Last edited: February 14, 2005

Guidelines Questioned Security Clearance Query Raises Eyebrows

The Washington Blade, May 4, 2001

By Lou Chibbaro Jr.

A Gay employee association at the State Department took note last fall when it learned that proposed new guidelines for determining whether employees are eligible for security clearances called for asking a potentially troubling question during routine background investigations: Has an applicant for a clearance ever engaged in illegal sexual acts?

The group, Gays and Lesbians in Foreign Affairs Agencies, joined the American Foreign Service Association, a professional association that represents State Department employees, in asking officials how such a question would affect Gay or straight employees who engage in consenting, adult sexual acts such as oral sex and who live in Virginia, where such acts are illegal.

According to AFSA attorney Sharon Papp, officials with the State Departments Bureau of Diplomatic Security turned down a suggestion by the two groups that investigators refrain from asking such questions. Instead, Papp said, security officials told GLIFAA and AFSA that employees who honestly discuss the issue of consenting sexual acts will not be adversely affected by making such a disclosure.

The impact of sodomy laws on security clearance deliberations is not unique to the State Department. Papp noted that the same question about "illegal" sexual activity is posed to employees applying for security clearances in all government agencies, including the departments of Defense, Energy, and Justice, among other agencies. The question is part of a series of guidelines developed by a blue-ribbon panel appointed by the National Security Council under the Clinton administration. The panel based its proposals on a 1995 executive order issued by President Clinton that put into effect a uniform system for approving security clearances and conducting background investigations of employees in all federal agencies.

In addition to setting a uniform system for approving clearances, the Clinton order makes it illegal to deny a clearance solely on grounds of an applicants sexual orientation. Because of this, GLIFAA members expressed concern that the questions about illegal sex if not carefully posed could be used to screen out Gay applicants for security clearances.

"Its our understanding that, if you say youre Gay and you live in Virginia, this wont be held against you," said Len Hirsch, an official with the Gay federal employees group GLOBE. "We hear that under these circumstances, they will say, Fine, no problem."

On the other hand, Hirsch noted that, if an applicant makes a false or misleading statement or withholds information he or she is required to disclose, the applicant could be adversely affected and could be denied a clearance. Thus legal experts have long advised applicants for clearance to either answer questions completely and honestly or to decline to answer a question until the applicants seeks advise for an attorney.

Hirsch said he sees no difference in the handling of the security clearance issue since the Bush administration took office in January.

"This has been an ongoing process that has nothing to do with the change in administrations," Hirsch said.

Veteran D.C. Gay activist Frank Kameny, who is a nationally recognized expert on security clearance issues, said he would have advised government security officials to rephrase their question concerning illegal sexual acts. According to Kameny, instead of asking a blanket question about illegal sex acts, investigators should narrow their question by saying, "Aside from consenting sexual acts among adults in the privacy of the home, have you ever engaged in an illegal sexual conduct?"

Or, as an alternative option, Kameny said, the investigators should ask about specific illegal sex actions, such as rape or acts with minors, while not asking about consenting sexual acts.

"Its indisputable that over 90 percent of adult Americans engage in oral sex," Kameny said. "That means that, in Virginia, over 90 percent of all adults are habitual criminals under the states sodomy law." Because of this, Kameny added, security clearance officials should have long ago abandoned inquiries into non-commercial, consenting sexual conduct in the privacy of the home.

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