The Foreign Service Journal, September 2005

several employees’ clearances were revoked based on their alleged falsifica- tion of information on their SF-86 (the security clearance application form). After DS revokes a security clearance, the employee has the right to appeal to the Security Appeal Panel. Over the past few years, AFSA has represented eight employees before the panel. In two cases, the panel overturned DS’s decision to deny or revoke a clear- ance. Both cases involved foreign influence. In two other cases, the panel ultimately reinstated the clearance after the passage of one year with demonstrated “good behavior.” Both cases involved off-duty misconduct. In the fifth case, the panel stated it would consider reinstatement after two years of good behav- ior, but the employee resigned. This case involved pre-employ- ment drug use that was not reported on the SF-86 form. In two cases, the panel upheld DS’s decision to revoke and the employ- ees are going through separation-for-cause proceedings. One case involved alleged alcohol/drug abuse; another involved vio- lation of the department’s rules on Internet usage. The eighth case is pending before the panel, following its request that the Bureaus of Consular Affairs and Diplomatic Security provide the employee with relevant documents. Employees who are terminated as a result of the loss of their clearances may request a hearing before the Foreign Service Grievance Board. However, the Grievance Board’s review is lim- ited to whether the proper procedures were followed in revoking the clearance and whether the employee’s termination firing pro- motes the efficiency of the Foreign Service. AFSA is currently representing, along with outside counsel, one employee who has requested a hearing before the Grievance Board. Based on our involvement in these cases, AFSA believes the investigatory and security clearance adjudication processes are in need of improvement. Decisions must be rendered in a more timely fashion. In most cases, the investigatory processes move along at a relatively good pace. However, when an outside entity (e.g., the FBI or a U.S. attorney’s office) is involved, there are often interminable delays in the completion of the investiga- tion. DS has advised AFSA that it has little leverage in these sit- uations to move outside entities forward. While DS has made tremendous strides in shortening the processing time for granting initial security clearances, employ- ees whose clearances have been suspended or proposed for revocation routinely must wait from 18 months to over two years for a decision from DS. The decision to suspend a secu- rity clearance has a profound effect on the department as well as the employee, because it automatically triggers the cur- tailment of the employee’s assignment. Of more than 20 cases AFSA is handling, approximately 15 employees were cur- tailed from an overseas assignment at great cost to the department. AFSA urges DS to devote whatever additional resources are necessary to resolve these cases more quickly. DS must also do better in terms of supporting its decisions with evidence or placing the employee’s behavior in the proper context. In several cases, it relied on unsubstantiated rumors and allegations about individuals to revoke their clearance, in the absence of actual evidence establishing that the individuals did what they were accused of or were rumored to have done. In addition, the bureau has sometimes ignored mitigating evidence that was readily available. AFSA often seeks evidence or docu- ments from DS that we believe will exonerate the employee or place his or her alleged transgression in the proper context. However, our requests for such evidence are routinely denied on the grounds that DS relies only on the information in its files and that our requests are similar to “discovery” requests, which the bureau alleges are not proper in the security clearance process. In our view, before revoking an employee’s clearance, DS should ensure that it has objective evidence establishing the allegations against the employee as well as any mitigating evidence that will put the employee’s transgression in the proper context. In several cases, DS revoked an employee’s clearance for transgressions that AFSA believes should be handled as a per- formance or disciplinary matter (such as misuse of a govern- ment vehicle, violation of the department’s regulations on Internet usage, or violation of consular procedures that did not involve criminal behavior). Revoking some employee’s clearances for these types of transgressions, while taking no action against other employees for similar actions, is unfair and can lead to allegations of abuse of the security clearance process. Because DS has almost unfettered discretion when it comes to granting or revoking a security clearance (with the Security Appeal Panel serving as its only “check and balance”), and because the consequences of losing a clearance are so dire, we want to work with DS to ensure that the system produces time- ly, well-supported, fair decisions. We hope that this issue of the Foreign Service Journal will further the bureau’s ongoing efforts toward that goal. 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 65 AFSA’s role is to ensure our members receive the fullest measure of due process.