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Marijuana Use ‘Remains Relevant, But Not Determinative’ for Security Clearances

The increasing number of states and localities that have decriminalized marijuana prompted a guidance update. 

An increase in the number of states and localities that have decriminalized marijuana has prompted a recent update in guidance for security clearances for federal personnel. 

Avril Haines, director of national intelligence, issued an unclassified memo on December 21 to agency heads, obtained by Government Executive, which is “designed to provide clarifying guidance to federal agencies charged with determining such eligibility through adjudication,” following changes on the state and local levels, an ODNI spokesperson who did not provide a full name told Government Executive on Monday. Currently, 36 states; Washington, D.C.; Guam; Puerto Rico; the U.S. Virgin Islands; and the Northern Mariana Islands allow use of medical marijuana. Eighteen states and Washington, D.C. and the Northern Mariana Islands legalized it for recreational use, according to the National Organization for the Reform of Marijuana Laws. 

“I encourage agencies to remind civilian, military and contractor personnel, who are eligible for access to classified information or eligible to hold a sensitive position (i.e., the national security workforce) as well as authorized investigative and adjudicative personnel, of the importance of continued adherence to federal laws and policies, to include adhering to applicable reporting requirements,” Haines wrote. “Disregard of federal law pertaining to marijuana remains relevant, but not determinative, to adjudications of eligibility for access to classified information or eligibility to hold a sensitive position.” 

Specifically, the memo––which follows up on a June 2017 directive––lays out nuanced considerations regarding the use of recreational marijuana, use of cannabidiol (CBD) products (such as oils) and investments in marijuana-related business. 

“Prior recreational marijuana use by an individual may be relevant to adjudications, but not determinative,” Haines wrote. “In light of the long-standing federal law and policy prohibiting illegal drug use while occupying a sensitive position or holding a security clearance, agencies are encouraged to advise prospective national security workforce employees that they should refrain from any future marijuana use upon initiation of the national security vetting process.”

ClearanceJobs, a security clearance career network, which first reported on the memo that Government Executive obtained independently, noted, “this is a significant step, and would remove previously held adjudicative guidelines around one- to two-year abstinence from drugs before applying to a national security position.”

As for CBD, the memo says “it’s not a prohibition but a hearty ‘buyer beware,’” Clearance Jobs explained. Marijuana Moment, a news outlet edited by a veteran of the legalization movement, listed several agencies that have enacted strict policies for CBD over the years. 

Lastly, if an individual’s marijuana-related investment “is not direct,” then “adjudicators should presume that individual did not knowingly invest in a marijuana-related business––thus, the indirect investment should not be considered relevant to adjudications,” Haines wrote. For example, this could be “an investment in a diversified mutual fund that is publicly-traded on a United States exchange.” 

The memo also says that agency heads must continue advising their current and prospective workforces on the current federal laws that prohibit use of marijuana. 

Larry Pfeiffer, director of the Michael V. Hayden Center for Intelligence, Policy and International Security at George Mason University, told Government Executive on Tuesday, “It sounds to me like they’re maybe giving a little more leeway to a lot of marijuana use than perhaps they would have before based on the jurisdictions that the individual is coming from.” He noted that CBD oil has become more prominent in recent years. 

When asked if the difference in federal and state laws on marijuana could reach a boiling point when it comes to security clearances, he said, “From a societal perspective…we’re going to have to have to come to grips with it.” Then, “from a security perspective it’s going to become harder and harder as more and more states liberalize [marijuana]. They’re going to run into more and more applicants who are regularly using the product.” 

If federal marijuana laws are abolished, then that would have “a significant consequence for how that applies to security clearance adjudication,” he added. Pfeiffer previously served as senior director of the White House Situation Room and chief of staff to director of the CIA Michael Hayden.

Kel McClanahan, executive director of the National Security Counselors, a nonprofit law firm through which he often represents employees and contractors in the intelligence community, said on Tuesday, “it’s both frustrating and inevitable that the security clearance bureaucracy will be the absolute last holdout of the ‘Reefer Madness’ crowd,” referring to the 1936 film with an anti-cannabis message.

“When given the chance to adjust its standards to more closely align with society, the [intelligence community] once again demonstrated its preference for ideological purity over a diverse, vibrant workforce,” he added. 

Then-acting OPM Director Kathleen McGettigan said in guidance in February 2021 that past marijuana use should not automatically disqualify individuals for federal jobs. 

“This memorandum does not address consideration of marijuana use in determinations of eligibility for access to classified information or for employment in sensitive national security position[s], since the Office of the Director of National Intelligence is responsible for guidance on national security eligibility,” a footnote points out. 

In addition to the states and territories that have already legalized marijuana in various capacities “there are going to be a number of states considering adult use legislation in 2022, several of which are almost certain to pass, particularly [Rhode Island] and [Delaware],” Morgan Fox, political director at the National Organization for the Reform of Marijuana Laws, told Government Executive on Tuesday. 

“There will probably also be a handful of ballot initiatives put in front of voters for both medical and adult use (in the few states with the initiative process that haven't yet made cannabis legal; this issue is very popular with voters while politicians predictably lag),” he continued. “There are a number of problems with the initiative process everywhere due to COVID, and NORML is in the process of updating our initiative list accordingly.” 

Overall, the issue of marijuana and security clearances has been debated for years and there has been variation among how agencies have handled it, said Charles Allen, a principal at the Chertoff Group who served 51 years in the intelligence community. “It is essential that we find ways to get the best and the brightest and if they had an occasional use of marijuana some time ago when they were undergraduates that has to be looked at as a whole person and individual of whom we’d like to hire.”