Guideline J: Criminal Conduct
Guideline J of the SEAD-4 National Security Adjudicative Guidelines addresses criminal conduct by applicants for security clearances. Criminal conduct can raise security concerns for applicants and current cleared workers at any point in the security clearance process. The length of time criminal cases can take to resolve, and the different goals of a criminal defense attorney and a security clearance lawyer, can also add unhelpful complexity to a case. Military personnel, government contractors, and civilian employees are equally at risk of losing their security clearance eligibility if involved in criminal behavior.
Criminal Conduct Concerns
- Guideline J notes that criminal activity creates doubt that a person cannot follow laws, rules, or regulations. This can apply to charged or uncharged conduct, and even where someone pleads guilty to a lesser charge or is even acquitted in court.
- While the seriousness of the alleged criminal conduct is relevant to the adjudication of a security clearance, even lesser criminal conduct, either by its nature or in combination with other factors, can lead to a denial or revocation of a clearance.
- Felony charges, defined as those that can result in a prison sentence of more than one year, are naturally more serious than misdemeanor offenses. However, certain misdemeanors that call into question the honesty or integrity of the person charged can be just as problematic. Referred to as crimes of moral turpitude, things like theft, deceptive practices, fraud, domestic violence, and sexual offenses are just some examples of criminal conduct that, even if charged as a misdemeanor, can result in a denial or revocation of a security clearance.
Security Forms and Criminal Conduct
The SF-86 asks several questions related to criminal conduct:
First, you must disclose if in the last 7 years you have been summoned to court, ticketed, arrested, charged, convicted, or are on parole or probation for a criminal offense.
Second, you must disclose if you have EVER been charged with or convicted of a felony, convicted of a crime of domestic violence, or charged with a crime involving firearms, explosives, alcohol, or drugs.
Continuous Evaluation and Criminal Conduct
All clearance holders will be enrolled in Continuous Evaluation (CE). While the SEAD 3 reporting guidelines require report of any arrest, the CE database will notify security managers of any arrests of a clearance holder. Always report an arrest, even if not charged, at the earliest possible opportunity.
Security Clearance Lawyer vs. Criminal Defense Lawyer
If arrested or charged, a clearance holder must be concerned with both personal liberty and the security clearance. The burden of proof is vastly different, and your procedural rights under criminal law are far more robust than those of a clearance holder. You should retain an experienced criminal defense lawyer in the jurisdiction where the alleged offense occurred, but also discuss the matter with an experienced security clearance lawyer, as the goal of the representation can be wildly different for the two lawyers. For example, you have a right to remain silent and not incriminate yourself under criminal law, but the decision of whether or not to make a statement for a security clearance holder can change how a criminal defense proceeds.
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The Bond Amendment
There are a few things that are explicitly a bar to obtaining or retaining a security clearance or certain higher compartmented accesses. The Bond Amendment contains a few circumstances that meet this criterion. A person is barred from holding a security clearance if:
- They are a current unlawful user of a controlled substance or an addict.
A person is barred from special access programs (SAP), restricted data, and special compartmented information (SCI) access if:
- They have a felony conviction (meaning punishable by more than one year in jail) and have actually served more than one year in jail for that offense.
- They have been discharged from the Armed Forces under dishonorable conditions.
- They have been determined to be mentally incompetent.
Mitigating Criminal Conduct Concerns
Mitigation is addressed in SEAD 4 for all guidelines. Similar to other mitigation of other guidelines, time and changed circumstances are key to mitigating criminal conduct concerns. Specific mitigation can include:
- Factual Innocence: Different from pleading to a lesser or different offense or even being acquitted at trial, any evidence to show you did not engage in the criminal activity in question will help mitigate the concern.
- Time: The more time that has passed without criminal activity occurring, the better.
- Changed Circumstances: Making efforts to change the environment around you that existed when the criminal activity occurred can help show that it is less likely to repeat itself.
- Unusual Circumstances: Circumstances that are unlikely to repeat themselves, such as rare or unexpected life events, can help demonstrate that criminal activity was a product of a situation that is unlikely to happen again.
- Rehabilitation: Showing that you have rehabilitated yourself in the eyes of the law and society also helps mitigate conduct. Completing all court-ordered requirements, voluntarily attending treatment, making restitution, holding steady employment, and staying free of illicit substances can all potentially be relevant to mitigation. It is very difficult to obtain a clearance if a court-ordered period of probation or supervision is not complete at the time of response.
- Pressure or Coercion: Being able to show that you were pressured into being involved in criminal activity can mitigate the concern, if you can also show that the source of the pressure or coercion has been removed and why it will not recur.
Connection with Other Guidelines
Criminal conduct is often cited along with other adjudicative guidelines for the same behavior. The most frequent are:
- Guideline D: Sexual Behavior: Sexual criminal behavior, such as sexual assault, possession or distribution of child pornography, soliciting a prostitute, or working as one, is all against the law and thus raises concerns under both guidelines.
- Guideline E: Personal Conduct: Guideline E is focused on security risks from failure to follow laws, rules, and regulations, so violation of any criminal law often invokes both guidelines.
- Guideline F: Financial Considerations: Financial fraud of any kind, lying on tax forms, or failing to pay taxes, and theft are all criminal offenses.
- Guideline G: Alcohol Consumption: While alcohol is legal for those over 21, criminal charges arising out of alcohol intoxication are common: driving under the influence, domestic battery, and disorderly conduct while intoxicated are all common criminal conduct that can invoke the alcohol consumption guideline as well.
- Guideline H: Drug Involvement: Possessing, buying, or selling federally illegal drugs is a criminal offense, and it is very common to see an applicant who admits to buying small amounts of marijuana be cited under both guidelines.
- Guideline I: Psychological Conditions: Psychological conditions that lead to instability and uncontrolled behavior often lead to criminal arrest and charges.
Contact an Experienced Criminal Conduct Attorney Today
If you are a clearance holder who is being investigated or has been arrested or charged or is facing a letter of interrogatory or statement of reasons, you need to be represented by a lawyer familiar with both criminal law and security clearance defense as soon as possible.
