Two Pentagon workforce decisions are raising new concerns about capacity and consent

Terry Gerton We’re going to talk about a couple of defense personnel issues today, and I want to start with the National Background Investigation Services. A recent House oversight hearing focused on the delays and management problems in this system. What did you hear from lawmakers at that hearing in terms of their concerns?

Dan Meyer So this is now probably the third or fourth reiteration of the background investigation failure issue. Most people probably remember back about 2015 or ’16, we had a Chinese hack into the background investigation files, the government had to buy lifetime credit repair services for a whole group of clearance holders. Even more important, the Chinese have those files even to this day, so they have a huge database of information, very sensitive information on our people. And there was an attempt to reform. It was decided that OPM was not up to the mission, so it moved it over to the Defense Department. And the Defense Department has struggled. They’ve struggled. You know, there are 72 separate adjudication systems, I think, within the executive branch. About 23 of them were loosely organized under DOD, but even the DOD intelligence agencies are separate from that. Then CIA is out on its own doing its thing. So there was an attempt late in the Biden administration, it was actually implemented last year, to get everybody on the same sheet of music now 20 years after we knew they needed to be on the sheet of the music. And now they’re trying to move forward. They’ve had equipment failures, they’ve had bad technology issues, they’ve an inability to keep talented senior people in leadership positions. The workforce is stressed out over there. The backlog seems to be pretty stable, but it’s long. And frankly, security officers are not all that empathetic to federal employees when it comes to the timing issue. You know, there’s 4.8 million security clearances. I think 2.2 million of those are TS/SCI. And then any one time I’ve heard there’s about 300,000 or so reviews in place, if somebody absolutely has to have a clearance, the system can figure out how to produce it. So they’re not worried about the average person. And this is not a customer-based service, getting a security clearance and maintaining one. It’s about the needs of the executive branch and, you know, from most Cabinet-level people, including sec war and the team, they feel like they’re getting good service. So, you know, Congress is upset because congressional constituency, usually employees and service members and contractors is upset. But the bottom line is the system is producing relatively well. It’s catching its mistakes. It will continue to improve incrementally and it’ll continue to have setbacks. So that’s generally what I was hearing out of the hearing.

Terry Gerton Well, you mentioned a number of challenges with the NBIS. It’s way behind, it’s significantly over cost, and it’s slow. Where do you see the impact showing up in day-to-day operations in defense, in civilian hiring, in mission execution?

Dan Meyer So it’s interesting, I don’t think it’s showing up in actual execution because we overclassified positions after 9/11. So far more people have clearances now than really need them. We give sensitive information out to people who don’t necessarily need to have it. We clear people who don t need to have it for their jobs. That’s quite common, particularly in DHS, not so much in DOD. But the bottom line is that the federal government is accomplishing its mission as the president has directed that mission to be accomplished. You know, there’s a bigger issue now that we had a quarter of a million federal employees leave last year than getting people cleared. But that is the problem, bringing new talented people in. Talented people — I’m not gonna say they’re high maintenance, but they are talented and they know they’re talented. And They are not going to wait around 14 to 18 months to get cleared so they can go to work. The government needs to use more interim clearances to get people in. They need to curry favor, frankly, with the talented workforce, because being a federal employee is not the be all end all that it was 15 years ago, because our federal employees have not been treated well and the word’s gotten out. So if anything, I think the problem is not on mission accomplishment. The problem is with talent acquisition. And this is the worst possible timing for it because the baby boom is finally checking out, okay. They’re, they’re going, going and gone. And so there’s a lot of people retiring. The deferred retirement, resignation program also helped move people out. So there’s been a record number of people leaving federal positions and those have to be restaffed, some percentage of them. I don’t think all of them are going to be restaffed. And the backlog does affect that. So it’s the talent acquisition I think is the government’s going to hurt the most.

Terry Gerton I’m speaking with Dan Meyer, he’s national security partner at Tully Rinckey. Let’s follow that talent thread for a minute because separately, the Pentagon has renewed requests for civilian employees to volunteer for temporary assignments supporting immigration enforcement issues. What challenges are embedded in that kind of reassignment?

Dan Meyer So this happens, and this has happened frequently before. This is not a new thing. When we had FINA, there was a massive reassignment of people, particularly within DOD. The government has had the ability to flex and to get employees and to have incentives for employees to move to missions where they need people. The challenge with the immigration issue, and this is what I hear from our prospective clients and our clients, is there’s a concern on the part of the workforce about touching these jobs because they’re not convinced they’ll get pardons if any of this is illegal. Okay, so there’s this open question now because of events over the past year about whether somebody will come along in four or five years and say that some of these law enforcement activities were illegal, they were a problem, and then all of a sudden there’s a list generated and we’re back in our January 6th mode, where, let’s face it, government employees were pursued because of where they were on January 6th. And it was very painful for a lot of government employees to realize that after everybody had moved on from the event, they were stuck with the lawsuits. You’re even seeing some lawsuits about that. Well, the same thing is happening now with INS issues and immigration issues. Whether you’re an investigator, whether you’re a law enforcement, a special agent, or even admin backup, you have to be concerned that you’re going to end up on a list that ends up in front of an assistant U.S. attorney in a few years, and you’re going to ended up being prosecuted. And I don’t know that the president can sign a pardon for the entire executive branch. So unless each person gets an individual pardon, they’re going to be fearful that they volunteer for this positions. It’ll be held against them. And even if it’s not an issue of facing criminal prosecution, It could be a security clearance review, a guideline E issue — you had improper personal conduct because you improperly shot somebody on the street. You know, January 6 changed the vulnerability equation for all federal employees. The minute we decided to go after the people who were up on the hill engaging in whatever they were engaging into that civil disturbance, we had to admit to ourselves that this could happen in any number of circumstances. Well, the next circumstance that up is our immigration policy. So that’s the concern on the immigration side.

Terry Gerton Well, you’ve certainly articulated a lot of reasons why people might be concerned, but given all of the turbulence around civilian staffing in the Defense Department, some folks … there have warned that voluntary deployment requests like these can feel coercive. So if you’re a civilian employee in the defense department and you get one of these notifications, what options do you have?

Dan Meyer So you can decline, okay? And this is also not really new. We’ll use DoD as an example. Under the National Security Personnel System in the Bush, the Son, administration, there was a move to make GS-15s in particular flexible and move them. And that was gonna be a part of the National security personnel system. And it was painful. Okay. They never implemented the full program and then they ended up canceling it because they realized the federal workforce wasn’t going to move and they would just leave. So federal employment is not indentured servitude. You don’t want to volunteer. You don’t have to volunteer. What you’re going to end up with, you could have a detailed reassignment that gets harder to resist. It gets harder implement and it’s one-on-one with those. So it’d be very difficult to move a lot of people in that way. And then if you don’t, you then though have to take a measure of the fact that you may have offended your boss who may have had a quota on a number of people who need to move and that could end up impacting your standing within the office. So then you get to what we used to call the death of a thousand paper cuts. The boss decides that Charlie’s not a team player because he didn’t go to San Antonio on that immigration detail we wanted him to go on. And so then they start nitpicking on poor Charlie and they watch whether he’s 15 minutes late in the morning and they document that and then they watch whether which should have been that and the memo he just turned in. So if you do that to an employee long enough, you can wear them down, wear them out, and then they leave. Okay. I had a client in fact who just did that yesterday. So that’s the danger, the downside on resisting the executive branch’s enthusiastic mission requirements. Okay, the president’s excited about his mission. He wants his people, and they are his people, to go out and do the mission. And if you’re not on the team, you are gonna end up with an extended Title V appeal process, or you may just get worn out, or you may end up giving them the weapon they need to take you down. You may end up being late. You may ended up mistyping your hours. And then you get two or three of those little slips and then they decide they want to remove you or suspend you or do whatever they want to do to rack up paper in your file for a case against you over the long run.