Cohen Mohr’s national security practice is comprehensive in scope. We represent foreign and domestic companies as well as individuals in all matters involving security clearances and national security, including helping clients obtain clearances, handling denials or revocations of clearances, handling appeals of adverse adjudications, and mitigating foreign ownership, control or influence (FOCI) issues on behalf of companies seeking to obtain or maintain clearances.

Obtaining Clearances

Cohen Mohr helps clients obtain facility and personal security clearances for all levels of classified work. We assist clients with immediate clearance needs and obtain interim clearances when possible.

Pre-Clearance Counseling

Many of the problems that trigger denial of personnel clearances stem from mistakes made in preparing clearance applications and in speaking with investigators. We counsel individuals in preparing clearance applications, including the Standard Form (SF) 86. We also counsel individuals on handling pre-clearance interviews with investigators.

Additionally, we regularly counsel companies on personnel issues involving clearances. We help employers develop realistic assessments of the clearance eligibility of prospective employees. We also help employers evaluate the likely outcome of adjudicating denials or revocations of clearances for existing employees.

Handling Clearance Denials or Revocations

Although the granting of a security clearance is a privilege, not a right, certain limited due process rights are afforded to applicants to contest negative recommendations made by the Defense Office of Hearings and Appeals (DOHA). If a recommendation is made to deny or revoke a clearance, DOHA will send the applicant a Statement of Reasons (SOR) articulating the factual and legal basis for the negative recommendation. Applicants have 20 days in which to respond to the SOR and have the option to request a DOHA hearing. The SOR response is a strategic document. Admissions made in the SOR response are used against the applicant.

DOHA hearings are trials conducted under their own peculiar set of rules and procedures. At the DOHA hearing, applicants are given the right to present evidence to rebut or mitigate the SOR allegations. Cohen Mohr is very experienced in handling security clearance denials and revocations for individuals and is regularly called upon to appear at DOHA hearings throughout the United States.

Denials or revocations of special accesses, including Special Compartmented Information (SCI) accesses, are handled differently. Agencies such as the Department of Homeland Security (DHS), the National Reconnaissance Office (NRO), the Central Intelligence Agency (CIA), the Defense Intelligence Agency (DIA) and others are governed by a different set of rules. Applicants who are denied SCI access are permitted to appeal and typically have the right to make their case directly to high ranking government officials in a face-to-face meeting. Cohen Mohr is experienced in handling SCI appeals.

FOCI Mitigation

A U.S. company subject to foreign ownership, control, or influence (FOCI) cannot obtain or keep the requisite facility security clearance necessary to compete for and participate in classified U.S. Government contracts unless the company has effectively mitigated or eliminated the FOCI. FOCI issues typically arise in connection with the contemplated investment by non-U.S. citizens in a U.S. Government-cleared contractor. FOCI concerns are not limited, however, to classified work as reflected in a DD254. Post September 11, companies involved in non-classified work with the DOD or other civilian agencies – particularly DHS, SSA, VA, the State Department and the FBI – may encounter a bias against awarding contracts to U.S. companies subject to FOCI.

We have deep experience in representing foreign-owned government contractors and subcontractors with respect to FOCI mitigation under the National Industrial Security Program Operating Manual (NISPOM). As experts in mitigation methods, we have established Proxy Boards, Special Security Agreements and Security Control Agreements. We not only know which mitigation method best suits a given circumstance; we know how to implement it down to the smallest details.

One of the Proxy Board companies established and implemented by Cohen Mohr recently won the coveted Cogswell Award, which goes to those few companies selected by the Defense Security Service (DSS) as exhibiting industrial security excellence.

Export-Controlled Information or Data

In addition to, and often in conjunction with, classified information restrictions, companies face issues involving export-controlled information or data. The U.S. Government controls exports through two schemes, the Arms Export Control Act (AECA) and the International Traffic in Arms Regulations (ITAR). We can determine whether a company has an AECA or ITAR issue and if so, how to correct it:

• Register with the cognizant federal export control agency
• Apply for and obtain the appropriate licenses
• Establish export compliance programs
• Deal with export audits and investigations
• Deal with adverse export control actions