Kojo and Tom Sherwood chat with D.C. Council Member Elissa Silverman (I-At Large)
Monday’s violence at the Washington Navy Yard prompted many questions about how the suspected shooter, Aaron Alexis, was able to get the security clearance to enter the installation. His background is checkered with arrests and disciplinary incidents during his time in the Navy Reserves. Kojo talks with experts about the background checks required for government security clearances and explores why an individual like the alleged shooter may have passed the test.
- William Henderson President, Federal Clearance Assistance Service; retired federal clearance investigator; author, the "Security Clearance Manual"
- Mark Zaid Attorney and managing partner, Law Office of Mark Zaid, P.C.
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, the economics, the science, and the history behind Greek yogurt's booming popularity, but, first, why this week's violence in Washington has provoked pressing concerns about government systems for conducting background checks and issuing security clearances.
MR. KOJO NNAMDITwo days ago, a 34-year-old civilian contractor named Aaron Alexis entered the Washington Navy Yard where he is believed to have shot 12 people dead. Alexis didn't break into the Navy Yard, and he didn't need to. He had a common access card and security clearance, letting him into the installation without passing through a metal detector or getting a pat-down.
MR. KOJO NNAMDIThe alleged shooter went through each of the steps intended to keep the federal government and its work force secure, and yet no one picked up on what appeared to be glaring red flags in his personal history. Joining me to discuss what could have gone wrong and explain how security clearances work is Mark Zaid. He is an attorney. He frequently handles cases involving security clearances, national security, and government investigations. Mark Zaid, thank you for joining us.
MR. MARK ZAIDThank you.
NNAMDIJoining us by phone from Pacific Grove, Calif. is Bill Henderson. He is president of the Federal Clearance Assistance Service. He's a retired federal clearance investigator and author of a book called "The Security Clearance Manual." Bill Henderson, thank you for joining us.
MR. WILLIAM HENDERSONOh, thank you for inviting me.
NNAMDIWe're inviting phone calls at 800-433-8850 if you have questions or comments. What questions do you think the Navy Yard shooting raises about the government's process for vetting employees and contractors? The number again, 800-433-8850, or you can send us an email to email@example.com.
NNAMDIMark Zaid, many of us are having trouble understanding how this suspected shooter could have undergone a background check and still obtained a security clearance considering he had an arrest history and several disciplinary incidents during his time with the Navy Reserve. What's the objective of the security clearance system?
ZAIDSure, Kojo. Well, it's obviously to determine whether or not an individual is trustworthy enough to hold the privilege of having access to classified information. This case in particular is somewhat getting -- spiraling out of control 'cause, actually, his having a security clearance really didn't contribute that much to his being on the base.
ZAIDAs you mentioned, he had a CAC card, which is a different investigative process, and he could have been on the base even with that. The problem with -- as everyone looks at this, it's very easy in hindsight to look at all of these arrests and situations he had and, go, wow, I can't believe -- in mental illness concerns, I can't believe this individual had a clearance.
ZAIDBut we have to look at what the government had at the time. And clearance cases are all about mitigation, and there shouldn't, I hope, be a rush to judgment that, if anyone's been arrested or convicted of a crime, they're going to be automatically excluded from having a clearance because there's mitigation that can come into play.
ZAIDYou know, many factors that we could discuss, where someone who was arrested X number of years ago then joined the military, became a chaplain, volunteers his time, and you look at it, and you talk about the whole person concept, which is a term in clearance world to look at -- look, OK, people can make mistakes. But they can still be judged trustworthy and have good judgment so that they're given a clearance.
NNAMDIBill, the suspected shooter behind Monday's mass shooting had a level of security clearance known as secret. Where exactly does that fit among the different levels of security clearances? Bill Henderson, are you there?
HENDERSONOh, I'm sorry. Yes. Well, there are three basic levels: confidential, secret, and top secret. The investigation for confidential and secret are identical. The investigation for top secret is much more comprehensive. For a military person -- and he was military when he was initially granted a security clearance. He would have undergone a national agency check with law and credit. That's -- the standard form in that investigation does not involve any reference interviews. It only involves reference checks. So it's not as comprehensive as the one for top secret clearance.
NNAMDISecurity clearances were called into question following the NSA leaks by Edward Snowden. Can you explain, starting with you, Mark Zaid, in what ways Snowden's level of clearance would differ from the alleged shooter's?
ZAIDWell, I believe Snowden had at least a top secret. He might have had sensitive compartmented information which is called TS/SCI. And as Bill is saying, that would have involved a more detailed investigation and going back some time, a period of time. Different agencies also can impose different requirements. So the NSA may have additional questions as well as polygraph requirements that individuals, such as the shooter in the Navy Yard, did not have.
ZAIDIt also comes into play that, for example, looking at the Navy shooter, he had one arrest in 2004. And that would have been encompassed within his background check that started in 2007. He received his clearance in March of 2008, and then the other two arrests, none of which he was ever charged to go through convictions -- the charges were all dropped -- were in 2008 and 2010.
ZAIDAnd they never would have even come up in the course of the security clearance investigation 'cause they were after the fact. And he had a 10-year window now to proceed forward. And there is no requirement, though it's prudent -- at least how I recommend to clients -- if you are arrested, to tell the government that this action occurred. So the government would not have known, under most circumstances, until he had his periodic reinvestigation which could have been, by that time -- what are we, 2013? -- you know, seven years later, about eight years to -- five years later.
NNAMDIAnything you can add to that, Bill Henderson?
HENDERSONWell, yes. There is a requirement for clearance holders to report adverse information to their security officer. But some of the instructions on what to report are so vague that they're almost void. At any rate, certainly an arrest would have been a reportable matter. But it doesn't happen that often where an individual with a clearance has the presence of mind to go to their security officer and report the arrest. So I would guess that, you know, 50 percent of these types of incidents are never reported and get into the security channels.
NNAMDIBill Henderson, as the government processes applications for security clearances, exactly what in a person's background are investigators looking at -- health records, credit history, college grade point average?
HENDERSONWell, it depends on the type of investigation conducted. With an NACLC investigation which would have been done on Mr. Alexis, there would have been a national agency check which reviews records of FBI technical fingerprint files, FBI ID file. They would have looked at his military record. There's some other records that would be checked and depending on the specifics in his background, a credit report and local police record checks.
HENDERSONThose tend to be somewhat problematic. There are certain jurisdictions that won't release records to federal investigators without the payment of a fee. And I believe at one time -- or perhaps still. Seattle is one of those jurisdictions where they wanted, like, $10 or $15 per name check. So investigators were relegated to having to go to the courts to look for criminal conviction records rather than going to police departments to look for arrest records.
NNAMDIMark Zaid, the alleged shooter had apparently been discharged from the Navy Reserve. And we're finding out now that apparently it was an honorable discharge, that he got a -- not a dishonorable discharge. But at what point would a military discharge be grounds for disqualifying someone from a security clearance?
ZAIDWell, the answer is it depends 'cause it would depend on the facts of the case. So in this particular case, he had mostly issues that I would say go to personal and suitability issues, that wouldn't necessarily rise to the level of a clearance problem though when it looks at -- as far as a pattern, there was insubordinate. He had some issues about being AWOL and late for work and things like that.
ZAIDIt doesn't necessarily show he's a great Navy personnel, but it doesn't necessarily mean it'd be clearance problem. Part of the problem, though, is that when these discharges occur -- and there was a pattern of misconduct, eight separate incidents -- one would think it might be prudent for whichever service is involved, in this case the Navy, to have uploaded it into the database system for clearances, which is what called JPAS, so that the adjudicators may want to take a look at it.
ZAIDBut, again, there's no requirement for them to have done so. And so we're seeing a lot of gaps in the system. It's not the issue that he had the clearance per se. It's what along the way, when these incidents occur, what steps should possibly be taken to sort of close this gap? Newport, R.I. police reported to his naval base in Providence, I think it -- or Newport up there that he had some issues about hearing voices.
ZAIDAnd his base access should probably have been suspended, and then the relevant adjudicators for the Defense Department should have been notified so that they could enquire, what's that all about? Now, that's not part of the clearance process. That's a base suspension access. And if that had actually happened, probably the shooting actually might not have occurred.
NNAMDII want to jump to another issue having to do with security clearances, and that has to do with the issue of how old the process is. Earlier this year, a former deputy secretary of defense penned an op-ed in the Washington Post calling for the government to update its security clearance process, which includes forms that he says -- well, let me quote what John Hamre says.
NNAMDIHe said, "In an era of countless data sources and intelligence data analysis, why does our government rely on forms designed in the 1950s? This system is patently naïve. Consider that the spies in U.S. jails passed polygraphs and held clearances granted by our system like the one I described. Today, people can check identities using multiple channels of information that cannot be spoofed, even by sophisticated hostile intelligence services. These commercial data sources are available for pennies.
NNAMDI"If a think tank where I work can buy a complete background investigation on potential employees for less than $100, why is our nation's security clearance process frozen in decades-old administrative rules and refined to ludicrous dimensions?" What do you say in response to that, Bill Henderson?
HENDERSONWell, there has been a process, a reform process for security clearances ongoing since 2007. And there have been instrumental changes made to improve the system. Just this past December, the director of National Intelligence and the director of Office of Personnel Management approved new federal investigative standards, which will, I believe, dramatically change the scope and composition of these background investigations.
HENDERSONThere's other reform processes going on right now. There's a revision to the adjudicative guidelines that are used to determine access to classified information. New national reporting requirements are in the works so that all federal agencies will be subject to the same reporting requirements. When I'm talking about reporting requirements, I'm talking about situations where individual clearance holders are required to tell their security officer about incidents that might affect their eligibility to maintain their clearance.
HENDERSONWhat else? There's a new polygraph policy that's in the works right now. There -- many things are changing right now. The problem is that, you know, with the federal government, these changes take so long to implement because there are so many levels of coordination and review before they can finally be approved.
HENDERSONBut we are seeing some major changes right now, and I believe, within the next six to nine months, some of these changes are going to be implemented.
ZAIDYes. And I agree with Bill in this. We've seen a great number of changes in the last decade. You know, but one of the issues also that's been a problem is that the Defense Department, which adjudicates the majority of the security clearances in the U.S. government, the entity which is called the Clearance Adjudication Facility, the DoD CAF which is now up at Fort Meade, was bracked a few years ago, the base realignment. They lost a lot of senior people because people didn't want to move from Ohio over to the Baltimore area.
ZAIDAnd additionally to that, they're backlogged. And why is one of the reasons they're backlogged? Well, they got furloughed in the last few months. Here it is, they are adjudicating national security determinations like Mr. Alexis and they were not designated as exempt as national security personnel employees. And they were going home one day a week for the last 11 weeks. So rather than congress making all these arguments about contractors versus federal employees, why don't you look at some of the agencies that are making these adjudications and help them out?
NNAMDIWell, you know, just before we came on the air, there was a press briefing held by Defense Secretary Chuck Hagel and Martin Dempsey, the chair of the Joint Chiefs of Staff. And they were asked specifically about whether the sequester and budget issues affected this. They also addressed the question that you address earlier, Mark Zaid, at least the chairman of the Joint Chiefs of Staff Martin Dempsey did, about whether people who had, well, former mental health issues should be allowed security clearances. Here's what he had to say on both issues.
REP. MARTIN DEMPSEYThe budget issue did not degrade the security at the Navy Yard and in any way contribute to this. As for the questions about mental health on security clearance forms, I actually was one of those with Pete Corelli and others who believed that men and women should have the opportunity to overcome their mental disorders or their mental challenges or their clinical health challenges and shouldn't be stigmatized. And so I still remain in that camp that men or women should have the ability with treatment to overcome them. And then to have a fruitful life and gain employment including inside of the military.
REP. MARTIN DEMPSEYThis particular individual, of course, wasn't a simple matter. I don't know what the investigation will determine but he committed murder. And I'm not sure that any particular question or lack of question on a security clearance would probably have revealed that.
NNAMDITo the latter issue of mental health first, both Bill Henderson and Mark Zaid, one government contracting company writes on its web site that background checks are not intended to prove that you are perfect. How do you balance less than perfect histories with security concerns? An issue you addressed earlier, Mark Zaid, so I'll start with you this time, Bill Henderson.
HENDERSONWell, you know, if you expected perfection, there wouldn't be enough people to fill all the jobs that required security clearances. You know, the primary purpose of a clearance vetting process is to attempt to predict future conduct based on past and current conduct and conditions. It's not to penalize people for mistakes that they may have made in the past. So, you know, having had a conviction, you know, several years in the past but yet having done all the right things since then, improving oneself in the workplace and educationally, you know, goes a long way to mitigate the past misconduct.
HENDERSONAnd under those circumstances, you know, it's doubtful that the person is going to repeat that conduct in the future. And that's the most important consideration is what are they going to do in the future? And it's a very difficult call to make, you know, to try to predict what a person can -- might do. But adjudicators rely on patterns and particularly favorable conduct over a period of time leading right up to the present where they can feel relatively assured that whatever it was the person did was in their past and will remain in their past.
NNAMDIAnd the Chairman of the Joint Chiefs said, Mark Zaid, that budget issues have nothing to do with this. But the Office of Personal Management processes as many as 2 million investigations for security clearances each year. Should we be asking whether in this time of sequestration, the government is able to adequately process this high volume of cases?
ZAIDWell, there's definitely been a problem. The DoD CAF in particular and some of the other intelligence agencies are taking one to two years to process these security clearances. It gets very complicated and many of them have to do with foreign backgrounds that are linguist nationalized American citizens in trying to address all these issues. So there is an issue here and we need to, of course, distinguish between physical security, which is what I think more of what the joint chairman was saying about the base versus security clearances.
ZAIDAnd the notion of the mental illness, following especially Iraq and Afghanistan, one of the changes was to be a little bit more lenient on -- particularly with respect to PTSD. And the notion is, as Bill was talking about with respect to mitigation and treatment, you know, if you're having a mental health or a medical issue but you're seeking the proper treatment and the government talks to your physician and you're on prescribed medication and you're doing it routinely and properly and you're fully in control, then there really is no issue.
ZAIDAnd, you know, the same thing with anything else that might seem to be facially problematic. It really is a very, very specific fact-based set of circumstances that are looked at. And the guidelines which, you know, anyone can just Google, you know, security clearance adjudicative guidelines, are very straight forward. And you can see what's disqualifying and then what is mitigatable for that disqualification.
NNAMDIGot two emails that I'd like to read to you before asking my last question, and one is from Ron who says, "I currently have a security clearance and have worked as a government contractor and a federal civilian employee. From what I've read and heard about Aaron Alexis' past, there isn't anything that would have prevented him from obtaining a clearance since none of this arrests and incidents ever went to trial and he was never convicted of anything. The investigative process of determining someone's eligibility for a clearance just doesn't dig deep enough to uncover things like that and follows very specific criteria such as an individual's financial background, criminal history and foreign travel among many others."
NNAMDIAnd then there is this from Krista who says, "I'm listening to your show right now regarding the security clearance process. There's been a lot of focus on Alexis' receiving mental health counseling from the VA. While it seemed like this might be a relevant piece of material when trying to understand his motive, I'm concerned about how media is connecting his mental health counseling to his security clearance. Many military members avoid getting the help they need, especially in cases of depression, suicidal thoughts, etcetera because they're worried it will affect their security clearance. Would you mind asking your guests about this? I think it's important to let military members know that it is okay to get help."
NNAMDIWell, several law makers have called for a hearing on security clearances and federal contracting. Do you think the government could change its security clearance process in a way that would exclude someone like the alleged naval yard shooter essentially because maybe he sought mental help counseling? First you, Mark Zaid.
ZAIDSure, Kojo. Well, for the second question, that's exactly why the government modified it and made it a little bit more lenient with respect to dealing with PTSD because they didn't want service members or contractors or civilian employees not to seek proper mental health counseling. So that is certainly something that is permissible and generally would be fine with respect to security clearance processing.
ZAIDOn the first question, the writer respectfully has it somewhat off. Question 23 on what's called the Standard Form 86, which anyone who has a clearance has filled out 127 pages, requires those to report an arrest within seven years. But there's an exception. If the arrest was for anything with firearms or drugs or alcohol then it always has to be revealed. So the notion that an individual hasn't been convicted of a crime does not necessarily mean that it won't be a factor for a security clearance determination.
ZAIDAnd, in fact, the guidelines say as disqualifying that in fact there doesn't have to be a conviction. It could be just that act. And now if you look at what happened here, you've got three -- at least three incidents involving firearms, which by themselves law enforcement might not have been too concerned about for whatever factual reason he provided as an excuse. But now when you look at it cumulatively and you go, wait okay, none of these locales in Georgia and Seattle and Texas knew about this. But now as clearance adjudicators we do, we see a concern in the pattern here. And that could be disqualifying.
NNAMDIFinally you, Bill Henderson.
HENDERSONYes. With regard to the first part of the question, adjudicators are not so concerned with outcomes at trial. Convictions are being found not guilty. They're concerned with the conduct, the underlying conduct that resulted in the arrest. Because there are, you know, very big differences in the standard of evidence that are used for security clearance determinations as opposed to criminal convictions, they could look at an arrest that did not result in a conviction and arrive at an unfavorable determination. So, you know, it's not use convictions that enter into clearance determination. It's also -- it's primarily the act that resulted in the arrest.
HENDERSONWith regard to the second part of the question about mental health, there's a change coming onto the SF86. It's actually going to eliminate the question about mental health counseling. And it's going to replace it with a question about whether or not a person has a condition that affects their judgment and reliability. Which is a very subjective question but what they're trying to get away from is the stigma that goes along with mental health counseling and treatment and focus more on the adjudicative significant aspect of it. The affect a mental health condition has on judgment and reliability.
HENDERSONBut it's a very hard question to formulate on a security form because, you know, all too often people are going to interpret the question in a manner that's most favorable to themselves.
NNAMDIBill Henderson is president of the Federal Clearance Assistance Service. He's a retired federal clearance investigator and author of a book called "The Security Clearance Manual." Bill Henderson, thank you for joining us.
HENDERSONOh, thank you.
NNAMDIMark Zaid is an attorney. He frequently handles cases involving security clearances, national security and government investigations. Mark Zaid, thank you for joining us.
ZAIDThank you, Kojo.
NNAMDIWe're going to take a short break. When we come back, the economics, the science and the history behind Greek Yogurt's booming popularity. It's Food Wednesday. I'm Kojo Nnamdi.
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