In the world of security clearances for access to classified information, the term “reciprocity” is used to indicate that one executive branch agency should ordinarily recognize and accept a security clearance that has been granted by another executive branch agency.
This is not just a nice, cost-efficient thing to do, it is actually a requirement of law. Under the 2004 intelligence reform law, “all security clearance background investigations and determinations… shall be accepted by all agencies.”
This requirement for mutual recognition and acceptance applies equally to the higher order clearances of the intelligence community, where reciprocity is intended to promote employee “mobility” throughout the intelligence system, according to the 2009 Intelligence Community Directive 709.
So possessing a clearance from one agency should simplify the process of access approval at another agency. But the opposite is not supposed to be true. If an agency refuses for some reason to recognize the clearance granted by another agency, that refusal is not supposed to incur loss of clearance in the original agency.
Officially, such “negative reciprocity” is not an authorized, legitimate security clearance practice. And yet there are signs that it is being adopted within the Department of Defense Office of Hearings and Appeals (DOHA), which rules on contested security clearance cases.
A new paper by attorney Sheldon I. Cohen describes a series of DOHA rulings in which a perverse form of negative reciprocity has been used to justify the denial or revocation of a security clearance, to the obvious detriment of due process.
“While the burden of proof has always been placed on the employee by the DOHA Appeal Board to show why he or she should be granted a security clearance, until now there was a modicum of a right to confrontation, and a right to challenge the evidence presented by the government,” Mr. Cohen wrote.
But in a ruling he describes, “anonymous redacted reports and other agency’s decision are enough to deny or revoke a DoD clearance regardless of contrary evidence.”
In a series of recent decisions, the DOHA Appeal Board “has accepted unsigned, unsworn, summary statements from unidentified persons in government agencies [that are] in direct conflict with live testimony at a hearing to deprive or revoke security clearances of government contractor employees.”
To avoid or limit the fallout of negative reciprocity, Mr. Cohen advises DoD employees and contractors to immediately appeal any adverse clearance decision, “at least to get [their] side of the issues on the record.” Left unchallenged, it appears that adverse decisions by other agencies will be presumed reliable by DOHA and that any later attempt to rebut them “will most probably be rejected.”
See “Has the Defense Office of Hearings and Appeals Become a Star Chamber Court?” by Sheldon I. Cohen, October 19, 2012.
The Department of Defense last week published a three-volume “DoD Sensitive Compartmented Information (SCI) Administrative Security Manual,” DoD Manual 5105.21, October 19, 2012.
ROBERT STEELE: DOHA is long overdue for a deep look by the DoD Inspector General. In my personal case, despite an Administrative Court Judge finding AGAINST DOHA on every single count of having undeclared foreign contacts (7,500 of them, all declared by number names never demanded) and undeclared foreign earnings (roughly $50,000, also declared to both USG and IRS), DOHA stripped me of my clearances in 2006 and refused to restore them in 2008. This led to the loss of all contracts, and my being forced to close OSS.Net, Inc. at the end of 2010. Given that my 2007 earnings were $1.7 million gross, the financial damage done to me by DOHA is tangible. I have been unsalaried since 1 January 2008, and unemployed since 1 January 2011. It gets worse. In 2010 I was asked for “by name” to be Chief Instructor for Intelligence and Information Operations at COINSOC in Iraq, with an signed contract from Raytheon for $276,000 a year, and DOHA refused to grant a mere SECRET clearance — a straight-forward National Agency Check – ultimately costing me $1 million in earnings aassuming a four-year tour. I ultimately had to threaten legal action to get my file released to the Office of Personnel Management (OPM), and now I have a completed OPM SSBI, finished 15 March 2012, and DOHA has been sitting on me since then, 7 months and counting with no adjudication and no Statement of Reasons for the simple reason that I am crystal pure and any Statement of Reasons could be joined with my other legitimate grievances and taken to a higher court. DOHA is forcing me to again consider legal action, this time with Raytheon as a co-defendent since they never actually submitted me as required by the signed contract. The US clearance system lacks integrity across the board, and especially at CIA, where “fitness for duty” physicals and spurious psychological claims are manufactured by order of selected unethical managers against specific employees that dare to demonstrate any form of integrity. I know of at least ten very successful and loyal DoD employees–not just contractors–who should be fired immediately if “negative reciprocity” is allowed to stand. DOHA shames us all. It’s time DOHA had a top to bottom scrub — sadly, everyone in their chain of command is over-whelmed, so we cannot expect this problem to be fixed in the near term. Below, for the record, is the one page summary — and the Findings of the Judge, a single point of integrity within DOHA. It also bears mention that this “negative reciprocity” is being used on a selective basis, not uniformly, or tens of thousands of contractors and DoD employees would be out of a job. Bottom line: DOHA lacks integrity in how it does its job. This would, in a government committed to the rule of law, demand deep investigation by the DoD IG. This would be an excellent assignment for the new Assistant Inspector General for Intelligence and Special Programs, once interviews have been carried out and a person selected.
UPDATE of 22 November 2013. DOHA sat on me for one day less than one year. Fortunately the DoD Office of General Counsel has integrity and took over the adjudication, such that I received reinstatement to TS (held for 30 years without incident) and am now employed in Afghanistan. Fortunately also, DOHA has nothing to do with SCI adjudication, and that system appears to be operating with integrity. In my own case, I was asked about the $40,000 in unpaid debts that were a direct result of DOHA’s malfeasance, and I believe I have fully satisfied the adjudicator, working late into the night over a week’s time to fully settle everything on a payment plan. Of course if I do not get the SCI restoration (also held for 30 years without incident) I will be fired and back to zero.
POSTSCRIPT: The IC “leadership” is still unwilling to consider what I tried so hard to explain to Jim Clapper in 2005 or so. It is not possible to “investigate” anyone (such as Snowden) and reliably exclude all individuals who might one day be so shocked at the crimes against humanity that CIA and NSA routinely indulge in, that they betray their administrative oaths and fall back instead to their Oath to defend and support the Constitution of the United States of America [or simply sell out when the right offer comes along]. In my case, I am quite comfortable taking the king’s coin and following the king’s rules. I have vastly more riding on the future of the global intelligence and US intelligence community — in a constructive manner — than any temporal satisfaction that might be derived from being a whistle-blower. The US IC is not going to be fixed by whistle-blowers, however well-intentioned they might be. Plus, nine books later, and many articles and chapters and briefings all of my constructive criticism is on the table — and I have no secrets to betray even if I were so inclined. What matters here is the strategic integrity of the system as a whole. It makes no sense at all to spend a lot of money “clearing” loyal decent human beings to then insert them into processes that are inherently stupid (best case) to downright evil (worst case) that a handful are inevitably “turned” while most of the rest become automatons, paying lip service to a process that does not produce intelligence useful to most. At least one out of 1,000 will break badly. 10 out of 1,000 will commit suicide in one form or another. 100 out of 1,000 will become alcoholics, cheats, or serial divorcees and bad parents. The human cost that we pay, every day — mindful of the 22 veterans a day that successfully commit sucide — is the canary in the coal mine. Jim Clapper did not want to hear this in 2005. Today, 13 years later, my original book ON INTELLIGENCE: Spies and Secrecy in an Open World remains the standard on executive malfeasance, and no one cares. No one, anywhere, gives a damn. THAT is the great betrayal. Snowden and potential traitors are pimples on the ass of that particular donkey. I continue to pray that one day the US IC will set the gold standard for ethical evidence-based decision-support. In the meantime, I am happy to have a job in Afghanistan, and complaint with the letter and spirit of every law governing my employment.
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