DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------------- )       ISCR Case No. 07-12405
SSN: ----------------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Jennifer I. Goldstein, Department Counsel
For Applicant: William F. Savarino, Esquire
September 29, 2008
______________
Decision
______________
LOKEY ANDERSON, Darlene D., Administrative Judge:
Applicant submitted his Questionnaire for National Security Positions, on August
31, 2007.  On February 20, 2008, the Defense Office of Hearings and Appeals (DOHA)
issued a Statement of Reasons (SOR) detailing the security concerns under Guideline
B for Applicant.  The action was taken under Executive Order 10865, Safeguarding
Classified Information within Industry (February 20, 1960), as amended; Department of
Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review
Program (January 2, 1992), as amended (Directive), and the revised adjudicative
guidelines (AG) promulgated by the President on December 29, 2005, and effective
within the Department of Defense for SORs issued after September 1, 2006. 
 
Applicant answered the SOR in writing on a March 22, 2008, and requested a
hearing before an Administrative Judge.  The case was assigned to another
Administrative Judge on June 25, 2008. The matter was transferred to the undersigned
on July 7, 2008.  A notice of hearing on July 16, 2008, and the hearing was held on
August 8, 2008. The Government presented two exhibits, referred to as Government
Exhibits 1 and 2,  which were received without objection.  Applicant presented three
exhibits, referred to as Applicant’s Exhibits A through C, which were received without
objection.  The Applicant testified on his own behalf.  DOHA received the transcript of
the hearing (Tr.) on August 14, 2008.  Based upon a review of the case file, pleadings,
exhibits, and testimony, eligibility for access to classified information is granted.
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Request for Administrative Notice
Department Counsel submitted a formal request that I take administrative notice
of certain facts concerning the current political conditions in Iraq, Syria and Jordan.
Applicant had no objection.  (Tr. p. 18 ).  The request and the attached documents were
not admitted into evidence, but were included in the record. The facts administratively
noticed are set out in the Findings of Fact, below. 
FINDINGS OF FACT
The following Findings of Fact are based on Applicant's Answer to the SOR, the
testimony and the exhibits.  The Applicant is 53 years of age and married.  He is
employed as a translator/linguist or interpreter for a defense contractor.  He seeks a
security clearance in connection with his employment in the defense industry.
Paragraph 1 (Guideline B - Foreign Influence).  The Government alleges in this
paragraph that the Applicant is ineligible for clearance because he has foreign contacts
that could create the potential for foreign influence that could result in the compromise
of classified information.
The Applicant was born in Arbil, Iraq.  This area of Iraq is called the “Kurdistan
Region” because it is located in the north and is controlled by the Kurds.  In 1975, the
Applicant left Iraq and moved to Canada where he studied English.  Although he wanted
to come directly to the United States, he did not have permission to do so.  In early
1978, at the age of 23, the Applicant snuck into the United States illegally.  He was
arrested and spent about a week in jail for illegal entry.  He told United States officials
that he was a “Kurd” and he was seeking asylum in the United States because of the
persecutions by Saddam Hussein’s regime.  The Applicant was granted a I-94 Visa with
permission to work, and was allowed to stay in the United States.  He ultimately applied
for amnesty and was granted an alien card.  He became a naturalized United States
citizen in May 1995.  
The Applicant married a relative of his from Iraq in May 1997.  She obtained her
naturalized United States citizenship in 2003 or 2004.  They have two children who are
native born American citizens.  The Applicant’s wife has a sister and her husband that
reside in the United States.  They are currently green card holders awaiting eligibility to
apply for citizenship.   
From 1997 through 2003, the Applicant operated and owned a 7-Eleven
franchise.  In 2003, he wanted to help the United States in their effort to liberate Iraq.
Two of the Applicant’s brother’s had been tortured by Saddam Husseins regime, one of
whom was sentenced to death, the other was imprisoned by security forces and beaten
for ten continuous days for being “Kurds”.  The Applicant, with a deep desire to help the
United States against the regime in Iraq, applied for and obtained a job as a linguist.  He
also applied for a security clearance and was granted an interim clearance in 2003.
From April 2003, to 2008, the Applicant was assigned to work in Iraq for the United
States Army.  He traveled to Kuwait several times in 2003, and also to Qatar in 2005.
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Without saying more, the Applicant is essentially the eyes and ears for the military.  (Tr.
p. 55).  The Applicant’s job is dangerous.  In the past, the Applicant has been shot at
and had weapons launched in his direction.  Applicant testified that it was common
knowledge in Iraq that the bounty on a soldier was $25,000.00 and the bounty on an
interpreter was $50,000.00 because they are considered traitors.  (Tr. p. 67).  All of the
Applicant’s work associates are United States citizens.       
The Applicant has a number of relatives who are citizens and residents of Iraq.
Both his mother and father are deceased.  He has four brothers.  One of his brothers is
a citizen and resident of Iraq.  He is a lawyer who is managing family land that was
inherited.  Another brother is a citizen of Iraq who resides in Canada.  He and the
Applicant do not get along, and the Applicant does not know what he does for a living.
He has two brothers who are citizens of Iraq, but who are residents of Germany.  One of
them lives between Germany and the “Kurdish region” and is collecting unemployment
from Germany.  The other brother is on the welfare system in Germany.  The Applicant
has not communicated with him since 1996.  
The Applicant has five sisters.  One of his sisters is a citizen of Iraq, but resides
in Germany.  She works for the newsstand.  Her spouse is a member of the Kurdish
parliament in Iraq who has assisted the United States Government in their mission.  He
has a sister who is a citizen of Iraq that resides in England.  She is a homemaker.  He
has a sister who is a citizen of Iraq who resides in Germany.  The Applicant does not
know what she does for a living.  He has a sister who is a resident of Syria who is a
citizen of Iraq.  She is married to a farmer who has citrus fields.  The Applicant has not
spoken to her since 2002.  He has a sister who is a citizen of Iraq who resides in
Jordan.  She works for the United Nations, UNICEF.  Her husband lives with her but he
is unemployed.  
The Applicant has a father-in-law who is a citizen and resident of Iraq.  He is a
farmer.  His son, the Applicant’s brother-in-law, is also a farmer.  He has a sister-in-law
who is  living in California and babysitting for a living.  His mother-in-law is deceased.
The Applicant has two brother-in-laws.  One of them works for an American company in
Iraq.  The other one resides in Germany and works for a janitorial service.  Both are
married to women who are homemakers.  The Applicant also has two sisters-in-law who
are both housewives.  The Applicant’s relatives do not know what he does for a living
because he has not told them.  
The Applicant used to speak to several of his relatives in Iraq about once a
month or once every other month to his relatives until he received the SOR, when he
ceased all communications/contact whatsoever.  He has no intent of resuming any
contact with his foreign relatives while he is employed in his present capacity.  In the
event that he is contacted by them or any one else for any reason that is not
appropriate, he will report it to his unit.    
The Applicant’s wife speaks to her 80 year old father on a monthly basis and on
occasion to her brother in Iraq.  In the past, she has sent medicine to her father.  
From 1992 to 1996, the Applicant traveled to Iraq or what he refers to as
“occupied Kurdishstan” on five or six occasions.  From 1995 to 2002, the Applicant did
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not travel to Iraq at all.  Applicant traveled to Syria in 2002, and then from Syria to Iraq
to pick up his wife and children who were visiting their grandmother, his mother-in-law
who had cancer, and had not seen her daughter since 1997.  By traveling to Syria and
then into Iraq the Applicant was able to avoid problems because it was controlled by the
Kurdish regions and he would not be in danger.  The Applicant used his United States
passport to travel.
All of the Applicant’s financial assets are located in the United States.  His assets
include two houses, a business partnership, bank accounts and a hundred thousand
dollars in cash. 
Letters of recommendation from high ranking military officers with whom the
Applicant has worked indicate that the Applicant’s work performance has been
outstanding.  His linguistic skills, cultural advice, knowledge of the area and
understanding of Arab and Persian perceptions and attitudes toward United States
policy objectives been key to their successful mission.  The Applicant has been a critical
strategic asset and a valuable member of their team and is highly recommended for
future positions of responsibility with the Department of Defense.  (Applicant’s Exhibit
A).    
Applicant received several Certificates of Achievement from the Commander of
his unit.  They are in recognition of his untiring efforts and the performance of his duties
for the Department of Defense.  (Applicant’s Exhibit B).
 
Numerous affidavits from soldiers who have worked with the Applicant in Iraq as
well as other Linguists who work for the Department of Defense attest to the Applicant’s
hardworking, dependable, responsible, honest and effective nature.  He considers
himself like a soldier defending the United States in his capacity as a linguist for the
military.  He has helped to bridge the cultural difference by teaching American deployed
to Iraq the subtleties of working with the locals.  His efforts have helped to ensure the
safety of our troops and the successful operation of the mission.  (Applicant’s Exhibit C).
      
It is appropriate to discuss the relationship between Iraq, and to a lesser extent
Syria and Jordan, and the United States at this time.  With regard to Iraq, in 2003, a
United States led coalition removed Saddam Hussein and his Ba’athist regime from
power.  In March 2006, Iraq’s new government took office after being freely elected by
the Iraqi people.  However, violence continues to engulf the country.  This violence has
been fueled and perpetrated by Al Qaida terrorists, Sunni insurgents, and Shiite militias
and death squads.  The State Department has specifically stated that: “The risk of
terrorism directed against United States citizens and interests in Iraq remains extremely
high”.  Furthermore, the State Department has posted the following warning: “Attacks
against military and civilian targets through Iraq continue, including in the International
(or “Green”) Zone.  Targets include hotels, restaurants, police stations, checkpoints,
foreign diplomatic missions, and international organizations and other locations with
expatriate personnel. Such attacks can occur at any time.”  Kidnappings still occur: the
most recent kidnapping of an American citizen occurred in August 2007.  There are
United States substantiated reports of human rights abuses, including a “pervasive
climate of violence; misappropriation of official authority by sectarian, criminal and
insurgent groups; arbitrary deprivation of life; disappearances; torture and other cruel,
inhuman or degrading treatment or punishment.”   
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Syria, since March 1963, has been ruled by an authoritarian regime.  Syria is
currently included on the Department of State’s list of State Sponsors of Terrorism due
to the presence of several terrorist groups in Syria.  According to the Department of
State, the Syrian Government continues to provide political and material support to
Hezbollah and Palestinian terrorist groups.  Several terrorist groups base their external
leadership and maintain offices in Damascus.  In addition Syria permits Iran to transfer
weapons and supplies through Syria to Hezbollah in Lebanon.  United States officials
criticized Syria for permitting shipments of arms from Iran to Hezbollah in Lebanon that
fueled the conflict between Lebanon and Israel in July 2006.  Similarly, Syria is “one of
the primary transit points for foreign fighters entering Iraq.  The preliminary findings of a
UN investigation have indicated that the Syrian Government was involved in the
February 2005 assignation of former Lebanese Prime Minister Hariri, who actively
opposed Syria’s influence on Lebanese political affairs.  A travel warning is in effect for
Syria following September 12, 2006, attacks on the United States Embassy in
Damascus.  In 1998 and 2000, mobs in Damascus attacked the United States
Ambassador’s Residence and the United States Embassy respectively.  Due to Syria’s
active and passive support of terrorism in the Middle East, President Bush signed an
executive order implementing sanctions on May 11, 2004.  These sanctions prohibit the
export to Syria of products of the United States other than food or medicine, and prohibit
any commercial aircraft owned or controlled by the Syrian Government from taking off
from or landing in the United States.  The Department of State describes the Syrian
Government’s human rights record as “worsened.”  The following human rights abuses
have been documented by the State Department as occurring in Syria: absence of right
to change government, arbitrary or unlawful deprivation of life, torture in prison, poor
prison conditions, arbitrary arrests and detentions, absence of rule of law, severely
restricted civil liberties, limited freedom of religion, government corruption and lack of
transparency, and violence against women.  
Jordan is a small country located in the Middle East with a constitutional
monarchy and a developing economy.  Jordan has followed a pro-Western foreign
policy and has had close relations with the United States for six decades.  However, the
State Department notes that Jordan’s human rights record continues to reflect some
problems.  Problems include: torture, arbitrary arrests, prolonged detention,
overcrowded prison with poor sanitary conditions, denial of due process, infringement
on citizen’s privacy rights, political detainees, and restrictions on freedom of speech,
press, assembly, association, and movement.  The United Nations reports that torture
by police and security forces is widespread and allegations of torture have been
substantiated by forensic medical evidence.  Despite Jordan’s aggressive pursuit of
terrorists, drafting of counter-terrorism legislation, prosecution of terrorism cases
including both Al-Qaida and non Al-Qaida defendants, and investigation and disruption
of terrorist plots, the threat of terrorism remain high in Jordan.  Terrorists in Jordan often
do not distinguish between United States Government personnel and private citizens
and specifically target areas frequented by Westerners.  Terrorists within Jordan use
overt, covert and clandestine activities to exploit and undermine United States national
security interests.  Terrorist organizations currently target the United States for
intelligence collection through human espionage and by other means.  Terrorist groups
conduct intelligence activities as effectively as state intelligence services.
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POLICIES
Security clearance decisions are not made in a vacuum.  Accordingly, the
Department of Defense, in Enclosure 2 of the 1992  Directive sets forth policy factors
and conditions that could raise or mitigate a security concern; which must be given
binding consideration in making security clearance determinations.  These factors
should be followed in every case according to the pertinent criterion.  However, the
conditions are neither automatically determinative of the decision in any case, nor can
they supersede the Administrative Judge’s reliance on her own common sense.
Because each security clearance case presents its own unique facts and
circumstances, it cannot be assumed that these factors exhaust the realm of human
experience, or apply equally in every  case.  Based on the Findings of Fact set forth
above, the factors most applicable to the evaluation of this case are:
Foreign Influence
6.  The Concern.  Foreign contacts and interests may be a security concern if the
individual has divided loyalties or foreign financial interests, may be manipulated or
induced to help a foreign person, group, organization, or government in a way that is not
in U.S. interests, or is vulnerable to pressure or coercion by any foreign interest.
Adjudication under this Guideline can and should consider the identity of the foreign
country in which the foreign contact or financial interest is located, including, but not
limited to, such considerations as whether the foreign country is known to target United
States citizens to obtain protected information and/or is associated with a risk of
terrorism. 
Condition that could raise a security concern:
7.  (a) contact with a foreign family member, business or professional associate,
friend, or other person who is a citizen of or resident of a foreign country if that contact
creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or
coercion; 
7.  (b) connections to a foreign person, group, government, or country that create
a potential conflict of interest between the individual’s obligation to protect sensitive
information or technology and the individual’s desire to help a foreign person, group, or
country by providing that information.  
Conditions that could mitigate security concerns:
8.  (a) the nature of the relationships with foreign persons, the country in which
these persons are located, or the positions or activities of those persons in that country
are such that it is unlikely the individual will be placed in a position of having to choose
between the interests of a foreign individual, group, organization, or government and the
interests of the U.S.;
8.  (b) connections to a foreign person, group, government, or country that create
a potential conflict of interest between the individual’s obligation to protect sensitive
7
information or technology and the individual’s desire to help a foreign person, group, or
country by providing that information;
8.  (c) Contact or communication with foreign citizens is so casual and infrequent
that there is little likelihood that it could create a risk for foreign influence or exploitation.
8.  (d) the foreign contacts and activities are on U.S. Government business or are
approved by the cognizant security authority.
In addition, as set forth in Enclosure 2 of the Directive at pages 16-17, in
evaluating the relevance of an individual’s conduct, the Administrative Judge should
consider the following general factors:
a.  The nature and seriousness of the conduct and surrounding circumstances
b.  The circumstances surrounding the conduct, to include knowledgeable
participation
 c.  The frequency and recency of the conduct
d.  The individual’s age and maturity at the time of the conduct
e.  The voluntariness of participation
f.  The presence or absence of rehabilitation and other pertinent behavior
changes
g.  The motivation for the conduct 
h. The potential for pressure, coercion, exploitation or duress
 i.  The likelihood of continuation or recurrence.
The eligibility criteria established in the DoD Directive identify personal
characteristics and conduct which are reasonably related to the ultimate question,
posed in Section 2 of Executive Order 10865, of whether it is “clearly consistent with the
national interest” to grant an Applicant’s request for access to classified information.
The protection of the national security is the paramount consideration. AG ¶ 2(b)
requires that “[a]ny doubt concerning personnel being considered for access to
classified information will be resolved in favor of national security.” In reaching this
decision, I have drawn only those conclusions that are reasonable, logical and based on
the evidence contained in the record. Likewise, I have avoided drawing inferences
grounded on mere speculation or conjecture.
Under Directive ¶ E3.1.14, the Government must present evidence to establish
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the Applicant is
responsible for presenting “witnesses and other evidence to rebut, explain, extenuate,
or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The
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Applicant has the ultimate burden of persuasion as to obtaining a favorable security
decision. 
A person who seeks access to classified information enters into a fiduciary
relationship with the Government predicated upon trust and confidence. This
relationship transcends normal duty hours and endures throughout off-duty hours. The
Government reposes a high degree of trust and confidence in individuals to whom it
grants access to classified information. Decisions include, by necessity, consideration of
the possible risk the Applicant may deliberately or inadvertently fail to protect or
safeguard classified information. Such decisions entail a certain degree of legally
permissible extrapolation as to potential, rather than actual, risk of compromise of
classified information.
 
The DoD Directive states, “The adjudicative process is an examination of a
sufficient period of a person’s life to make an affirmative determination that the person is
eligible for a security clearance.  Eligibility for access to classified information is
predicted upon the individual meeting these personnel security guidelines.  The
adjudicative process is the careful weighing of a number of variables known as the
whole person concept.  Available, reliable information about the person, past and
present, favorable and unfavorable should be considered in reaching a determination. 
The Administrative Judge can draw only those inferences or conclusions that have
reasonable and logical basis in the evidence of record.  The Judge cannot draw
inferences or conclusions based on evidence which is speculative or conjectural in
nature.  Finally, as emphasized by President Eisenhower in Executive Order 10865,
“Any determination under this order . . . shall be a determination in terms of the national
interest and shall in no sense be a determination as to the loyalty of the Applicant
concerned.”
The Government must make out a case under Guideline B (foreign influence)
that establishes doubt about a person's judgment, reliability and trustworthiness.  While
a rational connection, or nexus, must be shown between Applicant's adverse conduct
and his ability to effectively safeguard classified information, with respect to sufficiency
of proof of a rational connection, objective or direct evidence is not required.
Then, the Applicant must remove that doubt with substantial evidence in
refutation, explanation, mitigation or extenuation, which demonstrates that the past
adverse conduct, is unlikely to be repeated, and that the Applicant presently qualifies for
a security clearance.
An individual who demonstrates a foreign influence ad has foreign connections
may be prone to provide information or make decisions that are harmful to the interests
of the United States.  The Government must be able to place a high degree of
confidence in a security clearance holder to abide by all security rules and regulations,
at all times and in all places.
CONCLUSIONS
9
Having considered the evidence of record in light of the appropriate legal
standards and factors, and having assessed the Applicant's credibility based on the
record, this Administrative Judge concludes that the Government has established its
case as to all allegations in the SOR.   
Under Foreign Influence, Disqualifying Condition 7(a) contact with a foreign
family member, business or professional associate, friend, or other person who is a
citizen of or resident of a foreign country if that contact creates a heightened risk of
foreign exploitation, inducement, manipulation, pressure, or coercion and, 7(b)
connections to a foreign person, group, government, or country that create a potential
conflict of interest between the individual’s obligation to protect sensitive information or
technology and the individual’s desire to help a foreign person, group, or country by
providing that information applies.  
  
However, the Applicant has provided compelling evidence to show that the
following Mitigating Conditions also apply to this particular case, given his particular
background:  Mitigating Conditions 8(a) the nature of the relationships with foreign
persons, the country in which these persons are located, or the positions or activities of
those persons in that country are such that it is unlikely the individual will be placed in a
position of having to choose between the interests of a foreign individual, group,
organization, or government and the interests of the U.S.; 8(b) connections to a foreign
person, group, government, or country that create a potential conflict of interest
between the individual’s obligation to protect sensitive information or technology and the
individual’s desire to help a foreign person, group, or country by providing that
information; 8(c) Contact or communication with foreign citizens is so casual and
infrequent that there is little likelihood that it could create a risk for foreign influence or
exploitation and, 8(d) the foreign contacts and activities are on U.S. Government
business or are approved by the cognizant security authority also apply.
Although the Applicant has foreign family members in Iraq, Syria and Jordan who
are residents and/or citizens of Iraq, the Applicant is not close to them and now has no
contact with them whatsoever.  There is no evidence of a close bond or strong evidence
of affection.  The Applicant’s deep and abiding ties are here in the United States.  All of
his immediate family reside in the United States.  All of his financial assets are in the
United States.  He is an American citizen.  For the past thirty years he has worked hard
to establish himself as a responsible, trustworthy, professional and loyal American
citizen.  His wife and children are all citizens and residents of the United States.  His
unique employment with the DOD, his assets, that include his homes, business and
bank accounts are all in the United States.  The Applicant has essentially cut all ties
from Iraq when he moved to the United States and made it his permanent home for the
past thirty years.  
His relationship with his family in Iraq, Syria and Jordan, tenuous though it is,
does create a heightened risk of foreign pressure or attempted exploitation because
terrorists in the Middle East seek intelligence and are hostile to the United States’
interests.
Iraq, Syria or Jordan are not safe places for anyone, that much is true.  They are
war zones.  However, there is substantial evidence that the Applicant behaved in a
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courageous and honorable way during his tour of duty in Iraq.  Officers, senior non-
commissioned officers, and enlisted soldiers from the military have submitted glowing
written statements discussing the Applicant’s activities in Iraq, his strong sense of
integrity, and specifically his ability to safeguard classified information in a combat area.
  Applicant established application of Mitigating Conditions 8(a), 8(b), 8(c), and
8(d).  Based on his relationships and depth of loyalty to the United States, he can be
expected to resolve any conflict of interest in favor of the United States interest.  He has
lived in the United States since 1978 until his employment with the Department of
Defense in 2003.  The Applicant has been a naturalized American citizens for over
twenty years.  His wife is a naturalized citizen and his children are native born
Americans.  He owns a two houses in the United States and has no financial interests of
any kind in Iraq.  He has limited contact with his family members living in Iraq and there
is no evidence that he has connections or contact with anyone over there other than his
family members.
It is noted that the current political situation in Iraq, Syria and Jordan elevates the
cause for concern in this case.  However, the evidence shows that the Applicant has no
bond and affection with any foreign country or to any foreign individual or to any foreign
Government in any way that could potentially cause the Applicant to become subject to
foreign exploitation, inducement, manipulation, pressure, or coercion against the
interests of the United States.  Therefore, there is no possibility of foreign influence that
exists that could create the potential for conduct resulting in the compromise of
classified information.  I find that the Applicant is not vulnerable to foreign influence.
Accordingly, I find for the Applicant under Guideline B (Foreign Influence).
Considering all the evidence, the Applicant has met the mitigating conditions of
Guideline B of the adjudicative guidelines set forth in Enclosure 2 of the Directive.
Accordingly, he has met his ultimate burden of persuasion under Guideline B.  
FORMAL FINDINGS
Formal Findings For or Against the Applicant on the allegations in the SOR, as
required by Paragraph 25 of Enclosure 3 of the Directive are:
Paragraph 1: For the Applicant.
Subparas. 1.a.: For the Applicant
Subparas. 1.b.: For the Applicant
Subparas. 1.c.: For the Applicant
Subparas. 1.d.: For the Applicant
Subparas. 1.e.: For the Applicant
DECISION
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In light of the circumstances presented by the record in this case, it is clearly
consistent with the national interests to grant or continue a security clearance for the
Applicant.
Darlene Lokey Anderson
Administrative Judge