Criminal Charges and Security Clearance

A criminal conviction can have serious consequences. In the near term, it can result in jail, probation, and/or a fine. In the longer term, it can jeopardize a person’s career and reputation. Being arrested or convicted of an crime can also affect a person’s security clearance. This is an issue of particular importance to the D.C./Northern Virginia area where many government employees and contractors require a security clearance in order to perform their jobs.

Security Clearances

A security clearance is technically a license issued by the government to access classified information. Clearances generally fall within one of three levels of security classification:  confidential, secret, and top secret. Top secret classifications are further divided into sensitive compartmentalized information (SCI) and single scope background investigation (SSBI).

Although members of the military and defense contractors account for the largest percentage of people who have been granted a security clearance, the medical, telecommunications, education and financial fields also offer many jobs requiring some type of clearance.

The process for applying for a security clearance consists of three phases:  application, background check, and adjudication.  The process normally takes six months to a year to complete, with temporary clearances rarely, if ever, given.  In addition, top secret clearances are reviewed every 5 years, secret clearances are reviewed every 10 years, and confidential clearances are reviewed every 15 years.  Military and civilian personnel working for the Department of Defense are also subject to random reinvestigations.

Ramifications of a Criminal Arrest or Conviction

A decision on the granting or renewal of a security clearance depends on a number of factors related to the person’s overall character, including honesty, trustworthiness, loyalty, financial responsibility and reliability.  A criminal arrest or conviction could raise questions with respect to a number of these factors, thereby potentially jeopardizing a person’s eligibility.

There are three categories of people who are absolutely precluded from being granted a clearance:  (1) any person who is an unlawful user or addicted to a controlled substance, (2) any person who is deemed mentally incompetent by a licensed professional, and (3) any person who has been discharged from the armed forces under dishonorable conditions.

This means that a simple arrest and even a criminal conviction will not automatically disqualify a person for a clearance.  At the same time, such a criminal history could prove problematic, especially if combined with other factors that reflect poorly on the person’s background and character.  Examiners might look particularly harshly at felony crimes and crimes involving dishonesty (e.g., theft, embezzlement) or substance abuse (e.g., driving while intoxicated, possession of controlled substances).  They might also be concerned about crimes that could open the person to blackmail (e.g., solicitation of a prostitute).

Consistent with basic due process considerations, people whose security clearance is denied or revoked do have the right to appeal.  An appeal usually involves a hearing in which the person is given the opportunity to contest the decision and ask for reconsideration.