Getting a security clearance approved by the U.S. Government became far more difficult after the attacks of September 11, 2001. Despite the critical need for foreign language facility, it became difficult to get a clearance if an applicant was foreign born or even born in the US of foreign born parents. Association with any foreigners and foreign travel raised a concern.

             

The Defense Office of Hearings and Appeals (DOHA), provides hearings and issues decisions in personnel security clearance cases for employees of government contractors doing classified work for the Defense Department, the military, and 20 other Federal Agencies and Departments. The CIA and the NSA also handle clearance decisions.   The decisions are made based upon adjudicative guidelines contained in a Defense Department directive and comparable guidelines followed by the CIA and NSA.    Using the “whole person” concept, the decision makers must conclude that it is clearly in the national interest to grant the applicant a clearance to handle classified material. If there is any substantial concern raised by the applicant’s background, the applicant loses.   If the case is before DOHA, the applicant will face government attorneys (“Department Counsel”) employed by the same agency as the administrative law judges who hear the first level appeals and the Appeals Board that has the final say. There is no right of appeal to a federal court.

 

Ideally an applicant for a security clearance who thinks his or her case may raise a concern will decide to seek pre-clearance counseling from an attorney experienced with this type of case. Each applicant’s situation is unique, but it is possible to review the adjudicative guidelines and cases raising similar issues and then assess the magnitude of the problem and the likelihood of success in the face of an adverse SOR.    The attorney may advise the applicant on the best way to word an answer to a question on Standard Form 86 (the Questionnaire for National Security Positions) and in the interview with the government investigator.  

 

Frequently an applicant consults an attorney after the investigation has been completed and the applicant receives a Statement of Reasons (SOR) setting forth why the government is unable to find that it is ‘clearly consistent with the interests of the national security’ to grant the clearance. Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).    At that point, the attorney will review the facts and circumstances of the matter that has presented an obstacle to the clearance and, if an appeal or challenge to the SOR is warranted, request a hearing before an Administrative Law Judge (if the case is being handled by DOHA) or a personal appearance if the case is being handled by the CIA or another intelligence agency. Upon request, the government will make available to the attorney the evidence gathered in the investigation that forms the basis for the government’s case against the applicant.   

 

The lawyer and the applicant assemble evidence to be submitted to the agency that counters or disproves the government’s evidence. The applicant’s evidence should be proof that the concerns raised by the SOR do not rise to the level of those that are “disqualifying” or information tending to mitigate the concern. 

 

In a DOHA case, the appeal of an adverse SOR is like a trial. Witnesses may testify under oath and be cross-examined by opposing counsel, but the rules of evidence are not applied. In a “personal appearance,” the attorney and the applicant will meet with two or three government officials. The “personal appearance” is the applicant’s only opportunity to provide information beyond the evidence provided in response to the SOR and to answer questions.  

 

After a hearing, the DOHA administrative judge issues a written opinion based upon the record that sets out the findings of fact, the issues presented, and makes a finding for or against the applicant on each issue. If the judge finds for the applicant, the Department Counsel may appeal to the Appeal Board.   The applicant also may appeal to the DOHA Appeal Board. To prevail before the Appeal Board, the applicant must show that the ALJ acted arbitrarily or capriciously or committed a legal error.   If the decision was within the ALJ’s broad discretion, the Appeal Board will affirm.   There is no right of appeal in a non-DOHA case. .

 

So, would James Bond get a security clearance today? Unlikely. Not only was he knighted by the British Government and in the British Navy, but his mother was Swiss and his father was from Scotland. This information revealed in On His Majesty’s Secret Service raises a concern with “foreign preference” and “foreign influence.” . If Sir James Bond kept his British passport after obtaining US citizenship, his dual citizenship would be disqualifying.   If his parents live abroad and plan to leave an inheritance to James, his problem is even worse. The US Government assumes that applicants will defend their foreign property in preference to their duty to the United States           

 

In Casino Royale, Bond was described as an experienced gambler before World War II. Compulsive or addictive gambling might preclude a clearance.   And what about Bond’s tendency to be a womanizer and to consort with criminals?   Bond’s association with criminals such as Pussy Galore, the lesbian leader of a female criminal organization known as the Cement Mixers might be mitigated by the fact that Bond foiled Goldfinger’s plot to steal gold from Fort Knox.

 

Using the “whole person” concept, a dispassionate adjudicator would find that issuing a security clearance to James Bond is not clearly consistent with the national interest.