The Foreign Service Journal, September 2005

alone. In fact, many State Department investigators appar- ently share your confusion, par- ticularly those in the Inspector General’s Office. In our legal practice representing Foreign Service personnel in such situa- tions, we have found that agents sometimes give either no warn- ing or the wrong warnings. (Complicating matters further, there are a multiplicity of warning forms floating around among different government agencies.) But even if the agents follow the proper procedures in all respects, there is one key piece of information they are not required to volunteer: the fact that you have the right to have an AFSA representative and/or attorney present during the questioning. Even if the agents do choose to advise you of that right in this particular scenario, they may also note that it will take time and effort to arrange that, delaying a resolution of your case. You want to believe the agents; after all, you have nothing to hide, and you are sure the “derogatory infor- mation” is silly on its face. So you go ahead and answer their questions, watching as they take copious notes about what you tell them. If you’re lucky, the agents thank you, file a report indicating that there is no truth to the allegations, and that’s the end of the matter. But it may also happen that they tell you your clearance has already been sus- pended pending a full investigation, and you are being recalled to the department. The agents will then give you a written notice of suspension, but typically that is as cryptic as the verbal information they had provided. The Bureau of Diplomatic Security is also authorized to refer your case to the Department of Justice or to a United States Attorney’s Office for consideration of crim- inal prosecution. The criminal jurisdiction of United States courts reaches overseas, as the United States may prosecute in this country any conduct which has an effect on commerce between the United States and any foreign country, a standard which is broadly construed. Once DS refers a case for crim- inal prosecution, the department takes the position that the matter is out of its hands, leaving you to await the exercise of discretion by the prosecutor’s office and/or a grand jury. And the only time restriction imposed on these bod- ies is the statute of limitations for the particular crimes you are being indicted for. But for purposes of this article, let’s assume they do not refer your case. Minimal Due Process Only Upon arrival in Washington, you surrender your badge and diplomatic passport and are given a new badge. You can get around the building, but you can- not access classified information or escort guests, and you must leave the premises by 7 p.m. Ideally, you are reassigned to a temporary position in which you can earn your pay doing something that does not require a security clearance. But that does not always happen, so you might spend weeks or months sitting at home with nothing to do, receiving your salary and wondering what will happen next. The answer to that may surprise you. Under State Department regulations and estab- lished law, the Bureau of Diplomatic Security has the sole authority to determine whether your security clearance should be suspended on the basis of “all facts available upon receipt of the initial derogatory infor- mation.” The standard to be applied is to determine whether it is “in the interests of national security” to continue your security status or to suspend it. The regulations further provide that DS investiga- tions must be “reported in a timely manner” and issues requiring temporary suspension of clearance must be resolved “as quickly as possible (normally within 90 days).” The department is, however, permitted to con- tinue suspension of an individual’s clearance “until the relevant issues have been fully resolved.” If that seems open-ended, it is. Today, given the security issues facing the department, the resources available to pursue these investigations are sorely taxed. Our law firm has Foreign Service clients who have been drawing their salaries while on suspension for well over 180 days. And AFSA has clients who have F O C U S S E P T E M B E R 2 0 0 5 / F O R E I G N S E R V I C E J O U R N A L 59 State is permitted to continue suspension of an individual’s clearance “until the relevant issues have been fully resolved.” J. Michael Hannon is with the law firm of THOMPSON O’DONNELL, LLP. The firm has represented Foreign Service employees and their families for over 50 years.