The Foreign Service Journal, January 2010

I n January 2006, AFSA wrote to management expressing concern that department decisions in adverse-action se- curity clearance cases lacked objectivity. The department responded with the briefest of notes, asserting that it followed governmentwide guidelines for adjudication. AFSA dis- agreed and wrote again in 2007, noting, among other things, that unlike the Office of Personnel Management and the De- partment of Defense, which collectively adjudicate more that 94 percent of U.S. government security clearance cases, the department applies no standard of evidence to the deroga- tory information used as a basis for clearance suspensions and revocations. The department responded in 2008 that Executive Order 12968 did not establish a specific standard of evidence and, in essence, that the laws were vague and subject to in- terpretation. In both responses, the department asserted that“all doubt” in a security clearance matter must be resolved in favor of national se- curity. It is rare that a dispute with management takes so long to resolve, but AFSA is again pursuing this issue. The executive order is indeed vague, but it is crystal-clear on three points: information used as the basis for a security clearance action must be reliable; the adjudicative process must involve a “whole person”review; and security clearance decisions must involve an investigation conducted for that purpose. AFSA feels that since the law is vague, and since the department’s share of adjudications is a tiny portion of the whole govern- ment’s, it is reasonable for the department to follow the in- terpretation used by the vast majority. In the 94 percent of security clearance cases adjudicated by OPM and DOD, the “reliability” of derogatory information is subject to a standard of “substantial evidence.” That is not the highest evidentiary standard — in fact, it is a very low standard — but it is one that benefits the vast majority of cleared government employees. Yet it is denied to the 1 per- cent or so of employees whose cases are decided by the Bu- reau of Diplomatic Security. That standard does not come from the executive order. It derives from decisions by the U.S. Supreme Court and those of the Defense Office of Hearings and Appeals, which pro- vide most of the case-law precedents used by the security clearance community as a way of avoiding arbitrary and capricious determinations contrary to law. The dictionary defines “arbitrary” as “based on or deter- mined by individual preference or convenience rather than by the intrinsic nature of something.” In other words, an arbi- trary decision is one made in the absence of an objective stan- dard. Absent an evidentiary standard, the current adjudica- tive procedures used by the department are, by definition, ar- bitrary. With reference to the concept that all doubt must be re- solved in favor of national security, that is also very different for 94 percent of cleared government employees than it is for those employed by State. Here again, OPM and DOD apply a Supreme Court- and DOHA-supported definition, in which the word “doubt” is defined as “reliable, relevant, derogatory information that is not mitigated by other information ei- ther supplied by the subject or oth- erwise available.” By that definition, if one cannot determine the relia- bility of information, one cannot have the kind of legally-defined doubt that should form the basis of a security clearance de- termination. AFSA does not ask that State Department employees be treated more leniently than anyone else. However, Foreign Service members should not have fewer rights than the 94 percent of cleared government employees whose clearances are adjudicated by DOD and OPM. If their evidence-based procedures are good enough to protect military informa- tion in a time of war, they should be good enough to pro- tect State Department information, as well. Moreover, we feel that given a mandated government- wide trend toward interagency standardization and reci- procity of clearances, State should not continue to forge its own interpretations of law, but should join other agencies of government by accepting the standards used in the vast majority of security clearance adjudications. This includes not only the standard of evidence mentioned above, but also written procedures documenting a whole-person re- view, and clear and rebuttable statements of reasons for de- nial of a clearance. Let doubt be resolved in favor of national security, by all means. But let that doubt, and all decisions related to it, be based on the same evidentiary standard that protects 94 percent of cleared government employees from arbitrary decisions and abuse. ❏ J A N U A R Y 2 0 1 0 / F O R E I G N S E R V I C E J O U R N A L 39 A F S A N E W S Clearance Adjudication: Arbitrary? Without a Doubt! V.P. VOICE: STATE ■ BY DANIEL HIRSCH Absent an evidentiary standard, the cur- rent adjudicative procedures used by the department are, by definition, arbitrary.