which case the identity of'the person and the information to be
considered shall be made available to the applicant; or

(2) Same other cause determined by the Secretary of

Defense, or when appropriate by the Department or Agency head, to
be good and sufficient.
23. Whenever evidence is received under items 21. or 22.,
above, the applicant shall be fuznished with as comprehensive and
detailed a sr-mrmarv of the information as the national security
permits. The Abinistrative Judge and Pgpeal Board may make a
clearance decision either favorable or unfavorable to the
applicant based on such evidence after giving appropriate
consideration to the fact that the applicant did not have an
oppoisunity to confront such evidence, but any final
determination adverse to the applicant shall be'made only by the
Secretary of Defense,. or the Depa-t or Agency head, based on
a personal review of the case record.
24. A verbatim transcript shall be made of the hearing. The
applicant shall be furnished one copy of the transcript, less the
exhibits, without cost.
25. The Administrative Judge shall make a written clearance
decision in a timely manner setting forth pertinent findings of
fact, policies, and conclusions as to the allegations in the SOR,
and whether it is clearly consistent with the national interest
to grant or continue a security clearance for the applicant. The
applicant and Department Counsel shall each be provided a corn of
the clearance'decision. In cases in which evidence is received
under items 21. and 22., above, the Administrative Judge's
written clearance decision may require deletions in the interest
of national security.
26. If the d n i s t r a t i v e Judge decides.that it is clearly
consistent with the national interest for the applicant to be
granted or to retain a security clearance, the DISCO shall be so
notified by the Director, DISCR, or designee, when the clearance
decision becomes final in accordance'with item 36., below.
27. If the Administrative Judge decides that it is not
clearly consistent with the national interest for the applicant
to be granted or tc retain a security clearance, the Director,
DISCR, or designee, shall exgeditiously notify the .DISCO, which
shall in turn notify the applicant's employer of the denial or
revocation of the applicant's sezurity clearance. The letter
forwarding the Administrative Judge's clearance decision,tothe
applicant shall advise the applicant that these actions are being
taken, and that the applicant may appeal the Administrative
Judge's clearance decision.
28. The applicant or Department Counsel may appeal the
Administrative Judge's clearance decision by filing a written
notice of appeal with.the Appeal Board within 15 days after the
date of the Administrative Judge's clearance decision. A notice
of appeal received after 15 d a y s from the date of the clearance
decision shall not be accepted by the Appeal Board, or designated
Board Member, except for good cause. , A notice of ,crossappeal
may be filed with the Appeal Board within.10 days of receipt of
.the notice of appeal. An untimely cross appeal shall not be
accepted by the Appeal Board, or designated Board Member, except
for good cause.
2 9 . Upon receipt of a notice of appeal, the Appeal Board
shall be provided the case record. No new evidence shall be
received or considered by the Appeal Board.
30. After filing a timely notice of appeal, a written appeal
brief must be received by the Appeal Board within 4 5 days from
the date of the Administrative Judge's clearance decision. The
appeal brief must state the specific issue or issues being
raised, and cite specific portions of the case record supporting
any alleged error. A written reply brief, if any, must be filec!
within 20 days from receipt of the appeal brief. A copy of any
brief filed must be served upon the applicant or Department
Counsel, as appropriate.
31. Requests for extension of time for submission of briefs
may be submitted to the Appeal Board or designated Board Member.
A copy of any request for extension of t h e must be served on the
opposing party at'the time of submission. The Appeal Board, or
designated Board Mernber,'shallbe responsible .for controlling the
Appeal Board's docket, and may enter an order dismissing an
appeal in an appropriate case or vacate such an order upon a
showing of good cause.

32. The Agpeal Board shall address the material issues raised
by the parties to determine whether hamfui error occurred. Its
scope of review shall be to determine whether or not:
 Jan 2, 92
5220.6 (Encl 3)

a. The Wmiaistrative Judge's findings of fact are

supported by such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion in light of all the
contrary evidence in the same record. In making this review, the
m e a l Board shall give deference to the credibility
determinations of the Administrative Judge;
b. m e Administrative Judge adhered to the procedures
required .by E.O. 10865 (enclosure 1) and this Directive; or
. c. The Administrative Judge's rulings or
conclusions are arbitrary, capricioys, or contrary to law.
33. h e Appeal Board shall issue a written clearance decision
addressing the material issues raised on appeal. The Appeal Board
shall have authority to:
a. Affirm the decision of the Administrative Judge;
b. Remand the case to an Administrative Judge to correct
identified error. If the case is remanded, the Appeal Board shall
specify the action to be taken on remand; or
c. Reverse the decision of the Administrative Judge if
correction of identified error mandates such action.
34. A copy of the Appeal Board's written clearance decision
shall be provided to the parties. In cases in which evidence was
received under items 21. and 2 2 . , above, the Appeal Board's
clearance decision may require deletions in the interest of
national security.
35. Upon r-d, the case file shall be assigned to an
Administrative Judge for correction of e=or(s) in accordance with
the Appeal Board8,sclearance decision. The assigned Administrative
Judge shall make a new clearance decision in the case after
correcting the error (s) identified by the Appeal Board.
' The
Administrative Judge's clearance decision after remand shall be
provided to the parties. The clearance decision after remand may
be appealed pursuant to items 28. to 3 5 . , above.
36. A clearance decision shall be considered final when:
a. A security clearance is granted or continued pursuant
to item 2., above;
 b. No timely notice of appeal is filed;
c . No timely appeal brief is filed after a notice of
appeal has been filed;
d. The appeal has been withdrawn;
e. When the Appeal Board affirms or reverses an
Mministrative Judge's clearance decision; or
f. When a decision has been made by the Secretary of
Defense, or the Degartment or Agency head, under to item 23.,
above.
The Director, DISCR, or designee, shall notify the DISCO
of all final clearance decisions.
37. An applicant whose security clearance has been finally
denied or revoked by the DISCR is barred from reapplication for 1
year from the date of the initial unfavorable clearance decision.
38. A reapplication for a security clearance must be made
initially W the applicant's emplayer to the DISCO and is subject
to the same processing .requirements as those for a new security
clearance application. The applicant shall thereafter be advised
he is responsible for providing the Director, DISCR, with a copy
of any adverse clearance decision together with evidence that
circumstances or conditions previously found against the applicant
have been rectified or sufficiently mitigated to warrant
reconsideration.
39. If the Director, DISCR, detezmhes that reconsideration is
warranted, the case shall be subject to this Directive for d i n g
a clearance decision.
40. If the Directoz, DISCR, determines that reconsideration is
not warranted, the DISCR shall notify the, applicant of this
decision. Such a decision is final acd bars further reapplication
for an additional one year period from the date of the decision
rejecting the reapplication.
41. Nothing in t U s Directive is intended to give an applicant
reapplying for a security clearance any greater rights than those
applicable to any cther apglicznt under this Directive.
 Jan 2, 92
5220.6 h c l 3)

42.. An applicant may file a written petition, under oath or

affirmation, for reimbursement of loss of earnings resulting from
the suspension, revocation, or denial of his or her security
clearance. The petition for reiPbursement must include as an
attadrment the favorable clearance decision and docrrmentation
supporting the reimbursement claim. The Director, DISCR, or
designee, may in his or her discretion require additional
infornation from the petitioner.
43. Claims for re--sement must be f S e d with the Director,
DISCR, or designee, w i t h i n 1 year after the date the security
clearance is granted. Department ,.Counsel generally shall file a
response within 60 days after receapt of applicant's petition for
reimbursement and provide a copy thereof to the applicant.
44. Reimbursement is authorized only if the applicant
demonstrates by clear and convincing evidence to the Director,
DISCR, that all of the following conditions are met:

a. The suspension, denial, or revocation was the primary

cause of the claimed pecuniary loss; and
b. The suspension, denial, or revocation was due to gross
negligence of the Department of Defense at the time the action was
taken, and not in any way by the applicant's failure or refusal to
cooperate.
45. The amount of reimbursement shall not exceed the difference
between the earnings of the applicant at the time of the
suspension, revocation, or denial and the applicant's interim
earnings, and further shall be subject to reasonable efforts on
the part of the applicant to mitigate any loss of earnings. No
reimbursement shall be allawed for any period of undue delay
resulting from the applicant's acts or failure to act.
Reimbursement is not authorized for loss of merit. raises and
general increases, loss of employment opportunities, counsells
fees, or other costs relating to proceedings under this Directive.
46. Claims approved by the Director, DISCR, shall be forwarded
to the Department or pgency concerned 'for payment. Any payment
made in response to a claim for reimbursement shall be in full
satisfaction of any further claim against the Unitsd States or any
Federal Department or Agency, or any of its officers or employees.
. 47. Clearance decisions issued by Administrative Judges and
the Appeal Board shall be indexed and made available in redacted
fozm to the public.
 Appendix E

Defense Office of Hearings and Appeals, Memorandum

for all Applicants and Their Respective Attorneys or
Personal Representatives, and Department Counsel,
Prehearing Guidance for DOHA Hearings
 DEPARTMENT OF DEFENSE
DEFENSE LEGAL SERVICES AGENCY
DEFENSE OFFICE OF HEARINGS AND APPEALS
WASHINGTON HEARING OFFICE
POST OFFICE BOX 3627
ARLINGTON, VIRG][NIA 22203
(703) 696-4542

MEMORANDUM FOR ALL APPLICANTS AM> THEIR RESPECTIVE ATTORNEYS OR

PERSONAL REPRESENTATIVES, AND DEPARTMENT COUNSEL

SUBJECT: Rehearing Guidance for DOHA1 hearings

In an effort to exped'ite the hearing in DOHA industrial security clearance cases, the following
guidance is being sent to Applicants and their respective attomes or Personal Representatives, and
Department Counsel (the parties) to assist them in preparing for the hearing. This guidance is not
exhaustive, and the parties should also refkr to Department of Defense Directive 5220:6 for guidance
on hearing matters. In the event of e y conflict between this guidance and the provisions of DoD
Directive 5220.6,~the provisions of the Directive control.

1. The hearing is an adversarial proceeding in which the parties have the responsibility to
present their respective cases. The Government is normally represented by an attorney known as a
Department Counsel. . The Applicant has the optionof appearing by himself or herself without an
attorney, or being represented by an attorney selected and paid for by the Applicant, or by being
represented by a Personal Representative such as a friend, family member, or union representative.

2. Each party is expected to be prepared to present at the hearing whatever evidence

(t&imo~dor documentary, or both) that party intends to offer. In this regard, it should be noted
that the Administrative Judge is not empowered by law to issue a subpoena. Thus, the appearance
of witnesses or production of documents is purely voluntary.

3. To facilitate the exchange of correspondence, proposed evidence, the handling of

prelimby matters, and the scfieduling of hearings, any person representing an Applicant should file
a written Entry or Notice of Appearance with both Department Counsel and the Hearing Office
Dockel Clerk. No special form or format is required.

4. A party requesting a continuance of a scheduled hearing date must make a timely showing
of good cmlse, in writing, for any such continuance. Among the factors to be considered are the

'The Directorate for ~ndu&al Security Clearance Review (DISCR) was redesignated as the Defense Office of
Hearings and Appeals (DOHA), efcectiveMay 20,1994.

ZThe January 2,1992 edition of the Directive has been amended on three occasions: Change 1 became effective
on November 22,1993; Change 2 became effective on May 20,1994;and Change 3 became effective on February 16,1996.
requester's diligence in readying his or her case prior to the date set for the hearing, and
inconvenience to the opposing party, witnesses, and the Administrative Judge. Failure of an
Applicant to appear for the scheduled'hearingor to comply with an order of the Administrative Judge
may result in the case being returned to the Director, DOHA for discontinuance of processing and
revocation of any security clearance the Applicant currently possesses.

5. Neither party should attempt to fbmish any information relating to the case without giving
the other party the opportunity to be present. Such actions constitute what are known as prohibited
ex parte communications. Also, copies of any proposed exhibits must not be submitted to the
Administrative Judge prior to the hearing. Any documents to be offered as evidence should be
presented at the hearing itself during the presentation of that party's case. In some instances, when
an Applicant has appended documents to the response to the Statement of Reasons, the documents
have been returned with an explanation that such materials are inappropriate to a pleading and that
they should be resubmitted as proposed exhibits during the hearing. If such action has occurred, an
Applicant should inform the Administrative Judge during the hearing, and be prepared to again offer
the material previously rejected.

6. The order of proceeding is is follows: Department Counsel may make an opening

statement. Then, Applicant may make an opening ~tatement,~ waive opening statement, or wait until
the Government has concluded calling witnesses and submitting evidence before making or waiving
his or her opening statement. The Government presents its case (testimony of witnesses or
'presentation of documents, or both) first, followed by the Applicant's case. The parties will have the
opportunity to present rebuttal evidence as appropriate.

7. The parties have a wide degree of discretion in deciding what order to present the evidence
in their respective cases. The Federal Rules of Evidence are used as a guide.

8. The parties should not mark any proposed exhibits. At the hearing, the Administrative
Judge will mark the &%its. Exhiiits offered as evidence, but not admitted as such, will be retained
by the Administrative Judge. As a general rule, photocopies of documents may be offered in lieu of
the original, provided that the copies are legible. In the case of public records or business records,
it is not required that the copies being offered be certified copies. However, nothing in this paragraph
relieves a party fiom the responsiiility of laying a proper foundation for a document when necessary.
It is generally good practice to make d c i e n t photocopies of each proposed exhibit so that separate
complete copies can be offered to the Administrative Judge and the opposing party. Preparation of
such additional copies should take place before the scheduled hearing date, because there may not
be any photocopying facilities available at the hearing location.

'~nopeningstatement is not kidence. It is merely a summary of the theory of the case and a brief explanation as
to the nature of the e@ testimony of witnesses and the nature of documents, which serves to provide the Administrative
Judge with some general idea of the case to be better able to understand the evidence.
 9. Witnesses will be sequestered (kept out of the hearing room while other witnesses are
testifjring) during the hearing, with the exception of the Applicant and any expert witnesses. The
parties may have the assistance of any expert witness, selected and paid for by the party wishing to
call the witness, during the course of the hearing.

10. The Administrative Judge does not swear in Applicants or other witnesses who testify.
Instead the Administrative Judge will direct their attention to, and advise them that Section 1001 of
T i 18 of the United States Code applies to the proceedings. Section 1001 of Title 18 of the United
States Code makes it a criminaloffense, punishable by a maximum of 5 years in prison and a $10,000
fine,or both, to knowingly and wiUUy make a Use or misleadimg statement or representation to any
department or agency of the United States.

11. All witnesses are subject to cross-examination, or questioning, by the other party. The
scope of crossexamination is not limited to the scope of the witness's direct examination. However,
any r;ros-examination must cover issues that are material and relevant to the issues in the case or the
witness's credibility. As a general rule, the parties will be allowed an opportunity to conduct one
redirect examination and one recross-examination of a witness. The Administrative Judge may, in
his or her discretion, question any witness. .

12. Each party has the right to raise appropriate objections to any evidence, or portion
thereof, being offered by the other party. Objections must be made in a timely fashion. Failure to
raise an objection, at the time the objectionable evidence or testimony is offered, will be construed
as acquiescence. When raising an objection, the objecting party should address the objection to the
Admhktrative Judge, stating the basis for the objection4 The non-objecting party will be given an
opportunity to respond to the objection, if he or she wishes. The Administrative Judge will rule on
any objection raised. In the event an objection is overruled, the objecting party has an automatic
exception to the Administrative Judge's ruling.

13. After completion of the presentation of evidence by the parties, they will have an
opportunity to make closing argument^.^ Department Counsel will go first. Applicant follows, with
Department Counsel having a right to rebuttal. Applicant does not have a right to respond to
Department Counsel's rebuttal argument.

14. A court reporter will be present to make an official transcript of the hearing. The court
reporter will send the original transcript to the Administrative Judge, and a copy of the transcript, free
.
of charge, to the Applicant or Applicant's attorney, as appropriate.

'An Applicant, not represented by an attorney, need only state the objection as clearly as he or she can, in plain
ELI&& "Legalesenis not necessary.

'A closing statanent is not tvidence. It is merely a review of the sigruficant evidence and commentary regarding
the applicability or urn-applicability,aSappropriate, of adjudication policy factors, both disqualifying and mitigating, as set
forth in the Directive, which serves to provide the Administrative Judge with a better or "guided"understanding of the
evidence.
 15. The Administrative Judge will not announce his or her decision to the parties at the end
of the hearing. A copy of the Administrative Judge's w-ritten decision will be sent to the by
letter explaining the provisions for appeal.

16. The Administrative Judge has the discretion to vary the provisions of this guidance upon
a showing of good cause, or whenever necessary to provide for the fair and efficient administration
of the proceeding under the Directive.

Robert R. Gales
Chief Administrative Judge
 Appendix F

Defense Office of Hearings and Appeals, Statement of Reasons

 DEPARTMEST OF DEFENSE
DEFEXSE LEGAL SERVICZS AGENCY
DEFENSE OFFICE OF HEARINGS AND APPEALS
POST OFFICE BOX 3636
ARLINGTON, VlRGINM 22203-1995

In re: 1
1
1
SSN: I . . . ) ISCR Case No.
1
Applicant for Security Clearance 1'.
1

A review of your eligibility for security clearance has been made pursuant to
Executive Order 10865, as amended, and as implemented by DoD Directive 5220.6,
dated January 2, 1992, and this office is unable to find that it is clearly consistent
with the national interest to grant you access to any classified information and
recommends that your case be submitted to an Administrative Judge for a
determination whether to deny or revoke your security clearance. This
recommendation is based on the following reasons:

1. Criterion 3: A history or pattern of criminal activity creates doubt

about a person's judgment, reliability and trustworthiness. Available information
raising this concern shows that:

a. You mischarged labor costs to a government contract on one

occasion in 1995 when you knowingly submitted a false time card for an absent
employee.

b. You mischarged labor costs to government contracts in 1995

when you distributed contract charge numbers to employees,- directing them to
charge labor costs to these contracts on which they may not have directly worked.

c. You were terminated for cause from employment with

October 17, 1995, due to violation of company rules, i.e., you
i on
mischarged labor costs to government contracts as set forth in subparagraphs 1.a.,
and 1.b., above.

d. That information set forth under paragraph 2., below, which

constitutes a violation of Federal law, Title 18, United States Code, Section 1001,
a felony.

2. Criterion E: Conduct involving questionable judgment,

untrustworthiness, unreliability, or unwillingness to comply with rules and
regulations could indicate that the person may not properly safeguard classified
information. Available information raising this concern shows:

a. In a signed, sworn statement dated September 20, 1996, and

presented to a Special Agent of the Defense Investigative Service, you
misrepresented material facts in that you stated you had signed off on a false entry
on an employee's time c&d but you denied you had otherwise mischarged labor
costs on government contracts; when in fact, you had also directed employees to
charge labor costs to various government contracts on which they may not have
worked.

b. During a March 20, 1997 interview with a Special Agent of the

Defense Investigative Service, you misrepresented material facts in that you stated
you had knowingly submitted a false time card for an absent employee, claiming it
was an isolated incident, and denied you had otherwise mischarged labor costs at
any other time, when, in fact, you had also mischarged labor costs to government
contracts when you distributed contract numbers to employees directing them to
charge labor to these contracts on which they may not have worked.
The criteria cited above will be found in Enclosure 2 of the referenced DoD
Directive 5220 -6.

Robert Kames
Personnel ~ecurit)iSpecialist
 DEFENSE LEGAL SERVICES AGENCY
DEFENSE OFFICE OF HEARINGS AND APPEALS

In re: 1
1
1 ISCR Case No.
1
Applicant 1

applicant, in answer to the Statement of

Reasons and in response to the specific numbered paragraphs
states as follows:
la. Denied.
lb. Denied.
lc. Denied, except that I admit my employment was
terminated by on
Id. Denied.
2a. Denied.
2b. Denied.
Applicant does request a hearing.

COUNTY OF 1
1
STATE OF 1

SUBSCRIBED AND SWORN to by before me, a

Notary Public, in the jurisdiction aforesaid this day of

Notary Pub1 ic
My Commission Expires:
 DEFENSE LEGAL SERVICES AGENCY
DEFENSE OFFICE OF HEARINGS AND APPEALS

In re: )
)
1 ISCR Case No.
1
Applicant 1

applicant, in answer to the Statement of

Reasons and in response to the specific numbered paragraphs
states as follows:
la. Denied.
Ib. Denied.
lc. Denied, except that I admit my employment was
terminated by on
Id. Denied.
2a. Denied.
2b. Denied.
Applicant does request a hearing.

COUNTY OF 1
STATE OF 1

SUBSCRIBED AND SWORN to by before me, a

Notary Public, in the jurisdiction aforesaid this -day of

Notary Public
My Commission Expires:
 Appendix G

Department of Energy, Part 710, Criteria and Procedures

for Determining Eligibility for Access to Classified Matter
or Special Nuclear Material
goPartmentof Energy Pt. 710

PART 7 1 0-CRITERIA AND PROCE-

DURES FOR DETERMINING EUGI-
BlllTl FOR ACCESS TO ClASSi-
FlED MARER OR SPEClAL NU-
CLEAR MATERlAL
Subpart A-General Crtterla and Proce
durn for Determining EnglbllHy for Ac-
C- t~ acmtned Matter or spedol
Nuclear Mcterlal

Sec.
no.1 Purpose.
710.2 SCOW.
n0.3 Reference.
no.4 POUCY.
nos D~~IWOIU.

710.6 Csoperac:on by c2e lndtvldual.

710.7 ApuUcatlon of l;he cdceda.
'ir0.8 Critetia
no.9 AcUon on cisregatom w o l m a u o u .
n0.10 S U S Q ~ Mof~access
O ~ au~orfzacioa
.Urn5P;Unr~RZ'IIEW
710.20 -030 of admlnistradoe mvlew.
T I 0 2 Noclce to Individual.
n0.22 Additional Loformacton.
n0.23 Excensioru oC Ume by &e Opec%UOns
OLnce Manager.
n0.24 Appoinmenc of DOE Counsel.
nos AppolnPnenc of Hearing OfLlcer: pra-
hearlag conference: commencement of
heartm.
n0.Z Conducc of hearlngS.
nO.73 Oplnlon of &e H s m n g Omcer.
n o 2 8 AcUon on cbe H e a r ! ! OLflcer'r ouln-
ton.
no2J New evidence.
n0.30 Acdon by tke SecracarJr.
n0.3I Reconsldeeadon of access ellslbUltp.
~ " ( E O C S
710.32 Termlrratlons.
n0.33 Anorney represencadon.
n0.34 'Lime lramm.
~epartmentof Energy
ual's eligibllity for access authorfia-
tion.
(2) The information whlch creates a
substantial doubc regarding the lndi-
vtdual's ellgfbfflty for access author-
lzation (which shall be as comprehen-
sive and detailed as the national Inter-
est permits).
(3) That the Indlvldual has the option
to have the substantial doubt regard-
Lng eliglbUlty for access authorization
resolved in one of two ways:
(1) By the Manager. without a hear-
ing. on the basls of the existing Infor-
mation in the case:
(if) By personal appearance before a
Bearing Omcer (a "hearing").
(4) That. K the'tadividual desires a
hearing. the individual must. within 20
calendar days of the date of receipt of
the notiflcadon letter. indicate thls in
1710.20 Purpose of administrative re- miting to the Manager from whom the
view. letter was received.
These procedures establish methods (5) That the lndividual may also We
for the conduct of the administrative with the Manager the indtvtdual's writ-
revlew of questions concernfng an Lndf- ten answer to the reported lnformadon
vidual's ellglbility for access author- which raises the question of the Indi-
hation when t t 1s determined that such vidual's eligiblLlty for access aathor-
questions cannot be favonbly resolved &atton. and that. if the lndividual re-
by interview or other accion. quests a hearing without itling a writ-
ten answer. the request s h l l be
$71011 Notice to individual. deemed a general denial of all of the re-
(a) When the Director. Office of Safe- ported lnforrnac:on.
guards an@ Securlty, has authorized (6) That. tf the !ndivtdual so requests,
the h c i t u t i o n of admFnlstrative r e a hearing will be scheduled beiore a
vlew procedures with respect to an In- Hearing Omcer. with due regard for che
dividual's quescloned eligibflity for ac- convenience and necessity of the par-
cess authorizacion. In accordance with
rln0.9, the ma nag or shall dtrect the Mes or their representatives, for the
preparation of a notification letter, a p purpose of aifordtng the lndfvldual an
proved by the local Omce of Chief opportuntty of supporting his eLlgi-
Counsel. or the OUlce of General Coun- bflity for access authorization:
sel for Readquarten cases. for delivery (7) That. ff a hearfng is requested. the
to the tnbividua.l *thin 30 calendar lndlvidual will have the right to appear
daps of the recelpc of such -directive personally before a Hearing Offlcer: to
ltom the Office of Safeguards and Secu- presenc evidence In his own behalf.
rity, unless an exteasion has been au- through witnesses. or by documents. or
thorized by the fiirector. Offlce of Safe- both: and. subject to the Umltationa
guards and Securlty. Where prac- set forth in §710.26(g). to be present
Ucable, such letter shall be presented during the enttre hearing and be ac-
to the individual in person. companied. represented. and advised by
(b) The letter shall state: counsel or representative of the lndi-
(1) That reliat le Lnformatlon In the vl&ual's chooslng and a t the lndivid-
Pasaession of DOE has created a sub- ual's own expense;
atantla1 doubt concerning the lndlvid-
5710.22 10 CFR Ch. 111 (1-1-98 Edman)
(8) That the individual's tatlure to indfvidual's counsel or representative
flle a Umely arrftten request for a h-2 U so represented to clarify lssues and
lag before a Hearing Offlcer in accord- reach stipulations wlth respect to tea-
ance with paraeaph (bI(4) of thls sec- timony and conmats of documents and
tloa unless Mma deadlines are ex- other physical eoidence. Such s t i g u b
tended for good came. wUI be constd- tlons shall be binding upon the ladivld-
ered LU a rellnpulshment by the W- ual and the DOE Counsel far the pat-
vldual of the right to a he- pro- poses
- of this subpart.
vided ta thls subgart, and that k t such
event a Llnal decision will be made by 0710.16 AppoIntm-t of Hearing Om.
the Manager: and cer; pn?hePriPg conference; corn-
(91 That In ans ~roceedlnwunder mencement of h-
tI& s u b ~ a n~ ~ ~ - ~ o uwtli
n s be
e lpsr- (a) Upon receipt of a request for a
ticiuating on behalf of and representing hearing. the Manaper shall in a timely
the Department of Energy. and that maMer transmtt that request to the
any statements made by the lndlvldual Omce of Heartngs and Appeals. and
to DOE Counsel may be used in subse- IdentLfy the DOE Counsel. The M a -
quent proceedlam. ager shall a t the ssme time transmit a
copy of the nottflation letter and the
071022 Addltiopal Information. individual's response to the Offlce of
The notiflcatlon letcer mferen& in Hearings and Appeals.
§no2shall also: (b) Upon receipt of the hearing r+
(a) Describe the fndivldual's access quest from the Manager. the Director.
authorization s t a m until f u n h e r no- Ofnce of Hearings and Appesls. s W
tice: appoint. as soon as practicable. a Hear-
(b) Advlse the indlvldual of the rtght ing Offlcer.
to counsel a t the individcral's own ex- (c) lmmedtately upon appointment of
pense a t each and every stage of the the Eearlng Olllcer. the OMce of Eeaz-
proceeding; bgs and Appeals shall notifg the fndt-
(c) Ro*de the name and teleuhoxe vtdual and DOE Counsel of the Eeartng
number of the d a t e d DOE oiilctal OUlcer's identicy and the address to
to contact for w ffrnher information whtch all further correspondence
desired including an explanation of the should be sent.
individual's rtqhts under the P?.vacy (d) The Eeartng Offlcer shall have all
Act of 1974: and powers necessary to regulate the con-
(dl Inciude a copy of 10 CFR P- 710. duct of proceedlngs under this subpart.
Subrrsn A. tncludlna. but not limited to. estsblish-
i& a of pemons to receive semlce
9710.29 Ertensfons of time by the O p of papers. tss-g subpoenas for wit-
enrtlons W c a Jdanager. nesses to attend the he-g or for the
The Manager may. for good cause production of specinc documents or
showa. a t the wrltten request of the in- other physical evidence. adminlstertW
dividual. extend the time for U n g a oaths and afflrmactons. d i n g upon
wrltten nguest for a hearing. aadlor motions. receiving evidence. regulating
the time for Llling a writtea answer to tAe course of the hearing. dlsposill~of
the matters contained In the-nodn.ca- procedural requests or slmilac matters.
tlon letter. The Manager shall n o w and taking ocher actions consistent
the Director. Offlce of Safeguards and wlth the regulations in this subpart.
Security. when sucb extensions have Requests for subpoenas shall be lib-
been approved. erally sranted except where the Hear-
ing 0filcer Ends that the gaat of sub-
4 710.34 Appointment of DOE Counsel. poenas would clearly result in evldence
(a) Upon receipt &om the Indi-aduai or testimony that 1s repetitious. in-
of a wrltten request for a hearing, an competent, irrelevant. or fmmatedal
attorney shall forthwith be assigned by to the Issues In the w e . The EeartnB
the Manager to act as DOE Counsel. Ofncer map take sworn testfmony, S*
(b)DOE Counsel is suthorlzed to con- quester witnesses. and control the dis-
sult ditcctly wlth the Individual U he is semination or reproduction of sn3
not represented by counsel. or witA the record or tesdmony taken pursuant to
~apcrtmentof Energy
this part. LncludLng correspondence. or the pendency of proceedings under this
other relevanc records or tangible evl- Pan.
dence hcludhlg. but not llmlted to. Ln- (b) Unless the Hearlng Oiflcer Qnds
formation retalned In computerbed or good cause for gtanting a a v e r of this
other automated systems ln possessJon wramaph or granting an extension of
of the subpoenaed person. time, In the event t h a t the individual
(a) The Hearfng OMcer will deter- unduly delays the hearlng, such as by
&e the day. time. and place for the failure to meet deadlines set by the
hearing. Eearlnm w i l l normally be held Hearing Offlcer, the record shall be
a t or near the sppmpriate DOE fa.cfl- closed. and a dnal decision shall be
ity, unless the Hearlng Omcer deter- made by the Manager on the basis of
mines that another location would be the record in the case.
more appropriate. Normally the loca- (c) Hearings shall be open only to
tion for the h e w w i l l be selected for DOE Counsel. duly authorized r e g
the convenience of all participants. In
the event the fndividual falls to appear resentatlves of the staff of DOE, the in-
at the time and place specifled. the dividual and his counsel or other r e g
record i n the case shall be closed and resentatlves. and such other persons as
r e w e d to the Manager. who w i l l then mag be authorlzed by the Hearlng Offl-
make a -1 determination regarding cer. Unless otherwise ordered by the
the eligibllfty of the indlviduaJ for Ee&.ng Offlcer, witnesses shall testify
DOE access authorization. in the presence of the indlvldual but
.(fl -4t least 7 calendar dam prior to not in the presence of other witnesses.
the dace scheduled for the hearing. the (dl DOE Counsel shall assist the
Hearing Officer W11 convene a prehear- Hearlng OMcer in establishing a com-
conference for the purpose of dts- plete administrative hearing record In
cussing stipulations and exhtbits, lden- the proceeding and bringing out a full
tLetng witnesses. and disposing of and crue dtsclosure of a.ll tacta. both fa-
other appropriate matters. The con- vorable and unfavorable. havlng a bear-
ference will u s d y be conducted by ing on the issues before the Hearing Of-
telephone. ficer. The individual shall be afforded
(g) R e a r ! ! shaIl commence wtthln the opportunity of presenting evfdence.
90 calendar days from the dace the bdl- inc!u&n,o tesctnony by the indlvtdual
vidual's request for hearing is received in the indtvidual's own behalf. The pro-
by the OfClce of Hearings and Appeals. ponent of a witness shall conduct the
hny extension of the hearing dace past dlrecc examination of that witness. W
90 calendar days from the date the re- witnesses shall be subject to cross- ex-
quest for hearing is received by the Of- amination. if possible. Whenever rea-
flce of Ee@?ngs and Appeals shall be sonably possible. testimony s h d be
approved by the Director. Offlce of given in person.
Heartnqs and Appeals. (e) The Hearfng Officer may ask the
witnesses any questions which the
9 71016 Conduct o f hearings.
Hearlng OLtlcer deems appropriate to
(a) In all hearings conducted under assure the fullest possible d l s c l o s ~ of
thts subpart. the individual shall have relevant and material facts.
the right to be represented by a person (0 During the course of the hearing.
of his own choosing. The indlvldual is the Hearing OMcer shall nrle on all
responsible for producing witnesses ln questions presented to the Rearing Of-
his o m behalf. including requesting tlcer for the Hear!ng Officer's deter-
the issuance of subpoenas, if necessary. mination.
or presenting other proof before the
Hearing OLflcer to support his defense (g)In the event i t appears during the
to the allegations contained in the no- course of the hearlng t h a t Restricted
UflcaUon letter. W i t h the exception of Dam or natlonal security lnformadon
procedural or schedulhg matters. the may be dlsclosed. it shall be the duty
Hearing OflIcer Is prohibited horn hi- of the Keulng OfLIcer to assure that
t l a w or otherwise engaging l n ex disclosure is not made to persons who
W t e discussions about the c u e during are not authorized to receive it.
 10 CFR Ch. 111 (1-1-98 Edition)
(h) Formal rules of evidence shall not (k)h m t t e n or oral statement of a
apply. but the Federal Rules of Evi- person relating to the characterization
dence may be used as a m d e for groce- In the nottncatton letter of any o m -
duns and principles designed to assure zaMon or person other tbarr the lndivid-
pmductiou of the most probative evi- ual msp be received and considered by
dence available. The Hearing Officer the Eearlng Officer Ktthout affording
ehall admit into evidence any matters. tAe lndividnal an opportnnltp to cmss-
either oral or written. which are mate- examine the person maMng the state-
rial. relevant. and competent in deter- ment on matters r e l a m to the char-
m b b g issues Involved. including the acterization of such organization or
testimony of responsible persons con- person. provided the individual is given
cernLng the integrity of *&e individual. notice that it has been received and
In making such determinations. the ut- may be considered by the Hearing Om-
most latitude shall be permitted with cer. and is informed of its contents pro-
respect to relevancy. materfallty. and vlded such is not prohibited by para-
competency. The gearing Officer may graph (g)of this section.
also exclude evfdence which is incom- (1) Any oral or written statement ad-
petent. immaterial. irrelevant, or un- verse to the i n m d u a l relatag to a
duly repetitious. Every reasonable ef- controverted lssue may be received and
fort shall be made to obtaln the best considered by the Hearing Omcer wlth-
evidence available. Subject to out affording an opportantty for cross-
8 710.26(1). n0.26(m). n0.m. n0.2qo). examination in either of the following
hearsay evidence may in the discretion cfrcumstances:
of the Hearing Officer and for good (1)The head or' the agency supplying
cause shown be admitted without strlct the statement certfnes that the person
adherence to technical rules of adds- who famished the inionnstlon is a. con-
sibillty and shall be accorded such Bdential informant who has been en-
weight as the circumstances warrant. gaged in ob- inteugence infor-
(i) Testimony of the indipidual and mation for the Government and that
wttnesses shall be given under oath or disclosure of the informant's identity
atZnnatfon. Attention of the individ- would be substanciaLly harmful to the
ual and each witness shall be dkected national interest:
to 18 U.S.C. 1001 and 18 U.S.C. 16p. (2) The Secretary or his spec1a.l des-
(j) The Rearing Officer shall endeavor ignee for that particular purpose has
to obtain all the facts that ate reason- p r e M a r ? l y determined. after consid-
ably available in order to arrive a t ering information furPtshed by the in-
flndtngs. If. prior to or during the pro- vestigative agency as to the reliability
ceedings. in the opinion of the Hezulng of the person and the accuracy of the
OMcer. the allegations in the noUfica- statement concerned. that:
tlon letter ate not suftlcient to cover (1) The statement concerned appears
all matters lnto which inq- should to be reliable and mterial: and
be directed, the Hearing Ofacer shall (fi) Fatlure of &e Hearing Officer to
recommend to the Operations Offlce receive and consider such statement
Manaaer concerned that. in order to would. in view of the access sought to
give more adequate notice tc- the indi- Restricted Data. nationat security in-
vidual. the notiffcation letter should be formation. or special nuclear rnatertal.
amended. Any amendment shall be be substantially harmful to the na-
made with the concurrence of the local tional securfty and that the person
Offlce of Cbief Counsel or the Office of who furnished the information cannot
General Counsel ln Headquarters cases. appear to testify
If. in the opinion of the Hearing Om- (A) Due to death. severe illness. or
cer. the circumstances of such arnend- similar cause. In whtch Cage the iden-
ment may involve undue hardships to tity of the person and the information
the individual because of limited time to be considered shall be made avail-
to answer the new allegations in the able to the Lndividual. or
notlflcatton letter. an appropriate ad- (B)Due to some other specifled cause
journment shall be m e e d upon the determtned by the head of the agency
request of the individual. to be good and sufIlcient.
Department of Energy
(m)Whenever procedures under p a n - and whlch the Bearing Offlcer believes
g n p h (1) of thls section are used: need further lnvescigation o r claciflca-
(1) The lndlvldual shall be glven a tion. In thls event. the Hearing Offlcer
summary or deacriptlon of the Informa- shall s e t forth i n writing those tssues
tlon which shall be as comprehensive upon whlch more evldence Is requested
and detailed as the national fnterest ldentifglng where posaible persons or
permtts. and sources from which the evidence should
(2) hppropr!atd consideration shall be be sought. The Local Dfrector o i Secu-
accorded to the k t t h a t the lndivtdual rity shall make every effort through
did not have a n opportunity to cross- appropriate sources to ob taln a d d -
exambe such person(s). ttonal informatton upon the matters
(n) Records compiled i n the regular Lndlcated by the Eearing Officer.
course of business. or other physical (a) h written transcript of the entire
evidence other than tnvestlgacive re- proceedings shall be made and. except
ports obtained b y DOE. may be re- for portions containing ilestrlcted
ceived a d considered subject to rebut- D a t a or national security information.
tal wlthout authenticating witnesses a copy of such L,-anscript shall be fur-
provided thac such tnformation has nlshed the lndlvldual wlthout cost.
been furnished to DOE by an tnvestiga- (I)Whenever fnformation is made a
tive agency pursuant t o i t s responsibfl- part of the record under the esceptlona
itles in connecclon with assisting the authorized by paragraphs (I) o r (01 of
Secretary to safeguard Restricted this section. the record shalI contain
Data. national securlcy tnfonnation, or cerclflcates eoidencing thac the deter-
special nuclear material. m1nat:ons required therein have been
(0) Records compiled i n the r e m a r made.
course of business. or other physical
evidence ocher ban lnvesclqative re- j710.27 Opinion of the Hearing OW-
ports. relating to a controverted tssue cer.
whlch. because they a r e classified. may (a) The Fiearisg OfLlcer shall care-
not be Inspected b y t h e lndlvtdual, may fully consider the record i n viev of the
be recei~ec! and considered provided scanduds set forch herein and shall
that: render a n lnitlal opinion as co whether
(1) The S r c r e r a r j or his special des- the q 3 n t or restoradon oi' access au-
lgnee far chac particular pur;lose has thonzacion co cke individuzl would not
made a preliminaw determination t h a t e c d a g e r the corx.on der'exe and se-
such physical evidence appears to be c,~rsrttyand vould be c!ear!;- consistent
macerial: wlth che national interest. Is rssolving
(2) m e Secretary or his special des- a quescion conceraing the eiigibillty of
ignee for t h a t particular purpose has an !ndtvtdual for access a.uchorizatlon
made a decerrninacion t h a t f a i l u r ~to under these procedures. the Vearir!g Of-
receive and cons:der such physical eoi- flcer shall consiCer the f a c ~ o r sstated
dence would. in view of the access in paragraph 710.7(c) to detsrmlne
sought to Restricted Data. national se- whether the ilndlngs will be adverse or
curity lniormation. or special cuclear favorable.
material sought. be substantiaIl y (b) In reac*g t h ~Cziiizqs. the
hatmful to che nacional securlfy; and Hearlcg Otflcer shall consider the ds-
(3) To the extent that national secu- meanor of the witn?sses 'xho 'save tes-
rtty permits. a sununary or descriyclon tified a t :he hearing. the probability or
of such physical evidence is made likelihood of the w a t h of their testi-
available co the lndivtdual. In every mony, t h e e credlbtllty, a d che au-
such case. iniormation as to the au- the2tic:ty and acc-zacy o i documen-
thentlcity and accuracy of such phys- t a r y eedence. or lack of ?v-ide~ce3n
lcal evldenca furnished by tiie lnves- a n 7 materlal points in issue. Lf t t e in-
tigaclve agency shall be considered. dividual is. or may be. hacdlcapped by
(p) The Hearing Offlcer may request the non-disclosure to the indlvlduai of
the Local Director of Security to ar- contldentlal information 3r by lack of
range for addttional investigation on opportllllitp to dross-ttxarnine conilden-
a y points which a t e macerial to the tlal Informants. the Hearing Offlcer
dellberattons of t h e Hearlng Offlcer shall take that facc lnio cocsidemtion.
 10 CFR Ch. Ill (1-1-98 Gtiitton)

Poesible unpact of the loss of the in&- ( g ) In the event the Hearing Officeps
vidual's access authorization upon the? ,pinion Is adverse to the individual,
DOE p r o m shaJl noc be conaidered u d the individual does not flle a re-
by the Bearing Ottlcer. auest for fhmher ravfew p w u a u t to
(c) The Hearing Omcer shall make in0.28. a copy of the adanlabtrauve
spec in^ flndLngs baaed upon the record %cord shall be provfded to the Dtrec-
as to the valldity of each of the allega- tor. Office of Secarity bfltalrs. who
Kons contained ln t&e notiflcatlon let- shall make a fLnal determination on
ter and the significance which the the basis of the IIWerfal contained In
Hearing Omcer attaches to such valid the admfnistrattve record
allegations. These flndings shall be 571028 Acdon o n the Hearing
supponed fully by a statement of rea- ceis opinion.
sons whlch constitute the 'basis for
such findings. (a) The Omce of Securlty hUairs or
(dl The Hearing Officer's opinion the lndividual Involved may ffle a re-
shall be predicated upon the Hearfng quest for revlew of the Hearing Om-
s fact. It. after con- cer's opinion issued under 8710.27 wlth-
Officer's ~ d l n g of
siderlng all the factors In light of the Ln 30 calendar days of receipt of the
criterfa set forth i n thls subpart. the opinion. Any such mxuest shall be flied
Hearing Officer is of the optnton that it with the Dlrecto3. OfLlce of He-gs
will noc endanger the common defense and Appeals. and served on the other
and securftjt and w l l l be clearly con- Party.
sistent with the national interest to ing (b) Within l!j calendar days after fll-
grant or continue access aathorfiatlon a request for review under this sec-
to the indtvidual. tke Reat?ng OfLlcer tlon. a
the parcy seeklng revfew shall ffle
statement identifying the issues on
shall render a favorable opinion: other- whfch i t wishes the Director. Ofnce of
wise, the H e w Omcer shall render Reaclngs and Appeals. to focus. A copy
an adverse opinloa of such statement shall be served on
(e) The Ofnce of Heazfnqs and A p the other party. who may ffle a re-
peals shall h u e the opinion of the sponse within 20 days of receipt of the
Hear!!g Ottlcer withtn 30 calendar dam statement.
of the receipt of the hearfng transcrlpc (c) The Director. Office of Heartags
by the Bearlug Officer. or the closing and Appeals. may inttiate an lnvestiga-
of the record. whfchever is later, unless tion of any statement contained in the
an extension is meed by the Dlrec- request for review and utilize any rel-
tor. OfIlce of Hearings a d Appeals. evant facts obtained by such tnvestiga-
Copies of the Hearing Offlcer's oplnion tion ln conducclng the revlew of the
will be 3rovlded to the OEce of Secu- Hearlng Officer's oglnion. The Dlrec-
rity .W.the Manager. the individ- tor. Ofnce of E e M and Appeals.
ual concerned and his counsel or other may solicit and accept submissions
representatives. DOE Counsel. and any from either the individual or the Offfcp:
other part;r identifled by the Hearlng of Sece.ty .lEairs. that are relevant
OfUcer. A t that time. the individual to the revlew. The Dlrector. Ofnce of
shall also be notltIed of his Aght to re- Hearlngs and Appeals. may establish
quest fluzher revlew of hb case gursu- appropriate time frames to allow for
ant to 47l0.28. such responses. Ln reolewlng the Hear-
(0In the event the Rearlzg Offlcer's lng Officer's opinfon. the Dlrector. Of-
opinion 1s favorable to the lndtvidual. a ffce of Hearings and Appeals. may con-
copy of the adznblstrative record in sider any other source of lnfonnation
the case shall also be provided to the that will advance the evaluation. pro-
Offlce of Security .%ffaLrs. The Direc- vided that both parties are afforded an
tor. Offlce of Sacu?ty -Waks will de- oppomunlty to respond to all third per-
terzllne whether: son submissions. All information ob-
(1)To gant or relustate the Lndtvtd- tained under thls section shall be made
ual's access authorization. or part of the administrative record.
(2) To refer the case to the Director, (dl Withln 45 days of the closing of
Omce of Hearings and Appeals. for fur- the record. the Dlrector. Omce of Hear-
ther review. ings and .kppeals. shall make speciflc
gepartrnent of Energy
mdings disposing of each substantial rector. Omce of Hearings and .\ppeals.
issue identined in a written statement Copies of the correspondence shall also
support of t h e request for review and be provided to t h e Dlrector. Omce 02
the wrltten response submltted by ei- Hearings and Appeals. t h e Manager.
ther the Individual or the Offlce of Se- DOE Counsel. and a n y o t h e r party. In
curfty Affatff. and shall predicate Us t h e event of an adverse d e t e ~ t i o n .
opinion on the administrative record. the correspondence shall Lndicace the
lncludlng any new evldence t h a t may findlngs by the Dlrector. Ofnce of Se-
b v e been submitted pursuant to curlty .Wa.lrs. with respect to each al-
gn0.29.I% after considering all the fac- legation contatned In t h e notiflcatlon
tors in light of t h e crlteria s e t forth in le tcer.
tbts subpart. t h e Director. Offlce of
Hearings.and Appeals. is of the opinion 9 7 1 0 3 New evidence.
that it will n o t endanger the common (a) In the event of t h e discovery of
defense and security and wl11 be clearly new evidence relevant t o the allega-
consistent with t h e national interest tions contained in t h e notification let-
to grant or contlnue access authoriza- t e r prlor to Qnal determination of the
tion to the individual. the Director. Of- indtvldual's eligibility for access au-
Uce of Hearings and Appeals. shall thorization. s u ~ h ' e ~ a d e n cshall
e be sub-
render an opinton favorable to the indf- mttted by the offering p a r t y t o t h e Dl-
vidual: otherwise. the Dlrector. Dfflce rector. Offlce of Safeguards and Secu-
of Hearings and Appeals. shall render rity. DOE Counsel shall notify t h e indi-
an opinion adverse to the individual. vidual of a n y new evldence submitted
The m i t t e n opinion of the Dlrector. by DOE.
OfCce of HearUxs a n d Appeals, shall be (b)The Dlrector. Offlce of Safeguards
prodded to the Director. Omce of Se- and Security, shall:
curity .Affairs. accompanfed by the ad- (I) Refer the m a t t e r t o the Eearlnq
mlntscratlve record i n the case. The Dl- Otflcer appointed i n t h e indlvtdual's
rector. Offlce of Eearlngs and Appeals. case if the Hear?ng Offlcer h a s - n o t yec
shall notify t h e individual of the fore- issued a n opinion. The Eeartng Oftlcer
going action. gecttnq the application for the presen-
(e) Within 30 calendar days of receipt tacion of new evidence shall decennine
of-the opinton of the Dlrector. O n c e of the appropriate form !n which a n y new
@ear?ngsand Appeals. the Director, Of- evrdence. and che ocher party's re-
fice of Sacunty .Affairs. will make the sponse. shall be received. e.g.. by testl-
flnal determination. based on a com- rnony beiore tbe H e a d n g Offfcer, by
piece redew of t h e record. whether ac- deposition or by aflldavit.
cess authorization shall be granted or (2) Ln those cases where the Hearing
dented. or reinstaced or revoked. If. Ofncer's opinion has been issued. the
after considering all of the factors in application for gresentatlon of new evi-
llght of the criteria set forth In thls dence shall be referred to the Director,
subpart. the Dtrector. Offfce of Secu- Offtce of H e a r t n s and Appeals. or the
rity -4ffalr-s.determines t h a t i t will not Director. OffIce of Secl.Wty AffaLrs, de-
endanger the common defense and se- pendlng upon where t h e case resldes. In
curity and wlll be clearly consistent the evenc that the Director, Offlce of
Wth the national interest, access au- Hearlam and bppeals. o r Director. Of-
thorization shall be granted to or rein- fice of Securtty Affalrs, determines
stated for the lndlvidual: othenrtse. t h a t the new evldence should be re-
the Dlrector. Offlce of Security .Uaim, celved. he shall decermtne the form in
shall deterrnlne t h a t access author!!- which It. and the other party's re-
tion shall be dented to or revoked for sponse. shall be ~eceived.
the individual. (c) When new evidence submitted by
(D The Dlrector. Offlce of Securlty either party 1s received inco the record.
hltalrs,shall. through the Director. Of- the opposing party shall be afforded
ace of Safeguards and Security. Inform t h e opportunity to cross-e-ne the
the lndlvtdual involved and his counsel source of the new lnforrnation or to
or representative In writing of the final subrnlt a Foritten response, unless the
deterrnlnation and provlde a copy of tniormation 1s subject t o the e x c e g
the written opinion rendered by the Di- tlons in 8710.26 (1) or (01.
 10 CFR Ch. 111 (1-1-98 Edition)
9 710.30 Action by the Secretary. voking access authorization to an indi-
(a) Whenever an individual has not vidual. the Individual's eligibility for
been afiorded an opportanity to cross- access authorfzation may be reconsid-
examlne wltnesaes who have furnished ered when there is a bona Ude offer or
lnformacion adverse ta the Individual employment requiring access to Re-
under the pmvtsions of 9n0.28 (I)or (0). stricted Data. national security Mar-
only the Secretary may issue a final mation or special nuclear material.
detenninauon denying or revoldng the and there is either:
access authorization after personally (1) Material and relevant new e e -
revlewfng the record. dence which t2e lndividual and the Ln-
(b) When the Secrecarg makes a ttnal dlvtdual's representatives are without
determination regarding the indivtd- fault in failing to present earlier, or
ual's ellaibfflt~for DOE access author- (2) Convtncing evidence of reiorma-
ization. the Inhividual will be notifled. tion or rehabilitation-
by the Dlrector, Offlce of Security -4f- (c) A request for reconsideration
fairs, of that decision and of the Sec- shall be submitted in writing to the
retary's tlndlngs wlth respect to each W a g e r having jurisdiction over the
allegation contained In the nocifica- ~ositionfor which access authorization
tlon letter and each substantial issue required. A request for reconsider-
idencifled Ln the statement in support ation shall be accompanied by an am-
of the request for review. davit setting fotth in d e w the new
(c) Nothing contained in these proce- evidence or evldence of reformation ar
dures shall be deemed to limit or affect rehabilltation. The Manager shall no-
the responsibflfty and powers of the tify the individual as to whether the
Secretw to issue subpoenas or to individual's ellgibfflty for access au-
deny or revoke access to Restricted thorizatlon will be reconsidered a n d if
Data zacfonal secarftp Lnformation. or so. the method by whlch such reconsid-
special nucleat rnaterlal if the securlty eration w i l l be accomplished.
of the nation so requires. The Sec- (dl FLnat decermlnatfons regarding
retam's authorttg may not be dele- eligibflity for DOE access authoriza-
gated and may be exercised only when tion 13 reconsideration cases shall be
the Secretary determines that the pro- made by the D!mctor. Office of Secu-
cedures prescribed in 9710.26 (1) or (01 rity .Iffaiff.
cannot be fnvoked consistant with the
national securlty. and such deter--
tlon shall be conciusive.
0710.31 Reconsfderation of access eli- 0 710.32 Terminations.
gibilitp. In the event the tn&viduai is no
(a)Where, pursuant to the procedures longer an applicant for access aut5or-
set forth in 6710.20 through 710.30. the lzacion or no longer requires access au-
Dlrector. Oftloe of Securlty hffairs. or thorization. the procedures of this sub-
the Secretary has made a determina- p u t shall be terminated without a
tlon granebg or reinstating access au- anal deterninacion as to the Fndlvld-
thorization to an indivldual. the indi- ual's ellgibtlitp for access authoriza-
vidual's eligibility for access author- tion.
ization shall be reconsidered as a new
admlatstracive review under the proce- 9 710.33 Attorney representation.
dures set forth ln thls subpart when In the event the individual is reg.
previously unconsidered substantially resented by an actorney or ocher r e p
derogatory Fnforrnation is identifled. or resentatives. the individual shall file
the Individual vlolates a commttment wlth the Hear!!g OfLicer and DOE
or promise upon which the DOE pre- Counsel a document designating sucfr
vlousl~relied to favorably resolve an atcorney or representatives and au-
issue of accese eligibility. thorlzing one such attorney or r e p
(b) Where. pursuant to those proce- resentacive to receive all correspond-
dures. the Manager, Director. OiQce of ence. transcripts, and other documents
Securlty Afiatrs. or the Secretary has pertaining to the proceeding under this
made a detennlnaUon denying or re- subpart.
Department of Energy Pt. 7 10, Subpt. A. App. A

3 710.34 Tlme frames.

Statements of time established tor
processing aspects of a case under this
subpaR are the agency's desired t i m e
mmes In Lmulemenclag the procedures
sec forth la thls subpart. They shall
hav'e no Lmpact upon the anal disposi-
Mon of an access auchorfiatton b y an
Operatiom Offlce Manager, the Dlrec-
tor, Oface of Security Aftatrs. or the
Secretan. and shall confer no rights
upon an tndlvldual whose eliglbtlity for
access auchorizacion is being consid-
ered.
 Appendix H

United States District Court, Protective Order

 APPENDIX H

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

UNITED STATES OF AMERICA 1

1
v. ) Criminal No.
1
)

PROTECTIVE ORDER

This matter comes before the Court upon the Government's Motion for Protective

Order to prevent the unauthorized disclosure or dissemination of classified national security

information and documents, which will be reviewed or made available to the defendant and

his counsel in this case.

Pursuant to Section 3 of the Classified Information Procedures Act, 18 U.S.C. App.

I11 (1988) ("CIPA"); Security Procedures Established Pursuant to Pub. L. 96-456,94 Stat.

2025, by the Chief Justice of the United States for the Protection of Classified Information

(the "Security Procedures"); rules 16(d) and 57 of the Federal Rules of Criminal Procedure;

the general supervisory authority of the Court; and in order to protect the national security,

IT IS ORDERED:

1. The procedures set forth in this Protective Order, CIPA, and the Security

Procedures shall apply to all pretrial, trial, post-trial and appellate matters concerning

classified information in this case.

 2. As used herein, the terms "classified national security information and documents,"

"classified information" and "classified documents" refer to :

(1) any classified document (or information contained therein);

(2) verbal classified information known to the defendant or defense counsel;

(3) classified documents and information which have otherwise been made known to

the defendant or defense counsel, and which documents have been marked: "Confidential,"

"Secret" or "Top Secret," or "Sensitive Compartmented Information" where the defendant

or defense counsel have been advised in writing from the government of their classified

nature.

3. All such classified documents and information contained therein shall remain

classified unless the documents bear a clear indication that they have been declassified by

the agency or department that is the originating agency of the document or the information

contained therein (hereinafter, the "originating agency").

4. The words "documents" or "information" as used in this Order include, but are not

limited to, all written or printed matter of any kind, formal or informal, including originals,

conforming copies and non-conforming copies (whether different from the original by reason

of notation made on such copies or otherwise), and further include, but are not limited to,

(1) papers; correspondence; memoranda; notes; letters; telegrams; reports; summaries;

inter-office and intra-office communications; notations of any sort concerning conversations,

meetings or other cummunications; bulletins; teletypes; telefascimiles; invoices; worksheets;

and drafts, alterations, modifications, changes and amendments of any kind to the foregoing.
 (2) graphics or oral records or representations of any kind, including, but not limited

to, photographs; charts; graphs; microfiche; microfilm; videotapes; sound recordings of any

kind; and motion pictures;

(3) electronic, mechanical ro electric records of any kind, including, but not limited

to, tapes; cassettes; disks; recordings; films; typewriter ribbons and word-processing disks

or tapes; and

(4) information acquired orally.

5. This case involves classified national security information and documents. The

storage, handling and control of such documents and information require special security

precautions mandated by statute, executive order, and regulation, and access to which

requires a special security clearance.

6. The Court has been advised that the government attorneys working on this case,

----- ----- ----- -------

9
and -------- --------, have the requisite security clearances to have

access to the classified documents and information that relate to this case.

7. In accordance with the provisions of CIPA and the Security Procedures, the Court

designates --------- --- ------- as Court Security Officer for this case, and --------- ----------,
--_______
------------ _---------- ----------
9
and ------------ ---------- as alternate Court Security
Officers, for the purpose of providing security arrangements necessary to protect from

unauthorized disclosure any classified information or documents to be made available to the

defendant or his counsel in connection with this case. Defense counsel shall seek guidance

&om the Court Security Officer with regard to appropriate storage and use of classified

3
information.

8. This Order shall apply to the defendant, defense counsel and any other person who

may require or receive access to classified national security information or documents

connected with this case.

9. Defendant and the following attorneys for the defense and their approved

employees shall be given access to classified national security documents and information

as required by the Government's discovery obligations and as necessary to prepare for

proceedings in this case, in accordance with the terms of this Protective Order and upon

receipt of the appropriate security clearances: ------.-------- ----- -.------ ------- -.--------------
----- ------- and ------ -------.

10. Before any person, including the defendant and his counsel, but not including

government counsel, appropriately cleared Court personnel, appropriately cleared

Department of Justice employees, and appropriately cleared personnel of the originating

agencies, shall inspect or review classified national security information involved in this

case, he or she must also sign and swear to the Memorandum of Understanding ("MOU")

appended to this Protective Order. Each such person executing the MOU must file an

executed original with the Court and in addition must provide an executed original to the

Court Security Officer.

11. Unless already holding an appropriate security clearance, and approved for access

to classified material in the instant case, for the purpose of establishing security clearances

necessary for access to classified information that may be involved in this case, Standard
Form 86 ("Security Investigation Data for Sensitive Position"), attached releases, and h l l

fingerprints shall be completed and submitted to the Court Security Officer forthwith by

defense counsel, all persons whose assistance the defense reasonably requires, and by such

Court personnel as the Court requires for its assistance. The Court Security Officer shall take

all reasonable steps to process all security clearance applications.

12. Any request for disclosure of classified information to additional persons not

named in paragraph 9 will require the approval of the Court and will be made by motion.

The government will be given an opportunity to be heard in response of any defense request

for disclosure to a person not named in paragraph 9 above. Any person approved by the

Court for disclosure under this paragraph shall be required to receive the appropriate security

clearance from the Court Security Officer, to sign and submit to the Court the MOU

appended to this Order, and to comply with all terms and conditions of this Order. Any

request for security clearances and for access to classified documents and information in this

case shall be made to the Court Security Officer, who shall promptly file them.

13. Defense counsel shall be given access between 8 a.m. and 6 p.m., and at all other

times including weekends and holidays upon 24 hour notice, to a secure room approved by

the Court Security Officer for the storage of classified national security documents and for

the preparation of documents which contain classified information. The defendant shall have

access to the room only with the presence of defense counsel, and only during the hours of

8 a.m. to 6 p.m. weekdays, unless these hours are amended by Order of Court. No

documents containing classified information may be removed from this room unless
authorized by the Court Security Officer.

14. No person who is permitted to inspect and review classified national security

information and documents under the terms of this Protective Order shall copy or reproduce

any part of them, in any manner or form, except as provided by the Court Security Officer.

15. Classified national security documents and information, and information believed

to be classified, shall only be discussed in an area approved by the Court Security Officer,

and in which persons not authorized to possess such information cannot overhear such

discussions.

16. No one shall discuss classified information related to this case over any standard

commercial telephone instruments or office intercommunication systems, or in the presence

of any person who has not been granted access to classified information in this case by the

Court.

17. Written materials containing classified information prepared for this case by the

defendant or defense counsel shall be transcribed, recorded, typed, duplicated, copied or

otherwise prepared only by persons who have received access to classified information

pursuant to this Order. The Court Security Officer shall not reveal to the government the

content of any conversations shehe may hear between defense counsel, their employees, and

the defendant, or any of them, nor reveal the nature of the documents being reviewed by

them, or the work generated by them.

18. All machines of any kind used in the preparation or transmission of classified

information in this case may be used only with the approval of the Court Security Officer and
in accordance with any reasonable instructions the Court Security Officer may issue.

19. Until further order of this Court, all written pleadings of the defendant in this case

shall be submitted to the Court Security Officer. The time of physical submission to the

Court Security Officer shall be considered the time of filing. The Court Security Officer

shall promptly review such pleadings and determine, with the assistance and consultation

representatives of the originating agencies, whether any of the material submitted is

classified and the level of classification of such material. If the pleading does not contain

any classified information, the Court Security Officer shall forward it immediately to the

Clerk of the Court for routine filing. If the pleading does contain classified information, or

information which might lead to or cause the disclosure of classified information, the Court

Security Officer, after consultation with the attorney for the government, defense counsel and

the originating agencies, shall: (1) mark it appropriately; (2) provide a marked copy to

government and defense counsel; and (3) have it filed under seal and stored under the

appropriate security conditions.

20. All written pleadings of the United States which involve classified information

shall be forwarded to the Court Security Officer for filing under seal with the Clerk of the

Court.

2 1. Without prior authorization of the Department of Justice or the Court, there shall

be no disclosure to any person not named in this Protective Order by defense counsel,

defendant or any other person who may later receive the security clearance from the

Department of Justice in connection with this case (except to the Court, the Court Security

H- 9
Officer or government counsel acting in the course of their official duties), of any classified

national security information or documents (or information contained therein) until such

time, if ever, that such documents or information are openly admitted into evidence during

proceedings in this case or otherwise declassified.

22. Those named herein are advised that direct or indirect unauthorized disclosure,

retention, or negligent handling of classified documents or information could cause damage,

and in some cases, exceptionally grave damage to the national security of the United States,

or may be used to the advantage of a foreign nation against the interests of the United States.

This Protective Order is to ensure that those named herein will never divulge the classified

information disclosed tc, them to anyone who is not now authorized to receive it, without

prior written authorization from the originating agency and in conformity with this Order.

23. Persons subject to this Order are advised that any breach of this Order may result

in the terminating of their access to classified information and documents and may subject

them to contempt of Court. In addition, they are advised that any unauthorized disclosure

of classified information may constitute violation of federal criminal laws.

24. All persons given access to classified information pursuant to this Order are

advised that such information is now and will forever remain the property of the United

States government. Such persons shall return all classified documents which come into their

possession, or for which they are responsible because of access pursuant to this Order, upon

demand of the Court Security Officer.

25. A copy of this Order shall issue forthwith to defense counsel named herein and
said counsel are required to advise the defendant of the contents of this Order, and to fUrnish

defendant with a copy. The defendant, through counsel, shall forthwith sign the attached

MOU and counsel shall forthwith file an executed original with the Court. Furthermore,

defense counsel are to provide executed originals of this statement to the Court Security

Officer. The signing and filing of this statement by defendant is a condition precedent to the

disclosure of classified information to the defendant.

26. Nothing contained in the Memorandum of Understanding signed by defendant,

or defendant's consent to the entry of this order, shall be construed as a waiver of any right

of the defendant, including any claim raised by the defendant that the provisions of CIPA are

unconstitutional.

27. This Order may be amended by the Court upon the showing of good cause.

ORDERED this 4th day of February, 1997 at Alexandria, Virginia.

United States District Judge

WE ASK FOR THIS:

UNITED STATES ATTORNEY

Assistant United States Attorneys

SEEN AND AGREED TO:

Counsel for Defendant

 Appendix I

Special Security Agreement

~
1
APPENDIX I

SPECIAL SECURITY AGREEMENT

This agreement ("the Agreement') is made this day of , 200- (effective date), by and
between [Ultimate Parent], a [country] corporation; [Intermediate Parent], a [State or Country]
Corporation (the "Parent Corporation"); [Cleared Corporation], a [State] Corporation (the
"Corporation") and the United States Department of Defense (DoD), all of the above collectively
"the Parties".

1 RECITALS

WHEREAS, the Corporation is duly organized and existing under the laws of the State of
, and has an authorized capital of shares, all of which are common
voting shares, par value $ , and of which, shares are issued and
outstanding; and I

WHEREAS, [Ultimate Corporation] owns all the outstanding voting shares of [Intermediate
Parent]; and

WHEREAS, the Parent Corporation owns the issued and outstanding shares of the
Corporation; and
"
WHEREAS, , a public corporation traded on the New York Stock Exchange,
owns all the shares of the parent; and

WHEREAS, the Corporation's business consists of that

occasionally is installed andlor serviced in environments controlled and of interest to various
Departments and Agencies' of the United States Government, including, without limitation, the
DoD, and require the Corporation to have a facility security clearance; and

WHEREAS, the offices of the Corporation and, possibly, its wholly owned subsidiaries,
require facility security clearances2issued under that National Industrial Security Program ("NISP)
to conduct its business of , and the NlSP requires that a corporation
maintaining a facility security clearance be effectively insulated from foreign ownership, control

The Office of the Secretary of Defense (including all boards, councils, staffs, and
commands),DoD agencies, and the Departments of Army, Navy, and Air Force (including all of
their activities); the Departments of State, Commerce, Treasury, Transportation, Interior,
Agriculture, Labor, and Justice; National Aeronautics and Space Administration; General
Services Administration; Small Business Administration; National Science Foundation,
Environmental Protection Agency United States Arms Control and Disarmament Agency;
Federal Emergency Management Agency; Federal Reserve System; United States Information
Agency; InternationalTrade Commission; United States Trade Representative; and the
General Accounting Office (the "User Agencies").

An administrative determination that a facility is eligible for access to classified

information of a certain category.
or influence ("FOCI"); and

WHEREAS, the Assistant Secretary of Defense for Command, Control, Communications

and Intelligence (C31) has determined that the provisions of this Agreement are necessary to
enable the United States to protect itself against the unauthorized disclosure of inforrnation
relating to the national security; and

WHEREAS, the DoD has agreed to grant or continue the facility security clearance(s) of
the Corporation and its wholly owned subsidiaries from and after the effective date of this
Agreement in consideration of, inter alia, the Parties' execution and compliance with the provisions
of the Agreement, the purpose of which is to reasonably and effectively deny the Parent
Corporation and all entries which the Parent Corporation either controls, or is controlled by,
hereinafter sometimes referred to collectively as the "Affiliates," from unauthorized access to
classified3and controlled unclassified information4and influence over the Corporation's business
or management in a manner which could result in the compromise of classified inforrnation or
could directly and adversely affect the performance of ,classified contracts; and

WHEREAS, the Corporation has agreed to establish a formal organizational structure

procedures: to ensure that protection of classified information entrusted to it and to place the
responsibility therefor with a committee of its Board of Directors to be known as the Government
Security Committee, all as hereinafter provided; and

WHEREAS, the Parties agree that control of the Corporation should be vested in the Board
of Directors of the Corporation; and

WHEREAS, a company under FOCI is not normally authorized to have access to the
following classified information.

a. TOP SECRET information;

b. RESTRICTED DATA as defined in the United States Atomic Energy Act of 1954, as
amended;

c. Communications Security ("COMSEC") information, except classified keys used to

operate secure telephone units (STU Ill's).

d. Special Access Program information, and

Any information that has been determined pursuant to Executive Order 12356 or any
predecessor or successor order to require protection against unauthorized disclosure and is so
designated. The classifications TOP SECRET, SECRET, and CONFIDENTIAL are used to
designate such information.

Unclassified information the export of which is controlled by the International Traffic in

Arms Regulations ("ITAR") andlor the Export Administration Regulations ("EAR"). The export
of technical data which is inherently military in nature is controlled by the ITAR. The export of
technical data which has both military and commercial uses is controlled by the EAR.
 e. Sensitive Compartmented Information; and,

WHEREAS, in order to comply fully with the policies of DoD that require a corporation
maintaining a facility security clearance to be insulated effectively from undue FOCI, all parties
hereto have agreed that management control of the defense and technology security affairs and
classified contracts of the Corporation should be vested in resident citizens of the United States
who have DoD personnel security clearances5; and

WHEREAS, the Parent Corporation and other signatories hereto, by their

authorized representatives, hereby affirm that: (a) they will not seek access to or accept U.S.
Government classified information or controlled unclassified information entrusted to the
Corporation, except as permissible under the NlSP and applicable United State Government laws
and regulations; (b) they will not attempt to control or adversely influence the Corporation's
performance of classified contracts and participation in classified programs; and (c) except as
expressly authorized by the Agreement, their involvement (individually and collectively) in the
business affairs of the Corporation shall be limited to papicipation in the deliberation and decisions
of the Corporation's Board of Directors and authorized committees thereof; and

WHEREAS, in order to meet DoD's national security objectives in the matter of the
Corporation's facility security clearance (s) and to further the Corporation's business objectives,
the Parties intend to be bound by the provisions of the Agreement;

NOW THEREFORE, it is expressly agreed by and between the Parties that this Agreement
is hereby created and established, subject to the following terms and conditions, to which all of
the Parties expressly assent and agree:

ORGANIZATION

ARTICLE I - Management of the Corporation's Business

1.01. Composition of the Corporation Board of Directors.

The Board of Directors of the Corporation ("the Corporation Board"), shall be appointed by the
Parent Corporation and shall be composed of: (i) a minimum of ( ) individuals
who have no prior relationship with the Corporation or the Affiliates (the "Outside Directors"),
except as otherwise allowed by DoD; (ii) at least one representative of the Parent Corporation (the
"Inside Director"); and (iii) one or more cleared officer(s) of the Corporation (the OfficerIDirector").
The number of Inside Directors shall not exceed the combined total of Outside Directors and
OfficerIDirectors. Except as specifically provided herein, each member of the Corporation Board,
however characterized by this Section 1.01, shall have all of the rights, powers, and
responsibilities conferred or imposed upon directors of the company, by applicable statutes and
regulations, and by the Corporation's charter and by-laws. The Chairman of the Corporation

An Administrative determination that an individual is eligible for access to classified

information of a certain category.
Board, as well as its principle officers6, must be resident citizens of the United States who have
or who are eligible to possess DoD personnel security clearances at the level of the Corporation's
facility security clearar\,.cs. In addition, the Chairman of the Corporation Board shall not be an
lnside Director. All directors of the Corporation shall satisfy the pertinent requirements established
in Section 3.01 below. The Outside Directors may not be removed without prior notice to, and
approval by, the Defense Security Service ("DSS"). Appointments of new or replacement
directors, other than lnside Directors, shall not become final until approved by DSS.

1.02. Actions by the Corporation Board.

a. No action may be taken by the Corporation Board, or any committee

thereof, in the absence of a quorum, as defined below.

b. A majority of the Corporation Board, including at least on lnside Director

and one Outside Director, shall be necessary to constitute a quorum. With respect to the
Government Security Committee (see Section 7.01 below), a majority of the Committee shall be
necessary to constitute a quorum. With respect to all other standing committees of the
Corporation Board, including the Compensation Committee ( see Article Vlll below), a majority of
such committee, including at least on Outside Director and one lnside Director, shall be necessary
to constitute a quorum.

ARTICLE I1 - Limitations on the Corporation Board

2.01 The Corporation Board shall not be authorized to take any of the actions specified in
subsections 2.01a. through 2.01d. below, unless it shall have received, with respect to each such
action, the prior written approval of the Parent Corporation:

a. The sale, lease or other disposition of any of the property, assets or business
of the Corporation, or the purchase of any property or assets by the Corporation that is other than
in the ordinary course of business.

b. The merger, consolidation, reorganization, dissolution or liquidation of the

Corporation;

c. The filing or making of any petition under the Federal Bankruptcy Code or any
applicable bankruptcy law or other acts of similar character;

d. The initiation of action to terminate this Agreement, except as provided in

For purposes of this Agreement, "principle officers" shall have the meaning ascribed
to it under the DoD Industrial Security Manual, Appendix D, page 9, viz.: those persons
occupying positions normally identified as president, senior vice president, secretary, treasurer
and those persons occupying similar positions. In unusual cases, the determination of
principal officer status may require a careful analysis of an individual's assigned duties,
responsibilities, and authority as officially recorded by the organization. Excluded from this
definition are: (i) assistant vice presidents who have no management responsibilities related to
performance on classified contracts, (ii) assistant secretaries, and (iii) assistant treasurers.
Section 16.01 below.

ARTICLE Ill - Qualification, Appointment, and Removal of Directors; Board

Vacancies
3.01 During the period that the Agreement is in force, the Corporation Board shall be
composed as provided in Section 1.O1 hereof, and its members shall meet the following additional
requirements:

a. OfficersIDirectorsand Outside Directors shall be resident citizens of the United

States and have or be eligible to have DoD personnel security clearances at the level of the
Corporation's facility security clearance;

b. Outside Directors shall have been approved by DSS as satisfying the

appropriate DoD personnel security requirements and the applicable provisions of the Agreement;
I
c. The Inside Directors, in their capacity as Directors of the Corporation, shall not
have DoD personnel security clearances, regardless of citizenship, and they shall be formally
excluded from access to classified information by resolution of the Corporation Board.

3.02. The Parent Corporation, as the sole stockholder of the Corporation, may remove any
member of the Corporation Board for any reason permitted by the provisions of applicable state
law or the Corporation's Certificate of Incorporation or By-Laws, provided that:

a. The removal of an Outside Director shall not become effective until that director,
the Corporation, and DSS have been notified, DSS has approved the removal, and a successor
who is qualified to become an Outside Director within the terms of the Agreement has been
approved by DSS;

b. Notification to DSS of the removal of a Director shall be the responsibility of the

Parent Corporation through the Facility Security Officer of the Corporation, and, except as noted
in subsection 3.02~below, must be given at least twenty days prior to the proposed removal date;

c. Notwithstanding the foregoing, however, if immediate removal of any Director

is deemed necessary to prevent actual or possible violation of any statue or regulation or actual
or possible damage to the Corporation, the Director may be removed at once, although DSS shall
be notified prior to or concurrently with such removal.

3.03 In the event of any vacancy on the Corporation Board, however occurring, the
Corporation shall give prompt notice of such vacancy to the Parent Corporation and DSS, through
its Facility Security Officer, and such vacancy shall be filled promptly by the Parent Corporation.
Such a vacancy shall not exist for a period of more than 90 days after the Director's resignation,
death, disability or removal unless DSS is notified of the delay.

3.04 Except as provided by this paragraph, the obligation of a Director to abide by and
enforce this Agreement shall terminate when the Director leaves office, but nothing herein shall
relieve the departing Director of any responsibility that the Director may have, pursuant to the laws
and regulations of the United States, not to disclose classified information or controlled
unclassified information obtained during the course of the Director's service on the Corporation
Board, and such responsibility shall not terminate by virtue of the Director leaving office. The
Corporation's Facility Security Officer shall advise the departing Director of such responsibility
when the Director leaves office, but the failure of the Corporation to so advise the Director shall
not relieve the Director of such responsibility.

ARTICLE IV - Indemnification and Compensation of Outside Directors.

4.01. The Outside Directors in their capacity as directors of the Corporation shall vote and
act on all matters in accordance with their best efforts.'

4.02. The Corporation and the Parent Corporation jointly and severally shall indemnify and
hold harmless each Outside Director from any and all claims arising from, or in any way connected
to, his performance as a director of the Corporation under the Agreement except for his own
individual gross negligence or willful misconduct. The Corporation and the Parent Corporation
shall advance fees and costs incurred in connection with the defense of such claim. The Parent
Corporation or the Corporation may purchase insurance to cover this indemnification.

ARTICLE V - Restrictions Binding on Subsidiaries of the Corporation.

5.01. The parties hereto agree that the provisions of this Agreement restricting
unauthorized access to classified information and controlled unclassified information entrusted to
the Corporation by entities under FOCI, and all provisions of the Visitation Policy established in
Article XI, below shall apply to and shall be made to be binding upon all present and future
subsidiariessof all companies controlled by the Corporation that have facility security clearances,
or that may be processed for facility security clearance. The Corporation hereby agrees to
undertake any and all measures, and provide such authorizations, as may be necessary to
effectuate this requirement. The sale of, or termination of the Corporation's control over, any such
subsidiary or controlled company shall terminate the applicability to it of the provisions of this
Agreement.

5.02. If the Corporation proposes to form a new subsidiary, or to acquire ownership or

control of another company, it shall give notice of such proposed action to DSS and shall advise
DSS immediately upon consummation of such formation or acquisition,

5.03. It shall be a condition of each such formation or acquisition that all provisions of the

'For the purposes of the Agreement, the term "best efforts," signifies performance of
duties reasonably and in good faith, in the manner believed to be in the best interests of the
Corporation but consistent with the national security concerns of the United States, and with
such care, including reasonable inquiry, as an ordinarily prudent person in a like position would
use under similar circumstances.

The term "subsidiaries" shall, for the purposes of this Agreement, include companies
wholly owned by the Corporation or in which the Corporation owns a controlling interest, either
directly or through the Corporation's ownership interest in intermediate companies.
Visitation Policy established in Article XI, below and all of the above-described restrictive
provisions of the Agreement shall apply to each such company immediately upon consummation
of such formation or acquisition, and that the Corporation and the subsidiary or controlled
company shall execute a document agreeing that such company shall be bound thereby, and a
copy of the executed document shall be forwarded to DSS.

5.04. A document such as described in subsection 5.03 above, shall also be executed and
submitted with respect to each present subsidiary of the Corporation, and with respect to any other
company which the Corporation presently controls.

5.05. Compliance with this Article V shall not be interpreted as conferring the benefits of
this Agreement on those companies. Those companies shall not be entitled to receive a facility
security clearance, nor shall they be entitled to access classified information, to perform classified
contracts or to participate in classified programs pursuant to this Agreement, solely by virtue of
their legal relationship with the Corporation, and their execution of the documents referred to in
subsections 5.03 and 5.04 above.

OPERATION

-
ARTICLE VI Operation of the Agreement

6.01. The Corporation shall at all times maintain policies and practices to ensure the
safeguarding of classified information and controlled unclassified information entrusted to it in the
performance of classified contracts and participation in classified programs for the User Agencies
in accordance with the Security Agreement (DD Form 441 or its successor form), this Agreement,
appropriate contract provisions regarding security, United States export control laws, and the
NISP.

a. The following additional protections shall be established in the by-laws andlor

resolutions of the governing boards, as appropriate, of the Corporation and the Parent
Corporation, and [Ultimate Parent], acknowledged as provided in subsection 6.01.a.l. and
6.01.a.2. below, and shall control the actions of the parties hereto during the term of this
Agreement:

1. Pursuant to a resolution of the Corporation Board, which shall not be

repealed or amended without approval of DSS, the Corporation shall exclude the Affiliate and all
members of its Board of Directors and all of its officers, employees, agents and other
representativesof each of them from access to classified information and controlled unclassified
information entrusted to the Corporation. The above exclusion shall not, however, preclude the
exchange of classified information or controlled unclassified information between the Corporation
and the Parent when such exchange is permissible under the NISP and applicable United States
laws and regulations.

2. Pursuant to a resolution of the Parent Corporation's Board of Directors,

which shall not be repealed or amended without approval of DSS, the Parent Corporation shall
formally acknowledge and approve the Corporation's resolution referred to in subsection 6.01 .a.l.
above, and shall additionally resolve:
 (i) To exclude itself and all affiliates and all members of the Boards
of Directors and all officers, employees, agents and other representatives of all the foregoing, from
access to classified information and controlled unclassified information entrusted to the
Corporation, except as expressly permissible pursuant to subsection 6.01 .a.l. above; and:

(ii) To grant the Corporation the independence to safeguard

classified information and controlled unclassified information entrusted to it; and

(iii) To refrain from taking any action to control or influence the

performance of the Corporation's classified contracts or the Corporation's participation in existing
classified programs.

b. [Ultimate Patent] shall formally acknowledge and approve the Corporation resolution
referenced in 6.01.a.l above, and the Parent Corporation resolutions referenced in 6.01.a.2.
above.

ARTICLE VII - Government Security ~ornmktee.

7.01. There shall be established a permanent committee of the Corporation Board, to be

known as the Government Security Committee ("GSC"), consisting of all Outside Directors and
OfficerJDirectors to ensure that the Corporation maintains policies and procedures to safeguard
classified information and controlled unclassified information in the possession of the Corporation
and to ensure that the Corporation complies with the DoD Security Agreement (DD Form 441 or
its successor form), this Agreement, appropriate contract provisions regarding security, United
States Government export control laws and the NISP. The provisions of this Article VII shall be
set forth in the Corporation's By-Laws.

7.02. The GSC Shall designate one of the Outside Directors to serve as Chairman of the
GSC.

7.03. The members of the GSC shall exercise their best efforts to ensure the
implementationwithin the Corporation of all procedures, organizational matters and other aspects
pertaining to the security and safeguarding of classified and controlled unclassified information
called for in this Agreement, including the exercise of appropriate oversight and monitoring of the
Corporation's operations to ensure that the protective measures contained in this Agreement are
effectively maintained and implemented throughout its duration.

7.04. The Chairman of the GSC shall designate a member to be Secretary of the GSC.
The Secretary's responsibility shall include ensuring that all records, journals and minutes of GSC
meetings and other documents sent to or received by the GSC are prepared and retained for
inspection by DSS.

7.05. A Facility Security Officer ("FSO") shall be appointed by the Corporation. The FSO
shall report to the GSC as its principal advisor concerning the safeguarding of classified
information. The FSO's responsibility includes the operational oversight of the Corporation's
compliance with the requirements of the NISP. The advice and consent of the Chairman of the
GSC will be required to select the FSO.
 7.06. The members of the GSC shall exercise their best efforts to ensure that the
Corporation develops and implements a Technology Control Plan ("TCP"), which shall be subject
to inspection by DSS. The GSC shall have authority to establish the policy for the Corporation's
TCP. The TCP shall prescribe measures to prevent unauthorized disclosure or export of
controlled unclassified information consistent with applicable United States Laws.

7.07. A Technology Control Officer ("TCO) shall be appointed by the Corporation. The
TCO shall report to the GSC as its principal advisor concerning the protection of controlled
unclassified information. The TCO's responsibilities shall include the establishment and
administration of all intracompany procedures to prevent unauthorized disclosure and export of
controlled unclassified information and to ensure that the Corporation otherwise complies with the
requirements of United States Govemment export control laws.

7.08. Discussions of classified and controlled unclassified information by the GSC shall
be held in closed sessions and accurate minutes of such meetings shall be kept and shall be
made available only to such authorized individuals as ere so designated by the GSC.

7.09. Upon taking office, the GSC members, the FSO and the TCO shall be briefed by a
DSS representative on their responsibilities under the NISP, United States Government export
control laws and this Agreement.

7.10. Each member of the GSC, the FSO and the TCO shall exercise histher best efforts
to ensure that all provisions of thisAgreement are carried out, that the Corporation's directors,
officers, and employees comply with the provisions hereof, and the DSS is advised of any known
violation of, or known attempt to violate any provision hereof, appropriate contract provisions
regarding security, United States Government export control laws, and the NISP.

7.11. Each member of the GSC shall execute for delivery to DSS, upon accepting hislher
appointment, and thereafter, at each annual meeting of GSC with DSS, as established by this
Agreement, a certificate acknowledging the protective security measures taken by the Corporation
to implement this Agreement. Each member of the GSC shall further acknowledge histher
agreement to be bound by, and to accept hisfher responsibilities hereunder and acknowledge that
the United States Govemment has placed its reliance on himther as a United States citizen and
as the holder of a personnel security clearance to exercise hisfher best efforts to ensure
compliance with the terms of this Agreement and the NISP.

7.12. Obligations and Certification of Cleared Officers

a. Each officer of the Corporation with a personnel security clearance shall

exercise his best efforts to ensure that the terms and conditions of the Agreement are complied
with by the parties hereto.

b. Upon the effective date of the Agreement and annually thereafter, each such
officer shall execute, for delivery to DSS, a certificate: (1) acknowledging the protective security
measures taken by the Corporation to implement the Agreement; and (2) acknowledging that the
United States Government has placed its reliance on himfher as resident citizen of the United
States, and as a holder of a personnel security clearance, to exercise hislher best efforts to
ensure compliance with the terms and conditions of the Agreement by the parties hereto.
 7.13. Obligations and Certification of lnside Directors

a. lnside Director(s) shall:

1. not have access to classified information and controlled unclassified

information entrusted to the Corporation except as permissible under the NlSP and applicable
United States Government laws and regulations;

2. refrain from taking any action to control or influence the Corporation's

classified contracts, its participation in classified programs, or its corporate policies concerning the
security of classified information and controlled unclassified information;

3. neither seek nor accept classified information or controlled unclassified

information entrusted to the Corporation, except as permissible under the NlSP and applicable
United States Government laws and regulations; and

4. advise the GSC promptly upoh becoming aware of: (i) any violation or
attempted violation of this Agreement or contract provisions regarding industrial security, export
control; or (ii) actions inconsistent with the NlSP or applicable United States Government laws or
regulations.

b. Upon accepting appointment, each lnside Director shall execute for delivery to
DSS a certificate affirming such Di!ector's agreement to be bound by, and acceptance of the
responsibilities imposed by the Agreement, and further acknowledging and affirming the
obligations set forth in 7.13.a. above.

ARTICLE Vlll - Compensation Committee

8.01. The Corporation Board shall establish a permanent committee of the Board,
consisting of at least one Outside Director and one lnside Director, to be known as the
Compensation Committee. The Compensation Committee shall be responsible for reviewing and
approving the Corporation Board's recommendation for the annual compensation of the
Corporation's principal officers, as defined herein.

ARTICLE IX - Annual Review and Certification

9.01. Representative of DSS, the Corporation's Board, the Corporation's Chief Executive
Officer, the Corporation's Chief Financial Officer, the FSO, and the TCO shall meet annually to
review the purpose and effectiveness of this Agreement and to establish a common understanding
of the operating requirements and how they will be implemented. These meetings shall include
a discussion of the following:

a. Whether this Agreement is working in a satisfactory manner;

b. Compliance or acts of noncompliance with this Agreement, NlSP rules, or other

applicable laws and regulations;
 c. Necessary guidance or assistance regarding problems or impediments
associated with the practical application or utility of the Agreement; and

d. Whether security controls, practices or procedures warrant adjustment.

9.02. The Chief Executive Officer of the Corporation and the Chairman of the GSC shall
submit to DSS one year from the effective date of the Agreement and annually thereafter an
implementation and compliance report which shall be executed by all members of the GSC. Such
reports shall include that following information:

a. A detailed description of the manner in which the Corporation is carrying out its
obligation under the Agreement;

b. A detailed description of changes to security procedures, implemented or

proposed, and the reasons for those changes;

c. A detailed description of any acts of noncompliance, whether inadvertent or

intentional, with a discussion of what steps were taken to prevent such acts from occurring in the
future;

d. A description of any changes, or impending changes, to any of the Corporation's

top management including reasons for such changes;

e. A statement, as aGpropriate that a review of the records concerning all visits and
communications between representatives of the Corporation and the Affiliates have been
accomplished and the records are in order;

f. A detailed chronological summary of all transfers of classified or controlled

unclassified information, if any, from the Corporation to the Affiliates, complete with an explanation
of the United States Governmental authorization relied upon to effect such transfers. Copies of
approved export licenses covering the reporting period shall be appended to the report; and

g. A discussion of any other issues that could have a bearing on the effectiveness
or implementation of this Agreement.

-
ARTICLE X Duty to Report Violations of the Agreement.

10.01. The Parties to this Agreement, except DoD, agree to report promptly to DSS all
instances in which the terms and obligations of this Agreement may have been violated.

CONTACTS AND VISITS

-
ARTICLE XI Visitation Policy.

11.01. The Chairman of the GSC shall designate at least two Outside Directors who shall
have authority to review, approve, and disapprove requests for visitsg to the Corporation by all
personnel who represent the Affiliates, including all of the directors, officer, employees,
representatives, and agents of each, and proposed visits to any Affiliate by all personnel who
represent the Corporation, (including all of its directors, employees, officers, representatives, and
agents, except for the Inside Director), as well as visits between or among such personnel at other
locations (herein "visit" or "visits"). A record of all visit requests, including the decisions to approve
or disapprove, and information regarding consummated visits, such as, date, place, personnel
involved and summary of material discussion or communication, shall be maintained by the
designated Outside Director and shall be periodically reviewed by the GSC.

11.02. Except for certain Routine Business Visits, as defined in Section 11.05 below, all
visits must be approved in advance by the one of the Outside Directors designated by the GSC
Chairman to act on such matters. All requests for visits shall be submitted or communicated to
the FSO for routing to the designated Outside Director. Although strictly social visits at other
locations between the Corporation personnel and personnel representing the Affiliates are not
prohibited, written reports of such visits must be submitted after the fact to the FSO for filing with,
and review by, the designated Outside Director and the GSC.

11.03. A written request for approval of a visit must be submitted to the FSO no less than
seven (7) calendar days prior to the date of the proposed visit. If a written request cannot be
accomplished because of an unforeseen exigency, the request may be communicated via
telephone to the FSO and immediately confirmed in writing; however, the FSO may refuse to
accept any request submitted less than seven (7) calendar days prior to the date of the proposed
visit if the FSO determines that there is insufficient time to consider the request. The exact
purpose and justification for the visit must be set forth in detail sufficient to enable one of the
designated Outside Directors to make an informed decision concerning the proposed visit, and
the FSO may refuse to accept any request that the FSO believes lacks sufficient information.
Each proposed visit must be individually justified and a separate approval request must be
submitted for each.

11.04. The FSO shall advise one of the designated Outside Directors of a request for
approval of a visit (other than a Routine Business Visit) as soon practicable after receipt of the
written request. The designated Outside Director shall evaluate the request as soon as
practicable after receiving it. The Outside Director may approve or disapprove the request, or
disapprove the request pending submittal of additional information by the requester. The Outside
Director's decision shall be communicated to the requester by any means and it shall be confirmed
in writing when practicable, at least one day prior to the date of the proposed visit, but in no event
later than six (6) calendar days after its recaipt by the FSO. A chronological file of all
documentation associated with meetings, visitatrons, and communications (contact reports),
together with records of approvals and disapprovals, shall be maintained by the FSO for
inspection by DSS. At the time of each GSC meeting, the Outside Directors of the Corporation
shall review such documentation filed since the last meeting to ensure adherence to approved

As used in the Agreement, the term "visits" includes meetings at any location within or
outside the United States, including but not limited to any facility owned or operated by the
Corporation or any Affiliates, whether occurring in person or via electronic means, including but
not limited to telephone conversations, teleconferences, video conferences, or electronic mail.
procedures by the requesters and the designated Outside Director and to verify that sufficient and
proper justification has been furnished for approved visits.

11.O5. Routine Business Visits

a. Routine Business Visits, as defined in 11.05.b below, may be approved by the

FSO, in the FSO's discretion, without advance approval by one of the designated Outside
Directors. Requests for Routine Business Visits must be submitted in advance and in writing to
the FSO, and shall state the basis upon which the requester deems the visit to be a Routine
Business Visit Such requests must include sufficient information to enable the FSO to make an
informed decision concerning the proposed visit. The FSO, in the FSO's discretion, may refuse
to accept any request that the FSO believes lacks sufficient information and may refer any request
to the designated Outside Director for evaluation, notwithstanding its designation as a Routine
Business Request Any request that the FSO believes is not properly characterized as a Routine
Business Visit shall be referred to the designated Outside Director who shall evaluate the request
in accordance with the terms of the Agreement.

b. Routine Business Visits are in general those that are made in connection with
the regular day-to-day business operations of the Corporation, do not involve the transfer or
receipt of classified information or controlled unclassified information and pertain only to the
commercial aspects of the Corporation's business. Routine Business Visits include:

(i) Visits for the purpose of discussing or reviewing such commercial subjects
as the following: company performance versus plans or budgets; inventory, accounts receivable,
accounting and financial controls; implementation of business plans; and implementation of
technical development programs;

(ii) Visits of the kind made by commercial suppliers in general regarding the
solicitation of orders, the quotation of prices, or the provision of products and services on a
commercial basis;

(iii) Visits concerning fiscal, financial or legal matters involving compliance

with the requirements of any foreign or domestic governmental authority responsible for regulating
or administering the public issuing of or transactions involving stocks and securities; and

(iv) Visits concerning marketing and technical activities relating to the import
or export of products requiring compliance with regulations of United States departments or
agencies, including but not limited to the Departments of Defense, Commerce, State, and
Treasury.

11.06. Special Provision Concerning Subsidiaries

Anything to the contrary notwithstanding, the notice and approval of visitation restrictions
contemplated in the Agreement shall not apply to visits between the Corporation and its
subsidiaries. However, visits between the Corporation's subsidiaries and any Affiliate shall be
subject to the visitation approval procedures set forth herein.

11.07. Discretion to Alter Notice or Approval Requirements

13
 Anything foregoing to the contrary notwithstanding, the GSC, in its reasonable business
discretion and consistent with its obligation to safeguard classified information and controlled
unclassified information in the Corporation's possession may, with the approval of DSS:

a. Designate specific categories of visit requests other than those enumerated

above as "Routine Business Visits" not requiring the advance approval of the designated Outside
Director; or

b. Determine that, due to extraordinary circumstances involving the security of

classified information andlor controlled unclassified information, certain specific types of visits
which might have otherwise be considered "Routine Business Visits" under the terms of the
Agreement are to be allowed,only if the approval of the designated Outside Director is obtained
in advance.

11.08. Maintenance of Records for DSS Review

A chronological file of all visit requests, reports of visits, and contact reports, together with
appropriate approvals or disapprovals pursuant to the Agreement shall be maintained by the GSC
for review by DSS.

1 REMEDIES

~ ARTICLE XI1 - DoD Reme.dies.

12.01. DoD resewes the right to impose any security safeguard not expressly contained
in this Agreement that it believes is necessary to ensure that the subsidiaries and Affiliates are
denied unauthorized access to classified and controlled unclassified information.

12.02. Nothing contained herein shall limit or affect the authority of the head of a United
States Government agency'' to deny, limit or revoke the Corporation's access to classified and
controlled unclassified information under its jurisdiction if the national security requires such action.

1 12.03. The Parties hereby assent and agree that the United States Government has the
right, obligation and authority to impose any or all of the following remedies in the event of a
material breach of any term hereof:

a. The novation of the Corporation's classified contracts to another contractor. The

costs of which shall be borne by the Corporation;

b. The termination of any classified contracts being performed by the Corporation

and the denial of new classified contracts for the Corporation;

c. The revocation of the Corporation's facility security clearance;

d. The suspension or debarment of the Corporation from participation in all Federal

The term "agency" has the meaning provided at 5 U.S.C. 552(f).

14
government contracts, in accordance with the provisions of the Federal Acquisition Regulations;
and

e. The suspension or restriction of any or all visitation privileges.

12.04. Nothing in the Agreement limits the right of the Unites States Government to pursue
criminal sanctions against the Corporation, or any Affiliates, or any director, officer, employee,
representative or agency of any of these companies, for violations of the criminal laws of the
United States in connection with their performance of any of the obligations imposed by this
Agreement, including but not limited to any violations of the False Statements Act, 18 U.S.C. 1001,
or the False Claims Act 18 U.S.C. 287.

ADMINISTRATION

ARTICLE Xlll - Notices.

13.01. All notices required or permitted to be gi$en to the Parties hereto shall be given by
mailing the same in a sealed postpaid envelope, via registered or certified mail, or sending the
same by courier or facsimile, addressed to the addresses shown below, or to such other
addresses as the Parties may designate from time to time pursuant to this Section:

For the Corporation:

For the Parent Corporation:

For the Ultimate Parent:

For DSS: Defense Security Service

Deputy Director for Policy

ARTICLE XIV - Inconsistencies with Other Documents

14.01. In the event that any resolution, regulation or bylaw of any of the Parties to the
Agreement is found to be inconsistent with any provision hereof, the terms of this Agreement shall
control.

ARTICLE XV - Governing Law; Construction.

15.01. This Agreement shall be implemented so as to comply with all applicable United
States laws and regulations. To the extent consistent with the right of the United States
hereunder, the laws of the State of shall apply to questions concerning the rights,
powers, and duties of the Corporation and the Parent Corporation under, or by virtue of this
Agreement.

15.02. In all instances consistent with the context, nouns and pronouns of any gender
shall be construed to include the other gender.
TERMINATION

ARTICLE XVI - Termination, Amendment and Interpretations of this Agreement.

16.01. This Agreement may only be terminated by DSS as follows:

a. In the event of sale of the business or all the shares to a company or person not
under FOCI;

b. When DSS determines that existence of this Agreement is no longer necessary

to maintain a facility security clearance for the Corporation;

c. When DSS determines that continuation of a facility security clearance for the
Corporation is no longer necessary;

d. When DSS determines that there hqs been a breach of this Agreement that
requires it to be terminated or when DSS otherwise determines that termination is in the national
interest;

e. When DSS otherwise determines that termination is in the national interest;

f. Five (5) days from the effective date of this Agreement if, at least ninety (90)
days before that, the Corporation petitions DSS to terminate this agreement; and

g. When the Parent Corporation and the Corporation for any reason and at
anytime, petition DSS to terminate this Agreement. However, DSS has the right to receive full
disclosure of the reason or reasons therefor, and has the right to determine, in its sole discretion,
whether such petition should be granted.

16.02. Unless it is terminated earlier under the provisions of paragraph 16.01, this
agreement shall expire ten (10) years from the date of execution without any action being required
of any of the parties to the agreement. However, if the parent Corporation and the Corporation
together request that DSS continue the agreement past the expiration date, DSS may extend the
term of the agreement while a new agreement is being negotiated. Any request to extend the
term of the agreement made under this paragraph shall be submitted to DSS no later than ninety
(90) days prior to the expiration date of the agreement.

16.03. If DoD determines that this Agreement should be terminated for any reason, DSS
shall provide the Corporation and the Parent Corporation with thirty (30) days written advance
notice of its intent and the reasons therefor.

16.04. DoD is expressly prohibited from causing a continuation or discontinuation of this

Agreement for any reason other than the national security of the United States.

16.05. This Agreement may be amended by an agreement in writing executed by all the
Parties.
 16.06. The Parties agree that any questions concerning interpretations of this Agreement,
or whether a proposed activity is permitted hereunder, shall be referred to DSS and DoD shall
serve as final arbiterlinterpreter of such matters.

ARTICLE XVll - Place of Filing

17.01. Until the termination of the Agreement, one original counterpart shall be filed at the
office of the Corporation, located in [CITY], [STATE] and such counterpart shall be open to the
inspection of the Parent Corporation during normal business hours.

EXECUTION

This Agreement may be executed in several counterparts, each of which shall be deemed to be
an original, and all of such counterparts shall together constitute but one and the same instrument.

IN WITNESS WHEREOF, the Parties hereto have duly executed the Agreement which shall not
t
become effective until duly executed by the DoD.

by:
Signature of Witness President, , Inc.

--
by:
Signature of Witness Senior Vice President, ,Inc.

Effective Date:
Deputy Director for Policy, Defense Security
Service (FORTHE DEPARTMENT OF DEFENSE)
 ATTACHMENTS

a. Resolution Establishing Security Procedures and Authorizing Special Security

Agreement.

b. Resolution Excluding (insert name of Shareholder) from Access to Classified

Information and Authorizing Special Security Agreement.

c. Special Security Agreement Certificate.

d. Government Security Committee Member Certificate

e. (Inside Director) Special Security Agreement Certificate.

 UNANIMOUS CONSENT OF THE BOARD OF DIRECTOR OF
(Insert name of Corporation)

RESOLUTION ESTABLISHING SECURITY PROCEDURES AND

AUTHORIZING SPECIAL SECURITY AGREEMENT

We, the undersigned, being all of the members of the Board of Directors of (insert name of
Corporation), a corporation duly organized and existing under the laws of the State of
, DO HEREBY CONSENT TO AND APPROVE THE ADOPTION OF the
following recitals and resolutions:

WHEREAS (insert name of Shareholder), a (insert name of State or Country) corporation,

owns all voting shares of the outstanding stock of (insert name of Corporation) and (insert name
of ultimate Shareholder, if any), a (insert name of Country); company, through (insert names and
State or Country of all indirect Shareholders existing between the Shareholder and ultimate
Shareholder, if any), indirectly owns all the voting share9 of the outstanding stock of (insert name
of Shareholder); and

WHEREAS (insert name of ultimate Shareholder), (insert name of Shareholder),' (insert

name of Corporation), and the United State Department of Defense ("DoD") entered into a Special
Security Agreement ("the Agreement"), dated ; and

WHEREAS under paragraph 7 of the Agreement (insert name of Corporation) must take
certain protective measures so that (insert name of Corporation) shall at all time maintain policies
and practices that assure the safeguarding of classified information and the performing of
classified contracts or programs for the United States User Agencies in accordance with the
Department of Defense Security Agreement (DD Form 441), the Agreement, appropriate contract
provisions relating to security, and the National Industrial Security Program Operating Manual
NISPOM), DoD 5220 22-MI including, in accordance with paragraph 7.01, revision of By-Laws of
(insert name of Corporation) to establish a permanent committee of the (insert name of
Corporation) Board of Directors consisting of all the outside directors of (insert name of
Corporation) and the (insert name of Corporation) corporate officerldirectors to be known as the
Government Security Committee.

NOW, THEREFORE, BE IT RESOLVED that:

1. (insert name of Corporation), shall at all times maintain policies and practices that
assure the safeguarding of classified information and the performing of classified contracts and
programs for the United States User Agencies in accordance with the Department of Defense
Security Agreement (DD Form 441), the Agreement, appropriate contract provisions regarding
security, and the NISPOM, DoD 5220 22-M.

2. The By-Laws of (insert name of Corporation) are revised to establish a permanent

committee of the (insert name of corporation) Board of Directors consisting of all the outside
directors of (insert name of Corporation) and the (insert name of the Corporation) corporate
officersldirectors to be known as Government Security Committee.

'List all firms between the ultimate Shareholder and the Corporation.
 3. The Government Security Committee shall assure that (insert name of Corporation)
maintains policies end practices to safeguard classified information in the possession of (insert
name of Corporation) consistent with the terms of the Department of Defense Security Agreement
(DD Form 441) and the Agreement.

4. The Govemment Security Committee shall be responsible for the implementation of the
Agreement within (insert name of Corporation) including the exercise of appropriate oversight ant
monitoring of (insert name of Corporation) operations to assure that the protective measures
contained in the Agreement are implemented effectively and maintained throughout the duration
of the Agreement.

5. The members of the Government Security Committee shall be cleared to the level of
the facility security clearance of (insert name of Corporation) and shall be specifically approved
for this function by the Defense Security Service ("DSS").

6. One of the outside directors shall be desi nated as Chairman of the Govemment
Security Committee.
?
7. At least one of the outside directors shall attend all (insert name of Corporation) Board
of Directors meetings and (insert name of Corporation) Board of Directors committee meetings in
order for there to be a quorum.

8. One of the (insert name of Corporation) officers on the Govemment Security Committee
shall be designated by the Government Security Committee to assure that all records, journals,
and minutes of the Government Security Committee meetings or other communications of the
Government Security Committee are maintained and readily available for DSS inspections.

9. Discussions of classified matters by the Government Security Committee shall be held

in closed sessions and accurate minutes of such meetings shall be kept and shall be available
only to such authorized individuals as are identified by the Government Security Committee.

10. Upon taking office, the Government Security Committee members will be briefed by
a DSS representative on their responsibilities under DoD security regulations and the Agreement.

11. Each member of the Government Security Committee, upon accepting such
appointment and annually thereafter, shall acknowledge by certificate in the form attached hereto,
that the United States Govemment has placed its reliance on them as United States citizens and
as holders of personnel security clearances to exercise all appropriate aspects of the Agreement
and to assure that the members of the (insert name of Corporation) Board of Directors, (insert
name of Corporation) officer, and (insert name of Corporation) employees comply with the
provisions of the Agreement, and that DSS is advised of any violation of, or attempt to violate, any
undertaking in Agreement, appropriate contract provisions regarding security or the NISPOM,
(DoD 5220 22-M), of which they are aware.

12. A report by the Government Security Committee as to the implementation of and

compliance with the Agreement shall be delivered annually to the DSS Cognizant Security Office.

RESOLVED FURTHER that the action of the President of (insert name of Corporation) in
executing and delivering the Agreement be and hereby is ratified and affirmed and that the
Agreement be and hereby is adopted and approved in substantially the form attached to this
written consent.

RESOLVED FURTHER that the appropriate officer or officers of (insert name of

Corporation) be and hereby are authorized to take such other actions as may be necessary to
implement the provisions of the Agreement.

This Consent may be signed in several counterparts and all such counterparts taken
together shall be taken together as one. The number of counterparts that in the aggregate contain
the signature of all members of the Board of Directors shall constitute the binding action of the
Board.

DATED:

- -

Director Director

Director Director

Director Director

Director Director
 UNANIMOUS CONSENT OF THE BOARD OF DIRECTORS OF
(insert name of Shareholder)**

RESOLUTION EXCLUDING (insert name of Shareholder)

FROM ACCESS TO CLASSIFIED INFORMATION AND AUTHORIZING
SPECIAL SECURITY AGREEMENT

We, the undersigned, being all the members of the Board of Directors of (insert name of
Shareholder) a corporation duly organized and existing under the laws of (insert name of State
or Country), DO HEREBY CONSENT TO AND APPROVE THE ADOPTION OF the following
recitals and resolution:

WHEREAS, (insert name of Shareholder), a (insert name of State or Country) corporation,

owns all voting shares of the outstanding stock of (insert name of Corporation), a (insert State)
corporation, and (insert name of indirect ultimate Shareholder, if any), a (insert name of State or
Country) company, through (insert names and State,or Country of all indirect Shareholders
existing between the Shareholder and ultimate Shareholder, if any), indirectly owns all the voting
shares of the outstanding stock of (insert name of shareholder); and

WHEREAS, (insert name of ultimate Shareholder), (insert name of Shareholder),' (insert

name of Corporation), and the United Sates Department of Defense ("DoD) entered into a Special
Security Agreement (the "Agreement"), dated ; and

WHEREAS, one of the requirements of the Agreement for the issuance of an unrestricted
facility security clearance to (insert name of Corporation)is the adoption by the Board of Directors
of (insert name of Shareholder) of a resolution, which cannot be amended without notification to
DoD, that excludes the members of its Board of Directors and its officers, employees
representatives, and agents from access to classified information in the possession of (insert
name of Corporation).

NOW, THEREFORE, BE IT RESOLED that in accordance with and subject to the terms of the
Agreement:

1. (insert name of Shareholder), the members of its Board of Directors employees,

representatives, and agents, as such, shall be excluded from access to all classified information
in the possession of (insert name of Corporation). This prohibition shall not apply if access to
classified information is authorized by the provisions of the NISPOM, if an appropriate United
States export license has been granted, and if a favorable foreign disclosure decision has been
made by DoD, when required.

2. (insert name of Shareholder), as the sole shareholder of (insert name of Corporation),

hereby grants to (insert name of Corporation) the independence to safeguard classified
information in (insert name of corporation)'^ possession and agrees that it will not influence
adversely (insert name of Corporation) classified contracts or programs.

'List all firms between the ultimate Shareholder and the Corporation.
"This Board Resolution must be completed by all Shareholder firms in the chain of ownership.
 RESOLVED FURTHER that paragraph 7.01 of the Agreement as it relates to the
Government Security Committee and the resolution of the (insert name of Corporation) Board of
Directors, adopted by unanimous written consent and dated , as it relates to the
Goverr~mentSecurity Committee be and said terms of the Agreement and the resolution hereby
are incorporated into by reference and made a part of the By-Laws of (insert name of
Corporation).

RESOLVED FURTHER that the action of the Chairman of the Board of (insert name of
Shareholder) in executing and delivering the Agreement be and hereby is ratified and affirmed,
and that the appropriate officer or officers of (insert name of Shareholder) be and hereby are
authorized to take such other actions as may be necessary to implement the provisions thereof.

This Consent may be signed in several counterparts and all such counterparts taken
together shall be taken together as one. The number of counterparts that in the aggregate contain
the signatures of all member of the Board of Directors shall constitute the binding action of the
Board.

DATED:

Director Director

Director Director

Director Director

Director Director
 SAMPLE

SPECIAL SECURITY AGREEMENT CERTIFICATE

Pursuant to the provisions of the Department of Defense Industrial Security Regulation, 5220.22-
R, and the proposed Special Security Agreement among the Department of Defense (list subject
corporation and all parent corporations),

1 , under which I will be an Outside

Director, the following assurances are provided:

1. I am a United States citizen.

2. 1 currently reside within the continental United States.

3. 1 presently hold a persohe1 security clearance at the level . (or) I am

willing to apply for a personnel security clearance in accordance with the National Industrial
Security Program Operating Manual, DoD 5220.22-M.

4. 1 understand my personnel security clearance must be maintained while sewing as an

Outside Director for

5. 1 am a completely disinterested individual with no prior involvement with either (insert

name of cleared company) or any of its affiliate or the corporate body in which it is located or the
(insert name of foreign interest) or any of its affiliates.

6. 1 fully understand the functions and the responsibilities of an Outside Director of

, I am willing to accept those responsibilities.

Signed:

Dated:

Witness:
(NAME TYPED OR PRINTED)
 GOVERNMENT SECURITY COMMITTEE MEMBER CERTIFICATE

By execution of this Certificate, I acknowledge the protective security measures that have
been taken by through resolutions dated , to
implement the Special Security Agreement (the "Agreement"), copies of which are attached.

I further acknowledge that the United States Government has placed its reliance on me as
a United States citizen and as a holder of a personnel security clearance to exercise all
appropriate aspects of the Agreement, to assure that members of the Board of
Directors, officers, and employees comply with the
provisions of the Agreement; and to assure that the Defense Security Service is advised of any
violation of, or attempt to violate any undertaking in the Agreement, appropriate contract
provisions regarding security or the National Industrial Security Program Operating Manual, DoD
5220.22-MI of which I am aware.

Dated:

Signed:

(Name Printed or Typed)

 (INSIDE DIRECTOR)
SPECIAL SECURITY AGREEMENT CERTIFICATE

I acknowledge that in my capacity as a representative of parent,

have been excluded from access to classified information and export-
controlled technical data in the possession of on in accordance with the terms
of a resolution by the Board of Directors of , dated , 200-,
and the Special Security Agreement entered into among and the United States
Department of Defense, dated ,200-.

I certify that:

I.I have waived any right to have access to classified information and export-controlled
technical data held by except as permissible under the National Industrial
Security Program Operating Manual (NISPOM), DoD 5220.22MIand applicable United States laws
and regulations;

2. 1 will not adversely influence classified contracts or programs or

corporate policies regarding the security of classified information and export controlled technical
data;

3. 1 will not seek and have not obtained classified information or export controlled technical
data in the possession of except as permissible under the NISPOM and
applicable United States laws and regulations;

4. If I become aware of any violations of the Special Security Agreement or contract

provisions regarding industrial security or actions inconsistent with the NISPOM or applicable
United States laws and regulations, I will promptly notify the
Government Security Committee established by subsection 7(b) of the Special Security
Agreement.

Dated:

Signature:
(Name Typed or Printed)

Witness:

(Name Type or Printed)

 Appendix J

Questionnaire for National Security Positions,

Standard Form 86
Standard Form 86 (EG) Form approved:
Revised September 1995 QUESTIONNAIRE FOR OMB NO. 3206-0007
U.S.Oftice of Personnel Management NATIONAL SECURITY POSlTlONS NSN 7540-00-634-4036

I I I I
J K$%% - None Other Address ZIP Code
SON Personnel -NPRC
Folder At SON
L MLocation None , Other Address , ZIP Code

I
N OPAC-ALC, 10 Accounting Data andlor ,
Number Agency Case Number

p Requesting Name and Titla I7 Number

Official I I Signature )

NAME
Last Name

@PLACE
*If you have no middle name. enter "NMN".

OF BIRTH
I
I

- Use the two letter code for the State.

Name
box after your middle name.

I
I
Middb Name
,a
J r I.e c
I

SOCIAL SECURITY
BIRTH
Month Day Year

City State Country (if not in the United States)

I
I
I
I
I
I I
OTHER NAMES USED
O G i v e other names you used and the period of time you used them (for example: your maiden name. name(s) by a former marriage, former name@), alias(es), or
nickname(s)). If the other name is your maiden name, put "nee" in front of it.
Name ,
MonthNear MonthNear Name 1 MonthNear MonthNear ,
#I #3
Name
To
MonthlYeat MonthNear Name I To
MonhNear MonthNear
#2 I To #4 To

0 OTHER
IDENTIFYING
Height (feet and inches) Weight (pounds) Hair Color Eye Color Sex (Mark one box)
Female Male
INFORMATION
OTELEPHONE
Work (Include Area Code and extension) Home (Include Area Code)
Day
NUMBERS
@CITIZENSHIP
7 Night ( =I) Day
Night ( )
0 'Our Mother's Maiden Name
Iam a US. citizen or national by birth in the U.S. or U.S. territorylpossession. (Answer
items b and d)
@ Mark the box at the right that
reflects your current citizenship I am a US. citizen, but I was NOT born in the U.S. (Answer items b, c and d)
status, and follow its instructions.

,
Iam not a US. citizen. (Answer items b and e)
@ UNITED STATES CITIZENSHIP If you are a US. citizen, but were no! born in the US., provide information about one or more of the following proofs of your citizenship.
Naturalization Certificate (Where were you naturalized?)
Court \State I Certificate Number MonthlDayNear Issued
I Ciw
Citizenship Certificate (Where was the certificate issued?)
City S t I Certificate Number I MonthlDayNear Issued

I I

-
State Department Form 240 Report of Birth Abroad of a Citizen of the United States
Give the date the form was I MonthlDayNear , Explanation
prepared and give an explanation 1 I
US. Passport

This may be either a current or previous U.S. Passport.

I Passporl Number I MonthlDayNear Issued

I 1

@ DUAL CITIZENSHIP If you are (orwere) a dual citizen of the United States and another country, Country
providethe name of that country in the space to the right.
@ ALIEN If you are an alien, providethe following information:
City State Date You Entered US. Alien RegistrationNumber Country(ies) of Citizenship
Place You Month Day Year
Entered the
United States:
Exception lo SF65. SFBSP. SF65P-S. SF66, and SF86A appmved by GSA Seplember. 1995. Page 1
Designedusing Perfon Pro. WHSIDIOR. Sep 95
 List the places where you have lived, beginning with the most recent ( # 1 ) and working back 7 years. All periods must be accounted for in your list. Be sure to indicate the
actual physical location of your residence: do not use a post office box as an address, do not list a permanent address when you were actually living at a school address,
etc. Be sure to specify your location as closely as possible: for example, do not list only your base or ship, list your barracks number or home port. You may omit
temporary military duly locations under 90 days (list your permanent address instead), and you should use your APOIFPO address 11you lived overse; ;

For any address in the last 5 years, list a person who knew you at that address, and who preferably still lives in that area (do not list people for residences completely
outside this 5-year period, and do not list your spouse, former spouses, or other relatives). Also for addresses in the last five years, if the address is "General Delivery." a
Rural or Star Route, or may be difficult to locate, provide directions for locating the residence on an attached continuation sheet.

MonthNear MonthIYear Street Address Apt. # City (Country) State ZIP Code
#I TO Present
--
Name of Person Who Knows You Street Address Apt. # City (Country) Slate ZIP Code Telephone Number
( 1
MonthNear MonthIYear Street Address Apt. # City (Country) State ZIP Code
#2 To
Name of Person Who Knew You Street Address Apt. # I City (Country) ( State ( ZIP Code Telephone Number
( 1
MonthNear MonlhlYear Street Address Apt # City (Country) State ZIP Code
#3 To
Name of Person Who Knew You %&t Address Apt. # I CQ (Country) I ~ t a t e 1 2Code
1~ ~ e l i ~ h o nNunber
tr

( 1
MonthNear MonthlYear Street Address Apt. # City.(Country) State ZIP Code
#4 To
Name of Person Who Knew You Street Address Apt. # City (Country) State ZIP Code Telephone Number
( 1
MonthNear MonthNear Street Address Apt. # City (Country) State ZIP Code
#5 To
Name of Person Who Knew You Street Address Apt. # City (Country) State ZIP Code Telephone Number
( 1
@WHERE YOU WENT TO SCHOOL

List the schools you have attended, beyond Junior High School, beginning with the most recent (#I) and working back 7 years. List College or University degrees and
the dates they were received. If all of your education occurred more than 7 years ago, list your most recent education beyond high school, no matter when that education
occurred.

.Use one of the following codes in the "Code" block:

I -High School 2 - CollegeIUniversitylMilitaryCollege -

3 Vocationalrrechnicalrrrade School

F o r schools you attended in the past 3 years, list a person who knew you at school (an instructor, student, etc.). Do not list people for education
completely outside this 3-year period.

T o r correspondence schools and extension classes, provide the address where the records are maintained.
MonthNear MonthIYear Code Name of School DegreeIDiplomalOther Monthwear Awarded
#I To
Street Address and City (Country) of School State ZIP Code

I I
Name of Person Who Knew You I Street Address Apt. # I City (Country) I State I ZIP Code ( Telephone Number
( 1
MonthNear MonthlYear Code Name of School DegreelDiplomalOther Monthwear Awarded
#2 To
Street Address and City (Country) of School State ZIP Code

I 1
Name of Person Who Knew You Street Address Apt. # City (Country) State ZIP Code Telephone Number
( 1
MonthNear MonthIYear Code Name of School Degree/DiplomalOther MonthNear Awarded
#3 To
Street Address and City (Country) of School State ZIP Code

I
Name of Person Who Knew You Street Address Apt. # City (Country) State ZIP Code Telephone Number
( 1

Enter your Social Security Number before going to the next page +
I
Page 2
 List your employment activities, beginning with the present (#I)and working back 7 years. You should list all full-timework, part-time work, military service, temporary
military duty locations over 90 days, self-employment. other paid work, and all periods of unemployment. The entire 7-year period must be accounted for without breaks.
but you need not list employments before your 16th birthday. EXCEPTION: Show all Federal civilian service, whether it occurred within the last 7 years or not.

Code. Use one of the codes listed below to identify the type of employment:
-
1 Active military duty stations 5 -State Government (Non-Federal 7 - Unemployment(Include name of 9 -Other
2 -National GuardlReserve employment) person who can verify)
-
3 U.S.P.H.S. CommissionedCorps 6 - Self-employment (Include business name -
8 Federal Contractor (List Contractor.
-
4 Other Federal employment andlor name of person who can verify) not Federal agency)

EmployerNerifier Name. List the business name of your employer or the name of the person who can verify your self-employment or unemploymentin this block. If
military service is being listed, include your duty location or home port here as well as your branch of service. You should provide separate listings to reflect changes in
your military duty locations or home ports.
0
Previous Periods of Actlvity. Complete these lines if you worked for an employer on more than one occasion at the same location. After entering the most recent
period of employment in the initial numbered block, provide previous periods of employment at the same location on the additionallines provided. For example, if you
worked at XY Plumbing in Denver. CO, during 3 separate periods of time, you would enter dates and information concerning the most recent period of employment first.
and provide dates, position titles, and supervisorsfor the two previous periods of employment on the lines below that information.

MonthNear MonthNear Code EmployerNerifier NamelMilitary Duty Location Your Position TitleIMilitary Rank
#I TO Present
Employer'sNeriier's Street Address City (Country) State ZIP Code Telephone Number
( 1
Street Address of Job Location (Y different than Employer'sAddress) City (Country) State ZIP Code Telephone Number
( 1
Supervisor's Name 8 Street Address (if diierent than Job Location) City (Country) State ZIP Code Telephone Number
( 1
MonthNear MonthNear Position Title Supervisor
PREVIOUS To
PERIODS - MonthNear MonthNear PositionTitle Supervisor
OF
To
ACTIVITY
(,qlock # f ) MonthNear MonthNear PositionTitle Supervisor
To
MonthNear MonthNear Code EmployerNerifierNamelMilitary Duty Location Your Position TitlelMilitary Rank
#2 To
Employer'sNerifier'sStreet Address 1 City (Country) State 1 ZIP Code ) Telephone Number
( 1
Street Address of Job Location (Y diierent than Employets Address) City (Country) State ZIP Code Telephone Number
( 1
Supervisor's Name 8 Street Address (if diierent than Job Location) City (Country) State ZIP Code Telephone Number
( 1
MonthNear MonthNear PositionTitle Supervisor
PREVIOUS To
PERIODS MonthNear MonthNear Position Title Supervisor
OF
ACTlVlTY
-10 I I
(,ql& #2) MonthNear MonthNear Position Title Supervisor
To
MonthNear MonthNear Code EmployerNerifierNamelMilitary Duty Location Your Position TitlelMilitary Rank
#3 To
Employer'sNeriiier'sStreet Address City (Country) State ZIP Code Telephone Number
( 1
Street Address of Job Location (1different than Employer'sAddress) City (Country) State ZIP Code Telephone Number
( 1
Supervisor's Name 8 Street Address (if differentthan Job Location) City (Country) State ZIP Code Telephone Number
( 1
MonthNear MonthNear PositionTitle Supervisor
PREVIOUS To
PERIODS MonthNear MonthNear Position Title Supervisor
OF
To
ACTIVITY
plock #3) MonthNear MonthNear Position Title Supervisor
To

Enter your Social Security Number before going to the next page
I
YOUR EMPLOYMENT ACTIVITIES (CONTINUED)
MonlhNear MonthNear Code EmployerNerifier NameIMiiitary Duty Location Your Position TitleIMil~taryRank
#4 To
Employer'sNerifier'sStreet Address City (Country) State ZIP Code Telephone Number
( 1
Street Address of Job Location (if different than Employer'sAddress) City (Country) State ZIP Code Telephone Number

Supervisor's Name & Street Address (if different than Job Location) I City (Country) 1 State ( ZIP Code I Telephone Number
MonthNear MonthNear Position Title 1 Supervisor
PREVIOUS To
PERIODS MonthNear MonthNear Position Title Supervisor
OF
To
ACTlVlTY -
(810ck #) MonthNear MonthNear Position Title Supervisor
To
MonthNear MonthNear Code EmployerNerifier NamelMilitary Duly Location Your Position TitlelMilitary Rank
#5 To
Employer'sNerifier'sStreet Address City (Country) State ZIP Code Telephone Number
( 1
Street Address of Job Location (ildifferent than Employer'sAddress) City (Country) State ZIP Code Telephone Number
( 1
Supervisor's Name & Street Address (if different than Job Location) City (Country) State ZIP Code Telephone Number
( 1
MonthNear MonthNear Position Title Supervisor
PREVIOUS To
PERIODS MonlhNear MonthNear Position Title Supervisor
OF
ACTIVITY To I

(810ck #5) MonthNear MonthNear Positton Title Supervisor

To
I
MonthNear MonthNear Code ErnployerNerifier NarneIMilitaryDuty Location Your Position TitlelMilitary Rank
#6 TO I
I I
Employer'sNerifier'sStreet Address ( City (Country) 1 State 1 ZIP Code I Telephone Number
( 1
Street Address of Job Location (if different than Employer'sAddress) City (Country) State ZIP Code Telephone Number
( 1
Supervisor's Name & Street Address (if different than Job Location) City (Country) State ZIP Code Telephone Number
( 1
( MonthNear MonthNear ( Position Title ( Supemisor
PREVIOUS To
-
PERIODS MonthNear MonthNear Position Title Supervisor
OF
ACTIVITY To
(glock #6) MonthNear MonthNear Position Title Supervisor

I I I
PEOPLE WHO KNOW YOU WELL
@ List three people who know you well and live in the United Slates They should h good inends. peers, colleagues, coliege roommates. etc.. whose combined
association with you covers as well as possible the last 7 years. Do not list your spouse, former spouses, or other relatives, and try not to list anyone who is listed
elsewhere on this form.
Name Dates Known
MonthNear MonthIYear
#I
To
Home or Work Address City (Country) State ZIP Code

1 I I
Name Dates Known
MonthNear MonthNear
#2
To 1
Home or Work Address City (Country) Stale ZIP Code

I I I
Name Dates Known
MonthNear MonthPlear
#3
To 1
Home or Work Address City (Country) State ZIP Code

Enter your Social Security Number before going to the next page
.I
Page 4
@ YOUR SPOUSE
Mark one box to show your current marital status and provide information about your spouse(s) in items a. andlor b.

R -- 1 Never married
2 Married
-- -
R- 3 Separated
-
4 Legally Separated
Current Spouse Complete the following about your current spouse only.
R- 5 Divorced
6 -Widowed

@
Full Name Date of B~nh Place of Birth (Indude country i f outsrde the U.S.) Social Security Number

I I I
Other Names Used (Specify maiden name, names by other mamages. etc.. and show dates used for each name) Country(ies) of Citizenship

Date Married Place Married (Include country i f outside the U.S.) State

I
If Separated. Date of Separation If Legally Separated, Where is the Record Located? City (Country) State

Address of Current Spouse, if different than your current address (Street, city, and country i f outside the U.S.) State ZIP Code

I I
0 Former Spouse(s). Complete the following about your former swuse(s). use blank sheets if needed.
Full Name Date of Binh Place of Birth (Include country i f outside the US.) State

Country(ies) of Citizenship Date Mamed Place Married (Indude country i f outside the U.S.) State

Check one. Then Give Date MonthlDayNear If Divorced. Where is the Record Located? City (Cpuntry) State
Divorced W~dowed
Address of Former Spouse (Street. crty. and country ifwtside Y?e U.S.) 1 State ( ZIP Code I Telephone Number

@ YOUR RELATIVESAND ASSOCIATES

Give the full name, correct code. and other requested informath for each of your relatives and associates, living or dead. specified below.
-
1 Mother (first) 5 - Foster parent 9 -Sister 13 - Hatf-sister -
17 Other Relative*
-
2 Father (second) 6 - Child (adopted also) 10 - Stepbrother 14 -Father-in-law 18 - Associate'
3 - Stepmother 7 - Stepchild 11 -Stepsister 15 - Mother-in-law 19 -Adult Currently Living With You
4 - Stepfather 8 -Brother -
12 Half-brother 16 Guardian -
'Code 17 (Other Relative) - include only foreign national relat~es
not listed in 1 - 16 with whom you or your spouse are bound by affection, obligation, or close and
continuing contact. Code 18 (Associates) - include only foreign national associates with whom you or your spouse are bound by affection, obligation, or dose and
continuing contact.
Full Name (If deceased, check box on the Date of Birth Country(ies) of Current Street Address and City (country) of
Code State
leff before entering name) MonthlDay~Year Of Birth Citizenship Living Relatives

Enter your Social Security Number before going to the next page w
Page 5
5-7
@ CITIZENSHIP OF YOUR RELATIVES AND ASSOCIATES

If your mother, father, sister, brother, child, or current spouse or person with whom you have a spouse-like relationship is a U S . citizen by other than birth, or an alien
residing in the US.. provikli? Il,r 11al11reof the individual's relationship to you (Spouse. Spouse-like. Mother, etc.), and the individual's name and date of birth on the first
.
line (this informationis , . x e d to pair it accurately with information in iAms 13 and 14).

On the second line, provide the individual's naturalizationcertificate or alien registration number and use one of the document codes below to identify proof of citizenship
status. Provide additional informationon that line as requested.

I- NaturalizationCertificate: Provide the date issued and the location where the person was naturalized (Court. City and State).
2 - Citizenship Certificate: Provide the date and location issued (City and State).
3 -Alien Registration: Provide the date and place where the person entered the U S. (City and State).
4 - Other: Provide an explanation in the "Additional Information" block.
Association Name Date of Birth (MonVI/Day/Year)
#I
CertiflcatelRegistration# Docurnenr Code Additional Information

I I
Association 1 Name 1 Date of Birth (MonVIiDayNear)
#2
CertificatelRegistration# Document Code Additional Information

@ YOUR MILITARY HISTORY Yes NO

0 Have you Served in the United States military?

-.
@ Have you Served in the United States Merchant Marine?
List all of your military service below, including service in Reserve, National Guard, and US. Merchant Marine. Start with the most recent period of service (#I) and work
backward. If you had a break in service, each separate period should be listed.

*Code. Use one of the codes listed below to identify your branch of service:
1-Air Force 2 -Army 3 - Navy 4 -Marine Corps 5 Coast Guard - -
6 Merchant Marine 7 - National Guard

*01E. Mark "0" block for Officer or "E"block for Enlisted.

*Status. "X" the appropriate block for the status of your service during the time that you served. If your service was in the National Guard, do not use
an "X": use the two-lettercode for the state to mark the block.
*Country. If your service was with other than the U.S. Armed Forces, identify the country for which you Sewed.

MonthNear MonthlYear Code SewiceICertificate# 0 E Statu: Country

Active Active Inactive Nat~onal
Reserve Reserve Guard
(Stare)

To

To
@ YOUR FOREIGN ACTIVITIES Yes NO

0 Do you have any foreign property, business connections, or financial interests?

0 Are you now or have you ever been employed by or acted as a consultant for a foreign government, firm, or agency?

@
Have you ever had any contact with a foreign government, its establishments(embassiesor consulates), or its representatives, whether inside
or outside the US.. other than on official U S . Government business? (Does not include routine visa applications and border crossing
contacts.)

In the last 7 years, have you had an active passport that was issued by a foreign government?
I l Il
If you answered "Yes" to a, b, c, or d above, explain in the space below: provide inclusive dates, names of firms andlor governments involved, and an explanation of your
involvement.
MonthNear MonthNear 1 Firm andlor Government
I Explanation

To
FOREIGN COUNTRIES YOU HAVE VISITED
List foreign countries you have visited, except on travel under official Government orders, beginningwith the most current (#I)
and working back 7 years. (Travel as a
dependent or contractor must be listed.)
*Use one of these codes to indicate the purpose of your visit: 1 Business - 2 Pleasure - 3 Education -4 Other -
*Include short trips to Canada or Mexico. If you have lived near a border and have made short (one day or less) trips to the neighboringcountry, you do
not need to list each trip. Instead, provide the time period, the code, the country, and a note ("Many Short Trips").
*Do not repeat travel covered in items 9. 10, or 11.
MonthNear MonthNear Code Country MonthNear MonlhlYear Code Country

#2 To 1 #4 To
This concludes Part 1 of this form. If you have used Page 9, contlnuation sheets, or blank sheets to complete any of the
auestions in Part 1, aive the number for those auestions In the s ~ a c to
e the riaht: I
Enter your Social Security Number before going to the next page
I
Page 6
J-8
Standard Form 86 Form approved:
Revised Seotember 1995 QUESTIONNAIRE FOR OMB NO. 3206-0007
US. Office bf Personnel Management NATIONAL SECURITY POSITIONS NSN 7540-00-6344036
5 CFR Parts 731.732. and 736 86-111
OFFICIAL
USE
ONLY

@ YOUR MILITARY RECORD Yes 1 NO

I
Have you ever receivedother than an honorable discharge from the military? If "Yes." provide the date of discharge and type of discharge below. I
I
II 1I
Monthffear Type of Discharge

@ YOUR SELECTWE SERVICE RECORD yes I NO

@ Are you a male born afler December 31.1959? If "No." go to 21. If "Yes." go to b.

@ Have you registeredwith the Selective Service System? If "Yes." provide your registration number. If "No," show the reason for your legal
exemption below.
Registration Number Legal Exemption Explanation

I
@ YOUR MEDICAL RECORD yes ( NO
I
In the last 7 years, have you consulted with a mental health professional(psychiatrist, psychologist, counselor. etc.) or have you consultedwith
another health care provider about a mental health related condition?

If you answered Yes." provide the dates of treatment and the name and address of the therapist or doctor below, unless the wnsultation(s) involved only marital, family.
or grief counseling, not relatedto violence by you.
Monthffear Monthffear NamelAddressof Therapist or Doctor State ZIP Code

To
@ YOUR EMPLOYMENT RECORD yes I NO
I
Has any of the following happened to you in the last 7 years? If "Yes." begin with the most recent occurrenceand go backward, providing date fired.
quit. or left, and other informationrequested.

Use the following codes and explain the reason your employment was ended:
I-Fired from a job 3 - Lefl a job by mutual agreement following allegations of misconduct -
5 Left a job for other reasons
2 -Quit a job after being told 4 - Left a job by mutual agreement following allegations of under unfavorablecircumstances
vou'd be fired unsatisfactow ~erformance
Monthffear
I I
Code Specify Reason
I Employer's Name and Address (Include city/Country if outside U S . )
I I
state =IP

- - -

@ YOUR POLICE RECORD

For this item, report information regardless of whether the record in your case has been "sealed" or otherwise stricken from the court record. The
single exception to this requirement is for certain convictions under the Federal Controlled Substances Act for which the court issued an
expungement order under the authority of 21 U.S.C. 844 or 18 U.S.C. 3607.

@ Have you ever been chargedwith or convicted of any felony offense? (Include those under Uniform Code of Military Justice)

@ Have you ever been charged with or convicted of a firearms or explosives offense?
@ Are there currently any charges pending against you for any criminal offense?
@ Have you ever been charged with or convicted of any offense@) related to alcohol or drugs?
In the last 7 years. have you been subject to court martial or other disciplinaryproceedings under the Uniform Code of Military Justice? (Include
non-judicial, Captain's mast, etc.)

0
--
In the last 7 years. have you been arrested for, charged with, or convicted of any offense(s) not listed in response to a, b, c, d, o r e above?
(Leave out traffic fines of less than $150 unless the violation was alcohol or drug related.)
-
1 1 1
If you answered "Yes" to a. b, c, d, e, or f above, explain below. Under "Offense." do not list specific penalty codes, list the actual offense or violation (for example, anon, theft,
etc.).

MonthNear Offense Action Taken Law EnforcementAuthoritylCourt(Indude C~lyand counlyIcounby rfoutsrde u S) State ZIP Code

Enter your Social Security Number before going to the next page b

Page 7
@ YOUR USE OF ILLEGAL DRUGS AND DRUG ACTIVITY
Yes No
1
The following questions pertain to the illegal use of drugs or drug activity. You are required to answer the questions fully and truthfully, and your
failure to do so could be grounds for an adverse employment decision or action against you, but neither your truthful responses nor information
derived from your responses will be used as evidence against you in any subsequent criminal proceeding.
@ Since the age of 16 or in the last 7 years, whichever is shorter, have you @gg!!y used any controlled substance, for example, marijuana, cocaine,
crack cocaine, hashish, narcotics (opium, morphine, codeine, heroin, etc.), amphetamines, depressants (barbiturates, methaqualone, tranquilizers,
etc.), hallucinogenics (LSD, PCP, etc.), or prescription drugs?

0 Have you ever illegally used a controlled substance while employed as a law enforcement officer, prosecutor, or courtroom official; while possessing
a security clearance; or while in a position directly and immediately affecting the public safety?

In the last 7 years, have you been involved in the illegal purchase, manufacture, trafficking, production, transfer, shipping, receiving, or sale of any
narcotic, depressant, stimulant, hallucinogen, or cannabis for your own intended profit or that of another?

~fyou answered "Yes" to a orb above, provide the date(s), identify the controlled substance(s)andlor prescription drugs used, and the number of times each was used.

MonthNear MonthNear Controlled SubstancelPrescriptionDrug Used Number of Times Used

@ YOUR USE OF ALCOHOL

In the last 7 years, has your use of alcoholic beverages (such as liquor, beer, wine) resulted ~nany alcohol-related treatment or counseling (such as
for alcohol abuse or alcoholism)? 1 1 1
If you answered "Yes," provide the dates of lreatment and the name and address of the counselor or docior below. Do not repeat information reported in response to
item 21 above.
MonthNear MonthlYear
I NamelAddressof Counselor or Doctor
I I
sate ap

To
@ YOUR INVESTIGATIONS RECORD Yes
I
NO

0 Has the United States Government ever investigated your backgroundandlor granted you a security clearance? If Yes." use the codes that
follow to provide the requested information below. If "Yes." but you can't recall the investigating agency andlor the security clearance
received, enter "Other" agency code or clearance code, as appropriate,and "Don't k n o d or 'Don't recall" under the "Other Agency"
heading, below. If your response is "No," or you don't know or can't recall if you were investigatedand cleared, check the "No" box.

Codes for InvestigatingAgency Codes for Security Clearance Received

-
1 Defense Department 4 -FBI 0 - Not Required 3 -Top Secret -
8 L
-
2 State Department 5 - Tleasury Department -
1 Confidential -
4 Sensitive CompartmentedInformation -
7 Other
-
3 Office of Personnel Management 6 - Other (Specifyl 2 - Secret -
5 Q
MonthNear Other Agency Clearance ~ ~ Agency
~ t Other
h Agency~ ~ Clearance
~ ~
A$Y: Code Code Code

To your knowledge, have you ever had a clearance or access authorization denied, suspended, or revoked, or have you ever been debarred Yes No
from government employment? If "Yes," give date of action and agency. Note: An administrative downgrade or termination of a security
clearance is not a revocation.

I I
MonthNear Department or Agency Taking Action MonthNear Department or Agency Taking Action

@ YOUR FINANCIAL RECORD Yes No

0 In the last 7 years, have you filed a petition under any chapter of the bankruptcy code (to include Chapter 13)?
0 In the last 7 years, have you had your wages garnished or had any property repossessed for any reason?
0 In the last 7 years, have you had a lien placed against your property for failing to pay taxes or other debts?
In the last 7 years, have you had any judgments against you that have not been paid?
If you answered "Yes" to a, b, c, or d, provide the information requested below:
MonthNear Type of Action Amount Name Action Occurred Under NameIAddress of Court or Agency Handling Case State ZIP Code

Enter your Social Security Number before going to the next page
I
Page 8

J-10
@ YOUR FINANCIALDELINQUENCIES ) Yes NO )
@ In the last 7 years. have you been Over 180 days delinquent on any debt(s)?

@ Are you currently over 90days delinquent on any debt@)?

I I I
If you answered "Yes" to a or b, provide the information requested below:
Incurred Satisfied Type of Loan or Obligation NamelAddress of Creditor or Obligee State ZIP Code
MonthNear MonthNear and Account Number

@ PUBLICRECORD CIVIL COURT ACTIONS Yes NO

In the last 7 years, have you been a party to any public record civil court actions not listed elsewhereon this form?

If you answered "Yes." provide the information about the public record civil court action requested below.
MonthNear Nature of Action Result of Acbon Name of Parties Involved ~ counly/cwnby doutsde u.s.)
Court (hdude C Iand State ZIP Code

Q YOUR ASSOCIATION RECORD I I I yes NO

0 Have you ever been an officer or a member or made a contributionto an organizationdedicated to the violent overthrow of the United States
Government and which engages in illegal activities to that end, knowing that the organizationengages in such activities with the specific intent to
further such activities?
I I
@ Have you ever knowingly engaged in any acts or activities designed to overthrow the United States Government by force?

If you answered Yes" to a orb. explain in the space below.

Use the continuationsheet(s) (SF86A) for additional answers to items 9,10, and 11. Use the space below to continue answers to all other items and any informationyou
would like to add. If more space is needed than is provided below. use a blank sheet(s) of paper. Start each sheet with your name and Social Security Number. Before each
answer, identify the number of the item.

..................-.-......-----.--.- .............................................
................................................................................
............................................................. -.............-.......

....................................................................................
...............................................................................
................--....-.-.---.-.. . . . --.-.....................
..................-.......-...--.................... -...................

................-.........-......- . - ~~. .................-

......... ................ . . . . . . . . . . . . . . - - . . . . . . . . . . . . . . . . .

........... ............................................................
.....-.... ...................................... .............-.-....
. . . . . . . ..................... . . . . . . . . . . . . . . . . . . . . - . . . . - - . . . .

.....-... ................... . . . - . . . . . . . ...................

---- - .- . . . . . . . . . . . . . . . . . . . . . . . . . . . . ................
. - - - - - . .- . . - - - - .- - . --- - - - - .- . . . . . . . . . . . . . . - . . . . . . . . . . . . . . . . . . - . . . . .
. - - . . . ................... ............. ............. . . .

After completing Parts 1 and 2 of this form and any attachments, you should review your answers to all questions to make sure the form is complete and accurate, and then
sign and date the following certification and sign and date the release on Page 10.
p
p -- -

Certification That My Answers Are True

My statements on this form, and any attachments to it, are true, complete, and correct to the best of my knowledge and belief and are
made in good faith. I understand that a knowing and willful false statement on this form can be punished by fine or imprisonment or
both. (See section 1001 of title 18, United States Code).
Signature (Sign in ink)

I Date
- - - - p-

Enter your Social Security Number before going to the next page b

Page 9
Standard Form 86 Form approved:
Revised September 1995 OM0 NO. 3206-0007
U.S. Office of Personnel Management NSN 7540-00-634-4036
5 CFR Parts 731,732, and 736 86-11 1

UNITED STATES OF AMERICA

AUTHORIZATION FOR RELEASE OF INFORMATION

Carefully read this authorization to release information about you, then sign and date it in ink

I Authorize any investigator, special agent, or other duly accredited representative of the authorized Federal agcncy conducting my
background investigation, to obtain any information relating to my activities from individuals, schools, residential management
agents, employers, criminal justice agencies, credit bureaus, consumer reporting agencies, collection agencies, retail business
establishments, or other sources of information. This information may include, but is not limited to, my academic, residential,
achievement, performance, attendance, disciplinary, employment history, criminal history record information, and financial and
credit information. I authorize the Federal agency conducting my investigation to disclose the record of my background
investigation to the requesting agency for the purpose of making a determination of suitability or eligibility for a security clearance.

I Understand that, for financial or lending institutions, medical institutions, hospitals, health care professionals, and other sources of
information, a separate specific release will be needed, and I may be contacted for such a release at a later date. Where a separate
release is requested for information relating to mental health treatment or counseling, the release will contain a list of the specific
questions, relevant to the job description, which the doctor or therapist will be asked.

I Further Authorize any investigator, special agent, or other duly accredited representative of the U.S. Office of Personnel
Management, the Federal Bureau of Investigation, the Department of Defense, the Defense Investigative Service, and any other
authorized Federal agency, to request criminal record information about me from criminal justice agencies for the purpose of
determining my eligibility for access to classified information andlor for assignment to, or retention in a sensitive National Security
position, in accordance with 5 U.S.C. 9 10 1. I understand that I may request a copy of such records as may be available to me under
the law.

I Authorize custodians of records and sources of information pertaining to me to release such information upon request of the
investigator, special agent, or other duly accredited representative of any Federal agency authorized above regardless of any previous
agreement to the contrary.

I Understand that the information released by records custodians and sources of information is for official use by the Federal
Government only for the purposes provided in this Standard Form 86, and that it may be redisclosed by the Government only as
authorized by law.

Copies of this authorization that show my signature are as valid as the original release signed by me. This authorization is valid for
five (5) years from the date signed or upon the termination of my affiliation with the Federal Government, whichever is sooner.
Read, sign and date the release on the next page if you answered "Yes" to question 21.

Signature (Sign in ink) Full Name (Type or Print Legfbly) Date Signed

Other Names Used Social Security Number

'Current Address (Street. City) State ZIP Code Home Telephone Number
(Include Ares Code)

( 1
Page 10
 Standard Form 86 Form approved:
Revised September 1995 OM0 NO. 3206-0007
U S . Office of Personnel Management NSN 7540-00-634-4036
5 CFR Parts 731.732, and 736 86-11 1

UNITED STATES OF AMERICA

AUTHORIZATION FOR RELEASE OF MEDICAL INFORMATION

Carefully read this authorization to release information about you, then sign and date it in ink.

1 Instructions for Completing this Release

This is a release for the investigator to ask your health practitioner(s) the three questions below concerning your mental health
consultations. Your signature will allow the practitioner(s) to answer only these questions.

I am seeking assignment to or retention in a position with the Federal government which requires access to classified national security
information or special nuclear information or material. As part of the clearance process, I hereby authorize the investigator, special
agent, or duly accredited representative of the authorized Federal agency conducting my background investigation, to obtain the
following information relating to my mental health consultations:

Does the person under investigation have a condition or treatment that could impair hisher judgment or reliability,
particularly in the context of safeguarding classified national security information or special nuclear information or material?

If so, please describe the nature of the condition and the extent and duration of the impairment or treatment.

What is the prognosis?

I understand the information released pursuant to this release is for use by the Federal Government only for purposes provided in the
Standard Form 86 and that it may be redisclosed by the Government only as authorized by law.

Copies of this authorization that show my signature are as valid as the original release signed by me. This authorization is valid for 1
year fiom the date signed or upon termination of my affiliation with the Federal Government, whichever is sooner.

Signature (Sign in ink) Full Name (Type or Print Leg~bly) Date Signed

I
Other Names Used Social Security Number

I
- . 1 State I ZIP Code I Home Telephone Number
- -.. ...Address
Currant . .--. --- /Street
,- ..- - . Citv)
- .,,

I I 1 (Include ~ r e Code)
a
 CONSENT TO UNDERGO POLYGRAPH EXAMINATION
1. ,have been asked t o undergo polygraph esunimtion by

Special Agent ,DIS, regarding national security nuttern. I understandthat:

a. The polygraph examination ir voluntary and I m w t consent in writing prior t o undergoing the examination.
b. Adveme action will not be taken againnt me based mlely o n a refuaal to undergo thin examlnation, and any r e f d will
not be recorded in my permnnel file.
c. Refusal t o undergo polygraph examination does not preclude lecurity investigation by other meanr.
d. The examiner will provide an explanation of the polygraph inntrument and review all teat quedlonr prior to the
exrmimtion.
e. The examination aren contains the following lirtening /monitoring devicer: (two-way mirror) (cuner.) (audio
monitoring-lirtening device). 1 understand thin examination will be recorded and or observed.
f. Thb conrent form does not constitute a waiver of my Conntitutional rightr againat self incrimination.
g. I may conoult with a legal counsel t o answer question6 in conjunction with thin polygraph examination.

I UNDERSTAND THE ABOVE PROVISIONS AND FREELY AND VOLUNTARILY CONSENT TO UNDERGO POLYGRAPH EXAMINATION. NO
THREATS HAVE BEEN MADE OR PROMISES EXTENDED TO ME TO OBTAIN MY PARTICIPATION I N THIS EXAMINATION.

DATE SIGNATURE OF EXAMINEE

DATE AND TIME

SIGNATURE OF WITNESS
I SIGNATURE OF POLYGRAPH EXAMINER

DIS Form 181,Jul91

 CLASSIFIED INFORMATION NONDISCLOSURE AGREEMENT

(Name of Individual - Printed or typed)

1. Intending to be legally bound, I hereby accept the obligations contained in this Agreement in consideration of my being
granted access to classified information. As used in this Agreement, classified information is marked or unmarked classified
information, including oral communications,that is classified under the standards of Executive Order 12958, or under any other
Executive order or statute that prohibits the unauthorized disclosure of information in the interest of national security; and
unclassified information that meets the standards for classification and is in the process of a classification determination as
provided in Sections 1.l, 1.2, 1.3 and 1.4(e) of Executive Order 12958, or under any other Executive order or statute that
requires protection for such information in the interest of national security. I understand and accept that by being granted
access to classified information, special confidence and trust shall be placed in me by the United States Government.

2. 1 hereby acknowledge that I have received a security indoctrination concerning the nature and protection of classified
information, including the procedures to be followed in ascertaining whether other persons to whom I contemplate disclosing
this information have been approved for access to it, and that I understand these procedures.

3. 1 have been advised that the unauthorized disclosure, unauthorized retention, or negligent handling of classified informa-
tion by me could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation.
I hereby agree that i wiii never divulge classified information tc anyone unless: (a) I have officially verified that the recipient
has been properly authorized by the United States Government to receive it; or ('D) i have been give; pilor written cotice cf
authorization from the United States Government Department or Agency (hereinafter Department or Agency) responsible for
the classification of information or last granting me a security clearance that such disclosure is permitted. I understand that if
I am uncertain about the classification status of information, I am required to confirm from an authorized official that the
informationis unclassified before I may disclose it, except to a person as provided in (a) or (b), above. I further understand that
I am obligated to comply with laws and regulations that prohibit the unauthorized disclosure of classified information.

4. 1 have been advised that any breach of this Agreement may result in the termination of any security clearances I hold;
removal from any position of special confidence and trust requiring such clearances; or termination of my employment or other
relationships with the Departments or Agencies that granted my security clearance or clearances. In addition, I have been
advised that any unauthorized disclosure of classified information by me may constitute a violation, or violations, of United
States criminal laws, including the provisions of Sections 641,793,794,798, '952 and 1924, Title 18, United States Code, *the
provisions of Section 783(b), Title 50, United States Code, and the provisions of the Intelligence Identities Protection Act of
1982. 1 recognize that nothing in this Agreement constitutes a waiver by the United States of the right to prosecute me for any
statutory violation.

5. 1 hereby assign to the United States Government all royalties, remunerations, and emoluments that have resulted, will
result or may result from any disclosure, publication or revelation of classified information not consistent with the terms of this
Agreement.

6. 1 understand that the United States Government may seek any remedy available to it to enforce this Agreement including,
but not limited to, application for a court order prohibiting disclosure of information in breach of this Agreement.

7. 1 understand that all classified information to which I have access or may obtain access by signing this Agreement is now
of the 'Jnited States Government unless and until otherwise determined
and will remain the property of, 01uti~iet'ihec ~ i i t i d
by an authorized official or final ruling of a court of law. I agree that I shall return all classified materials which have, or may
come into my possession or for which I am responsible because of such access: (a) upon demand by an authorized
representative of the United States Government; (b) upon the conclusion of my employment or other relationship with the
Department or Agency that last granted me a security clearance or that provided me access to classified information; or (c)
upon the conclusion of my employment or other relationship that requires access to classified information. If I do not return
such materials upon request, I understand that this may be a violation of Sections 793 andlor 1924, Title 18, United States
Code, a United States criminal law.

8. Unless and until I am released in writing by an authorized representative of the United States Government, I understanc
that all conditions and obligations imposed upon me by this Agreement apply during the time I am granted access to classified
information, and at all times thereafter.

9. Each provision of this Agreement is severable. If a court should find any provision of this Agreement to be unenforceab!e
all other provisions of this Agreement shall remain in full force and effect.

(Continue on reverse.)

NSN 7540-01-280-5499 312-102 STANDARD FORM 312 (Rev. 1-O0

Previous edition not usable Prescribed by NARAIISOO
32 CFR 2003. E.O. 12958
10. These restrictions are consistent with and do not supersede, conflict with or otherwise alter the employee obligations, rights
or liabilities created by Executive Order 12958, Section 721 1 of Title 5, United States Code (governing disclosures to Con-
gress); Section 1034 of Title 10, United States Code, as amended by the Military Whistleblower Protection Act (governing
disclosure to Congress by members of the military); Section 2302(b) (8) of Title 5, United States Code, as amended by the
Whistleblower Protection Act'(governing disclosures of illegality, waste, fraud, abuse or public health or safety threats); the
Intelligence Identities Protection Act of 1982 (50 U.S.C. 421 et seq.) (governing disclosures that expose confidential Govern-
ment agents), and the statutes which protect against disclosure that may compromise the national security, including Sections
641,793,794,798,952 and 1924 of Title 18, United States Code, and Section 4(b) of the Subversive Activities Act of 1950 (50
U.S.C. Section 783(b)). The definitions, requirements, obligations, rights, sanctions and liabilities created by said Executive
Order and listed statutes are incorporated into this Agreement and are controlling.

11. Ihave read this Agreement carefully and my questions, if any, have been answered. I acknowledge that the briefing officer
has made available to me the Executive Order and statutes referenced in this agreement and its implementing regulation (32
CFR Section 2003.20) so that Imay read them at this time, if I so choose.
SIGNATURE DATE SOCIAL SECURITY NUMBER
(See Notice below)

I I

ORGANIZATION (IF CONTRACTOR. LICENSEE. GRANTEE OR AGENT. PROVIDE: NAME. ADDRESS. AND. IF APPLICABLE. FEDERAL SUPPLY CODE NUMBER)
(Type or PW

WITNESS ACCEPTANCE
THE EXECUTION OF THlS AGREEMENT WAS WITNESSED THE UNDERSIGNED ACCEPTEDTHIS AGREEMENT ON
BY THE UNDERSIGNED. BEHALF OFTHE UNITED STATES GOVERNMENT.
SIGNATURE DATE SIGNATURE DATE

I
NAME AND ADDRESS (Type orpnnt) NAME AND ADDRESS rm or prinl)

SECURITY DEBRIEFING ACKNOWLEDGEMENT -

I reaffirm that the provisions of the espionage laws, other federal criminal laws and executive orders applicable to the safeguarding of classified information
have been made available to me; that I have returned all classified information in my custody; that I will not communicate or transmit classified information
to any unauthorized person or organization; that I will promptly report to the Federal Bureau of Investigation any attempt by an unauthorized person to solicit
classified information, and that I (have) (have not) (strike out Inappropriate word or words) received a security debriefing.
SIGNATURE OF EMPLOYEE OATE

I
NAME OF WITNESS (Type orprino SIGNATURE OF WITNESS

NOTICE: The Privacy Act, 5 U.S.C. 552a, requires that federal agencies inform individuals, at h e time information is solicited from them, whether the disdosure
is mandatory or voluntary, by what authority such information is solicited, and what uses will be made of the informafion.You are hereby advised that authority
for soliciting your Social Seciirity Account Number (SSN) is Executive Order 9397. Your SSN will be used to identify you precisely when it is necessary to 1)
certify that you have access to the informationindicatedabove or 2) determine that your access to the information indicated has terminated. Although disdosure
of your SSN is not mandatory, your failure to do so may impede the processing of such certifications or determinations, or possibly result in the denial of your
beino
- 0 "
aranted access to classified
-- - information.

'NOT APPLICABLETO NON-GOVERNMENT PERSONNEL SIGNING THlS AGREEMENT.

STANOARO FORM 312 BACK (Rav. 100)

'U S Government Printmg Off~ce:2001-683-003124011 J-18