Security Clearances: Consideration of Sexual Orientation in the Clearance
Process (Letter Report, 03/24/95, GAO/NSIAD-95-21).
Pursuant to a congressional request, GAO reviewed how sexual orientation
is treated in the security clearance process for federal civilian and
contractor employees, focusing on: (1) whether clearances are currently
being denied or revoked based on individuals' sexual orientation; (2)
whether sexual orientation is being used as a criterion in granting or
revoking security clearances; and (3) how concealment of sexual
orientation affects the granting or revoking of security clearances.
GAO found that: (1) problems related to sexual orientation appear to be
declining; (2) a review of selected cases from fiscal year 1993 showed
that sexual orientation was not a factor in denials, revocations, or
suspensions of security clearances; (3) the Department of Defense (DOD)
and the Secret Service have stated that sexual orientation is not a
criterion in granting security clearances, but they have not yet revised
their investigative policies and procedures; and (4) no clear linkage
exists between sexual orientation and espionage.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: NSIAD-95-21
TITLE: Security Clearances: Consideration of Sexual Orientation in
the Clearance Process
DATE: 03/24/95
SUBJECT: Homosexuality
Civil service appointments
Employment discrimination
Civilian employees
Contractor personnel
Department of Defense contractors
Personnel management
Hiring policies
Civil rights
Investigations by federal agencies
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Cover
================================================================ COVER
Report to Congressional Requesters
March 1995
SECURITY CLEARANCES -
CONSIDERATION OF SEXUAL
ORIENTATION IN THE CLEARANCE
PROCESS
GAO/NSIAD-95-21
Security Clearances
Abbreviations
=============================================================== ABBREV
CIA - Central Intelligence Agency
DISCR - Defense Industrial Security Clearance Agency
DMA - Defense Mapping Agency
DOD - Department of Defense
FBI - Federal Bureau of Investigation
OPM - Office of Personnel Management
USIA - United States Information Agency
Letter
=============================================================== LETTER
B-258273
March 24, 1995
The Honorable George E. Brown, Jr.
Ranking Minority Member
Committee on Science
House of Representatives
The Honorable Ronald V. Dellums
Ranking Minority Member
Committee on National Security
House of Representatives
In response to your request and that of the former Chairman, House
Subcommittee on Civil and Constitutional Rights, Committee on the
Judiciary, we reviewed issues relating to how sexual orientation is
treated in the security clearance process for federal civilian and
contractor employees. Specific areas we reviewed included (1)
whether clearances are currently being denied or revoked based on
individuals' sexual orientation, (2) whether sexual orientation is
being used as a criterion in granting or revoking security
clearances, and (3) how concealment of sexual orientation affects the
granting or revoking of security clearances. We performed our review
at eight agencies that, except for the Central Intelligence Agency,
accounted for over 95 percent of the security clearances granted to
civilian and contractor employees during fiscal year 1993. As
agreed, we did not review security clearances at the Central
Intelligence Agency, Defense Intelligence Agency, or National
Security Agency. Also, the scope of this work did not include
military personnel; however, our prior work has addressed policies in
that area.\1
--------------------
\1 Defense Force Management: DOD's Policy on Homosexuality
(GAO/NSIAD-92-98, June 12, 1992); Defense Force Management:
Statistics Related to DOD's Policy on Homosexuality
(GAO/NSIAD-92-98S, June 12, 1992); and Homosexuals in the Military:
Policies and Practices of Foreign Countries (GAO/NSIAD-93-215, June
25, 1993).
BACKGROUND
------------------------------------------------------------ Letter :1
The federal government is charged with determining who can be
entrusted with the nation's secrets. Currently, 52 federal agencies
have granted personnel security clearances to over 206,000 civilian
and contractor employees. The requirement for federal employees who
handle classified information to be loyal and trustworthy was an
outgrowth of a 1947 federal loyalty program, established by President
Truman during a time of heightened feelings of national security over
growing concerns about the communist threat.\2 Executive Order 10450
modified the loyalty program in 1953, requiring that any individual's
employment be "clearly consistent with the interests of the national
security," and for the first time included sexual perversion as a
basis for removal from the federal service. Executive Order 10450,
which provides the basic security standards for agencies to follow,
has been amended several times through the years, most recently in
1974, but the security standards have remained basically the same.
Appendix I contains the security standards in Executive Order 10450.
Federal agencies used the sexual perversion criteria in the early
1950s to categorize homosexuals as security risks and separate them
from government service. Agencies could deny homosexual men and
women employment because of their sexual orientation until 1975, when
the Civil Service Commission issued guidelines prohibiting the
government from denying employment on the basis of sexual
orientation.\3 The guidelines, which further define the provisions of
Executive Order 10450, resulted from court decisions requiring that
persons not be disqualified from federal employment solely on the
basis of homosexual conduct. Although the public policy change
resulted in the restrictions against employment of homosexuals being
lifted, the guidance for granting security clearances to homosexuals
remained generally vague or restrictive until the early 1990s.
Appendix II contains a synopsis of key court decisions pertaining to
sexual orientation and the security clearance process.
--------------------
\2 Executive Order 9835, "Prescribing Procedures for the
Administration of an Employees Loyalty Program in the Executive
Branch of the Government" (Mar. 21, 1947).
\3 The Civil Service Commission is now the Office of Personnel
Management (OPM). As a result of legal actions, the Commission
initially issued suitability guidelines for federal government
employment in Federal Personnel Manual letter 731-3 (July 3, 1975).
In May 1980, OPM issued a memorandum to heads of departments and
independent establishments clarifying that personnel actions based on
non-job-related conduct such as sexual orientation may be considered
prohibited personnel practices under 5 U.S.C. 2302(b). The policy
was reaffirmed in February 1994.
RESULTS IN BRIEF
------------------------------------------------------------ Letter :2
Until about 1991, when agencies began to change their security
policies and practices regarding sexual orientation, there were a
number of documented cases where defense civilian or contractor
employees' security clearances were denied or revoked because of
their sexual orientation. However, our review of various records at
eight agencies and outreach to members of the homosexual community
have not identified such cases since 1991. Since no overall database
of such information exists, our work was based on judgmentally
selected reviews of agencies' records and information solicited from
parties involved in the process. We also recognize there is the
possibility that some individuals who have experienced problems would
be unwilling to come forward and discuss their cases.
Notwithstanding these limitations, our work disclosed no evidence
that sexual orientation has been used as a criterion in the security
clearance process for federal civilian and contractor employees since
1991. However, some individuals we spoke with believed they were
asked inappropriate questions during the clearance process.
Information we received from homosexuals, gay and lesbian groups, and
attorneys who have experience with the security clearance process
confirms that clearances have not been recently denied because of
sexual orientation and that the number of problems experienced by
homosexuals has diminished in recent years. In addition, our
detailed review of selected security clearance denials, revocations,
and suspensions during fiscal year 1993 showed that none were
attributable to sexual orientation.
All eight agencies we reviewed told us that homosexuality is not a
criterion in granting security clearances.\4 Six of the eight
agencies have written policies and procedures that prohibit direct
questions about an applicant's sexual orientation and the denial of a
security clearance on the basis of sexual orientation alone.
Although the other two agencies-- DOD and the U.S. Secret
Service--told us sexual orientation is not a criterion, they have not
revised their written policies and procedures to reflect this
position. Under their existing policies and procedures,
investigators are authorized to pursue information regarding an
applicant's homosexuality. Secret Service procedures require
investigators to be alert to and thoroughly investigate allegations
of homosexual conduct. DOD investigators can ask questions about
sexual orientation once it has been established that an applicant is
homosexual.
All of the agencies in our review indicated that concealment of any
personal behavior that could result in exploitation, blackmail, or
coercion is a security concern. However, the treatment of
concealment as it relates to sexual orientation varies. Although
most of the agencies have eliminated specific references to sexual
orientation, DOD and FBI guidelines treat concealment as a security
concern. At DOD, coworkers and family members must be informed of
the applicant's sexual orientation, or the applicant is considered
potentially vulnerable to blackmail or coercion and could be denied a
clearance. DOD plans to eliminate this language in revised
guidelines to be issued in early 1995.
The FBI's investigative guidelines on sexual orientation require
investigators to record admissions of sexual orientation for use in
determining an applicant's vulnerability to compromise. The FBI
explained that this requirement is intended to provide investigators
precise guidance on how to handle sexual orientation, and that the
guidelines also state that no inference of susceptibility to coercion
is to be drawn based on sexual orientation. We believe the inclusion
of the requirement in the investigative guidelines could be
misinterpreted to suggest that a person is vulnerable to compromise
only because of the individual's sexual orientation. In addition,
none of the other agencies in our review have a similar requirement.
--------------------
\4 The agencies we reviewed were the Department of Defense (DOD), the
Departments of Energy and State, OPM, the U.S. Information Agency
(USIA), the Federal Bureau of Investigation (FBI), the U.S. Secret
Service, and the U.S. Customs Service.
PROBLEMS RELATED TO SEXUAL
ORIENTATION APPEAR TO BE
DECLINING
------------------------------------------------------------ Letter :3
No central source of data exists that captures incidents where
individuals believe their security clearance was denied or revoked
because of their sexual orientation. Therefore, we reached out to
individuals who believed their sexual orientation influenced the
security clearance process. Specifically, we asked over 30 gay and
lesbian publications throughout the United States to publish an
article soliciting input from individuals who believe federal
agencies denied or revoked their security clearances based on their
sexual orientation between 1991 and 1994. We also contacted nine
attorneys and one paralegal who represented individuals on gay rights
issues. In addition, we talked with representatives from five gay
rights organizations that represent federal employees and other
professionals who might have sought a security clearance.
We recognize that some individuals who have experienced problems with
the security clearance process might not be willing to contact us,
but the information we received, and the individuals with whom we
talked, generally indicated that in recent years (between 1991 and
1994) sexual orientation has not been used as a criterion for denying
security clearances. The attorneys told us that they have had no
sexual orientation cases associated with security clearances since
1992. The paralegal also had no cases, but said there is not parity
between questions asked of homosexuals versus heterosexuals (e.g.,
homosexuals are often asked detailed questions about their sexual
habits). The National Organization of Gay and Lesbian Scientists and
Technical Professionals, Pasadena, California, believes that
improvements have been made and the problems are not nearly as severe
as in the past, but they are concerned that the process for obtaining
clearances appears to take longer for homosexual than heterosexual
employees. Appendix III identifies some of the major organizations
we contacted.
Based on information from the above sources, we identified 25 cases
where civilian or contractor employees believed their sexual
orientation had an impact on their security clearance investigations.
Nine of the
25 cases occurred after 1990: 3 in 1991, 5 in 1992, and 1 in 1993.
None of these cases involved a denial, revocation, or suspension of a
security clearance. However, the individuals believed that the
investigation took longer than it should have or that the
investigators asked unnecessary questions about the individuals'
sexual behavior. No incidents were reported to us for January
through November 1994.
Of the 16 cases that occurred before 1991, 8 clearances were revoked.
Five of the eight individuals were defense contractor employees who
either omitted disclosing homosexual activities to defense
investigators, did not disclose their homosexuality to family members
and coworkers (a defense personnel security requirement), or
fraternized with foreign nationals.\5 The other three included one
defense and two foreign service employees at the Department of State
and USIA. Their clearances were revoked for medical health reasons,
and fraternizing with foreign nationals and/or criminal behavior.
The five defense contractor personnel appealed the revocation, and
three of the clearances were reinstated.\6 Clearances were not
revoked or denied for the other eight cases that occurred before
1991; however, the individuals believed they were asked inappropriate
questions during the clearance process. In summary, for the eight
cases we reviewed where a clearance was revoked, it appears that the
individuals' clearances were not revoked because of sexual
orientation, per se, but rather for the concealment of it.
--------------------
\5 Fraternization is a relationship with a foreign national that
involves close, romantic, or sexual ties.
\6 One of the three clearances was revoked by one agency but
reinstated by another agency when the individual transferred.
SELECTED FISCAL YEAR 1993 CASE
REVIEW SHOWS SEXUAL ORIENTATION
WAS NOT A FACTOR IN DENIALS,
REVOCATIONS, OR SUSPENSIONS
------------------------------------------------------------ Letter :4
In addition to our outreach effort to homosexual individuals, we
judgmentally selected and reviewed 129 cases where clearances were
denied, revoked, or suspended. Our objective was to see if we could
find any evidence that sexual orientation was a factor in these
decisions. Our detailed review showed that no clearances were
denied, revoked, or suspended because of sexual orientation. Also, a
limited review of interviewee follow-up information showed similar
results.
During fiscal year 1993, the eight agencies included in our study
denied, revoked, or suspended security clearances for 2,526
individuals. We collected data from each agency on the reason for
the adverse action and reviewed 129 cases in detail to determine
whether sexual orientation was a criterion in the clearance
determination. Our detailed review showed that no clearances were
denied, revoked, or suspended because of sexual orientation. In nine
cases, sexual conduct--not sexual orientation--appeared to be a key
factor in the adverse action. There was no indication that the
individuals were homosexual or that sexual orientation was an issue.
The other 120 clearances were denied, revoked, or suspended for a
number of reasons, including alcohol and drug abuse, mental or
medical health issues, and security violations.
Table 1 shows the number of denials, revocations, and suspensions by
agency, and table 2 shows the reason for the adverse action as
reported to us by each agency for the 129 cases we reviewed in
detail.
Table 1
Number of Security Clearances Denied,
Revoked, or Suspended for Fiscal Year
1993
Agency
------------------------------------------------------ ====
DOD 1,94
5\a
Energy 509
FBI 11
OPM 13
State 21
Secret Service 2
USIA 9
Customs 16
============================================================
Total 2,52
6
------------------------------------------------------------
\a DOD records show that the Army, Navy, and Air Force accounted for
954 of the denials, revocations, and suspensions; Defense Mapping
Agency (DMA) for 52; Defense Logistics Agency for 20; and 7 other
defense organizations for 18. Civilians working for defense
contractors accounted for the remaining 901.
Table 2
Security Factors Cited by Agencies for
the Cases Reviewed by GAO (Fiscal Year
1993)
Secret
Security Custom Servic
factors s DMA Energy FBI OPM e State USIA Total
-------- ------ ------ ------ ------ ------ ------ ------ ------ ======
Alcohol/ 15 4 19
drug
abuse
Counteri 3 1 1 5
ntellig
ence/
nationa
l
interes
t/
falsifi
cation
of
informa
tion
Criminal 4 8 7 19
/
notorio
us
conduct
Failure 2 2
to
update
securit
y forms
Falsific 2 3 5
ation
of
informa
tion
Fraud/ 1 3 1 5
falsifi
cation/
financi
al
matters
Falsific 2 1 1 4
ation/
mental
or
medical
health/
alcohol
/drugs
Falsific 1 1
ation/
securit
y
violati
on
Integrit 7 7
y
investi
gations
Mental/ 1 4 4 2 11
medical
health
National 1 1
interes
t/
securit
y
violati
ons
Refusal 1 1
to
submit
to
polygra
ph
Security 1 2 4 1 8
violati
ons
Terminat 13 13
ion/
transfe
r/no
clearan
ce
needed
Unusual 6 6
conduct/
sexual
activit
y
Sexual 2 1 3
miscond
uct
Sexual 1 1
miscond
uct/
drugs/
falsifi
cation
Financia 14 1 15
l
matters
Unauthor 3 3
ized
absence
================================================================================
Total 16 52 6 11 13 2 21 8 129
--------------------------------------------------------------------------------
Note: We reviewed files at DMA because initially, more people from
DMA contacted us than from the military services.
INVESTIGATIVE QUALITY
ASSURANCE FOLLOW-UP RESULTS
---------------------------------------------------------- Letter :4.1
In an effort to ensure that investigators are asking appropriate
questions and behaving in a professional manner, four of the eight
agencies in our review (DOD, State, OPM, and USIA) send follow-up
letters to randomly selected security clearance applicants and third
parties who were interviewed during background investigations. As
another means to determine if agencies use sexual orientation as a
security factor, we examined a small, nonstatistical sample of 41
investigator follow-up letters from the 2,100 DOD, State, and USIA
sent in 1993 and 1994. We also reviewed the summary results of an
OPM project that included feedback from over 800 interviewees.\7
There was no indication on the follow-up responses we examined, or in
OPM's project results, of any discrimination or inappropriate
behavior--for example, failure to ask clear and direct questions on
topics the interviewee would consider important to a security
investigation--by the investigators.
--------------------
\7 "Summary of Quality Control Reinterview Project" (Dec. 11, 1992).
PROCEDURES AT TWO AGENCIES DO
NOT REFLECT STATED POLICIES ON
SEXUAL ORIENTATION
------------------------------------------------------------ Letter :5
Excluding the Central Intelligence Agency, the eight agencies we
reviewed accounted for over 95 percent of the security clearances
granted to civilian and contractor employees during fiscal year 1993.
All of the agencies told us that sexual orientation is not a
criterion in granting security clearances. As shown in table 3, six
of the eight agencies have written policies and procedures that
prohibit direct questions about an applicant's sexual orientation and
the denial of a security clearance on the basis of sexual orientation
alone. Secret Service and DOD, however, have not yet revised their
written policies and procedures to reflect this position. Under
these two agencies' policies and procedures, investigators are
authorized to pursue information regarding an applicant's
homosexuality. Secret Service procedures require investigators to be
alert to and thoroughly investigate allegations of homosexual
conduct. DOD investigators can ask questions about sexual
orientation once it has been established that an applicant is
homosexual.
Secret Service officials told us they were not aware of the provision
in their regulations and that they plan to revise their policies and
procedures in the near future. DOD officials also told us they plan
to revise their security manual. In commenting on our draft report,
DOD noted that it has drafted revised adjudication guidelines and
recently issued revised investigative procedures. However, we note
that the guidelines and procedures may be inconsistent since the
adjudication guidelines focus on sexual misconduct and the
investigative procedures focus on orientation.
Table 3
Synopsis of Agency Investigative and
Adjudicative Policies and Procedures on
Sexual Orientation
Investigative and
Agency Sexual orientation policy adjudicative procedures
---------------------- --------------------------- ---------------------------
DOD December 1993 Memorandum on 1993 Defense Investigative
Changes to Defense Service Manual for
Investigative Manual-- Personnel Security
Sexual Conduct Investigations
No investigations or These procedures are
inquiries will be conducted applicable to
solely to determine a investigations of civilian
subject's sexual and contractor personnel.
orientation. Investigators Under certain circumstances
are not to ask direct (e.g., when sexual acts,
questions about sexual conduct, or behavior
orientation unless include acts performed with
credible, relevant a minor, involving
information has been coercion, force, or
developed from other violence, or acts committed
sources. Investigators for money), investigators
should not ask questions can expand an
unless the individual investigation, but
introduces the matter or it investigations or inquiries
is developed through other will not be conducted
sources. solely to determine an
individual's sexual
orientation.
DOD 5200.2-R, Personnel Allegations of an
Security Program, January individual's sexual conduct
1987 should be designed to
elicit information that
Family members and adjudicative authorities
coworkers must be informed consider in accordance with
of an individual's sexual clearance denial criteria.
orientation. Concealment of DOD's current definition of
sexual preference from an "moral behavior" includes
employer, coworkers, or sexual conduct, which may
family members could or may not be technically
disqualify an individual illegal in any given
from obtaining a security jurisdiction. (Officials
clearance. told us investigators no
longer use this
definition.)
Note: This process appears DOD 5200.2-R, Personnel
to be inconsistent with DOD Security Program, January
policy to not use sexual 1987
orientation as a security
criterion, and to not ask These procedures are
questions about sexual applicable to civilian
orientation. personnel. Disqualifying
factors: conduct or actions
that increase the
individual's vulnerability
to coercion or blackmail,
including concealment of
sexual preference from
immediate family members,
close associates,
supervisors, or coworkers.
Draft Adjudicative
Guidelines for Determining
Eligibility for Access to
Classified Information
Note: These procedures will
be applicable to civilian
and contractor personnel
and are scheduled to
replace 5200.2-R. Sexual
behavior is a security
concern if it involves a
criminal offense, indicates
a personality or emotional
disorder, subjects the
individual to undue
influence or coercion, or
reflects lack of judgment
or discretion. Conditions
that signal security
concern include sexual
behavior that causes an
individual to be vulnerable
to undue influence or
coercion. Defense officials
told us that homosexual
behavior could cause an
individual to be vulnerable
to undue influence or
coercion.
DOD (cont.) 1992 Directive 5220.6,
Defense Industrial
Personnel Security
Clearance Review Program
This directive implements
Executive Order 10865,
Safeguarding Classified
Information Within
Industry, which describes
appeal procedures for
contractor employees and
contains security standards
from DOD regulation 5200.2-
R, which are applicable to
contractor and civilian
employees.
Department of Energy 1993 Adjudicative 1993 Adjudicative
Guidelines for Determining Guidelines for Determining
Eligibility for Access to Eligibility for Access to
Classified Matter and/or Classified Matter and/or
Special Nuclear Material Special Nuclear Material;
and Title 10 Code of
Federal Regulations, Part
710
Engaging in homosexual Note: OPM conducts
activity is not cause for investigations for the
security concern unless Department of Energy.
there is a clear indication Therefore, Energy has no
that such activity involved investigative guidelines.
a criminal act or a lack of
judgment or discretion. Consensual sexual acts
Individuals will not be between adults, conducted
subject to further security in privacy, are not subject
review merely due to the to security concern unless
fact that they engage in the adjudicator believes
homosexual activity. extenuating circumstances
are involved.
Derogatory information
includes those cases in
which the individual has
engaged in unusual conduct
or is subject to
circumstances that tend to
show the individual is not
honest, reliable, and
trustworthy, and there is
no adequate evidence of
rehabilitation or
reformation or that furnish
reason to believe the
individual may be subject
to coercion, influence, or
pressure that may cause the
individual to act contrary
to the best interests of
the national security.
FBI Background Investigations Background Investigations
Policy/Guidelines Regarding Policy/Guidelines Regarding
Sexual Orientation (Mar. 2, Sexual Orientation (Mar. 2,
1994) 1994)
No person, as a condition Note: Where an applicant/
of submitting an candidate volunteers
application for employment information concerning his/
or as a condition of her sexual orientation or
federal employment, may be preference during the
asked to declare his or her course of a background
sexual orientation or investigation, it should be
preference. Homosexuality recorded for use in
does not create an determining the person's
inference of unsuitability vulnerability to
for security clearance or compromise.
access to sensitive
information. (See also Concealed matters in a
Department of Justice person's life may be the
policy. basis for attempted
pressure or influence and
the concealment of the
activity or conduct may be
more important in
determining trustworthiness
than the conduct or
activity itself.
OPM OPM adopted the Department Draft OPM Manual 732-1,
of Justice's 1993 policy to Subchapter 5, Security
not discriminate on the Adjudication, and 736-1,
basis of sexual Personnel Investigations
orientation.
Department of Justice Federal personnel
Statement of Policy With investigators are not
Respect to authorized to interview
Nondiscrimination in applicants or appointees
Employment (Dec. 2, 1993) concerning their sexual
behavior or attitudes
In the context of concerning sexual conduct
determining eligibility for in the absence of
security clearances or allegations or information
access to sensitive indicating sexual behavior
information, the Department that would have a bearing
may investigate and on efficient service in the
consider any matter that position in question, or
would reasonably subject would interfere with or
the applicant or employee prevent effective
to coercion, but no performance by the
inference concerning employing agency of its
susceptibility to coercion duties and
may be raised solely on the responsibilities.
basis of the race, color,
religion, sex, national Note: In commenting on a
origin, disability, or draft of this report, OPM
sexual orientation of the indicated that subchapter 5
applicant or employee. of Draft OPM Manual 732-1
has been abolished and
chapter 736-1 will be
retained until December
1994.
April 1992 OPM
Investigator's Handbook
The handbook has no
specific language regarding
sexual orientation.
Regarding personal conduct,
investigators are
instructed to ask: "Is
there anything in your
background or personal
conduct that could result
in exploitation, blackmail,
or coercion?" If, during
the course of the
interview, the subject
brings up any aspect of
personal conduct that
appears questionable, the
investigator may ask direct
questions and develop the
basic facts and the extent
to which they are known to
others.
Note: In commenting on a
draft of this report, OPM
indicated that the
Investigator's Handbook is
being revised and that the
investigative procedures
noted above are no longer
accurate. OPM noted that
its investigators are not
authorized to question
applicants or appointees
concerning their sexual
behavior or attitudes
concerning sexual conduct,
but are authorized to
report information received
that may be of value to an
agency adjudicator as
bearing on the individual's
efficient service in a
position or an agency's
ability to perform its
duties and responsibilities
effectively.
Department of State Diplomatic Security 1993 Policy Memorandum, 12
Memorandum on Sexual Foreign Affairs Manual 230,
Conduct Policy (Dec. 10, on Personnel Security, and
1992) Adjudicative Guidelines
Investigators will not Note: Allegations of
pursue issues of sexual potentially exploitable
conduct. conduct will be referred to
headquarters security
One's sexual orientation, personnel for review.
per se, does not constitute Sexual conduct is a
a basis for denial of security concern if it
security clearance. involves a criminal
offense, indicates a
personality disorder,
subjects the individual to
undue influence or
coercion, or reflects lack
of judgment or discretion.
Secret Service Secret Service has no 1983 Secret Service
written policy, but Investigative Manual
according to Secret Service
officials, investigators Note: Investigators must be
should not ask questions alert to information
about sexual orientation. concerning an applicant's
Officials told us they plan homosexual conduct or
to publish written policies sexual perversion(s).
and procedures upon Allegations of homosexual
publication of Treasury conduct or sexual
Department guidelines. perversion must be
completely investigated.
The purpose of the
investigation is to
ascertain whether the
individual's possible
homosexual conduct or
sexual perversions may be
indicative of a personality
disorder or make the
individual subject to
blackmail or coercion. This
process appears to be
inconsistent with Secret
Service policy to not ask
questions about sexual
orientation.
USIA 1993 USIA manuals on 1993 USIA manuals on
Conduct of the Background Conduct of the Background
Investigation and Investigation, and
Guidelines for Making Guidelines for Making
Security Determinations Security Determinations
Investigators are Note: If a third party,
prohibited from inquiring during the course of the
into a subject's sexual investigation, volunteers
orientation. Sexual conduct information about the
is of concern only to the individual being
extent that there is reason investigated, investigators
to believe the individual are not to pursue the issue
may be vulnerable to other than through routine
coercion or has violated questioning regarding the
laws or security and other individual's character,
federal regulations. reputation, and conduct.
U.S. Customs Service Follows OPM guidance to not 1985: Customs Policies and
ask direct questions on Procedures Manual
sexual orientation.
Note: The manual contains
no specific language on
sexual orientation with
regard to granting or
revoking security
clearances. The Customs
manual provides specific
guidance with regard to
suitability issues, but not
security clearance issues,
per se.
--------------------------------------------------------------------------------
AGENCIES' POLICIES AND
PROCEDURES DIFFER ON
CONCEALMENT OF SEXUAL
ORIENTATION
---------------------------------------------------------- Letter :5.1
All the agencies in our review indicated that concealment of any
personal behavior that could result in exploitation, blackmail, or
coercion is a security concern. However, the treatment of
concealment, as it relates to sexual orientation, varies.
Most of the agencies have eliminated references to concealment of
sexual orientation, per se, as a security factor. However, under DOD
adjudicative procedures, individuals can be denied a clearance if
they conceal their homosexuality from their employer, family members,
or coworkers.\8 Officials told us that individuals who fail to
disclose their homosexuality could be subject to coercion or
blackmail. This creates a dilemma for homosexual employees who do
not wish to share their orientation with others. On the one hand,
individuals need not volunteer information about their sexual
orientation. On the other hand, if individuals do not volunteer the
information, they could be denied a clearance for concealing their
sexual orientation. DOD has drafted new adjudicative guidance that
eliminates specific reference to concealment, and it intends to
review its procedures by April 1995 to ensure that sexual orientation
is not an issue in the investigation or adjudication of security
clearances.
DOD officials told us that there were no recent examples where the
concealment provision was used to deny or revoke a security
clearance, but one of the attorneys we contacted referred us to three
cases that occurred in the mid-1980s. In these cases, the security
clearances were revoked but later reinstated through the appeals
process. Secret Service investigative procedures are similar to
DOD's in that investigators can pursue information related to
concealment to ascertain whether an individual may be susceptible to
blackmail or coercion.
The FBI's guidelines regarding the issue of sexual orientation in
background investigations were established in March 1994. According
to FBI officials, the guidelines are intended to prevent
discrimination based on sexual orientation and were developed to
implement the Attorney General's policy statement regarding
nondiscrimination and to comply with a December 1993 court-approved
settlement agreement on discrimination.\9 Although the guidelines are
generally consistent with Justice and FBI policies regarding sexual
orientation, the guidelines contain some language that could be
misinterpreted.
Specifically, the FBI guidelines on sexual orientation require
investigators to inform applicants that the concealment of an
activity or conduct may be more important in determining suitability
and trustworthiness than the conduct or activity itself, that candor
and forthrightness are significant considerations of FBI employment,
and a lack of candor may disqualify the candidate from employment
even when the underlying activity or conduct might not. The
guidelines further require investigators to document the fact that
the information about concealment and candor was provided to the
applicant, and that it, together with the applicant's response, be
appropriately recorded in the applicant's file.
The FBI guidelines on sexual orientation also require that
investigators record admissions of sexual orientation for use in
determining an applicant's vulnerability to compromise. FBI
officials explained that this requirement is intended to provide
investigators precise guidance on how to handle sexual orientation,
and noted that the guidelines also state that no inference of
susceptibility to coercion is to be drawn based on sexual
orientation. We found no recent examples where the FBI has drawn
such an inference. However, including this requirement in the
investigative guidelines could be misinterpreted to suggest that a
person is vulnerable to compromise only because of the individual's
sexual orientation. In addition, none of the other agencies in our
review have a similar requirement.
Specifically, with the exception of DOD, the agencies in our review
have eliminated references to concealment of sexual orientation as a
security concern, and DOD stated it intends to do so. For example,
OPM's adjudicative procedures and investigator's handbook contain no
specific references to concealment of sexual orientation. Similarly,
the State Department's adjudicative guidelines focus on concealment
of sexual conduct without regard to orientation. In commenting on
our draft report, State indicated that security concerns raised by
allegations relating to an individual's sexual conduct are directed
toward other appropriate criteria, such as criminal conduct,
mental/emotional health, vulnerability to foreign influence or
coercion, or lack of judgment or discretion.
--------------------
\8 In commenting on a draft of this report, DOD noted that its
revised adjudication guidelines, developed in conjunction with the
Intelligence Community, have deleted this provision.
\9 Buttino v. FBI, 801 F. Supp. 298 (1993).
NO CLEAR LINKAGE EXISTS BETWEEN
SEXUAL ORIENTATION AND
ESPIONAGE
------------------------------------------------------------ Letter :6
No one knows how many federal workers are homosexual or how many
homosexuals hold security clearances, but sexual orientation seems to
have little bearing on the motives behind acts of espionage. A 1991
study by the Defense Personnel Security Research Center\10 concluded
there is little evidence to suggest that homosexuals are security
risks.\11 Six of the center's 117 recorded espionage cases between
1945 and 1991 involved homosexuals. In these six cases, the study
found that fear of having one's homosexuality disclosed was not the
motive for disclosing the nation's secrets. Instead, the motives
appeared to be the same as in most espionage cases: primarily money
and secondarily resentment. All volunteered to provide national
security information except one, who was recruited as an accomplice
by a heterosexual friend.
According to another defense organization, the DOD Security
Institute,\12 sexual orientation was an issue in one 1992 espionage
case that involved a homosexual employee who sold national secrets to
East German foreign intelligence agents. According to the Institute,
homosexuality was just one of many emotional issues the East Germans
used to manipulate the employee. The individual was also depressed,
lonely, and had difficulty with interpersonal relations and other
problems.
--------------------
\10 The Defense Personnel Security Research Center, under the
direction of the Assistant Secretary of Defense (Command, Control,
Communications, and Intelligence), is a research organization that
studies aspects of personnel security, including espionage. Its
findings rest on the statistical analysis of quantitative data on a
large number of variables or indicators.
\11 Defense Personnel Security Research and Education Center,
"Homosexuality and Personnel Security," Theodore R. Sarbin (Sept.
1991, PERS-TR-91-008), p.28.
\12 The DOD Security Institute was established in 1986 by the
Secretary of Defense to serve as the focal point for promoting
activities supporting DOD security programs, particularly in the area
of education and training. The institute provides security education
and training to DOD military and civilian personnel as well as
personnel from about 20 other federal agencies.
RECOMMENDATIONS
------------------------------------------------------------ Letter :7
We recommend that the
Secretary of Defense direct the Assistant Secretary of Defense
(Command, Control, Communications, and Intelligence) to modify DOD
investigative and adjudicative procedures to be consistent with
stated agency policies and to ensure that adjudication guidelines and
investigative procedures are consistent by focusing only on
conduct-related issues, rather than on sexual orientation;
Secretary of the Treasury direct the Secret Service's Assistant
Director for Investigations to modify the Service's investigative and
adjudicative procedures to be consistent with stated agency policies;
and
Attorney General direct the Director, FBI, to revise that Bureau's
investigative guidelines regarding sexual orientation to eliminate
the requirement that admissions of sexual orientation be recorded for
use in determining an applicant's vulnerability to compromise.
AGENCY COMMENTS AND OUR
EVALUATION
------------------------------------------------------------ Letter :8
The Departments of State and Energy, DOD, the Secret Service, OPM,
USIA, and the Customs Service agreed with the information presented
in a draft of this report. DOD and the Secret Service concurred with
our recommendations. DOD has drafted adjudication guidelines that
eliminate the requirement for an individual's family members to be
informed about the individual's homosexuality and focus on
conduct-related factors as a basis for security clearance actions.
The Secret Service will determine procedures based on forthcoming
Treasury Department guidelines. Several of the agencies provided
technical corrections that have been incorporated in the report.
However, the Justice Department disagreed with our interpretation of
the FBI's sexual orientation guidelines and with our recommendation
that the FBI eliminate specific language in its guidelines regarding
sexual orientation. According to Justice, FBI guidelines are
consistent with Justice policy and the dictates of Executive Order
10450. Justice maintained that FBI guidelines limit consideration of
sexual orientation to circumstances in which sexual orientation could
reasonably be thought to raise an issue of susceptibility to
coercion. Justice provided no examples of what these circumstances
might be.
Justice stated that the FBI had agreed to issue a letter to its field
staff reaffirming and clarifying the investigations policy regarding
sexual orientation. The FBI's December 1994 letter deals primarily
with guidelines for follow-up interviews with applicants when a third
party provides information about a potential vulnerability. The
letter states that applicants should (1) not be asked to declare a
sexual orientation and should be reassured that the only potential
issue is susceptibility to coercion, (2) be told that another person
provided information about a potential susceptibility, and (3) be
asked whether, in fact, there is a vulnerability that was not
previously disclosed.
We eliminated references in our draft report contrasting FBI
guidelines and Justice policy. In addition, we have clarified
language in our draft report regarding the FBI requirement that
investigators record admissions of sexual orientation for use in
determining applicants' vulnerability to compromise.
Our detailed comments supplementing those in the report text appear
at the end of appendixes V through XI.
---------------------------------------------------------- Letter :8.1
To accomplish our objectives, we reviewed current investigative and
adjudicative policies, procedures, and practices at eight agencies.
Collectively, these agencies accounted for over 95 percent of the
security clearances granted to civilian and contractor employees
during fiscal year 1993. In addition, we obtained data on the number
of security clearances that were denied, revoked, or suspended during
fiscal year 1993 and reviewed a sample in detail to determine the
reason for the adverse action. We also solicited input from
homosexuals, attorneys, and representatives of gay and lesbian groups
who had experience with the federal security clearance process. We
conducted our review between August 1993 and November 1994 in
accordance with generally accepted government auditing standards.
Our scope and methodology is described in detail in appendix III.
We are sending copies of this report to the Chairmen, House
Committees on National Security, Appropriations, and Government
Reform and Oversight and Senate Committees on Armed Services,
Appropriations, and Government Affairs; the Secretaries of Defense,
Energy, State, and the Treasury; the U.S. Attorney General; the
Directors of the FBI, OPM, USIA, Secret Service, and Office of
Management and Budget; and the Commissioner, U.S. Customs Service.
We will also make copies available to others upon request. Please
call me on (202) 512-8412 if you or your staff have any questions.
Other major contributors are listed in
appendix XII.
Donna M. Heivilin
Director, Defense Management
and NASA Issues
(See figure in printed edition.)Appendix I
EXECUTIVE ORDER 10450 (AS AMENDED,
1974) SECURITY REQUIREMENTS FOR
GOVERNMENT EMPLOYMENT
============================================================== Letter
(See figure in printed edition.)
(See figure in printed edition.)
(See figure in printed edition.)
(See figure in printed edition.)
(See figure in printed edition.)
SYNOPSIS OF LEGAL DECISIONS
AFFECTING THE EMPLOYMENT AND
SECURITY RIGHTS OF HOMOSEXUAL
EMPLOYEES
========================================================== Appendix II
Litigation has, in large part, exemplified the struggle to erase the
link between homosexuality and trustworthiness. It has also driven
the development of current public policy on sexual orientation in the
security clearance process. Some landmark cases are summarized
below.
NORTON V. MACY (417 F. 2D
1161 (D.C. CIR. 1969))
------------------------------------------------------ Appendix II:0.1
The plaintiff engaged in homosexual conduct and was fired on grounds
of "immorality." The court ruled that alleged or proven immoral
conduct is not grounds for separation from public employment unless
it can be shown that such behavior has demonstrable effects on job
performance. The court found that the notion that the federal
government could enforce the majority's conventional codes of conduct
in the private lives of its employees was inconsistent with the
elementary concepts of liberty, privacy, and diversity.
SOCIETY FOR INDIVIDUAL
RIGHTS, INC., V. HAMPTON,
63 F.R.D. 399 (N.D. CAL.
1973)
------------------------------------------------------ Appendix II:0.2
An organization of homosexual individuals and a discharged Civil
Service Commission employee brought action to challenge the
Commission's policy of excluding individuals who have engaged in
homosexual conduct from government employment. The court found that
the Commission could discharge a person for immoral behavior only if
the behavior impaired the efficiency of the service, and that the
Commission had not met this standard. The court ordered
reinstatement of the employee. The Civil Service Commission amended
its regulations in 1976 and 1977 so that no person could be denied
federal employment on the basis of sexual orientation.
HIGH TECH GAYS V. DISCO,
668 F. SUPP. 1361 (N.D.
CAL. 1987), CERT. DENIED,
895 F. 2D 563, 570-74
(1990)
------------------------------------------------------ Appendix II:0.3
The case was filed in 1984 on behalf of an organization of Silicon
Valley, California, employees known as High Tech Gays. Three members
of the group had been denied security clearances because of
Department of Defense procedures that, at that time, allowed security
investigations to be expanded when prospective employees were
identified as homosexual. The court found the policy to be
prejudicial based on the unwarranted claim that homosexual men and
women were emotionally unstable and, therefore, potential targets for
blackmail.
The Ninth Circuit Court of Appeals reversed the decision. The court
argued that heightened or strict scrutiny could be applied only to
government actions that discriminated against persons based on such
things as race, gender, alienage, or national origin. Further, the
opinion indicated that to be perceived as a suspect or quasi-suspect
class, homosexuals must meet three criteria: (1) have suffered a
history of discrimination, (2) exhibit obvious or immutable
characteristics that define them as a discrete class, and (3) show
that they are a minority or politically powerless. The court held
that the first criterion was met, but the second and third were not.
WEBSTER V. DOE, 486 U.S.
592 (1988)
------------------------------------------------------ Appendix II:0.4
In 1982, John Doe, an employee of the Central Intelligence Agency
(CIA), voluntarily told an agency security officer that he was a
homosexual. The CIA conducted an investigation that included a
polygraph examination designed to uncover whether Doe had disclosed
classified information. Doe passed the test but was dismissed from
the agency as a national security risk. The decision enabled Doe to
appeal to federal courts, but was silent regarding the treatment of
homosexuals as a suspect class.
BUTTINO V. FBI, NO.
C-90-1639 SBA N.D. CAL.
(1992)
------------------------------------------------------ Appendix II:0.5
The plaintiff was employed as a special agent with the Federal Bureau
of Investigation (FBI). In August 1988, the FBI received an undated,
handwritten letter stating that the plaintiff engaged in homosexual
activity. The FBI then initiated an administrative inquiry regarding
the plaintiff that resulted in the FBI's revoking the plaintiff's
security clearance. The plaintiff brought action against the FBI and
its director alleging deprivation of constitutional rights.
In 1994, under the terms of a settlement agreement, the FBI
established guidelines for conducting background investigations,
employment determinations, and security clearance adjudications
intended to prevent discrimination based on sexual orientation.
SCOPE AND METHODOLOGY
========================================================= Appendix III
To determine if sexual orientation is considered as a security factor
in the security clearance process, we obtained policy memorandums and
investigative and adjudicative policies and procedures from 31
departments and agencies. However, we focused our review on the
policies and procedures of eight departments and agencies that have
investigative authority or grant large numbers of security
clearances. Except for the CIA, this represents over 95 percent of
the security clearances granted to civilian and contractor employees
during fiscal year 1993.
Our review did not include security clearances for military
personnel; clearances at the CIA, Defense Intelligence Agency, or
National Security Agency; or cases involving access to sensitive
compartmented information.
We excluded cases related to suitability for employment. The
investigative procedures for determining suitability are similar to
those for granting access to classified information. However,
suitability designations are based on the potential for damage to the
efficiency of government service, while security designations are
based on the potential for risk to the national security.
To obtain information on security investigative processes, we
conducted our review at agencies that have investigative authority.
To obtain data on security clearance denials and revocations, we
contacted and reviewed records at agencies that grant large numbers
(over 300) of security clearances. We were unable to statistically
sample records from all agencies because there is no central security
database and most agencies do not categorize their records by the
reason for a security revocation or denial. Our initial attempt to
sample security records at DOD did not provide useful information
since about 80 percent of the clearances are for military personnel
and civilian and military personnel records are merged. We also
reached out to members of the homosexual community to identify
individual cases between 1991 and 1994 where individuals believed
their sexual orientation had affected the security clearance process.
To determine if sexual orientation was reported as a cause for
security clearance denials, revocations, and suspensions, we examined
129 security files and/or case summaries at 8 departments and
agencies. We reviewed files for all fiscal year 1993 denials,
revocations, and suspensions at the Defense Mapping Agency, Office of
Personnel Management (OPM), Department of State, and U.S.
Information Agency (USIA). This included
52 files at the Defense Mapping Agency, 13 files at OPM, 21 files at
the Department of State, and 9 files at USIA. Of the Department of
Energy's
509 revocations, denials, and suspensions, we reviewed 6 security
files that were in a category we believed most likely to include
instances of sexual misconduct. The FBI provided us with a
case-by-case summary describing the rationale for their revocations,
denials, and suspensions. We examined copies of 14 suspension
letters provided to us by the U.S. Customs Service.
To identify recent instances where homosexual civilian and contractor
employees believed they were denied or revoked security clearances
because of their sexual orientation, we contacted local and national
gay and lesbian organizations and publications throughout the United
States, including the National Organization of Gay and Lesbian
Scientists and Technical Professionals, Inc., Pasadena, California;
The Federal Globe, Washington, D.C.; American Alliance for Rights and
Responsibilities, Washington, D.C.; The Village Voice, New York, New
York; Texas Triangle, Austin, Texas; Bay Area Reporter, San
Francisco, California; Metroline, Hartford, Connecticut; the State
Department's American Foreign Service Association, Washington, D.C.;
Gay and Lesbians in Foreign Affairs Agencies, Department of State,
Washington, D.C.; The Washington Blade, Washington, D.C.; Baltimore
Alternative, Baltimore, Maryland; Southern Voice, Atlanta, Georgia;
The Weekly News, Miami, Florida; Alabama Forum, Birmingham, Alabama;
Dallas Voice, Dallas, Texas; Out Front, Denver, Colorado; Orange
County Blade, Laguna Beach, California; and the Baltimore Gay Paper,
Baltimore, Maryland.
We spoke with and obtained information from 10 experts and attorneys
who specialize in gay rights security issues; examined 41 1992 and
1993 investigator follow-up quality assurance letters; and examined
pertinent laws and regulations. We also interviewed and obtained
information from officials at headquarters offices of the Departments
of Defense (DOD), Energy, Justice, and State; Office of Personnel
Management; U.S. Customs Service; U.S. Secret Service; U.S.
Marshals Service; USIA; the FBI; the Defense Investigative Service;
the Department of Defense's Directorate for Industrial Security
Review; and the Defense Manpower Data Center, Monterey, California.
CIVILIAN AND CONTRACTOR EMPLOYEE
CONCERNS REGARDING SEXUAL
ORIENTATION DISCRIMINATION
(1976-94)
========================================================== Appendix IV
Table IV.1 summarizes individuals' concerns regarding the impact of
sexual orientation in the security clearance process. Individuals
contacted us as a result of our publications asking for information
from those who believed federal agencies had denied or revoked
clearances based on sexual orientation. Some individuals referred us
to specific or other individuals' cases that we followed up on. We
also reviewed security files with individuals' permission and
discussed some specific cases and general concerns with agency
officials. The far right column shows how the agencies defined or
currently use the appropriate security standard relating to the
cases.
Table IV.1
Individuals' Concerns About the Impact
of Sexual Orientation in the Security
Clearance Process
Date
problem
occurre
Agency d Description of concern Agency's comments
------------- ------- --------------------------- ---------------------------
Air Force 1992 The employee's clearance According to the Defense
was being updated. The Investigative Service, an
employee believed the investigation can be
investigator used the expanded to determine if
employee's sexual the employee is vulnerable
orientation to make the to coercion and/or
employee feel uncomfortable blackmail. If investigators
during the interview have developed credible
process and fearful of information, they may ask
being dismissed from the questions about the
agency. A clearance was employee's sexual
granted. orientation.
Army 1988- The employee believes that If the employee denies
91 sexual orientation was allegations, investigators
responsible for a polygraph can ask the employee to be
during a security upgrade. polygraphed. A polygraph is
A clearance was granted. voluntary and not used in
1987 isolation. Before 1993,
The employee believes the however, sexual
investigator focused on the orientation, that is,
employee's homosexuality by homosexuality, could
asking detailed questions trigger the use of a
about the frequency and polygraph.
nature of the employee's
sexual habits. The An investigation can also
investigator then asked the be expanded if
employee to dinner. The investigators determine
employee's security that sexual conduct, which
clearance was has occurred within the
administratively past 10 years, offers the
terminated. potential for influence,
duress, or exploitation;
when the conduct is a
crime; or when the employee
is cohabitating with
another unmarried person.
Defense 1982 The employee believes If an investigation is
Mapping sexual orientation was expanded, the investigator
Agency responsible for may ask questions about the
inappropriate, personal individual's sexual
questions being asked when orientation.
a clearance was obtained in
1982. A clearance was
granted.
Navy 1991 The employee, a defense If an investigation is
contractor, believes the expanded, the investigator
investigator asked may ask questions about the
unnecessary detailed individual's sexual
questions about sexual orientation.
partners during the
investigation because the
employee informed the
investigator of membership
in a local gay/lesbian
organization. The employee
felt intimidated by the
small, locked room where
the investigation was
conducted. A security
clearance was granted.
1992 The defense contractor
employee believed the
investigator asked improper
questions during a security
clearance update.
National 1987 The employee was an If an investigation is
Security overseas defense expanded, the investigator
Agency contractor. The employee may ask questions about the
believes sexual orientation individual's sexual
discrimination occurred orientation.
because coworkers informed
security officials that the
employee was fraternizing
with foreign nationals.
According to the employee,
investigators asked graphic
questions about the
employee's sexual habits.
The clearance was revoked.
Directorate 1992 The employee, a defense Note: These defense
for contractor, believes contractor cases were
Industrial investigators asked identified to us by
Security improper, detailed individuals familiar with
Clearance questions regarding sexual the cases, not the subject
Review habits during a security of the investigations.
(DISCR) clearance update. The DISCR is now known as the
clearance was Defense Office of Hearings
1987 administratively suspended, and Appeals.
but the clearance was
reinstated based on The Defense Investigative
recommendations by DISCR. Service performs background
1989 investigations for the
The contractor employee did Department of Defense (DOD)
not inform investigators civilian and contractor
about homosexual employees. Defense agencies
activities. After appealing adjudicate and make
the case, a clearance was security clearance
granted. decisions for civilian and
contractor employees. DISCR
The contractor employee was reviews contractor employee
advised of an unfavorable appeals, but civilian
security action because of employees appeal through
homosexual and other the defense agency or
activities. The employer, service.
coworkers, and others--
except the employee's Until 1993, DOD considered
spouse--were not aware of homosexuality as sexual
the activities. DISCR misconduct or deviant
believed the employee's sexual behavior indicative
failure to disclose this of a personality disorder.
information reflected poor In 1993, Defense
judgment, unreliability, Investigative Service
and information reflected regulations and DISCR
poor judgment, regulations were modified.
unreliability, and
untrustworthiness. A
clearance was not granted.
DISCR (cont.) 1987 Investigators considered
the contractor employee
subject to coercion and
influence based on the
employee's homosexual
activities. Supervisors and
work associates were not
aware of the employee's
homosexual activities. The
employee's security
clearance was granted on
appeal.
Commerce 1981 The employee, assigned At one time, Commerce
overseas, claimed that the maintained a list of
investigation was delayed. countries where
The employee's assignment homosexuality was
to Saudi Arabia was acceptable, not acceptable,
canceled when agency or not encouraged. It no
officials determined the longer does so. Commerce is
employee was homosexual. more concerned about the
The employee retained impact an individual's
employment through behavior might have on that
litigation. The clearance person's ability to be
was retained. trustworthy.
Energy 1992 The employee believes the OPM conducts security
investigator focused on the investigations for the
employee's homosexuality, Department of Energy. In
but did not address other adjudicating clearances,
issues such as the Energy requires mandatory,
employee's being the victim audiotaped interviews of
of child abuse or the all employees, regardless
employee's alcoholism. The of their sexual
employee believes that orientation.
sexual orientation was used
as a reason for being
audiotaped during an
interview in January 1993.
A clearance was granted.
Justice 1992 The employee was required Department of Justice
to sign a statement investigations are
confirming the employee's conducted by FBI
homosexuality. The employee investigators. According to
believes the investigator FBI officials, sexual
focused on the employee's orientation, per se, has
homosexuality. never been a disqualifying
Investigators also factor in adjudicating
1991 interviewed the employee's trustworthiness for a
mother. A clearance was security clearance. Prior
granted. to March 1994, allegations
concerning sexual
The employee listed orientation could cause an
membership in a gay/ investigation to determine
lesgian organization on the whether the conduct would
security questionnaire. cause vulnerability to
After the initial interview coercion or influence.
was completed, the
investigator called the The FBI requires a signed,
employee to set a time to sworn statement whenever an
ask questions about the employee is interviewed to
employee's alternative resolve issues or
lifestyle. The employee allegations that may affect
believed the additional their trustworthiness. Such
interview was issues can include
inappropriate. A clearance unreported arrests, sexual
was granted. misconduct or notoriety
(whether heterosexual or
homosexual), or drug abuse.
Justice Family members are
(cont.) interviewed when the
investigation does not
resolve whether the
individual's sexual
orientation is concealed,
which may be the basis for
attempted pressure or
influence, and the subject
of the security
adjudication indicates that
family members are aware of
the sexual orientation. FBI
investigators are not,
however, to ask
specifically about the
employee's sexual
orientation or conduct.
Rather, the interview
should focus on the
individual's knowledge of
susceptibility to
compromise.
FBI investigators can
expand an investigation and
may need to reinterview the
subject when there are
unresolved questions of
trustworthiness or
suitability. However, as of
March 1994, investigators
may not ask individuals to
declare their sexual
orientation or preference
or ask persons being
interviewed to discuss
intimate sexual acts. Prior
to March 1994, FBI
investigators had no
written instructions,
although FBI officials told
us the unwritten
investigative guidelines
were the same.
OPM 1990 The individual accepted a OPM's Investigator's
job at the agency. The Handbook is being revised.
individual believed the Investigators are not
investigator asked authorized to question
intimidating questions. applicants or appointees
concerning their sexual
behavior or attitudes
concerning sexual conduct.
Health and 1991 The employee believes the OPM performs investigations
Human investigator asked for Health and Human
Services detailed, embarrassing Services employees.
questions about the
employee's sex life. A
clearance was granted.
State 1985 The employee claims State State Department officials
revoked a security believe sexual orientation
clearance because of the was not a key issue in any
employee's sexual of these cases. According
orientation, and the fact to State, other issues
that the employee had sex surfaced, including
with a minor almost 10 unreported travel,
years ago should be falsification of
forgiven. information, sexual
relations with
subordinates, and
fraternization with foreign
nationals. Heterosexual or
homosexual behavior with
foreign nationals will
prompt a security
investigation; however,
State will permit
cohabitation with foreign
nationals as long as
security officials are
aware.
State (cont.) 1992 Security officials Until 1992, State security
threatened to revoke the personnel asked individuals
employee's (a foreign to appear as witnesses or
service officer) security sources for information to
clearance upon receipt of a ensure the individuals
letter alleging the would attend the meeting.
employee had a homosexual State officials told us
affair. Security officials they used this procedure to
called the employee to protect individuals'
appear as a source for a privacy if they were at
fraud investigation. Upon post. According to State
arriving at the meeting, officials, this practice
however, security officials has been discontinued.
announced the investigation
was about the employee's In 1992, State curtailed
lifestyle. Investigators the practice allowing
told the employee that any investigators (with the
allegation of homosexuality employee's permission) to
will prompt an contact a family member
investigation. A clearance selected by the employee to
was granted. verify that the family
member was aware of the
employee's sexual
orientation.
1989 Security officials asked State's current (December
the foreign service 1992) policy is not to ask
employee to appear as a questions regarding sexual
source for a fraud conduct during the
investigation. Upon preappointment or periodic
arriving at the meeting, update investigation
however, security officials process. If an individual
announced the investigation volunteers information, the
was about the employee's investigator may ask if
lifestyle. Security family, friends, and
officials told the employee associates are aware of the
that family members must be individual's lifestyle, but
1993 informed of the employee's the individual is not
homosexuality to prevent required to inform family
the employee from being members.
subject to coercion or
blackmail. The employee State requires its
informed family members and investigators to follow up
retained a security on substantive allegations
clearance. that the employee is
involved in illegal or
The foreign service exploitable sexual conduct.
employee issued a visa to a Sexual misconduct is a
foreign national companion; security concern if it
this prompted a security involves a criminal
investigation that the offense, indicates a
employee believes was personality disorder, or
unfair because a subjects the individual to
heterosexual issued a visa blackmail or coercion.
to a foreign national
family member with no
repercussions. A clearance
was retained.
USIA 1976 The employee believes Investigative procedures
sexual orientation was have changed much since
responsible for difficulty 1976. USIA policy is not to
in obtaining a security ask about sexual
clearance in 1976, but the orientation unless it
employee eventually got the involves foreign service in
clearance. a country that forbids
homosexual behavior.
1984 The employee's clearance Concealment, regardless of
was revoked because of sexual orientation, is the
unauthorized travel to and only issue that concerns
possible fraternization USIA security personnel as
with foreign nationals in it pertains to applicable
an eastern bloc country. laws and policies in
The employee left the foreign countries.
agency and was rehired by
another agency. USIA's current 1993
adjudicative policies and
procedures provide that
investigators should not
ask about sexual
orientation.
USIA 1986 The employee transferred However, if the subject
(cont.) from another agency. The volunteers this
employee believes information, investigators
investigators asked are expected to follow up
detailed, invasive with questions regarding
questions about the the individual's
employee's sexual behavior. vulnerability to coercion
A clearance was granted. because of sexual activity.
1989 A coworker denounced the
employee, a foreign service
officer, as a security risk
because of the employee's
homosexuality. At the same
time, the employee was
undergoing a security
review. The employee
believes investigators
asked detailed, invasive
questions about the
employee's sexual
lifestyle. The security
clearance was retained.
--------------------------------------------------------------------------------
Note: We did not include cases involving employment issues or
sensitive compartmented information clearances since these issues
were beyond the scope of our review.
(See figure in printed edition.)Appendix V
COMMENTS FROM THE DEPARTMENT OF
DEFENSE
========================================================== Appendix IV
(See figure in printed edition.)
(See figure in printed edition.)
Now on p. 15.
See comment 1.
Now on p. 15.
(See figure in printed edition.)
Now on p. 16.
The following are GAO's comment on DOD's letter dated November 1,
1994.
GAO COMMENT
1. DOD has taken steps to ensure that sexual orientation is not
considered a determining factor in the security clearance process.
It has drafted revised adjudication guidelines and recently issued
revised investigative procedures. DOD believes the recent changes to
its investigative procedures should be sufficient to preclude
inappropriate inquiry into one's sexual orientation. However, we are
concerned that DOD's investigative procedures could be inconsistent
with its adjudication guidelines. The investigative procedures
currently require investigators to follow up on credible allegations
of homosexuality, while its adjudication guidelines focus on sexual
misconduct, not sexual orientation. Thus, to be consistent, it would
seem appropriate that in the area of sexual orientation, DOD's
investigative procedures should mirror its adjudication guidelines.
DOD indicated that by April 1995, it will conduct a review of its
investigative procedures to ensure sexual orientation is not an issue
in the clearance process.
(See figure in printed edition.)Appendix VI
COMMENTS FROM THE DEPARTMENT OF
STATE
========================================================== Appendix IV
(See figure in printed edition.)
Now App.IV
on pp. 35-36.
See comment 1.
Now on p. 36.
See comment 1.
Now on p. 38.
See comment 1.
The following are GAO's comment on the Department of State's letter
dated October 17, 1994.
GAO COMMENT
1. The technical corrections suggested by State were incorporated in
our final report.
(See figure in printed edition.)Appendix VII
COMMENTS FROM THE U.S. SECRET
SERVICE
========================================================== Appendix IV
(See figure in printed edition.)Appendix VIII
COMMENTS FROM THE OFFICE OF
PERSONNEL MANAGEMENT
========================================================== Appendix IV
Now on p.2.
See comment 1.
Now on p.11.
See comment 1.
(See figure in printed edition.)
The following are GAO's comment on OPM's letter dated November 9,
1994.
GAO COMMENT
1. The technical corrections suggested by OPM were incorporated in
our final report.
(See figure in printed edition.)Appendix IX
COMMENTS FROM THE U.S. CUSTOMS
SERVICE
========================================================== Appendix IV
Now on p. 13.
See comment 1.
Now on p. 15.
See comment 2.
(See figure in printed edition.)
The following are GAO's comments on the U.S. Customs Service's
letter dated October 17, 1994.
GAO COMMENTS
1. We believe that the Customs Service's statement on concealment is
inconsistent with its policy that no individual may be asked to
declare his or her sexual orientation or preference and that no
inference concerning susceptibility to coercion may be raised solely
on the basis of sexual orientation. This issue, as it pertains to
the Justice Department and the FBI, is discussed in-depth on pp.
13-15 of our report.
2. With regard to the Customs Service's concern about vulnerability
to espionage, we note that, historically, the chief motivating factor
in espionage cases is pure monetary greed.
(See figure in printed edition.)Appendix X
COMMENTS FROM THE U.S.
INFORMATION AGENCY
========================================================== Appendix IV
Now App. IV
on pp. 36-37.
See comment 1.
Now on p. 7.
See comment 1.
(See figure in printed edition.)
The following are GAO's comment on USIA's letter dated October 20,
1994.
GAO COMMENT
1. The technical corrections suggested by USIA were incorporated in
our final report.
(See figure in printed edition.)Appendix XI
COMMENTS FROM THE DEPARTMENT OF
JUSTICE
========================================================== Appendix IV
Now on p. 11.
(See figure in printed edition.)
Now on p. 3.
See comment 1.
See comment 2.
See comment 3.
See comment 4.
(See figure in printed edition.)
Now on p. 13.
Now on p. 16.
See comment 5.
The following are GAO's comments on the Department of Justice's
letter dated December 2, 1994.
GAO COMMENTS
1. We eliminated references in the report contrasting FBI guidelines
on sexual orientation with Justice policy and clarified our report to
specifically identify sections of the guidelines that raise
questions. (See comments 2 and 3.)
2. The FBI's guidelines provide no examples where sexual orientation
could reasonably be thought to raise an issue of susceptibility to
coercion. Rather, the guidelines address instances where sexual
conduct (e.g., a sexual relationship with a subordinate employee,
date rape, or public lewd behavior) is relevant to suitability or
trustworthiness.
Moreover, the requirement that volunteered information on an
individual's orientation be recorded for use in determining the
individual's vulnerability to compromise constitutes different
treatment than that of heterosexual applicants. The FBI guidelines
on sexual orientation require the assessment of a homosexual
applicant's vulnerability to compromise solely on the basis of sexual
orientation without any indication that there has been behavior or
conduct that would warrant further assessment. A similar assessment
is not required of heterosexual employees without an indication that
there has been behavior or conduct that could make an applicant
vulnerable to blackmail or coercion. Further, with the exception of
DOD, which has said it intends to, the other agencies in our review
have eliminated references to concealment of sexual orientation as a
security concern.
3. Applicants have no obligation to reveal their orientation
because, according to Justice policy, individuals may not be asked to
declare their orientation.
4. The FBI's December 1994 letter to its field staff deals primarily
with guidelines for follow-up interviews with applicants when a third
party provides information about a potential vulnerability.
5. See comments 2 and 3.
MAJOR CONTRIBUTORS TO THIS REPORT
========================================================= Appendix XII
NATIONAL SECURITY AND
INTERNATIONAL AFFAIRS DIVISION,
WASHINGTON, D.C.
David R. Warren
Thomas J. Howard
Elizabeth G. Mead
Leo G. Clarke, III
Jacqueline E. Snead
OFFICE OF THE GENERAL COUNSEL
Ernie E. Jackson