Legal Issues: New Guidelines For Granting Security Clearances By Antonio R. Franco and Gunjan R. Talati Since 9/11, the government has awarded an increasing number of classified contracts. These contracts require a government contractor to obtain security clearance for employees to perform the work. The security clearance process was already time-consuming and intrusive. The outcome has become more uncertain than ever, now that revised Adjudication Guidelines control Defense Department personnel security clearances. Although the guidelines have been in place for over a year, few contractors are familiar with the changes. The following is a brief overview of changes to the security clearance process. First, significant changes have been made to the standards for granting and denying clearances. Applicants for clearances must address a new set of rules when appealing to the Defense Office of Hearings and Appeals. Prior guidance is of marginal value. Second, the guidelines provide for increased individual discretion, creating the potential for inconsistent determinations and resulting in great uncertainty as to whether an application will be granted. Changes in Guidelines The most significant change to the guidelines lies in the overall approach when evaluating a candidate’s eligibility for a clearance. Under the previous guidelines, the approach followed a “whole person concept.” Specifically, “available, reliable information about the person, past and present, favorable and unfavorable, [was to be] considered in reaching a determination” to approve or deny a clearance. In contrast, the new guidelines advocate a “life history” evaluation in addition to a “whole person concept.” Under the “life history” analysis, “when a person’s life history shows evidence of unreliability or untrustworthiness, questions arise whether the person can be relied on and trusted to exercise the responsibility necessary for working in a secure environment where protecting classified information is paramount.” This new concept suggests that adjudications can be based on a single, isolated incident of poor judgment, regardless of how long ago that lapse in judgment occurred. Such an evaluation may be conducted without the benefit of the broader context of the person’s life history. It is important to note that the new guidelines do not remove the language of the “whole person concept” from the evaluation criteria. On the contrary, the guidelines remain the same, but are now coupled with the “life history” concept. However, the guidelines provide no instruction on how to simultaneously apply both approaches. A second substantial revision relates to foreign influence. Under the old guidelines, a candidate could be disqualified for foreign influence if “an immediate family member, or person to whom the individual has close ties of affection or obligation,” is a citizen or resident of a foreign country. The focus was on the nature of the relationship. Now, disqualification can be based on “contact with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion.” Under the new guidelines, the focus is on mere contact with foreign individuals. Increased Individual Discretion Judges in the Defense Office of Hearings and Appeals are not bound by the decisions of other DOHA judges. However, in the past, Appeal Board decisions did serve as binding precedent. This meant that applicants and DOHA judges could turn to Appeal Board decisions for guidance in the clearance process. The revised guidelines essentially provide that past precedent is not a reliable indicator for future reference. As a result, an adjudicator may choose to ignore a decision of the Appeals Board. While the new guidelines do not explicitly prohibit Appeals Board decisions from serving as binding precedent, the door is certainly opened for that interpretation. Since the guidelines are still relatively new, how they will be fully interpreted and implemented remains to be seen. The issues raised by the changes are just now starting to be litigated, and contractors and their employees are advised to tread lightly when embarking on the clearance process. Tony Franco is a partner with PilieroMazza PLLC. Mr. Franco oversees the Government Contracts/Small Business Group. His practice includes all aspects of federal government contracting and administration. Gunjan Talati is an associate with PilieroMazza PLLC, where he practices in the areas of government contracts, regulatory affairs and intellectual property.