Note to Clearance Holders: Merely “Liking” an Extremist Post Can Get You in Trouble

Photo of Mary E. Kuntz, Partner, DC employment law firm KCNFAre you a Security Clearance holder who posts, or tweets, or “likes” the posts or tweets of others?  If so, you should know that something as seemingly innocuous as re-tweeting or “liking” a post, may – if that post or tweet is deemed “extremist” — put a clearance at risk under the newly revised DoD Instruction 1325.06 “Handling Protest, Extremist, and Criminal Gang Activities Among Members of the Armed Forces,” (available here). DoD Instruction 1325.6 was revised by the Countering Extremist Activity Working Group (CEAWG), appointed by SecDef Lloyd Austin in April 2021 in response to concerns raised, at least in part, by the apparent participation of active-duty military in the January 6, 2021, insurrection in Washington, D.C. These concerns are not unwarranted: on January 13, 2022, members of the Oath Keepers, an organization comprising in part current and former military members, were indicted for conspiracy to engage in sedition in leading to the January 6, 2021 riots.

On December 20, 2021, CEAWG issued both its initial report and the revised instruction. Under the revised Instruction, the list of proscribed activities has been expanded to include “posting, liking, sharing, re-tweeting” extremist activities (or groups that support extremist activities); accessing, on a government computer, websites or other materials that promote or advocate extremist activities; or donating (including paying dues) to any organization that engages in extremist activities. Anticipating First Amendment objections to limits on expression, the Instruction notes that extremist activities can be prohibited to military personnel “even in some circumstances in which such activities would be constitutionally protected in a civilian setting.” Section 8 (a).

Under the revised policy, commanders are encouraged to “pursue adverse administrative action in addition to or in lieu of punitive action in response to a Service member’s active participation in extremist activities.” Included in the list of possible adverse administrative actions is “loss of security clearance.”  Section 9(b); see Id. at (C)(1)(c). Even “signs of extremism,” that may not rise to the level of active participation but merely suggest the potential for such participation, requires investigation by the commander.  Id. at (d).  A credible report or suspicion of extremist activities will trigger a report to the command security manager, if the military member possesses a security clearance.” Id at (1)(c).

In many ways, the revised extremism policy proposes nothing new for security-clearance holders. On the contrary, Guideline A, Allegiance to the United States, of the current Adjudicative Guidelines (SEAD 4, available here), identifies as a negative indicator, raising concerns:

Association or sympathy with persons or organizations that advocate, threaten, or use force or violence, or use any other illegal or unconstitutional means, in an effort to:

  1. overthrow or influence the U.S. Government or any state or local government;
  2. prevent Federal, state, or local government personnel from performing their official duties;
  3. gain retribution for perceived wrongs caused by the Federal, state, or local government;
  4. prevent others from exercising their rights under the Constitution or laws of the United States or of any state.

SEAD 4, Appendix A, ¶. 4.  While the proscription of those actions is established, what is new are the detailed ways in which a person who is subject to DoD Instruction 1325.6 may be judged to “associate” or show “sympathy” with extremist organizations. Military personnel who hold clearances are thus doubly put on notice that their participation in extremist activities – even in seemingly minor ways such as “liking” a post – can cost them their clearance and (as a result) their job.

Of course, civilian employees of DoD and employees of DoD contractors who hold clearances are as bound by Guideline A of the Adjudicative Guidelines (SEAD 4) as their military counterparts. DoD civilian employees and contractor personnel are also now on notice to expect further policy steps, parallel to those announced in December 2021 for military personnel: in their report, the CEAWG also recommended the development of a policy applicable to DoD civilian employees. This proposed policy change for DoD civilian employees should be expected by the end of March 2022. Further, CEAWG proposed examining the possibility of including extremist behavior or sympathies in suitability determinations. 3.2. Finally, CEAWG sought ways to ensure that contractor personnel are vetted for possible extremist activity. (The CEAWG report is available here.)

The 2021 version of KCNF’s essential “Security Clearance Law and Procedurehas just been published. If you have any concerns or questions regarding activities that may implicate a security clearance, the attorneys at KCNF are experienced in clearance matters and are available to assist.

This article also appeared in FEDweek on January 25, 2022.