Security clearance consequences.

As noted earlier, the Smith Amendment was changed recently. An astute reader has provided a new name for us — the commenter refers now to the “Bond Amendment.” Instead of the old Smith Amendment at 10 U.S. Code 986, the new law on security clearances for persons sentenced to confinement or certain punitive discharges is at 50 U.S.C. 435b, Section 3002, Pub. L. 108-375, §1062, 118 Stat. 2056. For quick comparison here are the two as suggested by Mr.Henderson.

The Smith Amendment, 10 U. S. Code 986prohibited only DoD from granting or continuing security clearances for:

Convicted felons who were incarcerated for more than a year as a result of the conviction.
Current users of illegal drugs.
Mentally incompetent persons.
Anyone discharged or dismissed from the Armed Force under dishonorable conditions.

The Bond Amendment, (50 U. S. Code 435b, Sec. 3002, prohibits all federal agencies from granting or renewing any security clearance to a person who is an unlawful user of a controlled substance or an addict.

It also prohibits all federal agencies from granting or renewing access eligibility for Special Access Programs, Restricted Data, or Sensitive Compartmented Information for anyone (without a waiver) who has been:

Convicted of a crime, sentenced, and incarcerated for a term exceeding 1 year,
Discharged or dismissed from the Armed Forces under dishonorable conditions,
Determined to be mentally incompetent by a government approved mental health professional.

The commenter has a publication, William H. Henderson, Security Clearance Manual: How To Reduce The Time It Takes To Get Your Government Clearance, Last Post Pub., 2007; an alternative publication is Sheldon I. Cohen, Security Clearances and the Protection of National Security Information: Law and Procedures, Def. Pers. Security Res. Cen. Mr. Cohen’s book is frequently referred to at the annual DOHA CLE training co-sponsored with the D.C. Bar.

Last Post Publishing also has a useful resource site for current regulations in the security clearance area. One of the interesting on there are flow charts — very helpful, even to the practitioner.

Back to the point — If a court-martial client receives a DD or Dismissal or serves more than one year in confinement, he or she will have a security clearance problem. So,

If the PTA calls for suspension of confinement in excess of one year or it is a maxed out SPCM, and the case is not a drug case, you should be good on the “Bond Amendment” issue. However, for security clearances that’s not the only hurdle in connection with the conviction. Examiners will still look at the underlying conduct as a possible bar to a clearance. If a client is sentenced to a term of years in excess of one year, so far so good under the Bond Amendment. If the client is released (clemency or parole) having not served more than one year, and it is not a drug case, then they are likely OK under the Bond Amendment. However, they are going to have a problem for the underlying offenses. It will take a while I suspect for Bond Amendment issues to flush out.

This is also a reminder of the continual complexity and changes in the rules that C.A.A.F. is requiring from trial defense counsel on significant collateral issues.