Podcast - Reflecting on Careers in National Security Law

Marina O'Brien: Welcome to the 18th episode of Are We All Clear? The podcast on facilitating security clearances. I'm your guest host Marina O'Brien, an international trade associate with Holland & Knight's Washington, D.C., office. For this episode, we decided to surprise our faithful listeners and switch things up a bit. But not to worry, our regular host, Molly O'Casey, is still with us, this time as one of our speakers. She is joined by Caroline Howard, who is also an international trade associate with D.C.'s office of Holland & Knight. In today's episode, we will talk about careers in international security from the perspective of young professionals. This will be more of a discussion than the typical Q&A style of the podcast. Molly, welcome back. Caroline, welcome aboard. I'm delighted to be quizzing you both for the next 15 minutes or so and getting some much-needed insight for our listeners.

Molly O'Casey: Thanks, Marina. It's weird to be on this side of the table, so to speak, but I'm looking forward to it.

Caroline Howard: Thanks, Marina. Happy to be here.

Marina O'Brien: Great. Well, let us start by telling our listeners more about yourself.

Caroline Howard: Sure. So I've been practicing international trade law for about four years, and I specialize in export control, sanctions and CFIUS matters. But over the past year and a half, my practice expanded, and I started to work on industrial security matters and I've really enjoyed it.

Molly O'Casey: I've been practicing in the international trade space for about seven years. I started off in customs law before moving more towards trade remedies, which is anti-dumping and countervailing duties. And now I do a mix of customs, export controls and industrial security.

Marina O'Brien: So it seems that especially as it relates to export control, industrial security can be related to it, right? So Caroline and Molly, how did you decide to become an industrial security lawyer?

Molly O'Casey: Yeah. So when I joined Holland & Knight, part of the main motivation of doing so was to continue to expand my technical expertise past customs and trade remedies. When I joined the practice, I was more focused on export controls because I hadn't really heard of industrial security. But I'm happy to have had a few projects on it.

Caroline Howard: In industrial security, it felt like a natural expansion of my practice. I've always had a strong interest in national security matters, and this, combined with my interest in foreign affairs, led me to specialize in export controls, sanctions and CFIUS matters. But over the past year and a half, I've come to realize the close connection between industrial security and international trade. My work in CFIUS, for example, has underscored the critical role of industrial security in reviewing foreign investments for potential national security risk. I've been a part of CFIUS filings where the U.S. business had many classified government contracts, and it appeared, through the question sets that the committee sent us, that the focus was on ensuring that these sensitive contracts were adequately protected.

Marina O'Brien: Well, on my end, I had a similar experience in that I started working with cleared companies and industrial security issues as part of my international trade practice at Holland & Knight. And as we all know by now, economic security is national security, right? And I really, really enjoyed learning about this type of law and regulatory regime and working with many clients on a day-to-day basis who work hard to produce critical technology and provide much-needed services for the Department of Defense, among others. So to bring this full circle, I'm very pleased that at Holland & Knight we have a trade practice that in addition to being deep in expertise, it's also broad to encompass national security and industrial security matters. With that said, Molly and Caroline, did you take any national security law courses during law school? Let's start with Caroline first.

Caroline Howard: I did not take any industrial security courses, but I did take a CFIUS course, which of course had a huge national security focus.

Molly O'Casey: I did most of my law school in Ireland and France before doing an LL.M. in the U.S., so U.S. industrial security law didn't exactly come up, but I felt like some of the ways of thinking about due diligence and national security issues came up in a few other courses.

Marina O'Brien: That makes a lot of sense and we're so happy that you had the different experience, which lends itself, very helpful, just to think outside of the box. For me, I had a similar experience in that I did not take a specific national security or industrial security [class], although it was offered. So to all of our listeners, there is hope. You can become an expert in industrial security even if you did not take any related courses during law schools. After all, we as lawyers are expected to learn and grow continually, right? And frankly, a lot of what it means to be a regulatory counsel cannot be taught at school. A lot is based on department practices and how they administered a law sentence. A lot of it is procedural, not just what is the law itself. So one learns simply by practicing in this area. And so to move on, I suspect that many of our listeners are curious to know if you guys are cleared. In other words, do you need to have a personnel security clearance to practice in this area?

Molly O'Casey: Yeah. So you don't need to have a personnel security clearance to practice in this area. I don't. And based off of my interview with Jacob in episode two, if y'all are curious and want to check out that episode, I don't think I'll be getting one anytime soon. As background, a personnel security clearance or PCL means that the Department of Defense has determined that you are eligible under national security standards to receive access to classified information. So the Defense Counterintelligence and Security Agency, also known as DCSA, conducts a personnel security background investigation. During this investigation, there are three stages. First, you have sponsorship and initiation. Second, application and background investigation. And then third, adjudication of the application. During the sponsorship stage, an agency with a government contract determines that you have a need to know classified information. During the application and background investigation stage, you complete a questionnaire called the SF-86. And then once the investigation is complete, the sponsoring agency makes a determination of whether the individual is eligible. I think I'd probably give up at the application and background investigation stage. You need to provide history of education, work history, criminal history, past residences, financial information and family information. Jacob mentioned that when he was applying, they needed to talk to his neighbors about his comings and goings. And I've moved around quite a bit and I don't really know my neighbors. So between not remembering all my addresses and not having someone to vouch for me, I'm not sure I'd be successful.

Marina O'Brien: How about you, Caroline?

Caroline Howard: I am not cleared either, but I did actually go halfway through the clearance process with a certain government agency, and I can confirm it is very extensive. I ended up not going with the job, but the background, they do talk to your neighbors, friends, family. You have to identify every person on social media that you're connected with that is not a U.S. citizen. So quite extensive.

Molly O'Casey: Yeah. And for me, that'd be most of my family.

Marina O'Brien: That's right. I myself am a dual citizen. Although, Molly, you beat me with triple citizenship, so I know it can be challenging, although not impossible. I think when I applied for my Virginia bar license, the extent of the application was so lengthy and I saved everything, so that will save me a lot of the headache. But to go back to the question, I did have a temporary security clearance in the past, which was limited to something outside of work. And once that was no longer needed, it did expire. So as Molly and Caroline pointed out, one can practice in this field without having a clearance. So not to worry. Moving on to our next questions. Let's see. What are the biggest challenges working in this field beyond getting a security clearance, if you have a lot of foreign contacts?

Caroline Howard: So one challenge for someone new in the space like me is that while the NISPOM provides a framework for protecting classified information, a good amount of the guidance we provide is based on best practices rather than strict rules. I really have to rely on the partners in our group with extensive experience in the area.

Molly O'Casey: Yeah. And just echoing what Caroline's saying, there's just a lot of variations. Every time I think I've learned the magic combination of forms and reports and questions, there's the fact that unlocks a new set. What about you, Marina?

Marina O'Brien: I agree with what you guys just shared. It is important to understand how DCSA functions, not just what the regulations say. To give just one simple example, the deadline for submitting a change conditions package, or CCP, is not set in law, and it's not mentioned in 32 C.F.R. Part 117, also known as the NISPOM. However, customarily the CCP is submitted two to four weeks after the change, which is the reason for the change condition package, has taken place, or at a date set up by the company's industrial security representative, if one was assigned a DCSA. Also the level of information that must be submitted might vary depending on the ISR. I would also like to add that what keeps it challenging and interesting, at least to me, is the fact that what is perceived as a national security threat changes constantly. So that definitely keeps us on our toes. So, Molly and Caroline, what do you like about practicing in this field?

Caroline Howard: So working in industrial security is pretty fascinating for a few reasons. Firstly, we get to help protect critical infrastructure like power plants and manufacturing sites, which is, of course, important for public safety and national security. Plus, as you noted, the field is always evolving with the new technologies and threats. So there's really never a dull moment.

Molly O'Casey: Yeah, and I'm a nerd, so I like anything that lets me dig into the details. Industrial security really requires understanding the company, its structure, its ownership, how it interacts with related companies. Plus, it's kind of issue spotting on steroids, because a company's answer to one due diligence question might unlock 10 more.

Marina O'Brien: Indeed. On my end, in addition to the changing nature of security, I like the fact that I play a small part in keeping our country safe by helping make sure that classified information and technology does not fall in the wrong hands. And plus, I'm married to a sailor in the U.S. Navy — and here, I should say, go Navy beat Army. That's really dear to my heart. So for our last question for today, what are some interesting issues that you've run into?

Caroline Howard: So a lot of interesting issues, but I find it really fascinating when a foreign company owns a cleared company. Recently, we had a client in this exact situation, a cleared company with a foreign parent that was sold to a U.S. company. We had to advise them on terminating the cleared company's special security agreement as it was no longer necessary once the company was under U.S. ownership. This was an interesting process, navigating the regulatory requirements and ensuring that everything was in compliance. Another interesting case was when we had one cleared company acquire another cleared company. Despite the acquirer being cleared, we actually still had to submit all the regular notices to DCSA. So it was a great example of how thorough and detailed the compliance process can be, even when both parties involved in a transaction are cleared.

Molly O'Casey: Yeah. And there is a matter that I was working on involving a cleared company's change of ownership. They had contracts with the National Nuclear Security Administration or NNSA. That was interesting because most of the time we're working within the Department of Defense regulations, whereas this was NNSA. I found it interesting because I didn't really know the NNSA existed, so more learning opportunities, and then chasing down the NNSA's specific submission requirements, their portals, etc. was cool because it wasn't your usual DOD regulations.

Marina O'Brien: Yeah indeed, there are many interesting things about practicing in this field, including the concept of virtual facility clearances. So for that, however, you have to wait for another episode that's coming soon, we promise. But to piggyback on what Molly said, I also find it interesting when the cognizant security agency's not DCSA. Rather, it might be the Department of Energy or an intelligence agency of the U.S. government. So in those cases, facility clearances are handled a bit differently, and there might be less transparency as well when communicating with the government and what might be acceptable risks to FOCI would likewise differ. And I think that's all we have in terms of the questions. So I really appreciate your thoughts, Caroline and Molly.

Molly O'Casey: Yeah. Thanks for having us, Marina.

Caroline Howard: Thanks, Marina.

Marina O'Brien: Absolutely. This area is full of acronyms, as we have just heard. In this episode we mentioned CFIUS, which stands for the Committee on Foreign Investment in the U.S.; DOD, or the Department of Defense; DCSA, or the Defense Counterintelligence and Security Agency; ISR, or Industrial Security Representative; CCP, standing for Change Conditions Package; FOCI is Foreign Ownership, Control or Influence; FCL, or Facility Security Clearance; and NISPOM the National Industrial Security Program Operating Manual. And last but not least, the National Nuclear Security Administration, which is NNSA. So, as our listeners might be familiar by now, each episode we ask our speakers to explain an acronym that featured in this episode, but wrong answers only. Molly and Caroline, what do you have for us?

Molly O'Casey: Well, what I have is so much more sympathy for my poor guest speakers who have to come up with these because it's not as easy as I expected. But today my acronym is FCL or feel confident learning. It can be really intimidating, picking up new areas of law. Industrial security especially has a silly amount of acronyms and an incredible amount of forms, but new practitioners should keep in mind that there's a lot of guidance out there. I have structured my career in terms of new learning opportunities, and just kind of going for it has worked out for me. So my advice for new practitioners is that, you know, just keep in mind that being a lawyer doesn't mean knowing everything. It just means knowing where to find specific information to address clients' questions.

Caroline Howard: And my acronym today is DCSA, department of constant security anxiety.

Molly O'Casey: I really like that.

Marina O'Brien: With that, I hope everyone has a wonderful week. Again, this is your guest host, Marina O'Brien, and you just listened to our 18th episode of Are We All Clear? The podcast on facility security clearances.