Practice Notes
The Enigmatic Adjudicator
A Brief Primer on the DoD CAF Process
By Major Michael J. Lebowitz
The Department of Defense (DoD) Consolidated Adjudication Facility (CAF) is an enigma for many DoD personnel holding top secret security clearances. For example, the accused in a joint military commission faced the prospect of losing their defense counsel over security clearance issues.1 Specifically, a security officer believed each of the accused’s defense attorneys willfully disseminated classified information over an un classified network. The security manager subsequently “referred” the matter to the DoD CAF for adjudication. The military judge—already frustrated at the perceived slow pace of security clearance adjudications for new personnel—soon became focused on a litany of DoD CAF-related questions, including what exactly the DoD CAF’s role was in the process, whether a referral created a conflict of interest for defense counsel, how best to speed things up to resolve the matter and avoid delay, and what a “referral” actually meant. Ultimately, the military judge ordered witness testimony to help him “understand the morass of regulations and how they all work . . . .”2
Indeed, the bureaucracy behind the DoD CAF’s adjudication process remains somewhat of a mystery. The Directorate of Plans, Training, Mobilization and Security (DPTMS) at Fort Meade even attempts a “myth buster” webpage to help educate military personnel.3 Typically, prospective or current clearance holders understand they may obtain access to classified information upon completion of various administrative processes, including the electronic Questionnaire for Investigations Processing (e-QIP) and participating in an interview with an investigator.4 But it is the little-known DoD CAF procedures occurring post-investigation that may have significant and lasting effects on individual security clearance holders. This primer will help judge advocates better understand the process.
The Fort Meade-based DoD CAF is the sole authority to determine security clearance eligibility of most DoD personnel occupying sensitive positions or requiring access to classified material.5 The process is outlined in Departement of Defense Memorandum (DoDM) 5200.02, which is DoD’s implementation of Executive Order 12968.6 The purpose of DoDM 5200.02 and Executive Order 12968 is to uniformly set procedures governing access to classified information. As such, the DoD CAF is tasked with determining whether individuals are permitted access to such material.7
Adjudication Process
The DoD CAF, which consolidated a disparate array of adjudication authorities into one entity in 2013, does not conduct background investigations. That responsibility falls to the Office of Personnel Management (OPM).8 Responses to the e-QIP, for example, initially make their way to OPM.9 This is the more familiar part of the process where DoD personnel may be contacted by an investigator. Once the OPM investigation is concluded, information is entered into the DoD CAF’s internal system known as the Case Adjudication Tracking System (CATS).10 From there, information from the investigation is passed to a DoD CAF adjudicator.
Adjudicators do not investigate.11 As such, they will not knock on a neighbor’s door asking questions. Instead, an adjudicator’s job is to review anything that is available, relevant, and reliable in order to make an educated determination on whether an individual can be trusted to access classified information. Information typically available to the adjudicator includes the e-QIP information, credit reports, and OPM interviewer’s notes. Adjudicators assess the information in order to get a good picture of an individual—often referred to as the “whole-person concept.”12 The overall timeframe between the OPM investigation and adjudication is typically contingent on the information relevant to each individual. As such, an individual with extensive foreign contacts or financial dealings may take longer to adjudicate than someone with a more generic background.
Adjudicators generally look to thirteen guidelines as the basis for their determinations.13 These guidelines range from categories such as allegiance to the United States, foreign influence, alcohol consumption, criminal conduct, and use of information technology systems. Pursuant to the “whole-person concept,” each guideline possesses disqualifying conditions and mitigating factors. When an individual file contains information relevant to particular guidelines, adjudicators evaluate items such as the seriousness of the conduct, the individual’s age and maturity at the time of the conduct, recency of the conduct, and likelihood of continuation or recurrence of the conduct.
Although adjudicators do not investigate, they can seek out additional information without re-initiating the investigation.14 For example, if the adjudicator cannot make a determination with the available information, the adjudicator may submit interrogatories to the individual via the local security office. They may also obtain or rely upon official, publicly accessible government records. Any additional information obtained by the adjudicator will be attached to the individual’s permanent file for future reviews.
Once all of the information is considered, there are generally two potential scenarios. One is that the adjudicator issues a favorable determination and the individual is on track to access classified material.15 The other scenario involves an adjudicator determining an individual fails to meet the requirements for eligibility and access to classified information; thereby entitling the individual to administrative due process.16 Specifically, the DoD CAF will provide the individual a detailed written explanation known as a Statement of Reasons (SOR) articulating the basis for the unfavorable determination. The individual can then submit matters rebutting the unfavorable determination. If unsuccessful, the individual may then seek additional appellate review through the Defense Office of Hearings and Appeals or the Personnel Security Appeal Board.
Referrals to the DoD Consolidated Adjudication Facility
All security clearance holders are subject to continuous evaluation.17 If something happens in an individual’s life related to the thirteen adjudicative guidelines, the individual must self-report that information to appropriate security personnel. This can be anything from DUI arrests to new foreign contacts. Similarly, once an individual obtains a security clearance, the DoD CAF may continue to receive information about that person beyond the self-reporting requirement.
For example, security officers and commanders possessing potentially derogatory information relevant to the thirteen adjudicative guidelines have the discretion to inform the DoD CAF about that information.18 This is known as “referral.”19 Generally, if the matter is egregious enough, security managers or commanders have the discretion to suspend access to certain classified information, but they do not have the authority to revoke clearances.20 Revocation primarily falls to the DoD CAF.21
Typically, the individual is not informed that a referral has taken place.22 Neither security officers, commanders, nor the DoD CAF are under any obligation to do so, although other factors such as FLAGS or administrative investigations related to the underlying offense may bring the referral to light. Security managers within an individual’s command generally coordinate with the DoD CAF when referrals are submitted. In addition, security officers have access to the Joint Personnel Adjudication System (JPAS), which indicates that status of the adjudication process, to include whether the matter is under review.23 Accordingly, commanders should remain in constant communication with their security officers in order to remain apprised of the eligibility status of security clearance holders, particularly where a referral is submitted to the DoD CAF.
Upon referral, the matter is assigned to an adjudicator. The adjudicator provides an initial assessment of the new information to determine whether any immediate action is necessary. If not, the adjudication process essentially reverts to the DoD CAF’s traditional role. Notably, the adjudicator’s review is not limited to just the new information. Instead, the adjudicator reviews the individual’s entire file in order to make a determination under the “whole-person concept.” If the adjudicator issues a favorable determination, the information is noted in JPAS and the individual may never know that his or her eligibility to access classified information was under active review. However, if the adjudicator cannot issue a favorable determination, requests for additional information or due process is afforded to the individual in the same manner as if this were an initial determination.
The Case for Inoculating the DoD Consolidated Adjudication Facility from National Security Litigation
On occasion, the DoD CAF has come under scrutiny in the context of national security litigation. The reason may be obvious. National security litigation typically requires counsel on both sides to maintain access to classified information. Parties, to include military judges, have grown impatient with the length of time it sometimes takes to complete the adjudication process. As such, military judges have been tempted to entertain facts surrounding the determination process or otherwise sought to pressure the government into expediting security clearance determinations. Despite the justified basis for such concerns, precedent cautions that military judges should resist the temptation to intercede in the DoD CAF process.24
For good reason, trial courts should not make themselves de facto arbiters of security clearances. In Department of the Navy v. Egan—an expansive Supreme Court decision in the context of security clearance adjudications—the Court noted that “there is a reasonable basis for the view that an agency head who must bear the responsibility for the protection of classified information committed to his custody should have the final say in deciding whether to repose his trust in an employee who has access to such information.”25 The Court in Egan went on to state that “[c]ertainly, it is not reasonably possible for an outside non-expert body to review the substance of such a [security clearance adjudication] and to decide whether the agency should have been able to make the necessary affirmative prediction with confidence. Nor can such a body determine what constitutes an acceptable margin of error in assessing the potential risk.”26 Egan’s deference, which has historically been adhered to with little caveat, does not permit courts to substitute their judgment for that of the agencies responsible for the security clearance process.
Moreover, because courts are usually without subject matter jurisdiction to review the merits of security clearance determinations and adjudications, a judge should not be forced into a position of second-guessing the discretionary judgment of the appropriate agency of the executive branch in assessing national security risks.27 Accordingly, efforts to intervene in the security function—including the DoD CAF’s role—should not be taken into account by military courts.28 TAL
MAJ Lebowitz is a Legal Advisor (IMA) with U.S. Army Cyber Command. In his civilian capacity, he is an attorney with the Department of Justice, National Security Division.
Notes
1. The example cited in this article pertains to Appellate Exhibit 532, et seq, United States v. Khalid Shaikh Mohammad, available at www.mc.mil.
2. Unauthenticated Transcript at 17774, United States v. Khalid Shaikh Mohammad, et al.
3. See http://www.ftmeade.army.mil/directorates/dptms/myth_busterv2.pdf.
4. See, e.g., Dep’t of Def., 5200.02-M, Procedures for the DoD Personnel Security Program para. 7C2 (3 Apr. 2017) [hereinafter DoD 5200.02-M]. Standard Form (SF) 86 is used by DoD for national security background investigations. The automated version of the SF 86 is the e-QIP.
5. See https://www.dodcaf.whs.mil/mission.
6. See DoD 5200.02-M, supra note 4. Contractors are generally governed by a parallel process described in DoD 5220.22-M, National Industrial Security Program. See also Dep’t of Def., Dir. 5220.6, Defense Industrial Personnel Security Clearance Review Program (2 Jan. 1992) (C4, 20 Apr. 1999) (describing administrative due process for contractor personnel).
7. See, e.g., DoD 5200.02-M, supra note 4, para. 7.
8. See generally id. para. 5.4.
9. Id.
10. Id. para. 7.7.
11. See generally id. para. 7.
12. Moreover, procedures for the DoD personnel security program require that personnel security data, reports, and records must be handled with the highest degree of discretion. See DoD 5200.02-M, supra note 4, para. 5.7. The manual further states that “[a]ccess to such information is afforded only for the purposes in the applicable Privacy Act System of Record Notice (SORN) and to persons whose official duties require such information.” Id.
13. See Security Executive Agent Directive 4, National Security Adjudicative Guidelines (8 June 2017), http://ogc.osd.mil/doha/SEAD4_20170608.pdf; see also Exec. Order No. 12,968, 60 Fed. Reg. 40,245, § 3.1(f) (Aug. 2, 1995) (as amended by Exec. Order No. 13,467, 73 Fed. Reg. 38,103 (June 30, 2008)) (ordering Security Executive Agent to develop a common set of adjudicative guidelines).
14. See DoDM 5200.02, supra note 4, para. 7C.1(c) – (e).
15. See, e.g., id. para. 10.4.
16. Id. para. 10.
17. See also Exec. Order No. 12968, supra note 13, § 1.2(d).
18. See DoD 5200.02-M, supra note 4, at 83.
19. See id. para. 9.2(b), (c) (Reports of derogatory information involving contractor personnel must be referred directly to the DoD CAF and the Defense Security Service or the Personnel Security Management Office for Industry).
20. Id. para. 7A.2.
21. See also id. para. 7A.1 (specific officials authorized to grant, deny, revoke, or suspend national security eligibility also include the Secretary of Defense and the secretaries of the service branches).
22. DoD 5200.02-M only requires notification in the event that an unfavorable determination is made.
23. See DoD 5200.02-M, supra note 4, para. 9.2(b).
24. See Appellate Exhibit 532, supra note 1.
25. Department of the Navy v. Egan, 484 U.S. 518, 529 (1988).
26. Id.
27. See, e.g., Hegab v. Long, 716 F.3d 790, 794 (Fed. Cir. 2013); Egan, 484 U.S. at 527; see also Cheney v. DOJ, 479 F.3d 1343, 1352 (Fed. Cir. 2007); Ryan v. DHS, 793 F.3d 1368 (Fed. Cir. 2015); Gargiulo v. DHS, 727 F.3d 1181 (Fed. Cir. 2013).
28. Constitutional challenges to a security clearance denial, standing alone, may be presented in court under extremely limited circumstances. However, any attempt to examine the merits of an agency’s underlying decision-making process must be denied for failure to state a claim. See Hegab, 716 F.3d at 796–97. Courts may only have subject matter jurisdiction over security clearance and special access determinations when the reason for the agency’s denial was to deprive an individual of a constitutional right—that showing must be unequivocal and unambiguous, i.e., the agency’s stated reason for denial was solely to deny an individual a constitutional right; inference and innuendo is not enough. See, e.g., El-Ganayni v. U.S. Dep’t of Energy, 591 F.3d 176, 183–85 (3d Cir. 2010) (holding that the court had jurisdiction to review plaintiff’s claims that an agency violated his constitutional rights in the process of revoking his security clearance, but concluding that any claim that requires reviewing the merits of the security clearance decision fails to state a claim); Oryszak v. Sullivan, 576 F.3d 522, 526, 388 U.S. App. D.C. 64 (D.C. Cir. 2009) (noting that while courts may have jurisdiction over the review of security clearance claims, such claims other than constitutional claims fail to state a claim); Dorfmont v. Brown, 913 F.2d 1399, 1401–04 (9th Cir. 1990) (holding that courts lack jurisdiction to review the merits of security clearance determinations, except possibly in the limited case where an individual has a colorable constitutional challenge); Hill v. Dep’t of Air Force, 844 F.2d 1407, 1411 (10th Cir. 1988) (suggesting that Egan would be “hardly worth the effort” if it could be “bypassed simply by invoking alleged constitutional rights”).