Before You Apply: Understand the U.S. Government Security Clearance Procedure
Table of Contents
Honesty is the Best Policy
Citizenship and Residency Requirements
Avoiding Conflicts of Interest
Department of Justice
U.S. Attorneys' Offices
National Security Agency
Assess the Issue
Every year many Yale Law students apply for summer and permanent positions with various agencies in the U.S. government including the Departments of Justice, Defense, State, Energy, Homeland Security, Treasury, Veterans Affairs, and the Central Intelligence Agency. For example, all legal employment, or legal volunteer experience with the Department of Justice requires you to complete a questionnaire and undergo a suitability review and perhaps a security clearance conducted by the Federal Bureau of Investigations. The Office of Personnel Management provides investigative services for over 100 federal agencies and conducts over 90% of the federal government’s investigations. Some agencies, including the National Security Agency, and Department of State, have delegated authority to conduct their own background investigations.
The security clearance entails an evaluation of whether an individual is a security threat (e.g. is the person likely to reveal classified information to a foreign government?). The suitability review is an evaluation of a person’s “character” (e.g. should an individual who violated the law by using drugs be allowed to work for an agency whose responsibility is to enforce the law?). All eligible applicants, including volunteers and summer interns, undergo a suitability review. This entails filling out a “Standard Form” as well as submitting to name and fingerprint checks, and consenting to a credit report. Paid summer interns may be asked to undergo a urinalysis for drug testing, but volunteers are typically not required to undergo drug testing. Neither volunteers nor summer interns are required to have full field background investigations or undergo a security review, except if a security clearance is required for a particular position.
As in all of your activities seeking employment and all of your activities as a lawyer, you must answer all questionnaires honestly. In addition to the ethical implications of lying, an investigation may be conducted based on the forms, and dishonesty on the forms is a federal offense subject to fine or imprisonment, not to mention a basis for finding you unfit for federal government employment. And remember, simply waiting a year before applying will often solve your problem since the government is less concerned with past indiscretions than with your behavior in law school and the recent past.
Most attorney positions in the federal government require U.S. citizenship. There are very limited opportunities available for non-citizens. Dual citizens are reviewed on a case-by-case basis. Dual citizen candidates for permanent position and internships may face additional requirements, including a residency requirement and requests to relinquish foreign passports and/or renounce foreign citizenship, which may result in a longer clearance process. Please contact CDO if you have questions about citizenship or residency requirements and are considering applying for federal government positions.
Students should be mindful that in every jurisdiction the Rules of Professional Conduct, or other applicable ethical rules, impose the obligation to avoid conflicts of interest. This could arise in a clinic or internship if you are “on the other side” from your future employer in a case or transaction. Legal employers are responsible for inquiring about possible conflicts of interest, but you should consider whether your past legal work or ongoing legal work including clinics, externships, or internships may present a conflict and bring any potential issue to the attention of the hiring attorney as soon as it is feasible.
The questionnaires, or standard forms (SF), that facilitate these reviews will be mailed to successful applicants. However, you may wish to review these questionnaires prior to applying to make sure that you are comfortable with the inquiry and to raise any questions you may have in a timely manner.
The questionnaires vary with the division you will be working for and the type of employment—whether volunteer or paid, summer or permanent. The shortest, and least intrusive, form is SF-85 “Questionnaire for Non-Sensitive Positions.” The form most commonly required by a law student intern is the SF-85P (Questionnaire for Public Trust Positions), which is typically used for interns working in Civil, Civil Rights, Environment and Natural Resources and the Office of Solicitor General of the DOJ. The other forms which may be required for your specific employment are SF-85P-S (Supplemental Questionnaire for Selected Positions) and SF-86 (Questionnaire for National Security Positions). The State Department uses the SF-86 form.
To review the security forms, go to www.opm.gov/forms. Click Standard Forms and select the applicable form.
Drug & Bad Debt
SF-85 requests information regarding illegal drug use, supplying, possession or manufacture, in the last year. The other forms request more extensive information on illegal drug activity, possibly extending back for 7 years, and may include inquiries regarding:
• police record, including arrests, charges and convictions;
• use of alcohol resulting in treatment or counseling;
• financial records, including repossessions, liens and bankruptcy;
• foreign countries you have visited and foreign activities such as work and property ownership;
• and consultations with a mental health professional.
If you have one or more of these issues on your record, it does not automatically preclude you from obtaining a security clearance. The outcome is decided on a case by case basis and is based, in part, on severity, number of occurrences, and steps you have taken to cure the issue(s).
Although the government generally wants law abiding citizens to work for them, they are most concerned with recent or current illegal activity. The standards regarding past misdeeds are somewhat flexible and will be determined at the discretion of reviewers on a case by case basis. However, it appears to us that any illegal drug use, within one year of application, will disqualify an applicant.
To review the security forms, check the DOJ Security binder in CDO or go to www.opm.gov/forms. Click Standard Forms and select the applicable form.
At the Department of Justice, for attorney and law student hires, a candidate’s suitability is different from a security clearance. At the DOJ, these are two separate reviews conducted by two different offices.
All attorneys and legal interns will have a suitability review and determination made by the Office of Attorney Recruitment and Management (OARM) and, if a candidate’s position requires access to classified information, the Department’s Security Staff will determine whether to grant a security clearance. Both a suitability determination and a security clearance are based on the information provided to the DOJ by the candidate on their completed security forms and information contained in the background investigation (BI), if one is required. It should be noted that a BI is only required for those candidates who work at the Department for six months or more. For most law students, given the limited duration of their time at DOJ, the suitability review will not include a BI; it will be limited to a credit check, the security forms, a fingerprint check, and a check of prior employers.
OARM’s decisions on potential suitability for employment are made after careful consideration of the totality of the circumstances, including any aggravating and/or mitigating factors. Because the final decision is fact-specific the use of terms such as “bright line” disqualifiers can be misleading. Do not prematurely opt out of the application process. Check the Department website at www.justice.gov/careers/legal/entry-conditions.html#d for answers to common questions and concerns. You can also contact firstname.lastname@example.org for information.
Candidates who lived outside of the U.S. for two or more years of the past five years may encounter difficulty being cleared by the DOJ.
You may anonymously contact the DOJ Office of Attorney Recruitment and Management at (202) 514-8900 after you have received an offer of employment and ask to speak with an attorney for advice regarding background checks
Applicants to a U.S. Attorney’s Office are also applying for work with the Department of Justice and must go through the same type of suitability and security review. However, some USAOs have enacted slightly more stringent requirements by choosing a tougher SF or adding their own suitability form. For instance, some offices in NY require candidates to complete the SF-85P security form requiring candidates to disclose among other things, drug use within the past seven years while other offices may provide form SF-85 which only requires one year of disclosure.
You may anonymously contact the DOJ Office of Attorney Recruitment and Management after you have received an offer of employment and ask to speak with an attorney for advice regarding background checks (202-514-8900).
In addition, some students have encountered problems with the timeliness of their security clearance such that they have been prevented from starting work on time at their USAO. To avoid this unfortunate event, we suggest that you request and fill out the security form immediately upon receiving a provisional offer from the USAO. Return the form to the USAO and request, ever so politely, that they express mail it to the DOJ for review. Some of the delay problems may occur when a USAO holds the forms until all summer interns are selected and have submitted their forms. As you attempt to expedite this process, feel free to tell them that your Career Development Office suggested that you request these procedures to make sure you will be able to start on time.
The Bureau of Diplomatic Security, through its Office of Personnel Security and Suitability, manages the State Department's personnel security clearance program. The State Department’s Bureau of Human Resources determines whether a position will require a security clearance based upon the duties and responsibilities of the position. Various reasons exist for why someone may be denied a security clearance. The most important factors in an investigation are the individual's honesty, candor, and thoroughness in the completion of their security clearance forms. The adjudicative guidelines include: allegiance to the United States; foreign influence; foreign preference; sexual behavior; personal conduct; financial considerations; alcohol consumption; drug involvement; emotional, mental, and personality disorders; criminal conduct; security violations; outside activities; and misuse of information technology systems.
Security Clearance Process
The internship clearance process takes approximately 90-120 days to complete once the forms are completed and returned. The length of the investigation depends on whether you have traveled, studied, lived or worked abroad; if you are a dual-citizen; or if you have foreign contacts, immediate family or relatives who are not United States citizens and/or a foreign born spouse. The process will also inquire into a current or past history of drugs or alcohol abuse as well as a recent history of credit problems.
For permanent employment, the clearance process considers such factors as failure to register for the Selective Service; failure to repay a U.S. government-guaranteed student loan; past credit problems or bankruptcy; failure to meet tax obligations; unsatisfactory employment history; violations of the law, drug or alcohol abuse; and less-than-honorable discharge from the armed forces.
There is no “blanket rule” regarding dual citizenship. Each evaluation is done on a case-by-case basis considering such issues as whether you possess or use a foreign passport, military service for a foreign country, or residence in a foreign country to meet citizenship requirements.
Dual nationals, recently naturalized, and applicants who have significant and close family ties to a particular country are encouraged NOT to seek an internship in that country. In such cases, there is a strong possibility that the applicant will either not receive the clearance in time to participate in the program, or that they may be denied clearance all together.
Additional information can be found at http://careers.state.gov/index/download-center4/dualcitizenship.pdf.
Be aware that the clearance process for the NSA can be lengthy. The length of the process depends on the number of interviews required. The process may be extensive.
Please don’t hesitate to discuss any of these matters with a CDO counselor at any time.
-Updated July 2014