I’ve been doing some in-depth research on the US Security Clearance system, with a focus on clearances for Civil Service personnel and especially, US government contractors.
I haven’t completed the bulk of the task yet, but I have come across a finding I think is sort of amazing … a large percentage of folks, denied their clearance for one reason or another, ask for a hearing or appeal through a judge on the written record of the case, pro se.
Pro se is, of course a Latin term used in this context to indicate the plaintiff in the case is representing him or herself. There’s a fine old US tradition of self-representation and at times it seems like a pretty good deal.
If I were being sued, say for creating a neighborhood nuisance or violating a simple lease or something of that nature there is a good chance I might go pro se myself. It’s expensive to hire a lawyer for every little issue and even the best lawyer is only going to do as well on the case as you are able to prepare him or her … lawyers are not mind readers and I can’t begin to count the number of cases that have turned on incidents that the lawyer wasn’t able to find out about until it came up in court. Ooops..
But when you get a security denial handed to you … typically via an SOR (Statement Of Reasons) from the agency you applied through, you are holding sort of a ticking time bomb in your hands.
It has to be answered and answered properly … because if you decide to appeal and the appeal doesn’t go favorably, you are pretty much done with ever earning a living in a job that requires a US Government Security Clearance.
The processes for appeal are limit, and the standards of evidence are completely different than in, say, a criminal case. One the government finds “substantial” evidence (and the law here defines “substantial” as “more than a scintilla but less than a preponderance”, you are pretty much in the “guilty until you can prove yourself innocent” mode. The government’s case against you is already proven, in other words, and it is up to you, as an individual, to prove the entire US government system wrong … and convince a judge, well paid by that system .. to pronounce his own legal juggernaut wrong and you right.
A daunting task indeed.
Yet in reviewing several hundred of these denied security clearance cases so far, I have been amazed at the number of folks who press forward with an appeal hearing, prose se. Often they don’t even seem to present any sort of a defense, they just walk into the hearing, confirm the truth of the allegations made against them, and ask for mercy.
Since the reasons presented are typically “substantial”, the government attorney (there is always government counsel, by the way) had very little to do but sit calmly and wit for the lunch recess.
The plaintiff though, has to realize, that he may never, ever work again in any job that hints at a security clearance. Seems like strong odds against, to me.
Typically a competent security clearance lawyer might run several thousand dollars to properly represent an prospective clearance applicant. To me, this sounds pretty cheap … most of the jobs in question often pay thousands of dollars per month … so figure it out, one or two month’s wages for 20 or 30 or 40 years of continuous income, plus retirement?
As they say at the poker table, calling this bet looks like you are getting proper pot odds.
In a recent case of an appeal I noticed a pretty cogent comment written into the case report:
The record provides no reason to doubt that Applicant’s decision to represent himself was knowing and intelligent. Having chosen to represent himself, Applicant cannot complain about the quality of his self-representation.
See ISCR Case No. 08-03110 at 2 (App. Bd. Jan. 27, 2009); ISCR Case No. 02-08032 at 4 (App. Bd. May 14, 2004).
Furthermore, Applicant has not demonstrated that any documents that he, with the advantage of
hindsight, might have submitted at the hearing would likely have produced a different result.
What the judge here really meant to say was, “He who represents himself has a fool for a client”, but he exercised simple jurisprudent reticence.
So if you find yourself in the unenviable position of staring at an SOR (Statement Of reasons) form, telling you why the government proposes denying (or withdrawing) your access to classified information (your US security clearance), you better think long and hard before trying to take the “cheap Charlie” route and represent yourself. There’s a lot more at stake than losing your driver’s license for 90- days or one of the other common issues most people wouldn’t think of going to trial on without an attorney.
And if you do try the professional representation route, make sure you attorney is experienced and familiar with the procedures involving US security clearance matters … this is not a job for you Uncle Fred who semi-retired years ago an usually only does wills for the residents in the retirement village.
Best of luck if it is your turn at bat.
