- June 28, 2015
- Posted by: William Henderson
- Category: Clearance Procedures
In an article, “DOHA Pre-Hearing Process,” I wrote about what happens after a contractor applicant receives a Statement of Reasons (SOR) explaining why the Government intends to deny or revoke their clearance. That article covers the process and events up to the Defense Office of Hearings and Appeals (DOHA) hearing.
This article is not intended to provide advice on representing yourself at a hearing, but it does describe what happens, if you choose to represent yourself. DOHA has an informative, prehearing guidance document on at their website. The document states that you can generally expect the hearing to be held in a major US metropolitan area within 150 miles of your location and that it can sometime be conducted by video teleconference.
Unless you permit the presence of others, the only people at your hearing will be you, your witnesses, the DOHA Department Counsel (DC), the DC’s witnesses, the DOHA Administrative Judge (AJ), and the court reporter. Witnesses are normally sequestered outside the hearing room until they provide their testimony. However, the AJ may allow witnesses to remain in the hearing room, if they’re expert witnesses or if they’re character witnesses, who will not be testifying about the specific issue(s) in the case. The DC doesn’t always present witnesses and usually relies entirely on documentary evidence.
The process described below is based on two recent DOHA hearings I observed where the applicants represented themselves. Neither hearing was conducted by video teleconference. The sequence of events was not exactly the same for both hearings.
Before the hearing begins, the DC sits down with you, briefs you on the procedures and protocol, and helps you organize the exhibits you intend to submit as evidence. Don’t mark your exhibits in advance. This will be done at the hearing. When the hearing begins, the AJ has the DC identify himself/herself for the record. The AJ asks you a few questions about your age and background to insure that you’re competent to represent yourself, and explains how the hearing is conducted and your right to object to any evidence offered by the DC. Rather than placing you and any witnesses under oath, the AJ will advise you of the provision of Section 1001 of Title 18 US Code, which makes it a criminal offense to knowingly and willfully make a false statement or misrepresentation at the hearing.
The AJ states the basis for the hearing, the issue(s) in your case, and the AJ’s role in the hearing. Participants are cautioned not to disclose any classified information. The DC is then invited to make an opening statement. An opening statement is an optional summary of the security concern(s) and the evidence the DC intends to present to substantiate the concern(s). The DC may even concede that your SOR response successfully refuted or mitigated one or more of the specifications in the SOR. You can choose to make an opening statement then, later, or not at all. If you make an opening statement, you can briefly talk about yourself, your achievements, work/school history, and other factors indicative of your honesty, reliability, and trustworthiness, as well as how the evidence you present will refute or mitigate the disqualifying conditions listed in the SOR.
The exhibits the DC offered as evidence are reviewed. You may object to any of the exhibits, but you must explain why. Absent any objections, the exhibits are entered into evidence. If the DC has any witnesses, the AJ advises them of 18 USC § 1001. The witness is then questioned by the DC (direct examination). When the DC is finished, you may question the witness (cross examination). The DC may ask the witness additional questions (redirect examination). The AJ may also question the witness. This continues until the DC, the AJ, and you have no more questions of the witness.
The exhibits you offered as evidence are reviewed, and the DC may object to any of the exhibits. You can testify on your own behalf and/or present witnesses. You choose the order in which you and your witnesses will give testimony. The process is the same as for the DC’s witnesses, except that you are responsible for the direct and redirect examination and the DC for the cross examination. It is possible to have witnesses testify by telephone or video conference, but this needs to be coordinated in advance with the DC.
The primary purpose for requesting a hearing is so you can present testimony and evidence in person that refutes or mitigates the Government’s security concerns. Appearing before an AJ at a hearing and presenting testimony humanizes your case, which would otherwise be a compilation of sterile, dispassionate documents. It also allows the AJ to observe your demeanor and make a judgment about your credibility and character. If you choose not to offer any testimony, the DC can call you as a witness and question you.
Although the Prehearing Guidance posted at the DOHA website states, “The hearing is an adversarial proceeding. . . .”; the hearings I observed were neither adversarial nor confrontational. The applicants presented their cases honestly and candidly without dissembling, obfuscating, or equivocating. The AJ and DC were accommodating in their efforts to insure that the applicants had ample opportunity to present all the relevant information they possessed. The questions the AJ and the DC asked the applicants not only resulted in a clearer understanding of the potentially disqualifying conduct and conditions, but also elicited mitigating information that the applicants failed to present on their own. The DC didn’t attempt to “trip up” the applicants in cross examination, even though some inconsistences in their testimonies were present. The DC’s questions were phrased in a way that simply drew out the details surrounding the issues.
After all evidence has been presented the case, the DC and you are allowed to make closing arguments. The DC will go first, then you, and then the DC may rebut your closing argument. Closing arguments are an optional recap of the evidence and its relevance to the issues in the case. If you were unable to obtain some documentary evidence in time for the hearing, it is possible to submit it after the hearing for the AJ to consider. You should ask the AJ to leave the hearing record open for a short period of time, so that you can obtain and submit the document.
You should not expect to receive a decision on your clearance eligibility at the hearing. A copy of the hearing transcript will be provided to you, the DC, and the AJ in a week or two. About a month or two after the hearing, the AJ will make a written decision, which will be sent to both parties with a letter explaining how the decision can be appealed by either party. Once the case is final, DOHA will make the appropriate entry into your security clearance database record.
By William H. Henderson
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