ADJUDICATIVE GUIDELINES FOR DETERMINING ELIGIBILITY FOR ACCESS TO CLASSIFIED INFORMATION 

     The general procedures for granting U.S. Government  security clearances and access to sensitive compartmented information (SCI) are governed by Executive Order 12333 (EO 12333), "United States Intelligence Activities;" Executive Order 12968 (EO 12968), "Access to Classified Information;" and Executive Order 10865 (EO 10865), "Safeguarding Classified Information within Industry."  On December 17, 2004, President Bush signed Public Law 108-458, the "Intelligence Reform and Terrorism Prevention Act of 2004," Title III of which specifically addresses security clearance investigations, processing, and reporting.  

     For many years, the Director of Central Intelligence Directive 6/4 (DCID 6/4), "Personal Security Standards and Procedures for Governing Eligibility for Access to Sensitive Compartmented Information";  the Department of Defense Directive 5220.6 (DoDD 5220.6), "Defense Industrial Personnel Security Clearance Review Program";  the Department of Defense Regulation 5200.2-R (DoD 5200.2-R), "Department of Defense Personnel Security Program"; and the implementing regulations and instructions of each U.S. Government department, agency and the military services have all established  "adjudicative guidelines"  for the adjudication of both security clearance  and SCI access eligiblity.  The respective department, agency, and military service adjudicative guidelines are virtually identical. 

     Both Title III of Public Law 108-458 and Executive Order 13381, "Stengthening Processes Related to Determining Eligibility for Access to Classified National Security Information" (EO 13381)  established requirements for improving the security clearance process.   On 12 December 2005, the Deputy Director for Management, Office of Management and Budget (OMB) issued a memorandum to all Federal government executive departments and agencies, Subject: Reciprocal Recognition of Existing Personnel Security Clearances.  This memorandum directed the actions to be taken by U.S. Government agencies to ensure the reciprocity of security clearances.

     On 29 December 2005, the Assistant to the President for National Security Affairs advised the Director, Information Security Oversight Office (ISSO), that the President had  approved   "Revised Adjudicative Guidelines for Determining Eligibility for Access to Classified Information."    While the revisions primarily provide additional detail and explanation to the previous guidelines,  in several instances there are significant changes in the criteria to be used in personnel security adjudications. The White House directed the ISSO "to circulate the revised guidelines to all affected agencies for immediate implementation."  Furthermore,  "all agencies must honor clearances granted under these guidelines, consistent with Executive Order 12968 and the December 12, 2005 memorandum to agencies from OMB Deputy Director for Management Clay Johnson."   By mid to late 2006, virtually all U.S. Government agencies had implemented the revised Adjudicative Guidelines. 

     On 12 July 2006, the Director of National Intelligence (DNI) issued Intelligence Community Memorandum Number 2006-700-3 which modified the policy provisions in DCID 6/4, Annex C, "Adjudicative Guidelines for Determining Eligibility for Access to Classified Information," to reflect the revised Adjudicative Guidelines approved by the President in December 2005.   DCID 6/4 sets forth the procedures and standards for granting SCI access eligibility.    

     Within the Department of Defense (DoD), the revised Adjudicative Guidelines became effective on 1 September 2006. (32 CFR Part 154.)  In the case of  DoD components, the revised Guidelines apply to all adjudications and other determinations in which a Statement of Reasons (SOR) is issued on or after 1 September 2006.  However, in cases where the SOR was issued by a DoD component prior to  1 September 2006, the old Guidelines will still be applied.  (Under Secretary of Defense Cambone Memorandum, Subject: Implementation of Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (December 29, 2005.)        

     Personnel security adjudicators must use the  "whole-person" concept in making personnel security determinations.  Under the whole-person concept, the adjudicator considers the following factors:

(1) the nature, extent, and seriousness of the conduct;

(2) the circumstances surrounding the conduct, to include knowledgeable participation;

(3) the frequency and recency of the conduct;

(4) the individual's age and maturity at the time of the conduct;

(5) the extent to which the participation is voluntary;

(6) the presence or absence of rehabilitation and other permanent behavioral changes.

(7) the motivation for the conduct;

(8) the potential for pressure, coercion, exploitation, or duress; and

(9) the likelihood of continuation or recurrence.

      Each adjudicative guidine category describes types of behavior and conditions that could create a security concern and result in the denial or revocation of a security clearance and/or SCI access eligibility.  The 13 adjudicative guideline categories (as revised in December 2005) are as follow:  

--Guideline A, Allegiance to the United States.

--Guideline B, Foreign Influence.

--Guideline C, Foreign Preference.

--Guideline D, Sexual Behavior.

--Guideline E, Personal Conduct.

--Guideline F, Financial Considerations.

--Guideline G, Alcohol Consumption.

--Guideline H, Drug Involvement.

--Guideline I, Psychological Conditions.               

--Guideline J, Criminal Conduct.

--Guideline K, Handling Protected Information.

--Guideline L, Outside Activities.

--Guideline M, Use of Informaton Technology Systems.

     It is important to note that each adjudicative guideline describes not only potentially disqualifying conditions or behavior, but also  potentially mitigating conditions that may permit the granting or retention of a clearance or SCI access in a case that would otherwise require denial or revocation.

     Under the guidelines, "(E)ach case must be judged on its own merits, and final determination remains the responsibility of the specific department or agency.  Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security."    

     The key to reversing an adverse personnel security determination is refuting and/or substantially mitigating the guideline security concerns.  The law firm of  Mark F. Riley, L.L.C. has extensive experience  and success in assisting clients in overcoming the Guidelines' security concerns in order to obtain and retain security clearances and SCI access eligibility.