Background Investigations Conducted by the United States Marshals Service
E&I Report No. I-2005-002
Office of the Inspector General
The mission of the United States Marshals Service (USMS) is to protect the members of the federal judiciary, including more than 2,000 federal judges, in 94 districts nationwide; execute federal warrants by pursuing and arresting fugitives; house and transport federal prisoners; ensure the security, health, and safety of government witnesses and their dependents; provide security at federal courthouses; and manage assets seized from criminal enterprises. In addition, the USMS regularly participates in the Joint Terrorism Task Forces. To accomplish its mission, the USMS employs more than 4,000 employees and 12,000 contractors who serve in positions of public trust or need access to sensitive information.
All federal agencies have programs to ensure that they hire and retain trustworthy personnel and that they properly clear personnel who need access to sensitive information. These programs involve conducting background investigations on prospective employees and contractors and reinvestigations for personnel remaining on the job beyond a specified period. An effective background investigation program identifies individuals who are unsuitable for jobs that involve national security or public trust responsibilities.
Agencies must develop policies and procedures that define a process for accomplishing background investigations in compliance with federal regulations and must establish safeguards to ensure that background investigations are timely and thorough. Agencies must also identify national security and public trust positions, and maintain current and accessible data on the status of background investigations for personnel assigned to those positions.
Under Executive Order 10450, the Office of Personnel Management (OPM) has broad oversight authority for federal personnel security programs, including background investigation programs. OPM exercises this authority primarily through regulations contained in Title 5 of the Code of Federal Regulations (CFR) Part 731, "Suitability"; Part 732, "National Security Positions"; and Part 736, "Personnel Investigations." OPM enters into contracts with private companies to conduct the investigations and reinvestigations of many federal employees and to report the results of the investigations to the employees’ hiring agencies. Some agencies, such as the Federal Bureau of Investigation (FBI), have been delegated authority to conduct their own investigations of their employees and contractors.
The sensitivity level of the position and the employee’s need to access national security information determine the scope of a background investigation.2 Each federal agency designates the sensitivity levels of its positions according to the degree of public trust associated with the duties performed. For example, positions designated as special-sensitive entail access to Top Secret national security information and require the most extensive background investigations. Investigations for these positions involve detailed interviews with family and associates, and a wider range of checks of administrative, financial, criminal, and national security records. Table 1, below, shows how the extent of the background investigation is related to the position responsibilities and access to national security information.
Reports on completed field investigations are sent to the applicants’ hiring agencies for adjudication. There, adjudicators examine potentially derogatory issues uncovered by the investigations and determine whether the issues are likely to affect the applicants’ reliability in safeguarding classified information or serving in public trust positions. The adjudicator makes a recommendation to approve or disapprove an applicant, depending on whether the potentially derogatory issues have been favorably resolved. Adjudications must take place within 90 days after the investigation is received.3
Table 1: Sensitivity Levels and Security Clearances
Because background investigations can be lengthy and there may be urgency in filling some positions, Executive Orders and OPM regulations allow agencies to hire an employee or contractor on a waiver while the full background investigation is proceeding. In such cases, the background investigation is completed after the individual begins work, and derogatory information uncovered after the applicant enters on duty can result in termination. Waivers require certain initial background checks, which are more comprehensive as security levels rise. The Department has issued guidance on waiver requirements, which is more stringent than OPM standards.4 See Table 2 below for regulatory, Department, and USMS background investigation requirements.
Table 2: Background Investigation Requirements
In addition to governmentwide requirements, the USMS is governed by Department policy and its own policies regarding the consistency of its background investigation process. At the Department level, the Security and Emergency Planning Staff (SEPS) recommends Department policy regarding such issues as circumstances and requirements for hiring applicants on waivers and for reinvestigating employees and contractors. SEPS also develops guidance on background investigations and monitors USMS compliance with regulations and Department policy. In addition, SEPS acts as the Department liaison with OPM.6
Within the USMS, the Operations Support Division develops policy and procedures for protecting national security information and other sensitive information, as well as for protecting personnel, facilities, and other assets. The USMS Human Resources Division oversees the implementation of these policies and procedures in day-to-day operations and maintains a list of its national security and public trust positions for which security approvals are required.
For high-level USMS employees SEPS is responsible for the field investigations, reinvestigations, adjudications, and clearances. For all other USMS employees and contractors, SEPS has delegated the management of background investigations, reinvestigations, waivers, adjudications, and clearances to the USMS. Of the background investigations and reinvestigations the USMS manages, most are handled by the Human Resources Division. Another USMS unit, the Judicial Security Division, manages the background investigations for contract court security officers (CSOs). Details on these three processes are provided below.
Table 3 summarizes the division of responsibility for USMS waivers, background investigations, and reinvestigations, and it shows the number completed in calendar years (CYs) 2002 and 2003. The chart in Appendix I depicts the USMS units with personnel security responsibilities.
Table 3: USMS Waivers, Background Investigations, and Reinvestigations, CYs 2002 and 2003
Background Investigations of USMS Political Appointees, Attorneys, and Other Designated Positions
SEPS directly manages the entire background investigation process for high-level USMS positions including the Director, the 94 U.S. Marshals, other political appointees, and attorneys. It also manages the background investigation process for other designated positions such as the Chief of Human Resources Services, who is responsible for the background investigations of most other USMS employees and contractors. In addition to managing the process for this group of some 127 individuals, SEPS also manages all background investigations for USMS employees needing access to Sensitive Compartmented Information (SCI) which refers to particular categories of classified information with special handling requirements. According to SEPS, political appointees and attorneys in the Department, including those at the USMS, normally enter on duty with waivers. Other USMS employees SEPS manages fall under general Department policies requiring either a completed background investigation or a waiver.
Background Investigations of Employees and Non-CSO Contractors
The USMS Human Resources Division manages the background investigation process for deputy marshals and all other employees not managed by SEPS, as well as all non-CSO contractors. The USMS’s contractor personnel are grouped into two categories: contract CSOs, who are managed by the Judicial Security Division, and non-CSO contractors, who are managed by the Human Resources Division. In most instances, OPM (using its own contractors) conducts the field investigations and reinvestigations for the non-CSO contractors, and the Human Resources Division staff adjudicates them. (An exception is the intermittent contract guards discussed at the end of this section.) The same approach is used for USMS employees.
Since 2001, the number of deputy marshals – who represent approximately three quarters of all permanent USMS employees – has increased steadily. Prior to 2001, the USMS hired about 100 deputy marshals a year. However, during the past three years, increased national security responsibilities led to the hiring of approximately 700 new deputy marshals. To manage the large number of new hires, the USMS introduced a “big tent” hiring strategy. The USMS brings applicants who pass a written test and preliminary screening to one location on a single day for an interview with a panel of deputy marshals, an interview with an OPM investigator, and a medical screening. For applicants who are tentatively selected for employment, the USMS initiates a full background investigation for which OPM investigates all issues necessary for both the high-risk public trust and national security Secret levels. Through this process, the USMS believes it saves resources and eliminates the need to hire deputy marshals on waivers. After the background investigations are completed, applicants who have been approved are hired at the high-risk public trust level and sent to USMS basic training. After basic training is completed, the USMS routinely requests Secret clearances for the new deputy marshals.
Although SEPS has retained authority for SCI clearances, it has delegated to the USMS final approval authority for national security clearances at the Top Secret and lower levels for its employees and contractors. The USMS Human Resources Division manages the process for clearances through the Top Secret level and forwards requests for SCI clearances to SEPS for investigation, adjudication, and approval.
An exception to the Human Resources Division’s general approach to background investigations is the management of certain intermittent low-risk public trust positions. For example, contract security guards, who are usually current or retired local law enforcement personnel, are hired to work alongside regular USMS security personnel in courthouses. Background investigations for low-risk public trust positions consist of an FBI name search, employment inquiries, and a local criminal record search. Field offices perform the adjudications, with approval or disapproval granted by the district’s U.S. Marshal or a delegated deciding official.
Consistent with Department policy, the USMS requires the reinvestigation of all employees every five years – or sooner if requested – except employees in low-risk public trust positions (a category that includes less than 1 percent of USMS employees). However, contractors are not required to undergo reinvestigations unless they have national security clearances at the Secret or higher level. If a clearance expires before a reinvestigation is completed, the USMS can grant an interim clearance if it has adequate justification.7
Reinvestigations include a check of the individual’s official personnel file (maintained by the Human Resources Division) and a check with the Office of Internal Affairs in the Operations Support Division to determine whether there are any sustained misconduct charges against the individual or any pending investigations.
Background Investigations of Contract Court Security Officers
The Judicial Security Division manages the background investigation process for contract CSOs who screen visitors, patrol federal court property, control traffic, and provide armed escorts in and around federal court facilities. Unlike the rest of the USMS’s operations, which are funded through executive branch appropriations, the judicial branch funds the CSO program. Under procurement authority from the General Services Administration, the USMS contracts with private companies to secure the services of CSOs for all 94 judicial districts.
In its contracts with the private companies that supply CSOs, the USMS specifies the criteria for identifying suitable individuals for public trust positions and for processing background investigations. After a vacancy has been announced in a district facility, the contractor recruits an applicant and conducts a preliminary investigation to verify qualifications and suitability. If the applicant passes this preliminary investigation, a deputy marshal in the district conducts a more extensive field investigation and sends the results to the Judicial Security Division to be adjudicated. The Chief Inspector of the Judicial Security Division makes the final security determination. CSOs are not reinvestigated after five years, but receive annual medical examinations to ensure that they are physically fit to perform their assigned duties.
Chart 1 shows the three background investigation processes used for USMS personnel.
Chart 1: Background Investigation Processes
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