Marijuana Use Can Still Be a Problem for Security Clearance Applicants

It’s no secret that safety clearance candidates will run into hassle if they’ve used marijuana. With an growing variety of state and native governments legalizing or decriminalizing makes use of of marijuana, nonetheless, each candidates looking for a clearance and a few adjudicative companies have questioned whether or not marijuana use ought to stay a doubtlessly disqualifying safety concern.

Since 1996, when California turned the primary state to legalize medical marijuana, 18 states plus Washington, D.C., Guam, and the Northern Mariana Islands now permit marijuana for grownup use and 36 states plus D.C., Guam, Puerto Rico, the U.S. Virgin Islands and the Northern Mariana Islands permit it for medical use. Most lately, Connecticut, New Mexico, New Jersey, New York and Virginia all legalized grownup use in 2021. However these modifications on the state stage, federal legislation pertaining to marijuana stays the identical: marijuana is categorized as a managed substance below Schedule I of the Managed Substance Act, and its use continues to be related to adjudications of eligibility for entry to categorised info or to carry a delicate place.

When marijuana use is challenged as a disqualifying safety concern, a number of causes are sometimes cited:

• It could point out that the particular person is unwilling or unable to adjust to legal guidelines, guidelines and laws. Eligibility for entry to categorised info or to carry a delicate place requires people who respect legal guidelines and laws, even when they don’t agree with them. Somebody who will break the legislation relating to unlawful medicine could also be a danger to interrupt the legislation relating to the dealing with of categorised info

• Somebody presently utilizing unlawful medicine might use poor judgment and unintentionally compromise categorised info whereas below the affect.

• Unlawful drug customers might interact in other forms of irresponsible or high-risk conduct, even when not below the affect of medication.

• Lively drug customers could also be psychologically or bodily dependent.

For these causes, adjudicators have checked out all of the details and circumstances, together with any relevant mitigating situations outlined in Security Executive Agent Directive 4’s adjudicative guidelines, in figuring out whether or not the marijuana use raises a safety concern and is disqualifying.

On December 21, 2021, significantly in response to the altering panorama of marijuana use below state legislation, Director of Nationwide Intelligence Avril Haines issued a memorandum clarifying the steerage supplied to adjudicative companies relating to a person’s involvement with marijuana. This steerage addresses:

1. Recency of leisure marijuana use;
2. Use of cannabidiol (“CBD”) merchandise, reminiscent of CBD oils; and,
3. Funding in marijuana-related companies.

Recency of use: Adjudicators proceed to weigh a person’s prior marijuana use to find out whether or not such conduct raises a safety concern and, if that’s the case, whether or not that concern has been mitigated. Related mitigating situations embody, however usually are not restricted to, “frequency of use and whether or not the person can reveal that future use is unlikely to recur, together with by signing an attestation or different such applicable mitigation.” Potential safety clearance holders ought to chorus from any marijuana use upon initiating the nationwide safety vetting course of, which begins after they signal the certification contained within the SF-86. Anybody who signifies an intent to proceed utilizing unlawful medicine sooner or later—together with marijuana—shall be disqualified from holding a safety clearance.

Use of CBD: The 2018 Agriculture Improvement Act excluded hemp with a delta-9 tetrahydrocannabinol (“THC”) focus of no more than 0.3% from the definition of marijuana throughout the Managed Substances Act. Merchandise labeled as hemp-derived however that include larger than 0.3% THC proceed to satisfy the authorized definition of marijuana and stay unlawful below federal legislation. As a result of research have proven that some CBD merchandise exceed the 0.3% THC threshold, their labels on the contrary however, there’s a danger that utilizing these merchandise might trigger sufficiently excessive ranges of THC to end in a constructive drug take a look at. Ought to a person take a look at constructive, they are going to be topic to investigation; a constructive drug take a look at will increase a safety concern that can must be mitigated.

Investments: As long as the cultivation and distribution of marijuana stays unlawful below the Managed Substances Act, a person’s adjudicative dedication could also be negatively impacted ought to they “knowingly and instantly put money into shares or enterprise ventures that particularly pertain to marijuana growers and retailers.” Such an funding, which the person is aware of violates federal legislation, might mirror questionable judgment and an unwillingness to adjust to legal guidelines, guidelines and laws. Oblique funding, nonetheless, just isn’t thought of related to adjudications. Particularly, the place the funding just isn’t direct, e.g., the marijuana-related funding is a part of a diversified mutual fund that’s publicly traded on a United States alternate, adjudicators ought to presume the person didn’t knowingly put money into a marijuana-related enterprise.

Whereas this steerage doesn’t substantively change the coverage set forth in Safety Government Agent Directive 4’s adjudicative tips, it’s a reminder to the nationwide safety workforce that marijuana use stays related—although not determinative—in safety clearance selections.

Aaron Herreras Szot, an affiliate with Kalijarvi, Chuzi, Newman & Fitch P.C., helps purchasers who’re dealing with a variety of safety clearance issues navigate all phases of the clearance utility, investigation, listening to and attraction processes. She might be reached at aszot@kcnlaw.com.