Information for the CIO, CSO, FSO, ISSO and other security professionals. Understanding NISPOM and ITAR compliance is tough. With over 12,000 cleared defense contractors, a majority of those don't have a security staff. We'll hope to help fill the gap. From security clearances to performing on classified contracts, you can find help here.
Criminal activity creates doubt about a person’s judgment, reliability and trustworthiness. Criminal behavior is an indicator of whether or not an applicant will follow laws, rules and regulations. This is a critical concern where cleared employees are expected to comply with NISPOM guidance, rules, and laws as they discharge their duties and protect classified information. In fact, an applicant does not even have to be charged, prosecuted, or convicted to cause a security clearance denial.
The following cases demonstrate how applicants clearly violated laws and directives. Their security clearances were denied because their criminal behavior created doubt about their ability to protect classified information.
I MADE YOU SAY “UNDERWEAR”
For some reason, the applicant decided to undress and parade around in his underwear. After undressing in a department store’s dressing room, the applicant left the room in only his underwear four times before security approached him. Police were called and the applicant was issued a citation.
The applicant’s clearance was denied and on appeal, the applicant stated that the employee misunderstood what he was doing and that the judge had not accounted for “the complexity of human behavior.”
However, the appeal judge upheld the original decision. The judge observed that the applicant did not provide any evidence or statements from friends or family that support the applicant’s statements, or that would mitigate his actions. In absence of character references and evidence of innocence or habilitation, the clearance remains denied.
Can you imagine using such rationale as a reason to release classified information in an unauthorized manner? “Well Your Honor, I’m a complex person and you should not question my decision to provide this sensitive information to our foreign guests.”
ONLY GETS DUIS WHEN HE DRINKS
An applicant has had three arrests and convictions for DUI over the course of five years. As a result, the applicant attended court ordered counseling and treatment. The clinician did not give the applicant a diagnosis nor recommend substance abuse treatment. The applicant stopped drinking after the first two DUI incidents, but started again before the third. He now drinks a few times per month and has had no further incidents in the past two years.
The judge ruled in favor of denying a security clearance. Though the applicant has provided evidence of a great work history, he has not had enough time to demonstrate a pattern of responsible drinking and provide adequate mitigation.
Though the judge seemed to have ruled correctly, the applicant states that he rarely drank and that the judge ruled against him in error. The applicant stated he seldom drank.
Using his rationale, it was only when he drank that he actually received DUIs. It would be safe to assume that by the similar rationale, the only time classified information is at risk is when an applicant has access to it. In this case, the judge wasn’t willing to take that chance.
An applicant was arrested and pled guilty to assault after badly beating his wife. He later attended anger management counseling. However, based on his former wife’s written statements, this was not a one-time incident. He physically abused her on many occasions.
In spite of the former spouse’s written statements, the applicant falsified his own sworn statement by saying that he had not physically abused his wife other than the one time incident. Additionally, he offered little in the way of mitigation, and the clearance was denied.
Using this rationale, a cleared employee could falsify end of day security checks. He could just sit at his desk and check off all the blocks without even walking around and inspecting the areas of concern. .
An applicant decided not to file his tax return and missed many deadlines to file thereafter. He failed meet one extension deadline after the next. However, one day he decided he was going to file and he owned up to it. When he came up for a security clearance investigation, Guideline J concerns arose.
The administrative judge at the time determined that the applicant mitigated the Guideline J consideration simply by finally filing the tax return. However, the government appealed because adjudication had not been met as … “The person did not voluntarily commit the act and/or the factors leading to the violation are not likely to recur”.
The applicant purposefully missed all deadlines until he finally filed, when he finally got to it. There is no reason to indicate that this behavior may not occur at a later date. Additionally, the applicant claimed to believe he owed no taxes. However, he did indeed still owe back taxes.
Could you imagine how this could put classified information at risk? Using this rationale, a cleared worker could decide to ignore National Industrial Security Program Operating Manual (NISPOM) guidance and not mark classified material properly. He could continue to put unmarked classified information at risk until he was good and ready to mark it properly and lock it in a secure container. As long as he eventually got to it, his good intention is all that counts.
Guideline J concerns are appropriate for evaluating security clearance requests. Where investigations uncover violations of laws, regulations and rules, the adjudicators have a duty to understand whether or not the behavior has been mitigated. Criminal activity, whether prosecuted or not, could be an indicator that an applicant could put national security in jeopardy.