“Negative Reciprocity” Emerges in the Security Clearance System

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.