February 19, 2019

2019 NDAA Analysis: Security Clearances

Holland & Knight Government Contracts Blog
Rodney M. Perry

This is the third blog post in a series analyzing the 2019 National Defense Authorization Act (NDAA) as signed into law on Aug. 13, 2018. Stay tuned for more blog posts covering additional topics in the near future from Holland & Knight's Government Contracts Team.

The 2019 NDAA contains several provisions reforming the security clearances process that are aimed reducing the substantial backlog in security clearance investigations. As quantified in a Sept. 2018 report, the backlog of personnel security clearance investigations as of July 2018 was 235,861 initial national security clearance investigations and 136,464 periodic national security clearance reinvestigations. The average processing time for an initial investigation was 222 days, while the average processing time for reinvestigations was 304 days.

In trying to reduce the processing time and backlog, Congress directs the Director of National Intelligence (DNI) as the Security Executive Agent to provide reports addressing the feasibility of: (1) expediting the processing of security clearance for mission-critical positions; and (2) allowing the continued access to classified information. At the same time, Congress requires the reinvestigation of certain high-level official who commit certain offenses. Each requirement is discussed below.

Expedited Processing of Security Clearances for Mission-Critical Positions

Section 942 of the 2019 NDAA directs DNI to submit a report to Congress on the feasibility and advisability of, and existing barriers to, programs for expedited processing of security clearances for mission-critical positions, whether filled by Government or contractor employees. The report to Congress must include:

  1. recommendations for the establishment by Government agencies of programs designed to prioritize processing of security clearances among their Government and contractor employees seeking security clearances;
  2. proposed timelines for implementation; and
  3. recommendations for legislative or administrative actions to enable and improve programs of Government agencies for the expedited processing of security clearances for mission-critical positions.

The report was due to Congress within 90 days of the enactment of the 2019 NDAA – or Nov. 11, 2018. It is not clear if DNI timely provided such a report to Congress. If it did, neither DNI nor Congress has made the report publically available.

Continued Eligibility for Access to Classified Information

Section 943 of the 2019 NDAA directs DNI to submit a report to Congress on the requirements, feasibility, and advisability of implementing a program to allow a Government employee to maintain access to classified information after the individual has separated from service to the federal government or transferred to a position that no longer requires access to classified information. The program should provide that, unless otherwise directed by DNI, the individual's security clearance would be recognized as current, regardless of employment status, with no further need for investigation or revalidation until the individual obtains a position requiring access to classified information. Such a program would help to address the backlog of security clearances.

The report submitted to Congress must address:

  1. requirements for continuous vetting;
  2. appropriate safeguards for privacy;
  3. an appropriate funding model; and
  4. fairness to small business concerns and independent contractors.

The report was due to Congress within 90 days of the enactment of the 2019 NDAA – or Nov. 11, 2018. Like the report required under NDAA Section 942, it is not clear if DNI timely provided such a report to Congress. If it did, neither DNI nor Congress has made the report publically available.

Security Clearance Reinvestigation of Certain Personnel Who Commit Certain Offenses

While Congress was concerned about addressing the backlog of security clearances, it was also concerned with the effectiveness of the security program. To that end, Section 542 of the 2019 NDAA requires that the Secretary of Defense conduct an investigation or adjudication of flag officers, general officers, and employees of the Department of Defense in the Senior Executive Service that have convictions for (or whom a commanding officer has determined committed) the following offenses:

  1. sexual assault;
  2. sexual harassment;
  3. fraud against the United States; or
  4. any other violation that the Secretary determines renders that individual susceptible to blackmail or raises serious concern regarding the ability of that individual to hold a security clearance.

The Secretary must ensure that relevant information on convictions or determinations during the preceding year are reported into federal law enforcement records and security databases regardless of whether the individual has retired or resigned or has been discharged, released, or otherwise separated from the armed forces. The Secretary must also ensure that such information is transmitted, as appropriate, to other federal agencies.

Conclusion

The 2019 NDAA furthers Congress' interest in eliminating the backlog that has plagued security clearances in recent years. That, coupled with the continued desire of ensuring that security clearances are only possessed by individuals that do not pose a security risk will continue to make this an area worth watching in the coming years. Please contact the authors or another member of Holland & Knight's Government Contracts Team should you have a questions regarding security clearance obligations, or if you desire assistance in your compliance.

Related Insights