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                            DEPARTMENT OF DEFENSE
             DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
----------, --------- ------- )       ISCR Case No. 06-23977
SSN: ------ ---- -------- )
)
Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Esquire, Department Counsel
For Applicant: William F. Savarino, Esquire
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Decision
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WHITE, David M., Administrative Judge:
Applicant was denied a security clearance in 1989 after expressing his belief in
the validity of terrorism as a tool in fighting oppression, and admitting to disclosure of
classified information to a foreign-national prostitute while serving in military intelligence
duties. His recent statements concerning both issues support ongoing concerns about
his judgment and willingness to comply with security rules and regulations. Based upon
a thorough review of the case file, pleadings, exhibits, and testimony, eligibility for
access to classified information is denied. 
Applicant submitted his Security Clearance Application (SF-86), on May 8, 2004.
On May 14, 2008, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline
E. 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)
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promulgated by the President on December 29, 2005, and effective within the
Department of Defense (DoD) for SORs issued after September 1, 2006. 
Applicant acknowledged receipt of the SOR on May 30, 2008. He answered the
SOR in writing on June 10, 2008, and requested a hearing before an administrative
judge. Department Counsel was prepared to proceed on August 6, 2008, and DOHA
assigned the case to another administrative judge on August 12, 2008. Due to caseload
and scheduling considerations, DOHA reassigned the case to me on October 30, 2008. 
DOHA issued a notice of hearing on December 2, 2008, and I convened the
hearing as scheduled on January 8, 2009. Department Counsel offered Government
Exhibits (GE) 1 and 2, which were admitted without objection. Applicant testified on his
own behalf, as did one other witness, and offered Applicant’s Exhibits (AE) A and B,
which were also admitted without objection. I granted Applicant’s request to leave the
record open until January 22, 2009, to permit Applicant to obtain and submit additional
documents. This evidence was submitted on that date, and admitted as AE C without
objection by Department Counsel. DOHA received the transcript of the hearing (Tr.) on
February 5, 2009.
Findings of Fact
Applicant is a 50-year-old employee of a federal contractor, where he has worked
for six years in management on an overseas facility operation support contract.  He has
never married, and has no children. In his response to the SOR (AR), he admitted that
he was denied a security clearance in 1989, but denied the other three SOR allegations.
In December 1980, after completing three and a half years of college, Applicant
enlisted in the Army. He served in signals intelligence duties for about seven and a half
years, and was honorably discharged in 1988. During his service, he held a Top Secret
security clearance. He was then hired by a defense contractor and applied for a security
clearance through them. He failed a polygraph examination administered as part of the
required background investigation multiple times. In discussing possible reasons for
appearing deceptive, Applicant revealed his terrorism beliefs and unauthorized
disclosure of classified material, discussed further below. As a result, in November 1989
the Government denied his security clearance. (SF-86 at 1, 3, 5; Tr. at 28-34; 60-61.)
Applicant then obtained a job with a different company that was performing
military support services in Saudi Arabia. He received an interim U.S. security
clearance, but after about four months the company pulled out of the contract and left
Saudi Arabia. It also cancelled its sponsorship for security clearance applications for its
former employees there. Applicant was then hired to work directly for the Saudi Arabian
Ministry of Defense, and worked for that government from December 1990 until his
contract was terminated in September 1996. He remained a direct employee of the
Saudi military even after another U.S. contractor returned and offered employment
“because the money was better.” During that time, he held a security clearance from the
Saudi government. (SF-86 at 4; Tr. at 61-69.)
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Applicant was interviewed by an Office of Personnel Management (OPM)
investigator in connection with his current security clearance application, and signed a
sworn affidavit addressing several issues of potential concern on November 2, 2007
(GE 2). In that affidavit, he discussed why he thought he had failed the security
polygraph examination, including “my belief in the use of terrorism that may have
triggered a deceptive reading.” (GE 2 at 5.) The interviewer originally wrote that
Applicant said: 
I support the Irish Republican Army’s (IRA) policies and ideologies of
terrorism against the British Government. I do not think Britain should be
ruling Ireland. I still think terrorism is a valid tool. I’ve never made
donations to the IRA or any other terrorist organization. I do not believe in
terrorism against the United States. 
(GE 2 at 6.) While reviewing the affidavit to make any desired changes or corrections,
Applicant deleted the first sentence of the five quoted above, by lining it out and
initialing the deletions. He added the following two sentences to the end of the affidavit
in clarification: “I support the Irish Republican Army’s (IRA) their goals of an
Independent Ireland. [sic] I understand the use of terrorism to support those goals.”
(Both the deleted sentence and the added language are quoted for comparison
purposes.) Despite being directly quoted from his affidavit in SOR ¶¶ 1.a, and 1.b, he
denied these allegations in his formal answer, stating that there is no context, issue, or
situation in which he does or would support the use of terrorism. (AR at 1.) 
During the hearing, Applicant said he understood the IRA’s use of guerilla
warfare, and he meant to say there are a lot of tools that any group or government may
use, “diplomacy, to war, unconventional warfare, terrorism, and so on. And to me it’s
just another tool that could be used.”  When asked by his attorney if there was any set
of circumstances, contexts or scenarios that he could envision supporting terrorism
against any group, he replied:
Ultimately what I was trying to say, and I hope I am answering the
question pretty much as you are trying, but any group that is and has, you
know, the legitimate reasons to petition the government to address their
grievances are cut off, they are not allowed to politically participate in the
political life of their country, they suffer oppression of some sort, given no
other means will resort to violence. All I was trying to say is I can
understand why they would do that. It is a valid tool in the sense that it’s
one of the things that people will do if they are faced with those situations. 
Then asked, “But do you condone the use of violence?” he replied: 
I do not condone any use of violence against innocent people. There is a
difference between violence against innocent people and violence directed
toward, say, the military activities that you are combating with in order to
free yourself if you are an oppressed people.
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He went on to explain that he did not support either guerrilla warfare or terrorist
activities against our U.S. soldiers in Iraq because he supports that war and thinks the
U.S. is doing the right thing there. (Tr. at 82-86.) 
When Department Counsel asked Applicant if he told the OPM investigator that
he supported or recognized and agreed with terrorism as a tool to overthrow the British
rule in Ireland, Applicant responded, “I made that statement and what I am saying is it’s
a tool, like any other, you know, they engaged in diplomacy, they engaged in public
relations, everything is a tool.” He further agreed that his answer would be the same for
other groups like the Red Army Faction, the Shining Path and the PLO, it is a tool but
how we judge the use of that tool is something else. When asked if he also agreed that
terrorism was a valid technique, he replied that depended on who is using it. He further
elaborated, it can be a valid tool but would not be if used to murder innocent people that
have nothing to do with the conflict. When asked if his position meant that use of
terrorism by organizations like Hamas and Hezbollah, that had no other effective tools
of warfare, was valid he agreed, stating, “It’s a fact.” He clarified that this validity did not
mean that he agreed with the goals such groups were trying to achieve, because he
does not. (Tr. at 142-148.)  
Applicant stated in his response to SOR ¶ 1.d:
I deny revealing classified information to a South Korean prostitute whom I
lived with in 1985/6 and deny not reporting the security violation to the
authorities. I did not know then and still do not know today that the
information I revealed was classified. I did not think it was classified at the
time.
In both his November 2007 affidavit and during the hearing, Applicant admitted
that he did reveal information that he knew to be classified to the South Korean
prostitute with whom he lived for 9 months around 1986. Although he knew he should
not have told her the information that related to his work in military intelligence, he did
not report having done so at the time because he did not think he had breached
security. He later revealed this incident to the polygraph examiner as a possible reason
he appeared to be deceptive in his responses about having disclosed classified
information to unauthorized personnel. (GE 2 at 3; Tr. at 112-116; 167-171.)
Applicant submitted testimony from his supervisor and declarations from three
people who have worked with him in his present position over the past several years. All
attested to his strong work ethic, reliability, integrity, and patriotism. He has served two
terms as commander of his American Legion post, and leads many support programs
for current and former U.S. service members. He was formerly active in AMVETS, and
has been a member of his Masonic Lodge in good standing for more than 30 years,
which requires national loyalty and good character. (AE A; AE B; AE C; Tr. at 87-98,
122-132.)
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Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the revised adjudicative guidelines (AG). In addition
to brief introductory explanations for each guideline, the adjudicative guidelines list
potentially disqualifying conditions and mitigating conditions, which are used to evaluate
an applicant’s eligibility for access to classified information.
These guidelines are not inflexible rules of law. Instead, recognizing the
complexities of human behavior, these guidelines are applied in conjunction with the
factors listed in the adjudicative process. The administrative judge’s over-arching
adjudicative goal is a fair, impartial and common sense decision. According to AG ¶¶
2(a) and 2(c), the entire process is a conscientious scrutiny of applicable guidelines in
the context of a number of variables known as the “whole person concept.” The
administrative judge must consider all available, reliable information about the person,
past and present, favorable and unfavorable, in making a decision.
The protection of the national security is the paramount consideration. AG ¶ 2(b)
requires that “Any doubt concerning personnel being considered for access to classified
information will be resolved in favor of the 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 the applicant or proven by Department Counsel, and has the
ultimate burden of persuasion as to obtaining a favorable clearance decision.” Section 7
of Executive Order 10865 provides that “Any determination under this order adverse to
an applicant 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.” 
A person applying for access to classified information seeks to enter 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.
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Analysis
Guideline E, Personal Conduct
AG ¶ 15 expresses the security concern pertaining to personal conduct:
Conduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations can raise questions
about an individual's reliability, trustworthiness and ability to protect
classified information. Of special interest is any failure to provide truthful
and candid answers during the security clearance process or any other
failure to cooperate with the security clearance process.
The following will normally result in an unfavorable clearance action or
administrative termination of further processing for clearance eligibility:
(a) refusal, or failure without reasonable cause, to undergo or
cooperate with security processing, including but not limited to
meeting with a security investigator for subject interview,
completing security forms or releases, and cooperation with
medical or psychological evaluation; and,
(b) refusal to provide full, frank and truthful answers to lawful
questions of investigators, security officials, or other official
representatives in connection with a personnel security or
trustworthiness determination.
AG ¶ 16 describes conditions that could raise a security concern and may be
disqualifying. The Government asserted that Applicant’s statements and actions support
concerns under two provisions:
(c) credible adverse information in several adjudicative issue areas that is
not sufficient for an adverse determination under any other single
guideline, but which, when considered as a whole, supports a whole-
person assessment of questionable judgment, untrustworthiness,
unreliability, lack of candor, unwillingness to comply with rules and
regulations, or other characteristics indicating that the person may not
properly safeguard protected information; and 
(d) credible adverse information that is not explicitly covered under any
other guideline and may not be sufficient by itself for an adverse
determination, but which, when combined with all available information
supports a whole-person assessment of questionable judgment,
untrustworthiness, unreliability, lack of candor, unwillingness to comply
with rules and regulations, or other characteristics indicating that the
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person may not properly safeguard protected information. This includes
but is not limited to consideration of:
(1) untrustworthy or unreliable behavior to include breach of client
confidentiality, release of proprietary information, unauthorized
release of sensitive corporate or other government protected
information:
(2) disruptive, violent, or other inappropriate behavior in the
workplace; 
(3) a pattern of dishonesty or rule violations; and,
(4) evidence of significant misuse of Government or other
employer's time or resources.
Applicant was denied a security clearance in 1989 based on his stated beliefs
that terrorism, as practiced by the Irish Republican Army and other anti-government
organizations, is a valid tool to resist “oppression,” and because he had wrongfully
revealed classified information to a foreign national with whom he engaged in an
extended relationship while holding a high-level security clearance. Although formally
denying these allegations in his response to the SOR, he admitted their truth in both his
November 2007 affidavit to an OPM investigator and during his testimony at the
hearing. He clearly believes himself to be a loyal and patriotic American. He does not
approve of attacks on U.S. interests because he agrees with most major U.S. policies
and does not see the U.S. Government as an oppressor against whom terrorism would
be justified. However, his conduct, stated beliefs, and demeanor reflected questionable
judgment and willingness to violate rules and regulations which he does not consider to
be justified or important. His recent statements and attitude concerning his revelation of
classified information to a foreign national reflected attempts to minimize accountability
for such conduct and his lack of appreciation for properly safeguarding protected
information. The Government established sufficient evidence, in the form of Applicant’s
own statements, to raise security concerns under these two whole-person related
disqualifying conditions. 
AG ¶ 17 provides conditions that could mitigate security concerns. Applicant
asserted that the evidence supports mitigation under the following three provisions:
(c) the offense is so minor, or so much time has passed, or the behavior is
so infrequent, or it happened under such unique circumstances that it is
unlikely to recur and does not cast doubt on the individual's reliability,
trustworthiness, or good judgment;
(d) the individual has acknowledged the behavior and obtained counseling
to change the behavior or taken other positive steps to alleviate the
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stressors, circumstances, or factors that caused untrustworthy, unreliable,
or other inappropriate behavior, and such behavior is unlikely to recur; and
(e) the individual has taken positive steps to reduce or eliminate
vulnerability to exploitation, manipulation, or duress.
Applicant’s conduct and statements of concern originally occurred more than 20
years ago, and taken individually could be considered relatively minor. However, they
reflect a pattern of decisions, beliefs and attitudes that he continued to demonstrate as
recently as his hearing testimony, casting continuing doubt on his current
trustworthiness and judgment. He offered no evidence of counseling or alleviation of
circumstances that might demonstrate such behavior is unlikely to recur. His ongoing
vulnerability to exploitation does not arise from likelihood of submission to outside
threats or duress, but rather from potential disregard for restrictions on use of
information imposed by others that he may disagree with. The evidence does support
consideration and application of each of these mitigating conditions to some extent, but
on balance its mitigating effect does not outweigh the legitimate security concerns
discussed above.
Whole Person Concept
Under the whole person concept, the administrative judge must evaluate an
applicant’s eligibility for a security clearance by considering the totality of the applicant’s
conduct and all the circumstances. The administrative judge should consider the nine
adjudicative process factors listed at AG ¶ 2(a): 
(1) the nature, extent, and seriousness of the conduct; (2) the
circumstances surrounding the conduct, to include knowledgeable
participation; (3) the frequency and recency of the conduct; (4) the
individual’s age and maturity at the time of the conduct; (5) the extent to
which participation is voluntary; (6) the presence or absence of
rehabilitation and other permanent behavioral changes; (7) the motivation
for the conduct; (8) the potential for pressure, coercion, exploitation, or
duress; and (9) the likelihood of continuation or recurrence. 
Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security
clearance must be an overall common sense judgment based upon careful
consideration of the guidelines and the whole person concept.    
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case. Applicant’s conduct of potential
concern involves his stated beliefs in the validity of terrorism as a tool to fight perceived
government oppression and his wrongful disclosure of classified and protected
information to a foreign national. Although the one SOR-alleged disclosure took place in
1986, Applicant’s ongoing attitude concerning that incident, as expressed during the
hearing, reflected poorly on his current reliability and trustworthiness in security-related
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matters. He is fully mature, educated, and accountable for his choices and statements.
His coworkers and supervisor consider him to be dedicated, honest, and reliable.
Except in his formal response to the SOR, he has been candid and consistent about his
pertinent beliefs and attitudes. Although Applicant demonstrated minimal vulnerability to
pressure, coercion, or duress from an external source, his past shows his susceptibility
to exploitation should he believe that government-imposed restrictions on his use of
protected information are less important than other interests. His demeanor during the
hearing did not alleviate this ongoing concern. On balance, Applicant presented
insufficient evidence to meet his burden of persuasion to mitigate reliability and
trustworthiness concerns arising from the personal conduct that was alleged in the SOR
and supported by his statements. Overall, the record evidence leaves substantial doubt
as to Applicant’s present eligibility and suitability for a security clearance.
Formal Findings
Formal findings for or against Applicant on the allegations set forth in the SOR,
as required by section E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline E: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: Against Applicant
Subparagraph 1.c: Against Applicant
Subparagraph 1.d: Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with the interests of national security to grant Applicant eligibility for a
security clearance. Eligibility for access to classified information is denied.       
                                  
DAVID M. WHITE
Administrative Judge