THE MEO MOST EFFICIENT ORGANIZATION - PowerPoint PPT Presentation


Title: THE MEO MOST EFFICIENT ORGANIZATION


1
Security Clearance ReformImplications of the
Intelligence Reform and Terrorism Prevention Act
of 2004
Thomas M. Abbott Partner and National Chair,
Government Contracts Practice Group
2
A Brief History
  • Sept 11, 2001 Al Qaeda attacks the United States
  • Oct. 26, 2001 USA PATRIOT Act (Public Law
    107-56) becomes law
  • Nov. 25, 2002 Homeland Security Act (Public Law
    107-296) becomes law
  • Spring/Summer/Fall 2004 9/11 Commission holds
    hearings on attacks
  • May 6, 2004 House Government Reform Committee
    hears testimony on clearances Rep. Davis sends
    letter to DOD requesting action on clearance
    backog.
  • Dec. 17, 2004 Intelligence Reform and Terrorism
    Prevention Act of 2004 (Public Law 108-458)
    becomes law

3
Summary of 2004 Changes (1 of 3)
  • Section 1011 new National Intelligence Director
    will prescribe uniform procedures for access to
    sensitive compartmentalized information (SCI)
  • Section 3001 addresses the security clearance
    process.
  • Within 90 days (Feb. 17), ID a single agency to
    manage clearances and standardize policies,
    investigations and adjudications OPM ? New
    Natl Intel Director?
  • Within 180 days, ID a single agency to perform
    investigations
  • Agency can delegate to other agencies outsource

4
Summary of 2004 Changes (2 of 3)
  • Standardization of clearance procedures
  • Explicitly applies to special access programs,
    clearance forms, financial disclosure rules, and
    polygraph policies may apply to more.
  • What will this mean in practice?
  • Reciprocity of clearances
  • Agencies may still establish separate
    requirements under certain circumstances
  • Central security clearance database

5
Summary of 2004 Changes (3 of 3)
  • Reduce investigation and adjudication times for
    security clearances
  • Designated agency must develop a plan for
    reducing clearance wait times
  • Starting on Dec. 17, 2006, agencies must complete
    80 of clearances within 120 days of application
  • 90 days to complete the investigative phase
  • 30 days to complete the adjudicative phase
  • Starting on Dec. 17, 2009, agencies must complete
    90 of clearances within 60 days of application
  • 40 days for the investigative phase
  • 20 days for the adjudicative phase
  • Shorter times should be beneficial to applicants
    and companies.
  • However, the burden of proof rests on the
    applicant at the adjudication, so the faster
    schedule may make it harder for applicants to
    produce evidence and make their cases.

6
Trends in Clearance Cases (1 of 2)
  • New guideline need to address post-9/11 changes
    which have resulted in dramatic changes in
    security clearance adjudications
  • Guideline B (Foreign Influence)
  • 2001 88 hearings (44 clearances granted)
  • 2002 120 hearings (55 clearances granted)
  • 2003 280 hearings (140 clearances granted)
  • 2004 170 hearings
  • Guideline C (Foreign Preference)
  • 2001 90 hearings (21 clearances granted)
  • 2002 127 hearings (53 clearances granted)
  • 2003 153 hearings (65 clearances granted)
  • 2004 104 hearings
  • In 2004 more adjudications diverted to DISCO?
  • The trend is to target countries of interest

7
Trends in Clearance Cases (2 of 2)
  • The Money memo applicants must formally
    surrender their foreign passports
  • Reinvestigations having a past clearance or
    successful adjudication is no guarantee
  • DOHA Appeal Process
  • Large gap for success rates
  • 12 of pro se applicants prevail
  • 40 of applicants with counsel prevail

8
Future Developments?
  • Which agency will manage clearances?
  • Which set of clearance guidelines will be used
    across agencies, if any?
  • Will future guidelines be promulgated using
    rulemaking? (notice, comment, etc.)
  • How will NIDs rules for access to SCI
    interact/overlap with regular clearance rules?

9
  • Thomas M. Abbott
  • McKenna Long Aldridge LLP
  • 444 South Flower Street
  • Los Angeles, CA 90071
  • (213) 243-6200
  • tabbott_at_mckennalong.com
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THE MEO MOST EFFICIENT ORGANIZATION

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Sept 11, 2001: Al Qaeda attacks the United States. Oct. 26, 2001: USA PATRIOT Act (Public Law 107-56) becomes law ... Spring/Summer/Fall 2004: 9/11 Commission ... – PowerPoint PPT presentation

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Title: THE MEO MOST EFFICIENT ORGANIZATION


1
Security Clearance ReformImplications of the
Intelligence Reform and Terrorism Prevention Act
of 2004
Thomas M. Abbott Partner and National Chair,
Government Contracts Practice Group
2
A Brief History
  • Sept 11, 2001 Al Qaeda attacks the United States
  • Oct. 26, 2001 USA PATRIOT Act (Public Law
    107-56) becomes law
  • Nov. 25, 2002 Homeland Security Act (Public Law
    107-296) becomes law
  • Spring/Summer/Fall 2004 9/11 Commission holds
    hearings on attacks
  • May 6, 2004 House Government Reform Committee
    hears testimony on clearances Rep. Davis sends
    letter to DOD requesting action on clearance
    backog.
  • Dec. 17, 2004 Intelligence Reform and Terrorism
    Prevention Act of 2004 (Public Law 108-458)
    becomes law

3
Summary of 2004 Changes (1 of 3)
  • Section 1011 new National Intelligence Director
    will prescribe uniform procedures for access to
    sensitive compartmentalized information (SCI)
  • Section 3001 addresses the security clearance
    process.
  • Within 90 days (Feb. 17), ID a single agency to
    manage clearances and standardize policies,
    investigations and adjudications OPM ? New
    Natl Intel Director?
  • Within 180 days, ID a single agency to perform
    investigations
  • Agency can delegate to other agencies outsource

4
Summary of 2004 Changes (2 of 3)
  • Standardization of clearance procedures
  • Explicitly applies to special access programs,
    clearance forms, financial disclosure rules, and
    polygraph policies may apply to more.
  • What will this mean in practice?
  • Reciprocity of clearances
  • Agencies may still establish separate
    requirements under certain circumstances
  • Central security clearance database

5
Summary of 2004 Changes (3 of 3)
  • Reduce investigation and adjudication times for
    security clearances
  • Designated agency must develop a plan for
    reducing clearance wait times
  • Starting on Dec. 17, 2006, agencies must complete
    80 of clearances within 120 days of application
  • 90 days to complete the investigative phase
  • 30 days to complete the adjudicative phase
  • Starting on Dec. 17, 2009, agencies must complete
    90 of clearances within 60 days of application
  • 40 days for the investigative phase
  • 20 days for the adjudicative phase
  • Shorter times should be beneficial to applicants
    and companies.
  • However, the burden of proof rests on the
    applicant at the adjudication, so the faster
    schedule may make it harder for applicants to
    produce evidence and make their cases.

6
Trends in Clearance Cases (1 of 2)
  • New guideline need to address post-9/11 changes
    which have resulted in dramatic changes in
    security clearance adjudications
  • Guideline B (Foreign Influence)
  • 2001 88 hearings (44 clearances granted)
  • 2002 120 hearings (55 clearances granted)
  • 2003 280 hearings (140 clearances granted)
  • 2004 170 hearings
  • Guideline C (Foreign Preference)
  • 2001 90 hearings (21 clearances granted)
  • 2002 127 hearings (53 clearances granted)
  • 2003 153 hearings (65 clearances granted)
  • 2004 104 hearings
  • In 2004 more adjudications diverted to DISCO?
  • The trend is to target countries of interest

7
Trends in Clearance Cases (2 of 2)
  • The Money memo applicants must formally
    surrender their foreign passports
  • Reinvestigations having a past clearance or
    successful adjudication is no guarantee
  • DOHA Appeal Process
  • Large gap for success rates
  • 12 of pro se applicants prevail
  • 40 of applicants with counsel prevail

8
Future Developments?
  • Which agency will manage clearances?
  • Which set of clearance guidelines will be used
    across agencies, if any?
  • Will future guidelines be promulgated using
    rulemaking? (notice, comment, etc.)
  • How will NIDs rules for access to SCI
    interact/overlap with regular clearance rules?

9
  • Thomas M. Abbott
  • McKenna Long Aldridge LLP
  • 444 South Flower Street
  • Los Angeles, CA 90071
  • (213) 243-6200
  • tabbott_at_mckennalong.com
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