Responding to the dreaded Guideline E – Ways to maximize mitigation in your response to the Statement of Reasons
Those of us that deal in security clearance issues and litigation understand that successful mitigation of security concerns is the key to helping our clients obtain their cleared status. We also understand that for cleared professionals, loss of their security clearance can have a devastating financial and professional impact.
Litigating issues related to security clearances is unique since the standard is in the best interest of national security. No one has a constitutional right to a security clearance. Even with potentially negative information, there are ways you can maximize your chances of success.
Out of the 13 adjudicative areas, the one most often seen (and perhaps least understood) is Guideline E.
This is the catch-all of adjudicative guidelines. If the concern doesn’t fit into the other areas of assessment, it will certainly find a home here. This guideline covers unreliable or untrustworthy behavior not considered under other guidelines. Guideline E includes issues that wouldn’t otherwise be disqualifying, but when combined with other behaviors. This can create questions of one’s ability to be trusted with sensitive classified information.
The subjective nature of this guideline means it can literally include anything. Since the deck is stacked in favor of national security, unmitigated issues can mean the end of your clearance pursuit or termination of your clearance. The importance of proper mitigation cannot be understated, and it begins when you first fill out your SF-86.
Don’t ignore it!
If there is something in your past that you are concerned about address it.
If you are worried, the adjudicator will also be worried. Ignoring the problem will not make it go away. If obtaining your clearance is important to you then take the time to find an attorney familiar with the process, to help you properly answer the questions on the SF-86. Getting out in front of an issue is often your best move to successfully mitigate it.
Fix what you can fix before you seek a clearance!
Address issues that could be a problem before applying for the job.
If you are financially overextended, take steps to correct this. Catch up on paying your credit cards. Obtain credit counselling, consolidate debt, and stop spending beyond your means. Doing what you can to limit negative issues is a great way to show the adjudicator that you are a person who takes account of their personal responsibilities.
Don’t use drugs and don’t associate with people who do!
Remember, guideline E is the catch-all.
For example, let’s say that the drug use in question occurred 5 years ago. You haven’t touched a drug since but when the adjudicator speaks to others about you, their fondest memories includes stories of bong hits on the roof of the frat house… This will be a guideline E problem.
Even though many states have now legalized marijuana and perhaps your use is both legal and infrequent, it’s still going to be a guideline E problem. The government’s position on this is relatively elementary: responsible people do not recreationally use drugs and do not associate with people who do. To be clear, I am certainly not taking a personal position on marijuana use; however, if you want to have or keep a security clearance any recreational use is going to be a problem. Forewarned is forearmed!
A good rule of thumb
If you are struggling with how your actions might be viewed by the investigator, you need to address it.
Don’t underestimate your intuition in this area. The big picture is that the Government is attempting to predict future behavior. All of the guidelines have this purpose at heart. Those who have violated the terms of their clearance share common behaviors that fall under guideline E. This can include questionable personal conduct and responsibility. Taking the right steps can mean the difference between success and failure in the security clearance process.
Bryan DePowell is a senior military and security clearance attorney at Crisp and Associates Military Law. He is a former veteran law enforcement officer with experience conducting complex legal and governmental investigations. Depowell has lectured in the areas of criminal law, military law, and other constitutionally related issues. He is a graduate of the University of Hawaii at Manoa and Widener Commonwealth Law School.