Kathleen Smith
Hi, this is Kathleen and welcome to this special security clearance focused episode of our podcast with our special guest Anthony Kuhn of Tully Rinckey PLLC. Tony, thank you for joining us this afternoon. Can you tell me who you are, who you work for, and a little bit about yourself?
Anthony Kuhn
Thank you, Kathleen, my pleasure. My name is Anthony Kuhn. I’m the managing partner for Tully Rinckey PLLC. We’re a law firm. Two of our main practice areas are military and national security law. So we work in this realm quite often. I’m also the chair of the National Security Lawyers Association, which is a non-profit geared towards training and developing and helping individuals in the intelligence community. And I’m also a veteran of 26 years in the Army and Army Reserve.
Kathleen Smith
So let’s talk about the implementation of continuous monitoring and how that has changed the types of issues that arise for cleared professionals versus previous reinvestigation processes.
Anthony Kuhn
Sure, thanks Kathleen, always a pleasure. So people are becoming more familiar with the new process, continuous evaluation, or some people call it continuous monitoring. In the past, individuals who held a security clearance would have to go through what was called a periodic re-investigation, and those still exist. And it depends on the level of your security clearance. So for example, an individual with a secret clearance would only be re-investigated or have to go through that periodic re-investigation every 10 years where an individual who has a top secret clearance would have to go through that periodic reinvestigation every five years. And basically what would happen is an individual that potentially violates one or more of the adjudicative guidelines, and could potentially become a risk to national security only had to deal with those issues every five to 10 years, depending on their level of clearance. Under the new monitoring system, most people still have to do the periodic re-investigations because it hasn’t fully been implemented yet. But there’s this added element where individuals are always being monitored to see if there’s something that can be caught that might potentially violate an adjudicative guideline. For example, they’re not paying their bills, and they’re falling behind on their finances, or they get arrested for a DWI, or something like that might trigger the new continuous monitoring or continuous evaluation system, and then have to answer for it a little sooner.
Kathleen Smith
And how has the continuous monitoring changed the way clearance issues should be reported and mitigated?
Anthony Kuhn
The mitigation is the same, but it’s changed the reporting quite a bit. So in the past, many individuals didn’t understand or just intentionally didn’t self-report, when they had a potential violation. Every individual that holds a security clearance has a duty to report violations of the adjudicative guidelines, but not everybody did. And it would be caught during the periodic re-investigations and potentially mitigated at that time. Well, now individuals know that they have to report in real time contemporaneously. So if an individual for example, again, were to get a DWI, they would have to self-report that DWI. And that would be adjudicated at that time, they might get some questions we call written interrogatory, is where they would just answer some questions after they report the incident. They might get a statement of reasons and could potentially lose their security clearance over the guideline violations. But one of the things that we always talk about is that you have to report that incident, and you have to report it in writing. And you want to do that for two reasons. The first reason is because you want to control the narrative. If you just call an individual and have a conversation with them, they’re going to perceive that conversation based on their life experiences and their opinions of the things that you might be reporting. And what the information that you convey is probably not going to be exactly the same as the information that goes into that report and potentially an incident report. So what we like to do is we like to record in writing, because you get to control the narrative, you get to tell the story that you want to tell in the facts most favorable to the applicant, or to the individual that holds the clearance. But you also get to add mitigation, and attempt to mitigate the concerns before you potentially get your security clearance revoked. And then the second reason is because we like to create a record of the self-report so that when you come up for a periodic reinvestigation, nobody’s going to be able to hold it against you that you failed to self-report, because you’ve got evidence that you did.
Kathleen Smith
And I always love this advice that you give to people about making sure everything is in writing and being very clear. Be sure that you have documentation of the entire process.
Anthony Kuhn
Like you pointed out, you want to be able to prove that you reported that information or you can get in a lot of trouble for that in the future. And as a guideline, if you fail to report the information, you’re going to add a personal guideline, a personal conduct guideline violation, which is guideline E of the adjudicative guidelines. And it’s very difficult to prove that you did not intentionally omit or withhold information. We can mitigate all the other guidelines. And I mean, I saw a case as recent as yesterday, where an individual had mitigated drug use, criminal conduct, all of the things that you think would stick out, but did not mitigate the fact that he just didn’t tell anybody about it. And that was the reason he got his security clearance stripped.
Kathleen Smith
We hear about older clearance holders having issues with alcohol and drugs, whereas younger professionals run into information system issues. Can you talk about where you typically see cleared professionals running into problems with the adjudicative guidelines and why?
Anthony Kuhn
Sure, it makes sense that somebody who has been old enough to drink for 20 plus years would drink more and might have had a history of consuming more alcohol than somebody who’s younger and is just now establishing their security clearance. So that makes sense. As well as the the example you gave with younger individuals having some issues with social media and internet and things of that nature. Because when’s the last time you saw a group of teenagers together and they weren’t all just sitting on their cell phones even standing next to each other? It’s very common. So they get more use out of electronic devices than other individuals. We try to mitigate all of those concerns. Probably the most common one that we see coming up across the board is financial considerations. So I believe that’s still the most common reason for individuals to lose their clearance as well. Most financial considerations, just not keeping up on your bills, not filing your taxes on time, falling behind on student loans, those are pretty common. And then also another one is guideline H, which is the drug use guideline. We all know that marijuana is now legalized in more than half of the states. It’s probably going to be legalized federally here in the relatively near future. That wouldn’t surprise me. But it’s not right now, it’s still considered to be a schedule one drug. But I wouldn’t be surprised if more than half of the security clearance applicants right now are individuals who have tried marijuana in the past. It’s very common. It’s not a bar from getting a security clearance, unless you lie about it. Individuals who are honest about the type of use and can explain the recency and frequency and mitigate the concerns are still going to get a security clearance.
Kathleen Smith
Let’s dive a little bit deeper into this as far as how you would counsel someone who maybe in a moment of weakness, smoked some pot versus someone who is taking it as a prescription. And what should they do about the reporting process? Should they just sort of keep their head down and wait until marijuana is legal on a federal basis? Or what should they do?
Anthony Kuhn
So I think most people understand that marijuana use typically falls into two categories. It’s either recreational use or medicinal purposes. The federal government doesn’t recognize those categories. They just say it’s a schedule one drug – it’s illegal. But we all understand that some individuals use marijuana because it makes them feel good. And they use it for recreational purposes. And other individuals use marijuana for pain to increase their appetite. There’s different medical reasons why individuals use marijuana. And we all know people, I think most of us know people who use marijuana for medicinal purposes. And it works. I’ve seen it work personally. That said, the federal government does not recognize that yet. They probably will at some point here in the relatively near future, but they do not yet. So the mitigation around the use would depend on the reason for the use. So if an individual were to tell me today that they want to get a security clearance, and they use marijuana, then my question would be when is the last time that you used marijuana, because some agencies like to see a year or more from the last use to current day, not all of them. Recently, most of the agencies have become a little more lenient because of the prevalence of marijuana in society. But I would tell that individual, stop using, we’re gonna get an evaluation and see if we can get a medical professional to evaluate you to determine if you have a drug problem. And I would let them know that the both recency and frequency are going to be considered by the adjudicators. So when was the last time that you used and how often did you use, and then for an individual who uses for medicinal purposes, we can probably get a little more leeway in that case, if we can show that they’ve got a condition. They’re using it for medical reasons, regardless of whether it’s prescription or not. Now, obviously, prescription marijuana is going to hold a little more weight than just saying that you’re using marijuana illegally but for medical purposes, but both are valid arguments because people do both. And you know, we can say that an individual was using it to treat some type of illness or condition. If we can find a new effective way to treat that condition, then we can self-report the marijuana use and, in both cases, recreational or medicinal, we need to convince the adjudicator that the individual is no longer going to use marijuana. They understand the importance, maybe they didn’t know because they were in a state where it was legal or something like that. There’s always some type of mitigation. We got this evaluation, they don’t have a drug problem, they don’t use anymore. We can get some drug and alcohol counseling potentially, or some drug and alcohol awareness training, all different types of mitigation. And then we self-report. I would never tell an individual not to self-report, because ethically, that’s bad advice. And it’s not advice that I’m going to give. Is the government going to find out if somebody used marijuana? Maybe, maybe not. If an individual isn’t honest, and they go for a secret clearance, and they don’t get a polygraph and things of that nature, the government might not know that they used marijuana, but at some point, that individual is going to get promoted or going to have to take a polygraph for a certain position that they want to be in. They’re going to have to disclose that information and probably lose everything that they worked up to that point.
Kathleen Smith
You brought up that the number one reason that a lot of people have their security clearance pulled is for financial issues. At what point do I start raising my hand and reporting? Is it when I’ve gotten one late payment notice or my car is about ready to be repossessed? At what time do I ask for help and start reporting and mitigating?
Anthony Kuhn
Things come up. Are you acting responsibly given the circumstances? Did you fall behind because you became ill or your spouse became ill? Did you get a divorce? Everybody knows that that’s going to cause a negative effect or negatively impact an individual’s finances, both spouses, in that marriage. Did you? Did you have children? Did you lose your job? Did something happen that put you in a position where you fell behind on your finances, but these issues were beyond your control and you acted responsibly given the circumstances? Some individuals even file for bankruptcy protection while holding a security clearance. That’s not an automatic revocation of your clearance. If you’re acting responsibly, given the circumstances, and you do it the right way, that might actually be the right thing to do to protect your security clearance. People don’t always understand that. As far as when you should report, if you fall behind on a credit card payment or something like that, it’s not something you have to report right away. If you can make it current, you’re good to go. It’s where you start to develop a pattern where it looks like you’re living outside of your means and you’re unable to keep up with your finances. If you fail to file your taxes on time, that’s a huge problem. People think, the government owes me money, it’s not a big deal. It’s a very big deal, because this is the federal government’s taxes we’re talking about. And they want to see that individuals can follow the rules. It’s really more about rules than it is about anything money related. So are you filing your taxes on time, are you giving the government their money back based on student loans, or have you fallen behind on student loans, another problem that involves the government and rules. So those two are the big ones that cost people and guideline F cases. But beyond that, has your car been repoed? That’s a problem, you’re gonna want to report that. Or did you just miss a payment and you made it up shortly thereafter? Then that’s probably not reportable. So if you get to where you’re three, four months behind, something like that, now you’re having problems. You’re going to want to start working to mitigate those problems. And you’re going to want to report in writing, what the issues were that caused those problems. Because going back to what we talked about earlier, if I just call my security officer and say, hey, my car just got repoed, incident report goes in and then I have to wait until my opportunity to try to mitigate the concerns before they yank my clearance. I might lose my job in the process. It’s easier and better if you put it in writing. Explain what happened. Why, what’s the mitigation? Why did you fall behind? Why did your car get repoed? Did you get divorced? Like I talked about, did your spouse get ill? Did you lose your job? What are you doing to fix those issues? You can put all that into a written report. And you are reporting the negative information, the violation of guideline F, but you’re also providing mitigation. So you might be able to keep your security clearance without the need for litigation.
Kathleen Smith
You and I are both on the same page. As far as reporting, I would almost think that if you did miss a credit card payment, or you did miss a car loan payment that you would at least keep a record of why you did that, because I know if it comes up at some point later…I have difficulty right now remembering what I had for breakfast yesterday. How can I remember why I missed a payment? I mean, sometimes it’s I get the dates mixed up as to when my payments due. So would you recommend people maybe keep a diary of these things just in case?
Anthony Kuhn
Definitely. For somebody who holds a security clearance. It’s important that you create a record of the things that are important to create a record of. You want to make sure that you can explain later. It goes back to that self-report, we want to save the record that we made the self-report. This is similar if something happens, where you might have to explain yourself later. Create a record of why it happened and create a record of the mitigation at the time because you might not remember what the mitigation is. If this doesn’t come up on continuous evaluation or continuous monitoring, you get five years down the road, and somebody asks you, hey, why’d you fall behind on that credit card payment? It’s probably not going to happen if it’s not a pattern, but it could happen. You could meet with an investigator conducting a thorough interview, and it’s something that that investigator could pick up on if they see a copy of your credit report.
Kathleen Smith
So let’s get down to some nitty gritty, real-world examples and how you would recommend a cleared professional handle or mitigate the issue. So we’re coming up on the weekend, I had one too many to drink. I knew I shouldn’t get in the car, but I did get in the car, and I got a DUI. Can you walk me through the steps I should take as a cleared professional?
Anthony Kuhn
Sure. So we’re all familiar with the commercials: don’t drink and drive, but if you do, give us a call. So you know, call an attorney. I’m not talking about a criminal defense attorney, I’m talking about getting some help with your self-report. And you’re going to have to self-report. So if you’ve been arrested or charged, you’re going to want to self-report that information. Because you’re going to be in a really bad spot, if you don’t self-report it and they approach you and say a month or so with written interrogatories and potentially a statement of reasons, because you’re going to show up as having been arrested. So get some help, put together a really well written self-report. Build in mitigation, get the things that I talked about already, the evaluation, the counseling and things of that nature, make sure that you make sure that you comply with whatever your treating professional recommends, because that’s going to be an issue that’s going to be considered in adjudication as whether you went along with the recommendations and completed whatever counseling or process you were supposed to complete. But you definitely have to report it. Don’t report it right away, get your ducks in a row. I don’t mean sit on it for a month. But you don’t have to you know, you get one call from the police department, you call your security officer, hey, I’m in jail. That’s a bad idea. Get your mitigation lined up, get your self-report done, and then kind of slow roll it to make sure that you’re taking the appropriate steps to preserve your security clearance, and do it in writing.
Kathleen Smith
Would signing up for some kind of counseling right after this be a good step?
Anthony Kuhn
It would. So back to the discussion we just had about the financial considerations issues. And then looking forward to what we’re talking about now with alcohol than maybe drugs, all these different things, even some issues where I’ve litigated cases in the past, where I, for example, I had an individual with a guideline A case, which is allegiance to the United States. A very rare type of case, we don’t get a ton of them. But he was on social media. He was on the internet, he was posting certain things that were not good things to post in public forums. And he got counseling for it. An individual who drinks too much gets counseling and goes through a drug and alcohol treatment program. Maybe they go and do rehab, whether it’s inpatient, or outpatient, and then they go to AA meetings, things like that. An individual with financial consideration issues might go and get credit counseling, and things of that nature. All of those different types of counseling, those are all really good mitigation, probably the best mitigation you can develop in each of those cases.
Kathleen Smith
So again, it’s getting longer into the week, and I’m a little stressed, and I’m angry about a variety of things and I go to my local bar, and I’m in a bar fight. I’m arrested and then released without being charged. What do I do?
Anthony Kuhn
Good question. So were you really arrested? Or were you just talking with the police officers? They did their investigation, and then they kicked everybody loose, because they didn’t want to create work for themselves with police reports. Sometimes the officer will say what do you guys want to happen? And you say, I want to go home and he says I want to go home. We’ve all just had too much to drink, okay, and everybody goes in the opposite direction. If that happens, you weren’t actually arrested. You weren’t charged. You don’t have to go to court to meet the requirement of having been arrested or cited or things of that nature that they’re looking for. But if you weren’t arrested, if you weren’t detained, if you weren’t taken to a police station, if you weren’t actually charged, then it’s probably not a reportable incident. If any of those things did happen, you got charged, even if you got an appearance ticket that you have to go to court, or you were detained and taken to a holding center overnight or something like that. You’re gonna have to report that incident.
Kathleen Smith
Okay, my favorite example, you know what this one is. Some people may have had a weekend fling or a one-night stand with a Russian national, do I need to report anything?
Anthony Kuhn
So there are certain things that you’ll have to report for foreign preference and foreign influence. These are guidelines B and C of the adjudicative guidelines. Everybody laughs when we hear this example, but it happens. Any security clearance attorney will tell you that they probably represented some people who have been in a similar situation. There’s going to be some some circumstances where you’re going to have to report it and maybe some where you don’t have to report it. Was it close are continuing contact? That’s the first step of the two-part test that adjudicators are going to look at. So you’re responsible or required to report close and or continuing contact with someone with whom you have a bond. And if you read the question on the SF86, in detail, you’ll see that it actually is a two-part test. So close or continuing contact with someone with whom you are bound, and it lists a bunch of reasons why you could be bound to that individual, but it’s not an all-inclusive list. So if you can answer yes to both of those questions, then you’ve got to report that individual or that contact with that individual. If it’s something where, let’s say you’re in the United States, and you have a one-night stand with somebody who you think is possibly a foreign national, you know, you’re probably over reporting, you probably don’t have to report that. But if something happens, that makes you wonder if that individual was targeting you, or anything along those lines, you should report that because that individual should maybe be checked into or investigated. Or if you get into that situation, and you start to develop a relationship. Sometimes we represent individuals who actually move in together with a foreign national and don’t report that, that’s a huge issue. Because your cohabitant is somebody, obviously, you’ve got close and continuing contact with. And obviously, you’re now bound with that individual for some reason. So that’s obviously a reportable incident, doesn’t mean you’re definitely going to lose your security clearance. It just means that the federal government is going to want to know who you’re living with and who you’re developing this relationship with, because they want to know who that individual was, or is, and whether there’s some type of threat now associated with you.
Kathleen Smith
Now, what if you move in with your FSO?
Anthony Kuhn
It’s a funny question. But there’s some small businesses that have an FCL, facility clearance, and the key personnel are married.
Kathleen Smith
There is that, but you know, they don’t have to worry about a contentious relationship. We hear a lot of questions about friend or foe of your facility security officer. So how do you navigate that relationship?
Anthony Kuhn
So the whole friend or foe thing we’ve talked about it before, and I think that FSOs, generally, all of them are trying to be a friend and trying to help individuals. But some of the advice that they provide is not always the right advice. Even though they’re trying to help, it could cause an individual to actually lose their security clearance. And a good example of that, this probably happens more in the military than any civilian organization, because I think the civilian FSOs are trained better than a lot of the security officers in the military. But you see a lot of times where an individual will say, hey, I have a hearing coming up, because I lost my written response. And now I have to go to a hearing. And I say, Okay, well, did you do a response? And they say, yes, I did. And I said, Okay, well, I’d like to see the response. Who wrote the brief? And they say, what brief and I say the response. I mean, our responses are normally 50 to maybe 150 pages. And I get back the statement of reasons, with handwritten notes on the statement of reasons where they wrote “admit,” and that was their response. You’re not mitigating anything that way. You’re gonna lose your case, if the government says to you, we think you’ve got a drug problem, because you used marijuana 15 times in the past five years and you write, “admit,” because your FSL tells you that you have to admit or deny everything. You’re gonna lose your security clearance. So we want to build in mitigation, we want to get the treatment, we want to get an evaluation, we want to show that recency and frequency, you know, that straightforward admit answer is gonna get you denied every time. And I only really see that when an individual acts based on advice that they got from somebody that tells them just handwrite right on the statement of reasons and send it back that way. That said, you know, I think there’s some really good security officers out there. And I think that any individual regardless of the advice that they get from their security officer should have a good working relationship with their security officer. There’s going to come a time where you’re going to want to go on vacation, maybe to another country, or you’re going to want to do certain things. Maybe you want to start a business and you need to know if there’s any conflict or issues there, something that you’re going to want to communicate in writing to your FSL or your security officer. And just say hey, I have a question. You send an email. My question is I want to go to Jamaica for my honeymoon. I want to make sure that that’s not going to be a problem. Do I need to be debriefed? Do I need to meet with anybody? Do I need any type of approval, or whatever the case may be? And you’re going to want to get coverage through your security officer, and your security officer is usually your middleman to DoD, or whomever you’re dealing with. And that individual can usually answer questions for you that you wouldn’t be able to get the answer to otherwise.
Kathleen Smith
Awesome. So you and I have talked about this as well, that many folks that have served in the military want to help and want to get things done. And so with the war in Ukraine, is there anything that individuals who want to help should be aware of, for example, donating to aid groups or sending materials? Renting an Airbnb? Is there anything people need to keep in mind so they don’t run into trouble?
Anthony Kuhn
Yes, definitely. It’s nice to see so many people want to help. I want to help. You know, I feel I feel terrible about what’s going on in Ukraine as a combat veteran, as somebody who was an embedded advisor into the new Iraqi Army early in that war. I get it, I want to help. But you have to take a step back. If you’re somebody who wants to obtain a security clearance, especially if you’re somebody who already holds a security clearance, you need to take a step back, evaluate how you’re involved, and make sure that you’re safeguarding your security clearance. If you think that you want to make a monetary donation, you can’t send money to people in Ukraine. You can’t just directly give money to Ukrainians or foreign nationals. If you do that, you’re going to answer for it in the future. But if you donate that money to an American company that is set up and established to help individuals in Ukraine, you’ll be fine. Because you’re donating to an American company, and you’re not building that relationship with a foreign national, you’re not giving money directly to a foreign national. Don’t even think about going and serving in the foreign Legion. If you do that, you’re swearing allegiance to a foreign government’s military, that is almost a guaranteed revocation of your security clearance. So you cannot go and swear allegiance to another country’s military. If you do that, you’re obviously calling into question whether you’re going to resolve a conflict of interest in favor of the United States or Ukraine or any other country. You’re putting yourself in a really difficult position if you go there, and you swear allegiance to a foreign military.
Kathleen Smith
So anything on the horizon? I mean, you’ve mentioned a few things. Was there anything on the horizon that cleared professionals should be concerned about or keep an eye out for?
Anthony Kuhn
I think we’ve talked about a few of them, but just a couple of notes to maybe read reiterate. Coming out of COVID, we’ve all had financial impact, we’ve all had psychological impacts, there’s things that have gone on that we’re not used to. So make sure that you’re protecting your finances. The markets not doing great right now. So make sure that you’re careful to protect your finances. You know, get a budget worked out and make sure you live within your means. You don’t want to be somebody who is having to answer a statement of reasons in the near future for falling behind, because of COVID or any other reasons. If that happens, make sure you create a record of the mitigation which we talked about a little bit earlier. Marijuana is a hot topic right now, all these states are legalizing marijuana. Keep in mind, the federal government has not legalized marijuana. So you’re jeopardizing your clearance or your ability to obtain a clearance in the future if you choose to use marijuana. That’s something I talk with my sons about just about every day, stay away from it. Because you know, everybody thinks it’s not a big deal, marijuana or Adderall. A lot of Adderall use in college, you know, they use their buddy’s Adderall, instead of just going and getting a prescription for it. Go get a prescription. If the doctor believes you need Adderall, you’re gonna get prescribed Adderall. It’s not even difficult to get the prescription. But if you use your buddy’s Adderall, you’re using drugs, it’s illegal for you to do that. And you’re gonna get a guideline H violation for that. A guideline I violation, that’s psychological conditions. That’s another one to keep in mind coming out of COVID. If you had some struggles dealing with COVID, if it affected your mental health in some way, maybe it was helpful for you to seek counseling, something like that. You know, just keep in mind that there is a possibility that you’ll have to disclose that information and work through that information. Everybody gets it. The key there is stick with the course of treatment. Your doctor is going to be asked what you were diagnosed with, and whether you have a good prognosis and whether you complied with the course of treatment. If the doctor can answer those questions in a way that helps you then you’re probably going to be able to obtain and maintain your security clearance. And then the last thing I talk about all the time, you’ve heard me say it a few times, don’t over report. Don’t conduct a background investigation on yourself and try to dig for things that aren’t even on the SF86 because you think you want to fully disclose everything. Don’t provide information that you feel is negative about you, even though it’s not responsive to any question, because you’re probably going to create a problem if you do that. So don’t investigate yourself. Just answer the questions that are right there in front of you. Don’t read into them. They’re very clear questions. They’re very specific questions. They know exactly the information that they want. So if you used marijuana 22 years ago, the answer to whether you’ve used drugs in the past seven years is no, that’s it. So don’t create a problem for yourself. I see it all the time. And sometimes, unfortunately, it results in the investigator digging deeper and causes an individual to get denied or have their clearance revoked.
