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Understanding Adjudicative Guideline M: Use of IT Systems

ENCINITAS, CALIFORNIA — A judge found Army Pfc. Bradley Manning, guilty in July of violating the Espionage Act and sentenced in August to 35 years in prison.

Part of the reason behind his guilty verdict lies in his violation of Adjudicative Guideline M, which addresses the use of information technology systems. We’re explaining each of the Adjudicative Guidelines here on our blog over the next several weeks and today we’re addressing Guideline M, due to the timeliness the Manning case provides.

Manning, 25, was an intelligence analyst who held a top-secret clearance with sensitive compartmented information access. He went to Iraq with his unit in 2009 and acquired sensitive information that he then passed on to WikiLeaks. In doing so, investigations have found that he misused IT systems that were available to him, says John Griffith, an attorney who assists clients with security clearance issues, such as understanding security clearance requirements and drafting a Statement of Reasons (SOR) response when it appears a clearance application will be denied.

It later was determined Manning was the source of a classified video of a U.S. helicopter attack that got posted on the WikiLeaks site, and he was accused of installing unauthorized software onto a classified computer network that provided unauthorized access to information that later turned up on WikiLeaks, according to a 2011 Washington Post article by Ellen Nakashima.

The concern behind Adjudicative Guideline M is failure to comply with “rules, procedures, guidelines or regulations pertaining to information technology systems may raise security concerns about an individual’s reliability and trustworthiness, calling into question the willingness or ability to properly protect sensitive systems, networks, and information,” according to the U.S. Department of State’s website. IT systems include all related computer hardware, software, firmware, and data used for communicating, transmitting, processing, manipulating, storing, or protecting information.

The decision to grant a U.S. government civilian, member of the armed forces, consultant, or contractor access to classified information isn’t made without taking into account factors that have the potential to create a conflict of interest and place a person in the position of having to choose between his or her commitment to the U.S. and other loyalties, the site states.

“Those who possess a security clearance must be deemed trustworthy and able to protect the classified information with which they come into contact,” Griffith says. “If a background check calls this ability into question, it is likely the applicant will receive a State of Reasons.”

When notice of security clearance denial is given, there is an appeal process and the applicant has the right to address the information that was collected during the investigation.

“There are many situations where applicants have received a Statement of Reasons, but we have been successful on appeal in restoring clearance for our client,” Griffith says.

In the case of Guideline M, the Department of State’s site offers examples of mitigating circumstances that could prevent clearance from being denied. They include:

  • A significant amount of time has passed since the unfavorable behavior occurred, or the behavior occurred under unique circumstances, and authorities don’t believe the behavior will occur again.
  • The misuse of IT systems is considered minor and committed solely in the interest of efficiency, such as allowing another person to use your password or computer when there wasn’t another timely alternative.
  • The conduct was accidental or inadvertent and you exhibited a good effort to rectify the situation and make your supervisor aware of the circumstances.

If you have applied for security clearance and received a Statement of Reasons that addresses Adjudicative Guideline M or another guideline, or if you have received notice that your security clearance will be revoked due to a violation of Guideline M or another guideline, it is important to contact an attorney who specializes in security clearance law to assist you in the appeal process. Contact our office if you would like to speak to an experienced attorney regarding this matter.