Security Clearance Mitigation Lawyer
The Role of Mitigating Evidence in the Security Clearance Process
Mitigation is the key to all security clearance defense before the federal government. Security clearance cases are not criminal defense, civil disputes, or wrongful termination cases. While issues arising out of those types of cases may affect a security clearance, the burden of proof and burden of persuasion in security clearance cases are different. The burden on a security clearance applicant or security clearance holder is to prove it is in the interests of national security that they be given access to classified information.
Once security clearance concerns have been established, the applicant or clearance holder must provide not just an explanation, but evidence, of why the concern is mitigated.
Concerns over personal conduct (honesty or failure to follow rules), drug or alcohol abuse, financial problems, foreign national influence, and criminal activity are common reasons for security clearance eligibility to be called into question.
While time can be a powerful mitigating factor, when facing security clearance issues, you must show that you have taken proactive measures to ensure that the alleged conduct will not happen again.
Time also matters in reporting violations before they are discovered. While Continuous Evaluation is designed to catch issues in major federal databases, such as financial irregularities, criminal arrests or charges, and legal filings, a clearance holder is obligated to report issues as soon as they arise. Immediate reporting also serves as its own mitigation to show an intent to be honest and forthcoming.
All mitigation must be backed by documentary evidence, and deciding what and how to present that evidence is critical in fighting a clearance denial or revocation.
Mitigating Evidence for Specific Issues
Financial Considerations
- Credit report showing resolved issues of unpaid debt, charged-off accounts, or delinquent payment histories.
- Payment plans with expected payoff dates
- Settlement agreements from collection lawsuits
Foreign Influence
- Foreign travel records, including passports, visas,
- All foreign contacts, family or not, and as much information as possible about them as possible
- Records of foreign bank accounts and transaction history
- Legal documentation for land ownership, purchase, or transfer
Criminal Conduct
- Police reports, including narratives, chemical test results, license suspension documents, and criminal history
- Court documents such as plea forms, court-ordered requirements such as public service, drug/alcohol testing, classes, counseling, and fine payment schedules
- Records of case termination, sealing, or expungement
Drug Involvement or Alcohol Misuse
- Evaluations diagnosing a drug or alcohol use disorder
- Proof of completion or ongoing court-ordered or voluntary treatment for substance abuse
- Regular testing results for illicit substances
- Character references from individuals who can speak to recovery and positive changes since the substance abuse issues were addressed
Psychological Concerns
- A history of stability over a period of months and years
- Consistent compliance with treatment recommendations
- Detailed medical records documenting the mental health issues and treatment
- Positive prognosis from mental health professionals
- Expert testimony, especially if the government has a psychological report detailing concerns
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Using Mitigating Evidence to Respond to a Statement of Reasons (SOR)
The SOR is often the first opportunity to provide mitigating evidence, as security clearance holders either are not aware of the problem or do not understand how to address it properly.
SORs have strict response deadlines, so determining what mitigating evidence will be needed must be done as soon after receipt of the SOR as possible.
Each national security adjudicative guideline has its own specific mitigating conditions, so the mitigation should be tailored to that purpose.
The best written mitigation directly addresses the security concerns and either refutes it or properly contextualizes the conduct to soften its impact.
Right deadlines and deep knowledge of the adjudicative guidelines are just two of the reasons you should hire an experienced security clearance lawyer to assist in the mitigation process.
Organizing Exhibits and Preparing for a Security Clearance Hearing
Mitigation does not stop with the SOR response. If the SOR response does not mitigate concerns, there must be a renewed focus on providing additional evidence that presents a stronger case to the administrative judge or security panel.
Hearing exhibits should be professional in appearance, well-organized, and presented in advance of the hearing to make it easy for the parties to review and reference.
If outside witnesses are allowed, having them prepared to address specific areas of concern and having addressed potential cross-examination questions will make their impact on mitigating concerns that much stronger.
If additional issues are raised at a hearing or certain documentation was not available at the time of the hearing, do not be afraid to request that the record be kept open to submit additional mitigating factor evidence.
How a Security Clearance Mitigation Lawyer Protects Your Career
An experienced security clearance lawyer has dealt with the adjudicative guidelines countless times and knows how the government views particular forms of mitigation.
Our firm has deep knowledge and experience in presenting mitigation to investigators, adjudicators, government counsel, administrative judges, and security panels. We use that knowledge and experience to prepare you and help you present the best mitigation for your situation.
As soon as you receive a document calling into question your clearance eligibility, you should begin by scheduling a consultation with a security clearance lawyer and reviewing the issues.
Contact us today for a free, confidential consultation to discuss your concerns. Brian@LSAttorneys.com 847-775-7701.
