The Foreign Service Journal, March 2009

16 F O R E I G N S E R V I C E J O U R N A L / M A R C H 2 0 0 9 disciplinary case as a security clearance case, leading to the termination of an employee who would otherwise have received nothing more than a letter of reprimand or oral admonition. Many cases involve rules like contact report- ing requirements, which are unpub- lished and which the employee could not reasonably be expected to know. A particularly bothersome issue is the apparent failure to follow up on reports of investigative misfeasance by DS agents who have allegedly seized personal property without a warrant, falsified information, delib- erately excluded exculpatory infor- mation and positive interview results from their reports, and even used the unregulated investigative process to settle personal scores. There is no doubt that most DS in- vestigations are conducted properly, and investigative misfeasance is un- usual. But even so, the failure to inves- tigate such charges is disturbing. Nearly every person we have interviewed has complained that statements made to DS investigators were not recorded ac- curately, were taken out of context or were distorted in written reports. Unlike the deliberations of OPM, DOD and the Foreign Service Griev- ance Board, those of the State Depart- ment’s Security Appeal Panel (the senior board of appeal) are not re- corded and not available for consider- ation as precedents. Improving the System With that background in mind, I offer the following recommendations for reforming the security clearance adjudication process. 1. Security clearance adjudications should be based on a “whole person” review of the data gathered during a background investigation performed for that purpose. They should not be based on the results of a search for mis- feasance or malfeasance. Derogatory allegations should, of course, be con- sidered — but only in the context of a whole person review. 2. That review should be docu- mented and the file should record not only the derogatory information relied upon, but also all positive information considered, as well as a summary of the deliberation weighing these elements. 3. Personnel security background investigations should be performed solely by people trained and employed to perform that function. PSBIs should not be performed by employ- ees who also perform other types of in- vestigations. If DS does not want to hire full-time background investiga- tors, then it should create rotational positions for agents who, while in that position, will only perform PSBIs. 4. DS should adopt the practice, al- ready generally used by OIG, of re- quiring all sources interviewed to sign statements confirming what they said. Where sources request anonymity, their identity could be withheld from the subject of the investigation; but signed statements should still be avail- able to cleared reviewers or other par- ticipants in the process authorized to review such information. 5. DS should create a competent mechanism to review investigations and pursue allegations of investigative improprieties, and should allow OIG to periodically inspect the investigative function. The scope of such a review should not be limited to the report of investigation, but should include source material and secondary inter- views of sources. 6. To reduce the risk of bias, DS should establish broader mandatory training related to diversity and proce- dures to review and enforce compli- ance. Such procedures should not only seek to prevent bias based on race, but also bias based on gender, religion, sex- ual orientation and other differences. 7. Where DS recommends a revo- cation of security clearance, it should provide the employee with a clear statement of reasons that not only specifies the criteria relied upon, but also lists the reasons DS believes that, in light of the criteria, the employee is no longer eligible for clearance. 8. The decision to revoke a security clearance should be based on the same standard of reliable evidence that the Defense Department and the Office of Personnel Management apply in their respective investigations. 9. DS should accept adjudicative precedents established by DOD and OPM, as well as earlier precedents es- tablished by the State Department’s own Security Appeal Panel. 10. All proceedings of the SAP should be recorded, and a written summary of deliberations and findings, sanitized as might be appropriate, should become part of an official, S P E A K I N G O U T The deliberations of State’s Security Appeal Panel are not recorded and not available for consideration as precedents.