An obscure but important court that oversees security-clearance disputes with government contractors uses a deeply idiosyncratic process, with few hard and fast rules, a review of its decisions reveals.
Following the Washington Navy Yard shootings by defense contractor Aaron Alexis last week — and leaks by contractor Edward Snowden earlier this year — a chorus of critics wants to know how the two men both passed supposedly rigorous background checks. President Barack Obama last week ordered a review of federal policies for granting security clearances; Defense Secretary Chuck Hagel said the department would review its protocols; and four U.S. senators called for an independent investigation.
A close look at the Defense Office of Hearings and Appeals makes it clear that the decision to grant or deny a clearance is rarely black and white. Indeed, the administrative court, which hears appeals of defense contractors who were denied clearances, operates with a level of subjectivity that is all but unparalleled in other judicial forums.
One man, for example, recently secured a clearance despite having served 34 months in prison for dealing drugs. His prior offenses included assault, public intoxication, violating a restraining order and drunken driving. Nonetheless, Administrative Judge Shari Dam concluded he'd shaped up and become "a hardworking 42-year-old" who "recognized his mistakes."
The day before, another judge denied clearance to an unemployed 34-year-old man with five children who had been caught several times driving with a suspended license and had delinquent medical and student loan debts. This showed a "disregard for following rules," Admin­istrative Judge Carol Ricciardello found, and a "pattern of unreliable conduct."
A Defense Department spokesman did not respond to a request for comment.
Some 1 million employees of defense contractors hold security clearances, according to the Defense Security Ser­vice Public Affairs Office. If a contractor's clearance is denied, the security clearance court, which has seen its caseload jump from 62 in 2000 to 1,159 in 2012, is the sole recourse.
The U.S. Supreme Court ruled in 1988 that "no one has a 'right' to a security clearance" and thus the decision to grant or deny belonged to the executive branch. Outsiders couldn't review the substance of such a judgment, the court found, so decisions could only be appealed to a new panel from the same court, but no further.
The court's approximately 30 administrative judges don't view a person's behavior in isolation. They weigh "a number of variables known as the whole person concept," according to 2005 adjudicative guidelines. Judges also evaluate conditions that mitigate the conduct. "Each one is a judgment call," said Elizabeth Newman, a name partner at Kalijarvi, Chuzi, Newman & Fitch and author of Security Clearance Law and Procedure. "They look at everything about the person to make a predictive judgment."
It's uncertain how Alexis, who had prior run-ins with the law, mental health problems and a record of misconduct while serving in the U.S. Navy, would have fared before the court had his case received closer scrutiny. As for Snowden, there was seemingly nothing in his background that would have raised a red flag. However, there are indications that the court has reacted to his leaks and subsequent asylum in Russia by taking a harder line on cases involving that country.
"For the most part, the system works the way it's supposed to," said national security law specialist Mark Zaid, founder of the five-lawyer Law Office of Mark S. Zaid. "It's easy in hindsight to look at [Alexis] and say 'Oh my God, how did he have a security clearance?' But if you know the system, it makes perfect sense."
'PATTERN OF MISCONDUCT'
Alexis was killed in a gun battle with police after killing 12 people and wounding numerous others. According to The Washington Post, he was discharged honorably from the Navy Reserve in January 2011 despite “a pattern of misconduct” including insubordination, disorderly conduct and drunkenness. He was arrested in 2004 in Seattle for shooting the tires of a car, but was not prosecuted. In 2008, he spent two nights in jail in Georgia after being arrested for disorderly conduct, and in 2010 he was arrested in Fort Worth, Texas, for discharging a firearm. A few weeks ago, he told Rhode Island police he was hearing voices, but when he saw U.S. Department of Veterans Affairs doctors on August 23 and August 28 for insomnia, he said he was not depressed, anxious or suicidal.
Should this have been enough to derail his secret-level clearance, which was granted in March 2008 and was good for 10 years? Pamela Stuart, a Washington solo practitioner who has represented people contesting the loss of their clearances, said yes. "It looks to me like Mr. Alexis falsified his application or that whoever did the investigation didn't do an adequate job," she said.
Although Alexis was not prosecuted for his crimes, Stuart said, the arrests would still be relevant. As for hearing voices, a sign of serious mental illness, that alone could be grounds for losing a clearance, she said. "In the security-clearance context, the burden of proof is on the applicant, because clearance can be denied if the agency considering the applicant determines it's not in the interest of the government to grant" it, she said.
In evaluating people for security clearances, judges consider 13 adjudicative categories, ranging from Guideline A (Allegiance to the United States) to M (Misuse of information-technology systems) in an intensely fact-based review. In Alexis' case, the key criteria would have been Guideline E, personal conduct; Guideline J, criminal conduct; and Guideline I, psychological conditions.
Still, recent court decisions show that some applicants with roughly comparable records to Alexis obtained clearances. For example, in one July decision (the most recent month for which decisions are publicly available), Judge Nichole Noel granted a security clearance to a man who, like Alexis, had been discharged from the Navy with a less than stellar record. In this man's case, a military psychiatrist concluded he had a borderline personality disorder, and he was discharged after serving just 129 days.
The man was twice arrested on drug charges, most recently in 2008, but was not prosecuted, and was acquitted by a jury of armed robbery of an occupied home. In granting him clearance, Noel found that there was no evidence of ongoing mental health problems and insufficient proof that he had committed any crimes (he said the drugs weren't his). "While those granted access to classified information are held to a high standard of conduct, they are not held to a standard of perfection," Noel wrote.
By contrast, the court following the Snowden scandal seemed to take an extremely strict view when it came to interactions with Russian citizens.
In a July 31 decision, a native-born U.S. citizen who worked as a consultant for a large defense contractor lost his clearance because he had inadvertent contact with a Russian spy. When the man was in college at a Midwestern university, he became friends with a Russian exchange student. The two stayed in touch and got together about twice a year. At a party to watch a sporting event, the contractor sat next to a friend of his friend who, unbeknownst to them all, was a Russian spy, according to the decision. They talked about sports.
Soon after, the spy was arrested and expelled from the United States. The employee immediately reported he'd had contact with the spy to his facility security officer. In April — before Snowden's revelations to The Guardian and The Washington Post were published — a judge allowed him to keep his clearance.
But post-Snowden, a panel of three security court judges reversed the original decision. The fact that the man had "established social relationships with a significant number of citizens of a country that is one of the most aggressive collectors of sensitive U.S. information sufficiently calls his judgment into question," the panel found. Newman, who represented the man, said she was shocked by the decision, which cannot be further appealed. "I can't make any sense of it," she said. "He was a regular American guy. There was nothing in his part to show any vulnerability to being exploited."
Jenna Greene can be contacted at firstname.lastname@example.org.