The Government is increasingly classifying its operations and information, as both Controlled Unclassified Information (CUI), a heightened For Official Use Only, and as additional Special Access Program (SAP) matters. Personnel and organizational security clearances are the backbone of federal procurement. Without an individual or facility clearance, companies desiring to do business with the Government have a difficult time working CUI-level contracts, much less ones requiring Secret or Top-Secret Clearances.

At MNB Meridian Law, Ltd., our National Security practice attorneys focus on an entire enterprise, from clearing the organization’s leadership team (Facility Clearance), to individual clearances for the organization’s staff, to working through issues identified by federal regulators after clearances are awarded.

Working with noted experts such as Tris J. Barry, we consult with both U.S. and foreign organizations early in any negotiation process, to evaluate the need and preparation for reviews by national security regulators, such as the Defense Counterintelligence and Security Agency (DCSA), the Committee on Foreign Investment in the United States (CFIUS), and the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector (AFPUST, formerly Team Telcom).

Personnel Security Clearances

For military personnel, government employees, and contractor employees, a security clearance is the most important employment asset they hold and maintain. Suitability for a clearance makes and breaks careers. For reasons obvious to the Government, the five security clearance granting agencies (NSA, DoD, DoJ, CIA and OPM) enjoy absolute (and common sense defying) discretion in granting and denying access to classified information. Additionally, the DoD recently implemented a rolling review of cleared individuals, and if questions are identified regarding the holder’s clearance, the federal agency questions, suspends, or revokes the holder’s clearance pending an official review.

Our National Security attorneys assist individuals with every aspect of the application, and if necessary, the adjudication process.

Application

We help applicants understand what the SF86 (e-QIP) questions are asking, what should be (and need not be) disclosed, and how to mitigate disclosures.

Response to a Statement of Reasons

If a clearance granting agency notifies an applicant or current clearance holder their clearance is being questioned, our attorneys assist with responding appropriately.

Appellate Adjudication Hearing

In the event the clearance granting agency denies or revokes the applicant’s or holder’s clearance, our attorneys represent the applicant and holder at the in-person (or via video) administrative hearing conducted by the agency’s appellate organization, such as the Department of Hearings and Appeals (DOHA) for the DoD..

Facility Clearances

To obtain a facility clearance, an applicant organization must first have a sponsor. Working with that sponsor, usually a prime contractor or the awarding agency, DCSA evaluates the personnel security of the leadership team and the work to be performed under the contract. DCSA, as well as the other federal agencies, review the organization’s physical security measures, such as access control, alarm systems, and surveillance cameras. In addition, they examine the facility's information technology systems, personnel security, and procedures for handling classified information. Part of the evaluation by DCSA is whether the organization is subject to foreign ownership, control, or influence (FOCI).

Foreign Ownership, Control or Influence

A U.S. organization with foreign ownership means it is controlled by a foreign organization or persons, or subject to influence by those same organizations. If this is the case, individuals working for this organization cannot acquire or maintain a facility security clearance unless the organization has mitigated or eliminated the FOCI issues. Foreign ownership, control, or influence matters arise in connection with a planned investment by non-U.S. organizations or citizens in a cleared contractor company.

To mitigate those concerns, our attorneys assist with assessing the existence of FOCI issues. Our assistance includes completion of the voluminous documentation required by each of the federal agencies. It may also include preparation for inspection visits by those agencies. Most importantly, we assist with drafting and implementing organizational Proxy Boards, Special Security Agreements, Security Control Agreements, and other legal documents to help mitigate FOCI concerns a government agency may have. We are able to recommend any number of expert directors who are pre-vetted by the regulatory agencies, which may help smooth FOCI determinations.

Summary of our National Security Services

Our National Security attorneys assist by:

• Advising clients on personal security clearance applications, responses and adjudicative hearings.
• Advising clients on potential organizational transactions to manage risk to the cleared organization
• Developing mitigation plans to simplify regulatory approval
• Arranging for meetings and presentations and advocating to regulators to secure approval of transactions in the regulatory clearance process
• Creating and assisting with execution of mitigation agreements and compliance commitments
• Providing post-transaction compliance with regulatory requirements
• Obtaining and maintaining facility security clearances
• Evaluating and negotiating mitigation FOCI issues for cleared U.S. contractors

Contact Us for National Security Assistance

For assistance with a National Security matter, please contact us by calling 215-268-3003 or using the online contact form. With offices in Philadelphia, Pennsylvania and Alexandria, Virginia, MNB Meridian Law serves clients throughout the United States and around the globe.