1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 08-09006 SSN: ) ) Applicant for Security Clearance ) Appearances For Government: Francisco Mendez, Esquire, Department Counsel For Applicant: William F. Savarino, Esquire ______________ Decision ______________ HENRY, Mary E., Administrative Judge: Based upon a review of the case file, pleadings, exhibits, and testimony, I conclude that Applicant’s eligibility for access to classified information is granted. Applicant submitted his Electronic Questionnaire for National Security Position (e-QIP) on January 20, 2006. The Defense Office of Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference) on March 24, 2009. 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. W hen SOR allegations are controverted, the government bears the burden of producing evidence sufficient1 to prove controverted allegations. Directive, ¶ E3.1.14. “That burden has two components. First, the government must establish by substantial evidence that the facts and events alleged in the SOR indeed took place. Second, the government must establish a nexus between the existence of the established facts and events and a legitimate security concern.” See ISCR Case No. 07-18525 at 4 (App. Bd. Feb. 18, 2009), (concurring and dissenting, in part) (citations omitted). 2 Applicant acknowledged receipt of the SOR on April 4, 2009. He answered the SOR in writing on May 7, 2009, and requested a hearing before an administrative judge. DOHA received the request on May 9, 2009. Department Counsel was prepared to proceed on July 30, 2009, and I received the case assignment on August 5, 2009. DOHA issued a notice of hearing on August 10, 2009, and I convened the hearing as scheduled on September 30, 2009. The government offered three exhibits (GE) 1 through 3, which were received and admitted into evidence without objection. Applicant and two witnesses testified on his behalf. He submitted four exhibits (AE) A through D, which were received and admitted into evidence without objection. I held the record open until October 7, 2009, for Applicant to submit additional matters. He submitted five exhibits, AE E through AE I, without objection. The record closed on October 7, 2009. DOHA received the transcript of the hearing (Tr.) on October 8, 2009. Procedural and Evidentiary Rulings Notice At the hearing, Applicant’s counsel could not state definitively when he or Applicant received the hearing notice. (Tr. 9.) If the notice was received in less than 15 days before the hearing, Applicant’s counsel affirmatively waived his right to 15 days notice. (Tr. 9.) Request for Administrative Notice Department Counsel submitted a formal request that I take administrative notice of certain facts relating to the Arab Republic of Egypt (Egypt). (Tr. 15) The request and the attached documents were not admitted into evidence, but the documents were included in the record as Hearing Exhibits I to VI. The facts administratively noticed are set out in the Findings of Fact below. Findings of Fact In his Answer to the SOR, Applicant admitted the factual allegations in ¶¶ 1.a, 1.b, and 2.a through 2.d of the SOR, with explanations. He denied the factual allegation in ¶ 1.c of the SOR. He also provided additional information to support his request for1 eligibility for a security clearance. Applicant, who is 52 years old, works as an Information Technology instructor for a Department of State contractor. He began working for his current employer two years ago. He worked in a similar position for another Department of State contractor for GE 1; AE E to AE I; Tr. 39-40, 43, 65, 73-74.2 Response to SOR; GE 1; GE 2; Tr. 39-40, 60.3 GE 1; Tr. 41-42.4 Tr. 44-45.5 AE B; Tr. 46-48, 54-59, 90-91, 93. 6 3 approximately seven years. He has held a security clearance since 2000 or 2001. He has not violated security procedures for handling classified information since being granted a security clearance. He attends security training courses twice a year and has received several awards from his employers.2 Applicant was born in Cairo, Egypt. He graduated from high school and college in Egypt, receiving a bachelor’s degree in agriculture. He emigrated from Egypt to the United States in 1983 seeking a better life and better opportunities. Applicant became a naturalized U.S. citizen in March 1991. After becoming a U.S. citizen, Applicant obtained a U.S. passport. He also retained his Egyptian citizenship and passport. Since 1991, he has periodically renewed his Egyptian passport.3 Applicant met his wife in the United States They married in 1991 and have a daughter, who is 13 years old. His wife, who was born in Switzerland, moved to the United States at age three and is a naturalized U.S. citizen. His daughter is a U.S. citizen by birth.4 Since arriving in the United States, Applicant returned to school for additional education. He completed certain prerequisite courses for graduate school at a community college, from which he received an associate of arts degree. He completed a masters degree in information technology at a U.S. university. He has also received many certifications related to information technology and his training skills.5 Applicant’s 78-year-old mother lives in a rural village north of Cairo, Egypt. His elderly mother is infirm. She suffers from multiple ailments, including diabetes, high blood pressure, kidney problems, and some problems related to Alzheimer’s disease. Because she cannot walk and requires full-time care, a maid lives with his mother. Applicant purchased the small house in which his mother lives seven or eight years ago for $70,000. He sold this property in February 2009. He transferred all proceeds from the sale of the house to his U.S. accounts. His mother continues to live in the house and now pays rent to the new owners. Once he sold the house, he relinquished all control over this property. He provides $300 a month in support to his mother, as does one of his sisters. He will not receive any inheritance from his mother upon her death. At one time, he asked his mother about moving to live with him in the United States. She declined because she did not want to leave her homeland, because her care is much less costly in Egypt, and because she has what she needs to live.6 GE 3; AE D; Tr. 67-72.7 Tr. 48-50, 82.8 Id. at 50-52, 82.9 Id. at 52-54, 82.10 Id. at 82-86, 89.11 4 From 1991 until 2006, Applicant traveled to Egypt once a year to visit his mother. No one required him to make these trips; rather, he wanted to make the trips to visit his mother. In 2006, the Department of State opened a training center in Cairo, Egypt. His employer selected Applicant to conduct its training sessions. His job requires him to travel three times a year to Cairo, Egypt. Arrangements for his business trips are made by the Department of State, and he complies with their trip arrangements. When he is in Cairo on business, he visits his mother. He advises the U.S. embassy security office when he leaves to visit his mother. His mother knows that he “teaches computers.” She does not know he holds a security clearance or any other information about his job. His mother does not know anything about computers.7 Applicant’s oldest sister is 63 years old. She is a citizen and resident of Egypt. She is married. Her husband is a retired insurance company officer and she is a housewife. Applicant talks with her by telephone two or three times a year, and he may visit with her when he visits his mother in Egypt. She has never visited him in the United States, and is not involved in politics.8 Applicant’s middle sister is 54 years old, and a citizen and resident of Egypt. She works as a principal at a public high school. Her husband teaches fine arts and creates sculptures at a public university. Their four children are medical doctors in Egypt. He believes all four children are professors of medicine at universities. If she is available, he will visit with her when he visits his mother. This family is not involved in politics, and none of the members have visited him in the United States. 9 His youngest sister is 45 years old. She lives in northern Egypt and is a housewife. Her husband works as a manager for a private construction company. Her three children are still in school. If she can come when he is visiting his mother, he will visit with her. She is not involved in politics, and has not visited him in the United States.10 Applicant maintains contact with a childhood friend in Egypt. His friend works as the general manger for sales and marketing for a U.S. company in Egypt. His friend does not work for the Egyptian Army or government. His friend’s wife is a housewife. He talks with his friend about five times a year. As with his family, his friend knows that Applicant “teaches computers”, but does not know any more about Applicant’s work. His friend does not seek information about Applicant’s job. He sees his friend once a year, and does not provide any financial support to his friend. 11 AE C; Tr. 60-63, 66-67.12 Tr. 17-26, 28-35.13 AE A.14 5 When he traveled to Egypt, Applicant traveled on his U.S. passport as a U.S. citizen. He maintained his Egyptian passport to ease his entry into Egypt, once he arrived. He used his Egyptian passport in lieu of a visa, which is required for entry into Egypt. When he learned that his passport presented a problem, he contacted the Egyptian embassy in the United States. He filed the necessary papers to formally revoke his Egyptian citizenship, and returned his Egyptian passport and Egyptian I.D. (Identification card) While he has not received a formal letter accepting his citizenship renunciation, he considers his Egyptian citizenship revoked.12 Two co-workers testified on Applicant’s behalf. They know him through work and socially. Both describe him as very professional. Applicant has an excellent reputation as a teacher and employee. He is reliable and dependable. He follows the office rules and has never tried to access company proprietary or confidential information. He has a secret clearance and has complied with the rules for holding a security clearance. Neither believes he would favor Egypt over the United States.13 Applicant’s second-level supervisor, a foreign service employee with the Department of State, wrote a letter of recommendation. He described Applicant as extremely reliable, dependable, honest, and trustworthy. He has traveled with Applicant on overseas jobs, and has no reservations about Applicant holding a security clearance. He knew Applicant had an Egyptian passport and family in Egypt. Based on his conversations and contacts with Applicant, he opined that Applicant is very loyal to the United States and its government, and that Applicant does not have a preference for another country. Rather, Applicant has a deep abiding affection for the United States, and is committed to this country. 14 I take administrative notice of the following facts. Egypt has extensive strategic, economic, and military ties to the United States. Egypt has been a unified state for more than 5,000 years. Egypt is a stable, constitutional country with a strong executive branch of government and popularly elected People’s Assembly. The dominant political party is the National Democratic Party. Egypt is a strong military and strategic partner of the United States. The United States provides significant military aide to Egypt to help modernize Egypt’s military. There is no indication Egypt seeks U.S. military information or classified information. Egypt and the United States are strong friends based on a shared and mutual interest in peace and stability in the Middle East. Egypt played a key role in the 1990-1991 Gulf crisis. It maintains a strong dialogue and shares information on a broad range of counterterrorism and law enforcement issues with the United States. Recently, Egypt tightened its terrorist finance regulations and revised its anti-laundering legislation to make terrorism financing a punishable crime. Hearing Exhibits I to VI.15 6 Terrorist attacks have occurred in certain tourist areas of Egypt. Al-Jihad is an Egyptian Islamic extremist group identified in Egypt. The majority of its members, however, reside outside Egypt. In the area of human rights, Egypt’s record is poor. Egypt does not have a record of government political killings, but some killings result from police brutality. Freedom of expression and freedom of the press is more limited than in the United States. The Egyptian government is more restrictive with organizations raising human rights issues. Citizens generally enjoy relative freedom from government interference.15 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 in evaluating 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 overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(c), the entire process is a conscientious scrutiny 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 “[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, an applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” An 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 7 an 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. Section 7 of Executive Order 10865 provides that decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information). Analysis Guideline C, Foreign Preference Under AG ¶ 9 the security concern involving foreign preference arises, “[W]hen an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may be prone to provide information or make decisions that are harmful to the interests of the United States.” Under AG ¶ 10, a security concern could be raised under the following disqualifying conditions: (a) exercise of any right, privilege or obligation of foreign citizenship after becoming a U.S. citizen or through the foreign citizenship of a family member. This includes but is not limited to: (1) possession of a current foreign passport. After he became a U.S. citizen in 1991, Applicant retained his Egyptian passport and maintained dual citizenship with Egypt. Over the next 17 years, he periodically renewed his Egyptian passport. He used his Egyptian passport in lieu of the visa required for entry into Egypt by foreign visitors. The government has established its prima facie case under Guideline C. Under AG ¶ 11, Applicant could mitigate the government’s security concerns through one of the following ways: (b) the individual has expressed a willingness to renounce dual citizenship; and (e) the passport has been destroyed, surrendered to the cognizant security authority, or otherwise invalidated. When he learned that his Egyptian passport impacted his ability to retain his security clearance, Applicant contacted the Egyptian Embassy in the United States. He obtained, then completed the necessary paperwork to renounce his Egyptian citizenship. He submitted this paperwork and his Egyptian passport to the Embassy in June 2009. Although he has not received a letter indicating that his renunciation has been acknowledged by the Egyptian government, he considers his Egyptian citizenship 8 renounced. Since he no longer has his Egyptian passport, he must now, as a foreign visitor, obtain a visa to enter Egypt. Applicant has mitigated the government’s security concerns under Guideline C. Guideline B, Foreign Influence The security concern relating to the guideline for Foreign Influence is set out in AG & 6: 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. Under the potential disqualifying conditions described in AG ¶ 7, the following conditions could raise a security concern and may be disqualifying in this case: (a) contact with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion; and (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. Applicant has a daughter who is a U.S. citizen by birth. His wife is a resident and naturalized U.S. citizen, who was raised in the United States. Thus, no security concern is raised by these family members. Applicant’s mother and three sisters are citizens and residents of Egypt. Applicant maintains a normal, familial relationship with his mother and a more limited familial relationship with his sisters. He talks with his mother by telephone regularly and his sisters occasionally. After becoming a U.S. citizen, he visited his mother regularly. Sometimes he saw all his sisters during his visits, but not always. His work assignment changed in 2006. After the Department of State opened a training center in Cairo, Egypt, his company selected him to conduct training programs at this site. He travels three times a year to Cairo, Egypt, on business. While in Cairo, Egypt, his visits his ailing and elderly mother. He complies with all requirements of the U.S. government when he enters Egypt, and when he leaves Cairo to visit his mother. Again, he may or may not see one or all his sisters during these visits because of their Under the old adjudicative guidelines, a disqualifying condition based on foreign family members could not16 be mitigated unless an applicant could establish that the family members were not in a position to be exploited. The Appeal Board consistently applied this mitigating condition narrowly, holding that its underlying premise was that an applicant should not be placed in a position where he is forced to make a choice between the interest of the family member and the interest of the United States. (See ISCR Case No. 03-17620, (App. Bd, Apr. 17, 2006); ISCR Case No. 03-24933, (App. Bd. Jul. 28, 2005); ISCR Case No. 03-02382, (App. Bd. Feb. 15, 2005); and ISCR Case No. 03-15205, (App. Bd. Jan. 21. 2005)). Thus, an administrative judge was not permitted to apply a balancing test to assess the extent of the security risk. 9 schedules. He does provide financial support to his mother each month and purchased a home for her seven or eight years ago. Applicant remains close friends with a childhood friend. They talk with each other about five times a year. Applicant occasionally visits with his friend when he is in Egypt. His family relationships and one friendship are not per se a reason to deny Applicant a security clearance, but his contacts with family members and his close friend must be considered in deciding whether to grant Applicant a clearance. The government must establish that these family relationships and friendship create a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion or would create a potential conflict of interest between his obligations to protect sensitive information and his desire to help his family members and friend. In determining if a heightened risk exists, I must look at Applicant’s relationship and contacts with family members and his longtime friend as well as the activities of the government of Egypt and terrorist organizations within this country. See ISCR Case No. 07-05809 (App. Bd. May 27, 2008). The risk that an applicant could be targeted for manipulation or induced into compromising classified information is real, not theoretical. Applicant’s relationship and contacts with his mother, sisters, and friend in Egypt raises a heightened risk of security concerns because of the possible activities of terrorist organizations in Egypt. The information of record fails to show that the Egyptian government engages in espionage activities in the United States or that it targets U.S. citizens in the United States or Egypt by exploiting, manipulating, pressuring, or coercing them to obtain protected information. Under the new guidelines, potentially conflicting loyalties may be weighed to determine if an applicant can be expected to resolve any conflict in favor of U.S. interests. In determining if Applicant’s contacts in Egypt cause security concerns, I16 considered that Egypt and the United States have a close relationship and that Egypt is cooperating with the United States in the fight against terrorism, including taking action against financiers of terror in its country. There is no evidence that the Egyptian government targets U.S. citizens for protected information. Human rights issues in Egypt continue to be a concern. The terrorist organizations, not the Egyptian government, may target U.S. citizens in Egypt. While none of these considerations by themselves dispose of the issue, they are all factors to be considered in determining Applicant’s vulnerability to pressure or coercion because of his family members and longtime friend in Egypt. Because of the activities of terrorist organizations in Egypt, Applicant’s trips to Egypt and contacts with his family and friend in Egypt raise a concern about heightened under AG ¶¶ 7(a) and (b). 10 In deciding if Applicant has established mitigation under AG ¶ 8(a), I must consider whether: 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. and under AG ¶ 8(b), I must consider whether Applicant has established: there is no conflict of interest, either because the individual's sense of loyalty or obligation to the foreign person, group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the U.S., that the individual can be expected to resolve any conflict of interest in favor of the U.S. interests. Applicant’s normal relationship with his family members and friend is not a basis to deny him a security clearance; however, his burden of proof on mitigation requires more than statements about the limited scope of his conversations with his mother, three sisters, and friend. See ISCR Case No. 07-02485 (App. Bd. May 9, 2008). Because the Egyptian government funds schools, Applicant’s one sister works, at least indirectly, for the Egyptian government. However, his sisters, as well as his mother, have never held a political position and neither does his friend. Applicant’s family and his friend have not been targeted by the Egyptian government. His family members and friend have never been imprisoned nor is there any evidence that his family members in Egypt have suffered any abuses from the Egyptian government. His closest family members, his wife and daughter, are residents of the United States. He no longer owns any property in Egypt, having sold the house he owned, and keeps no financial assets in Egypt. His longtime friend works for a large U.S. company. Balancing these factors as well as Egypt’s cooperation in counterterrorism, and the lack of evidence that the Egyptian government targets U.S. citizens for protected information against Egypt’s poor human rights record, I find that Applicant would resolve any conflict in favor of U.S. interests. Likewise, any threats by terrorist organizations against Applicant’s family and friend in Egypt would be resolved in favor of U.S. interests. His loyalties are to the United States, not Egypt. Applicant has mitigated the government’s security concerns as to his family contacts under AG ¶¶ 8(a) and 8(b). 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 an applicant’s conduct and all relevant 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 11 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 commonsense judgment based upon careful consideration of the guidelines and the whole person concept. The decision to grant or deny a security clearance requires a careful weighing of all relevant factors, both favorable and unfavorable. In so doing, an administrative judge must review all the evidence of record, not a single item in isolation, to determine if a security concern is established and then whether it is mitigated. A determination of an applicant’s eligibility for a security clearance should not be made as punishment for specific past conduct, but on a reasonable and careful evaluation of all the evidence of record to decide if a nexus exists between established facts and a legitimate security concern. The evidence in support of granting a security clearance to applicant under the whole person concept is more substantial than the evidence in support of a denial. In reaching a conclusion, I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. Applicant spent the first half of his life in Egypt, where he was born and raised. Since emigrating to the United States more than 25 years ago, he has maintained close contact with his mother, visiting her at least once a year. He also maintains regular contact with his sisters and a childhood friend. However, his closest family members are his wife and daughter, who are U.S. citizens and residents. His loyalties are to the United States and his family in the United States. He is trusted by the Department of State to work in Egypt, and he has never done anything to betray this trust. He helps support his mother with a small amount of money each month. This money does not reflect a preference for Egypt, but rather an effort by Applicant to assure that his mother has money for food and other basic life necessities. Applicant has been in the United States for over 25 years, and has developed a life in the United States. Although he visits his mother regularly, his life, his work, his home, and most important family members are in the United States. In balancing all these factors and the close relationship between Egypt and the U.S. against possible terrorist actions against his family members and friend in Egypt, I find that Applicant would act in the best interests of the United States. He readily gave up his Egyptian citizenship and passport when he learned that the possession of both negatively impacted his ability to hold a security clearance. This action supports my conclusion that he would put U.S. interests first. Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the security concerns arising under the guidelines for foreign preference and foreign influence. 12 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 C: FOR APPLICANT Subparagraph 1.a: For Applicant Subparagraph 1.b: For Applicant Subparagraph 1.c: For Applicant Paragraph 2, Guideline B: FOR APPLICANT Subparagraph 2.a: For Applicant Subparagraph 2.b: For Applicant Subparagraph 2.c: For Applicant Subparagraph 2.d: For Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted. MARY E. HENRY Administrative Judge