U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division
The Department’s
and Components’
Personnel Security Processes
September 2012
I -2012-003
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U.S. Department of Justice Office of the Inspector General Evaluation and Inspections Division
The Department’s
and Components’
Personnel Security Processes
September 2012
I -2012-
EXECUTIVE DIGEST
INTRODUCTION
The Office of the Inspector General (OIG) examined whether the Department of Justice (Department or DOJ) and its components effectively managed the personnel security process for individuals hired into DOJ positions. We evaluated the time to complete the personnel security process for government employees, how well the Department meets the timeliness and reciprocity requirements of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) and other directives, whether certain positions take longer to process, and whether the Department can ensure that only employees with favorably adjudicated background checks have access to sensitive and National Security Information.^1
Background investigations for the Department are conducted by one of three investigative agencies – the Office of Personnel Management (OPM), the Federal Bureau of Investigation (FBI), and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).^2 The extent of the background investigation required is determined by the type of information that individuals have access to in their work for the Department. Individuals in positions that require access to National Security Information (information classified at the Top Secret, Secret, or Confidential level) generally require more in-depth investigations than do individuals whose positions do not require access to classified information (typically termed Public Trust positions).
IRTPA requires agencies authorized to grant National Security Information clearances to complete at least 90 percent of the clearances within an average of 60 days – 40 days to complete the background investigation and 20 days to complete the adjudication determination. IRTPA’s reciprocity provision mandates that agencies accept a background investigation completed by any authorized federal investigative or adjudicative agency, provided that the background investigation was favorably adjudicated, is at the right level for the position, and was completed within the past 5 years.
(^1) Pub. L. No. 108-458, 118 Stat. 3638.
(^2) Executive Order 12968 grants the Department the authority to grant, suspend, and revoke security clearances.
U.S. Department of Justice Office of the Inspector General
i
information that would have alerted them to inefficiencies or delays in the non-FBI attorney clearance process.
Clearances for certain key positions in the Department such as agents, intelligence analysts, and linguists also consistently take longer than 60 days to process. As a result, these positions may go unfilled for extended periods because those persons generally cannot start work until their background adjudications have been completed. The slower processing is caused, in part, by factors such as the need to verify an individual’s foreign contacts or to resolve credit issues.
The Department’s time to complete Public Trust cases increased 92 percent from 99 to 190 days during the period of our review. Public Trust employees are permitted to start work under a waiver while their cases are processed. As a result, these individuals routinely work in the Department, with access to sensitive information and systems, for significant periods of time without completed background investigations and adjudications. Indeed, it took more than one year to complete the background investigations and adjudications for 3 percent of the employees in Public Trust positions, which exceeded their one year probationary periods. Accordingly, those individuals obtained permanent employment status, making it more difficult to discharge them if derogatory information was uncovered during their background investigations.
The oversight of the Department’s personnel security processes by the Justice Management Division’s Security and Emergency Planning Staff (SEPS) is not sufficient to identify security violations and enforce security policy. Although components track data on the status of employee background investigations, clearance levels, and reinvestigations, the tracking is inconsistent and often incomplete. Further, the field does not always have accurate information on individuals’ clearance levels or the status of their investigations. The lack of information makes it difficult to ensure that only individuals with the appropriate clearance level have access to sensitive and classified information. Finally, reciprocity data is inconsistently tracked, not reported, or reported incompletely, which made it impossible to determine whether the Department applies reciprocity consistently.
RECOMMENDATIONS
In this report, we make 13 recommendations to improve the Department’s timeliness in processing background investigations and adjudications and ensure that only individuals with the appropriate clearance level have access to sensitive and classified information. These
U.S. Department of Justice Office of the Inspector General
iii
recommendations include establishing procedures to improve the timeliness in adjudicating Public Trust cases, changing the Office of Attorney Recruitment and Management’s process and staffing to improve the timeliness of attorney clearances, including timeliness data on attorney clearances in the Department’s IRTPA reports, and improving SEPS’s oversight of components’ security clearance processes. Our recommendations also include ensuring that field offices have access to headquarters’ security information and that field offices be required to know the type of clearance each employee on site holds.
U.S. Department of Justice Office of the Inspector General
iv
APPENDIX XI: THE FEDERAL BUREAU OF PRISONS RESPONSE
TO DRAFT REPORT .................................................................... 73
APPENDIX XII: OIG ANALYSIS OF THE FEDERAL BUREAU OF
PRISONS RESPONSE ................................................................. 76
APPENDIX XIII: THE DRUG ENFORCEMENT ADMINISTRATION
RESPONSE TO DRAFT REPORT ................................................. 79
APPENDIX XIV: OIG ANALYSIS OF THE DRUG ENFORCEMENT
ADMINISTRATION RESPONSE ................................................... 81
APPENDIX XV: THE FEDERAL BUREAU OF INVESTIGATION
RESPONSE TO DRAFT REPORT ................................................. 83
APPENDIX XVI: OIG ANALYSIS OF THE FEDERAL BUREAU OF
INVESTIGATION RESPONSE ...................................................... 86
APPENDIX XVII: THE U.S. MARSHALS SERVICE RESPONSE TO
DRAFT REPORT ......................................................................... 88
APPENDIX XVIII: OIG ANALYSIS OF THE U.S. MARSHALS
SERVICE RESPONSE ................................................................. 90
APPENDIX XIX: THE SECURITY AND EMERGENCY PLANNING
STAFF RESPONSE TO DRAFT REPORT ...................................... 92
APPENDIX XX: OIG ANALYSIS OF THE SECURITY AND
EMERGENCY PLANNING STAFF RESPONSE .............................. 98
APPENDIX XXI: THE OFFICE OF ATTORNEY RECRUITMENT
AND MANAGEMENT RESPONSE TO DRAFT REPORT............... 105
APPENDIX XXII: OIG ANALYSIS OF THE OFFICE OF ATTORNEY
RECRUITMENT AND MANAGEMENT RESPONSE ..................... 109
U.S. Department of Justice Office of the Inspector General
BACKGROUND
The Office of the Inspector General (OIG) is conducting a two-phase review to assess whether the Department of Justice (Department or DOJ) is effectively administering the personnel security process for employees and contractors to meet component mission and security requirements. This report discusses the first phase of the review, which focused on the time to complete the personnel security process for government employees and the Department’s oversight of the components’ security processes. As part of this review, we evaluated the Department’s success in meeting the requirements of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) and executive branch directives.^5 The second phase of the review will focus on the security process for contractors.
In 1995, Executive Order 12968 called for a uniform federal personnel security program for employees who will be considered for access to classified information and established security policies for protecting classified information. It also detailed individual access levels and reciprocity procedures.
IRTPA built on this Executive Order by requiring agencies that are authorized to grant National Security Information clearances to complete at least 90 percent of clearances within an average of 60 days. Those agencies are to set aside a period of not longer than 40 days to complete the investigative phase and a period of not longer than 20 days to complete the adjudicative phase of the clearance.^6 Further, 5 C.F.R. § 732.302(b) and Executive Order 10450 require that Public Trust adjudication determinations be reported to OPM within 90-days of the completed background investigation.^7 Table 2 summarizes the timeliness standards and regulatory guidance for National Security Information clearances and Public Trusts.
(^5) Pub. L. No. 108-458, 118 Stat. 3638.
(^6) The IRTPA guidelines establish the 60-day deadline for completing background investigations and adjudications for National Security Information clearances. These guidelines are accepted government-wide and used by ODNI to measure agency timeliness. Therefore, for the purposes of this review, the OIG used the IRTPA goal of processing the fastest 90 percent of clearances within 60 days to measure the Department’s overall performance.
(^7) The language in IRTPA does not establish specific timeliness guidance for completing the security clearance process for Public Trust positions.
U.S. Department of Justice Office of the Inspector General
and oversees the development of tools and techniques to improve the security clearance process. As part of this function, the Council collects timeliness and reciprocity data from agencies.
National Security Information and Public Trust Positions
The type of information that individuals have access to determines the type of background investigation required for a position. Individuals in positions that require access to classified information are granted National Security Information clearances at the Top Secret, Secret, or Confidential level. A Top Secret clearance is based on a Single Scope Background Investigation (SSBI). A Secret or Confidential clearance is based on a Moderate Background Investigation (MBI), an Access National Agency Check and Inquiries (ANACI), an SSBI, or a 5-year scope Background Investigation (BI).^10 IRTPA provides guidelines for such National Security Information clearances to meet.^11
Individuals who do not require access to classified information but who may be involved in policy making, major program responsibility, or other sensitive roles are typically considered to be in Public Trust positions. In accordance with 5 C.F.R. § 731, each DOJ position is assigned a risk level of High, Moderate, or Low based on the potential harm their actions could cause the federal government. A High Risk position requires a background investigation covering the past 5 years. A Moderate Risk position requires a Moderate Background Investigation. A Low Risk position requires a National Agency Check and Inquiries investigation. An evaluation is conducted to determine if anything in the individual’s character or conduct would negatively affect the integrity or efficiency of their government service.^12
(^10) An SSBI covers the past 7 years of a subject’s activities and includes verification of citizenship, date and place of birth, and national agency records checks. It also includes in-person interviews of the subject and selected references. A 5-year BI is similar, except it covers only the past 5 years of a subject’s activities. An MBI also covers 5 years but with mailed inquiries instead of personal interviews.
(^11) The Office of the Director of National Intelligence (ODNI) is currently exploring the possibility of establishing a separate timeliness goals for Top Secret and Secret clearances. This is based on the premise that background investigations for Top Secret clearances are more complex and take longer to complete than investigations for Secret or Confidential clearances. However, as of the time of this report, Top Secret and Secret clearances are still subject to the IRTPA timeliness goals, as written.
(^12) Section 731 of Title 5, Code of Federal Regulations establishes general guidelines for evaluating individuals in Public Trust positions. Agencies may also require candidates to meet certain agency-specific qualifications that are related to the agency’s (Cont’d.)
U.S. Department of Justice Office of the Inspector General
Timeliness in conducting background investigations and adjudications for Public Trust positions is not subject to the IRTPA time guideline. However, federal regulations require that the adjudication be completed and the determination be reported to OPM within 90 days.^13 Further, agencies are required to apply reciprocity for Public Trust cases under 5 C.F.R. § 731.202, which prohibits agencies from making a new determination for a person who has already been determined suitable. Likewise, Executive Order 13467 states that except as otherwise authorized by law, background investigations and adjudications shall be mutually and reciprocally accepted by all agencies. Appendix II details the types of National Security Information clearances and Public Trust risk levels and the background investigation required for each position.
Personnel Security Process
Although the process can vary depending on the position’s risk designation, in general, the personnel security process consists of a background investigation and an adjudication determination. Each component has a designated Security Programs Manager responsible for certifying that the requirements for granting security clearances are adequate and for monitoring compliance. Figure 1 depicts the typical personnel security process.
mission or key functions. For example, the Drug Enforcement Administration has a stricter drug policy, and the Bureau of Alcohol, Tobacco, Firearms and Explosives has restrictions against hiring individuals who hold a current Federal Firearms License.
(^13) 5 C.F.R. § 732.302(b) and Executive Order 10450.
U.S. Department of Justice Office of the Inspector General
Trust position. Available information about a person’s past and present, favorable and unfavorable, is used to make determination decisions.
Employees holding a security clearance who have been employed in their jobs for certain periods of time are subject to a reinvestigation to verify that they should still have access to classified National Security Information. A reinvestigation is required once every 5 years for individuals possessing a Top Secret clearance, once every 10 years for those with a Secret clearance, and once every 15 years for those with a Confidential clearance.^15 Federal agencies may impose additional requirements to expand the number of individuals subject to reinvestigation or to require more frequent reinvestigations, and the Department has decided to require both Public Trust employees and those with National Security Information clearances to be reinvestigated once every 5 years. The hiring agency or the component headquarters usually monitors expiration dates.
Authorities to Conduct Background Investigations and Adjudications
The authorities to conduct background investigations and make adjudication decisions for Department employees vary from component to component.
Background investigations for Department employees are conducted by one of three authorized investigative entities, one of them outside the Department, OPM, and two of them inside the Department, the Federal Bureau of Investigation (FBI) and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). All three agencies have authority to complete background investigations for both National Security Information and Public Trust positions. Regardless of which agency performs an investigation, all background investigations have to meet the same government-wide standards.^16 Agencies’ processes differ slightly as will be discussed in the sections below.
The Justice Management Division’s (JMD) Security and Emergency Planning Staff (SEPS) is authorized to make adjudication determinations for both Public Trust positions and National Security Information
(^15) 50 U.S.C. § 435b(A)(7).
(^16) Executive Order 12968 and Executive Order 13467.
U.S. Department of Justice Office of the Inspector General
positions.^17 SEPS further delegated some of this adjudication authority to ATF, the Federal Bureau of Prisons (BOP), the Drug Enforcement Administration (DEA), the FBI, and the U.S. Marshals Service (USMS) so these agencies could make adjudication determinations for their own employees. SEPS makes the adjudication determinations for the remainder of the Department.
Table 3 details each component’s authority and shows which component is responsible for conducting investigations and adjudications.
Table 3: Background Investigation and Adjudication Authority
Component
Who Has Authority to Conduct Background Investigations for:
Who Has Authority to Adjudicate Security Clearances for: Employees (non-attorneys) Attorneys
Employees (non-attorneys) Attorneys
ATF ATF FBI ATF SEPS
BOP OPM FBI BOP SEPS
DEA OPM FBI DEA SEPS
USMS OPM FBI USMS SEPS
FBI FBI FBI FBI FBI
All Other Components OPM^ FBI^ SEPS^ SEPS
Source: OIG.
DOJ Personnel Security Process
SEPS is the primary office responsible for developing, implementing, and ensuring compliance with security policy throughout the Department. Within SEPS, the Personnel Security Group and the Office of Information Safeguards and Security Oversight’s Compliance Review Team handle policy and oversight specific to the Department’s security clearance process.
The Personnel Security Group has two sections. The Policy, Oversight, and Training Section develops Department-wide personnel security policy and training, while the Operations Section reviews and adjudicates background investigations for government employees and contractors. Within the Office
(^17) 28 C.F.R. § 17.11(c) and Executive Order 12968 grant the Department the authority to grant, suspend, and revoke security clearances and to delegate its authority to the components. In 5 C.F.R. § 731, OPM delegated agencies the authority to adjudicate Public Trust positions.
U.S. Department of Justice 7 Office of the Inspector General
required information, the e-QIP system validates the forms and an investigation is scheduled within 24 hours. OPM uses contractors to conduct the investigation. When the investigation is completed, FIS releases the information to the agency that requested the investigation.
The completed investigation is forwarded to the appropriate adjudicating authority for a decision. According to federal regulations, the agency must report its adjudicative determinations to OPM within 90 days of receiving the completed investigation.^20
Background Investigations Completed by the FBI
The FBI conducts the background investigations for its own employees and also makes the adjudication determinations.^21 The FBI’s Security Division handles personnel security for FBI employees.^22
An FBI background investigation includes completing and submitting security forms in e-QIP, a urinalysis examination, a personnel security interview, and a polygraph examination. All FBI applicants must pass a polygraph examination as part of agency-specific qualifications. Certain positions may also require the applicant to pass a physical or medical examination.
The field office reviews the forms for completeness, notes any derogatory information, and forwards the forms to the appropriate Security Division unit. The unit assigns a case manager who is responsible for monitoring the file throughout the security clearance process. The case manager initiates the background investigation, schedules the interview leads for the contractor investigators or an FBI agent assigned to the
(^20) 5 C.F.R. § 732.302(b) and Executive Order 10450.
(^21) The FBI’s authority is derived from 5 U.S.C. §§ 3301 and 9101 and from Executive Order 10450 on Security Requirements for Government Employment and Executive Order 12968 on Access to Classified Information.
(^22) Within the Security Division, separate staffs handle different types of employees. For example, two Professional Staff Clearance Units are responsible for all professional staff and specialty hires, such as intelligence analysts, surveillance specialists, FBI attorneys and interns. The Special Clearance Unit (SCU) conducts background investigations for FBI special agents, while the Special Inquiry and General Background Investigations Unit (SIGBIU) conducts background investigations for non-FBI attorneys. Each staff operates independently of the others and has an intake function, an investigative function, an adjudicative function, and a process function.
U.S. Department of Justice Office of the Inspector General
investigation, and makes the final adjudication determination.^23 All FBI employees are cleared at the Top Secret level, and there are no Public Trust positions in the FBI.^24
Background Investigations Completed by ATF
ATF conducts the background investigations for its employees and makes the adjudication determinations under authority delegated to it by OPM. ATF’s Personnel Security Branch, located at headquarters, centrally manages the security clearance process. ATF’s field offices have very little involvement. The Personnel Security Branch initiates its security process for a new employee in response to a request from the Office of Human Resources and Professional Development. The branch reviews the request to ensure the applicant meets ATF’s agency-specific qualifications.^25 All ATF positions are considered to be National Security Information positions, and most ATF employees require a Top Secret clearance. ATF does not have any Public Trust positions.
The Personnel Security Branch is also responsible for scheduling the background investigation for the applicant. ATF uses either independent contract field agents or OPM’s FIS to complete background investigations. Most are done by ATF contract employees. The contract field agents must follow a Special Investigator Manual modeled on OPM’s investigations manual. The Personnel Security Branch monitors the field agents’ investigations to ensure the agents are conducting all the necessary field work and meeting OPM’s standards.
(^23) The FBI’s Background Investigation Contract Service (BICS) Unit is responsible for managing approximately 1,100 FBI contractors that are tasked with conducting investigative leads. FBI employees working within the BICS unit review and approve the completed leads before providing the results to the requesting unit within the Security Division. However, FBI special agents and other professional support staff may assist with certain cases, such as a political appointee, or to run local checks.
(^24) The FBI also conducts background investigations for the Department’s non- career Senior Executive Service appointees, Schedule C appointees, attorneys, law clerks, and all positions in the Office of the Attorney General and the Office of the Deputy Attorney General in accordance with DOJ Order 2610.2B, Employment Security Order, Section 12. These investigations are handled by SIGBIU. For these cases, the requesting agency or component is responsible for collecting the individual’s security forms and reviewing them for completeness. The agency or component submits these forms to the SIGBIU, which conducts the background investigation and returns the investigation result to the adjudicating agency.
(^25) ATF’s agency-specific qualifications include a stricter drug policy and restrictions against hiring individuals involved in alcohol-related businesses or who hold a current Federal Firearms License.
U.S. Department of Justice Office of the Inspector General
PURPOSE, SCOPE, AND METHODOLOGY OF THE OIG REVIEW
The purpose of the OIG’s review is to assess whether the Department is effectively administering the personnel security process for employees and contractors to meet component mission and security requirements. This review consists of two phases. The first phase focused on government employees, including the time it takes to complete background investigations and adjudications and the Department’s success in meeting IRTPA’s timeliness and reciprocity requirements. The second phase will focus on the specific issues with the contractor personnel security program and will be covered in a separate, subsequent report.
The objectives of the first phase of the review were to assess:
whether the Department and its components are meeting the timeliness and reciprocity requirements of IRTPA for National Security Information cases; whether the Department and its components are timely in processing personnel security cases; whether clearances for specific positions take longer to process; whether the Department and its components provide effective controls over the personnel security process; whether the Department provides sufficient oversight of the components’ personnel security processes; and whether the Department ensures that personnel with access to sensitive or classified information possess the appropriate background investigation.
This review examined the Department’s timeliness for the end-to- end process, regardless of whether the investigative agency was part of the Department (the FBI and ATF) or outside the Department (OPM).
Department components we reviewed included ATF, the Antitrust Division, the Environment and Natural Resources Division, the BOP, the Civil Division, the Civil Rights Division, the Criminal Division, the DEA, the Executive Office for United States Attorneys (EOUSA), the FBI, JMD, the Office of Attorney Recruitment and Management (OARM), the Office of Justice Programs, the United States Attorneys’ Offices (USAO), and USMS. Our review included interviews, data analysis, document reviews, and site visits.
The review covered the period since the enactment of IRTPA to the last full fiscal year, specifically fiscal year (FY) 2005 through the first
U.S. Department of Justice Office of the Inspector General
quarter of FY 2011. We conducted our fieldwork from March 2011 through July 2011.
Interviews
We interviewed a total of 106 officials and staff members at the various components’ headquarters and field offices. We also interviewed Government Accountability Office personnel to discuss its previous reviews as well as OPM personnel regarding investigation and clearance procedures. The interviewees are listed in Appendix IV.
Data Analyses and Document Reviews
We analyzed component data on security and personnel information from FY 2010 through the first quarter of FY 2011 (October 1, 2009, through December 31, 2010). We chose this period based on when agencies were required to meet the current IRTPA guideline. The data included when the background investigation was initiated, when the background investigation was completed, when the adjudication determination was made, the risk or sensitivity level, and the job position. We also reviewed relevant laws, regulations, policies, procedures, internal reviews, and a sampling of security files for completed background investigations. See Appendix V for a detailed description of the OIG’s methodology used for each analysis.
Site Visits
We conducted site visits to 14 ATF and FBI field offices, USMS and USAO district offices, DEA division offices, and BOP confinement facilities in Los Angeles and Atlanta. We also visited JMD and each law enforcement component’s headquarters, as well as the Civil Division, the Civil Rights Division, the Criminal Division, EOUSA, and OARM.
U.S. Department of Justice Office of the Inspector General