1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ------------------------ ) ISCR Case No. 09-02630 ) ) Applicant for Security Clearance ) Appearances For Government: Gina Marine, Esquire, Department Counsel For Applicant: Alan V. Edmunds, Esquire ______________ Decision ______________ GALES, Robert Robinson, Administrative Judge: Applicant mitigated the security concerns regarding personal conduct, foreign influence, and foreign preference. Eligibility for a security clearance and access to classified information is granted. Statement of the Case On November 24, 2008, Applicant applied for a security clearance and submitted an Electronic Questionnaire for Investigations Processing (e-QIP) version of a Security Clearance Application (SF 86).1 On July 15, 2009, the Defense Office of Hearings and Appeals (DOHA) furnished him a set of interrogatories. He responded to the interrogatories on October 1, 2009.2 On November 6, 2009, DOHA issued a Statement of Reasons (SOR) to him, pursuant to Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended and modified; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review 1 Government Exhibit 1 (SF 86, dated November 24, 2008). 2 Government Exhibit 2 (Applicant’s Answers to Interrogatories, dated October 1, 2009). 2 Program (January 2, 1992), as amended and modified (Directive); and Adjudicative Guidelines for Determining Eligibility For Access to Classified Information (effective within the Department of Defense on September 1, 2006) (AG) for all adjudications and other determinations made under the Directive. The SOR alleged security concerns under Guideline E (Personal Conduct), Guideline B (Foreign Influence), and Guideline C (Foreign Preference), and detailed reasons why DOHA could not make a preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. The SOR recommended referral to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked. Applicant acknowledged receipt of the SOR on December 12, 2009. In a sworn statement, dated December 30, 2009, Applicant responded to the SOR allegations and requested a hearing before an administrative judge. Department Counsel indicated the Government was prepared to proceed on November 30, 2010, and the case was assigned to me on February 1, 2011.3 A Notice of Hearing was issued on April 4, 2011, and I convened the hearing, as scheduled, on April 12, 2011. During the hearing, 2 Government exhibits (GE 1-2) and 12 Applicant exhibits (AE A-D, and F-N) were admitted into evidence, without objection or over objection.4 There was no AE J. Applicant and one other witness testified. The hearing transcript (Tr.) was received on April 27, 2011. The record was kept open to enable Applicant to supplement it. Applicant submitted nine additional exhibits (AE O-W) which were admitted into evidence, without objection or over objection.5 The parties submitted written closing arguments. Rulings on Procedure At the commencement of the hearing, Department Counsel requested that I take administrative notice of certain enumerated facts pertaining to the Syrian Arab Republic (Syria) and the State of Kuwait (Kuwait), appearing in 20 written submissions (13 pertaining to Syria and 5 pertaining to Kuwait).6 Facts are proper for administrative notice when they are easily verifiable by an authorized source and relevant and material to the case. In this instance, the Government relied on source information regarding 3 During the period between the issuance of the SOR and the assignment of the case to me, Applicant has been working in Kuwait and Afghanistan. 4 Department Counsel objected to Applicant Exhibits E (Drug test result) and I (Statement of intent) for identification on the grounds of relevance. Upon the Department Counsel’s expression of disinterest in Applicant’s past drug involvement, Applicant withdrew AE E for identification, and it was returned to him. I overruled the objection to AE I for identification, and it was admitted as AE I. See Tr. at 26-30. 5 Department Counsel objected to Applicant Exhibits S (State identification card), T (Registered purchase of real estate), and U (Certificate of birth) for identification on the grounds that they were in Portuguese and had not been translated into English. I overruled the objections. 6 Amended Administrative Notice (Syria), dated April 4, 2011; Amended Administrative Notice (Kuwait), dated April 5, 2011. 3 it subsections. Syria and Kuwait in publications of The White House,7 and the U.S. Department of State.8 Department Counsel objected to my taking administrative notice of any facts other than those specifically enumerated by her in the two amended administrative notices.9 She indicated that if I refused to limit the scope of the administrative notice to those enumerated facts, she would reserve the right to offer the documents as government exhibits.10 I initially withheld my ruling until Applicant made his presentation, and was prepared to rule until Applicant’s attorney objected based on the fact that he had not had an opportunity to review the documents. The documents had been shipped to the attorney’s out-of-state office earlier in the week, had been redirected to him at the hearing location, and had not yet arrived. I withheld my ruling pending receipt of written final arguments. After weighing the reliability of the source documentation and assessing the relevancy and materiality of the facts proposed by the Government, pursuant to Rule 201, Federal Rules of Evidence, I take administrative notice of certain facts,11 as set forth below under the Syria and Kuwa 7 The White House, Office of the Press Secretary, Press Release, Statement by the Press Secretary on Violence in Syria, dated March 24, 2011; Exec. Or. 13338, Blocking Property of Certain Persons and Prohibiting the Export of Certain Goods to Syria, dated May 11, 2004; Exec. Or. 13399, Blocking Property of Additional Persons in Connection With the National Emergency With Respect to Syria, dated April 25, 2006; Exec. Or. 13460, Blocking Property of Additional Persons in Connection With the National Emergency With Respect to Syria, dated February 13, 2008; Exec. Notice, Continuation of the National Emergency Blocking Property of Certain Persons and Prohibiting the Export of Certain Goods to Syria, dated May 7, 2008; Exec. Notice, Continuation of the National Emergency with Respect to the Actions of the Government of Syria, dated May 7, 2009; and Exec. Notice, Continuation of the National Emergency With Respect To the Actions of the Government of Syria, dated May 3, 2010. 8 U.S. Department of State, Bureau of Near Eastern Affairs, Background Note: Syria, dated March 18, 2011; U.S. Department of State, Bureau of Near Eastern Affairs, Background Note: Kuwait, dated March 7, 2011; U.S. Department of State, Bureau of Democracy, Human Rights, and Labor, 2009 Country Reports on Human Rights Practices: Syria, dated March 11, 2010; U.S. Department of State, Bureau of Democracy, Human Rights, and Labor, 2009 Country Reports on Human Rights Practices: Kuwait, dated March 11, 2010; U.S. Department of State, Bureau of Democracy, Human Rights, and Labor, International Religious Freedom Report 2010, dated November 17, 2010; U.S. Department of State, Office of the Coordinator for Counterterrorism, Country Reports: Middle East and North Africa Overview, Country Reports on Terrorism 2009, dated August 5, 2010; U.S. Department of State, Office of the Coordinator for Counterterrorism, State Sponsors of Terrorism, Country Reports on Terrorism 2009, dated August 5, 2010; U.S. Department of State, Office of the Coordinator for Counterterrorism, State Sponsors of Terrorism, undated; U.S. Department of State, Country Specific Information: Syria, dated September 9, 2010; U.S. Department of State, Country Specific Information: Kuwait, dated June 10, 2010; and U.S. Department of State, Bureau of Consular Affairs, Travel Warning: Syria, dated April 3, 2011. 9 Tr. at 12-13, 124-126. 10 Id. at 12-14. 11 Administrative or official notice is the appropriate type of notice used for administrative proceedings. See McLeod v. Immigration and Naturalization Service, 802 F.2d 89, 93 n.4 (3d Cir. 1986); ISCR Case No. 05-11292 at 4 n.1 (App. Bd. Apr. 12, 2007); ISCR Case No. 02-24875 at 2 (App. Bd. Oct. 12, 2006) (citing ISCR Case No. 02-18668 at 3 (App. Bd. Feb. 10, 2004)). The most common basis for administrative notice at ISCR proceedings, is to notice facts that are either well known or from government reports. See Stein, Administrative Law, Section 25.01 (Bender & Co. 2006) (listing fifteen types of facts for administrative notice). Requests for administrative notice may utilize authoritative information or sources from the internet. See, e.g. Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (citing internet sources for numerous documents). Tr. at 36-37. 4 Findings of Fact In his Answer to the SOR, Applicant admitted nearly all of the factual allegations (¶¶ 1.a.(1) through 1.a.(7), 2.a. through 2(f), and 6.a. through 6(c) of the SOR.12 Those admissions are incorporated as findings of fact. He denied the remaining allegations (¶¶ 1.a., 1.b., and 6(d)). After a complete and thorough review of the evidence in the record, and upon due consideration of same, I make the following additional findings of fact: Applicant is a 52-year-old employee of a defense contractor, and he is seeking to obtain a secret security clearance. He has held an interim security clearance since 2004.13 A May 1976 high school graduate, Applicant attended college for 18 months, and after four years of marine training with the U.S. Coast Guard, was certified as a chief engineer.14 He has been an active reserve member of the U.S. Merchant Marine since December 1989.15 Over the years, Applicant has held several different positions with various employers. He served as a chief engineer aboard an offshore supply vessel from 1982 until 1989; an oiler aboard a fabrication barge and lay barge from 1989 until 1993; a chief engineer from 1993 until 1995; a chief engineer, port engineer, and vessel manager from 1998 until 1999; operations and vessel manager, as well as port engineer from 1999 until 2002; operations and maintenance supervisor of power production distribution from 2002 until 2003; and power generation fielding manager with his current employer since November 2004.16 During his professional career, Applicant has seen extensive service, totaling about 25 years, in a variety of overseas locations, including South America, West Africa, and the Middle East.17 Applicant has been married three times. He married his first wife in 1990 and they were divorced in 1995.18 He married his second wife in 1997, and they were divorced in 2003.19 He married his current wife, a citizen of Syria, in 2007.20 Applicant has three daughters. His oldest daughter, from his first wife, was born in the United States in 1990, is married, and resides in the United States. His middle daughter, from a previous relationship, was born in Brazil in 1999, and resides with her mother in 12 Although the SOR contained three alleged Guidelines, the third such Guideline was erroneously numbere 6 rather than 3. Government averred that Applicant had received his interim clearance in 2008; Applicant believed it was in 2004. Id. at 112-114. Government Exhibit 1, supra note 1, at 23-24. ant Exhibit K (Resume, undated); Id. at 11-15. Applicant Exhibit K at 1; Tr. at 115. Government Exhibit 2 (Subject Interview, dated June 5, 2008 and June 29, 2008), at 11. Government Exhibit1, supra note 1, at 17-18. Id. at 16-17. d 13 Tr. at 43, 67, 112. The 14 15 16 Applic 17 18 19 20 5 wait. the incidents referred to above. Brazil.21 His youngest daughter, with his current wife, was born in Kuwait in 2008, and resides with Applicant and his wife in Ku 22 Personal Conduct Over a 20-year period, between 1982 and 2002, Applicant was arrested and charged with various alcohol-related and drug-related offenses on a number of occasions. In December 1982, it was for driving under the influence (DUI) and improper lane change; in December 1984, it was for DUI and driving on a suspended or revoked driver’s license; in August 1987, it was for DUI; in July 1991, it was for public drunkenness, intimidation of a police officer, resisting arrest, and disorderly conduct; in November 1993, it was for possession of marijuana and domestic argument; in July 1997, it was for DUI and reckless driving; and in September 2002, it was for DUI.23 On November 24, 2008, when Applicant submitted his SF 86, he was required to respond to certain questions.24 The SOR alleges Applicant deliberately failed to disclose several aspects of his police record in Section 23 thereof. The SOR ¶ 1.a. refers to question 23.d. (Have you ever been charged with or convicted of any offense(s) related to alcohol or drugs?). Applicant answered “yes” to the question and listed three such incidents: a July 2004 (estimated) failure to stop for accident conviction, a January 1989 (estimated) DUI conviction, and a September 1982 (estimated) possession of marijuana conviction.25 Applicant certified that his responses were “true, complete, and correct” to the best of his knowledge and belief.26 They were not, for he had omitted five of The Government alleges that Applicant deliberately falsified his response by omitting the majority of the incidents. Applicant denies he deliberately falsified his response and contends he answered the question to the best of his ability,27 and attributes his failure to list every incident required by the question to an inability to recall each of the incidents because he did not have the information with him. The responses he provided were based on information he either had with him or based on what his 21 Applicant Exhibit Q (Certificate of Birth, dated July 14, 2004); Applicant Exhibit U (Certificate of Birth, dated De Applicant Exhibit O (Consular Report of Birth Abroad, dated February 2, 2009); Applicant Exhibit P (U.S. Passpor Government Exhibit 2 (Subject Interview), supra note 18, at 11-24; Answer to the SOR, dated December 30, 2009 Exhibit 1, supra note 1. 32. cember 13, 2001; Applicant Exhibit R (Brazilian Passport, issued January 10, 2007); Tr. at 40-41. 22 t, dated February 3, 2009). 23 . 24 Government 25 Id. at 31- 26 Id. at 1. 27 Tr. at 41. 6 re other incidents that were over 20 years earlier, he could not recall the specifics.31 stion as to the dates of first and last use, he responded “unknown first, 30 yrs – last.”34 of those tests.38 It remains unclear as to when the andom drug tests commenced. mother found when searching his records at her home in the United States.28 He had the paid ticket for the 2004 traffic violation for failure to stop with him in Kuwait.29 He called his mother to ask her to search his records in an effort to locate any other paid fines or tickets, and she responded with the information he eventually reported.30 While he believed there we One of the questions in the interrogatories issued to Applicant in June 2009 referred to drug use: (Have you ever used any narcotic, stimulant, hallucinogen (to include LSD or PCP) and/or any Cannabis (to include marijuana and hashish), except prescribed by a licensed physician?)32 On October 1, 2009, Applicant answered “yes, pot” to the question.33 In response to a secondary que The Government alleges that Applicant deliberately falsified his response by concealing his most recent use of marijuana which purportedly occurred in 1999 or 2000. Applicant denies he deliberately falsified his response and contends he answered the question to the best of his ability,35 and he did not recall any more recent marijuana use.36 He had previously estimated to an investigator of the U.S. Department of State, Bureau of Diplomatic Security (BDS), that he had used marijuana from the time he was 15 years old until he reached 41 or 42 years of age.37 If his calculations were accurate, he had been using marijuana until about 1999 or 2000, as alleged. It should be noted that Applicant’s employer administers random drug tests and there is no evidence that he ever came up positive in any r 28 Id. at 74. 29 Id. 30 Id. 74-76. 31 Id. at 75-79. 32 Question 1, Interrogatory Concerning Drug Use, Government Exhibit 2, supra note 2, at 8. 33 Id. 34 Id. The number “30” appears to have been a correction of the number “20” as it has been written over. 35 Tr. at 41. 36 Id. at 42. 37 Government Exhibit 2 (Subject Interview), supra note 18, at 19. 38 Question 4, Interrogatory concerning Lifestyle Changes, Government Exhibit 2, supra note 2, at 10. 7 Foreign Influence39 Applicant’s parents are native-born U.S. citizens residing in the United States.40 His brother and two sisters are native-born U.S. citizens residing in the United States.41 His mother-in-law, a homemaker, and his father-in-law, a retired school teacher, are native-born citizen-residents of Syria.42 Neither of them speaks English.43 Applicant’s wife also has one brother and five sisters. They are all Syrian citizens. Four sisters reside in Syria. The remaining sister and the brother reside in Kuwait.44 The brother and three sisters are teachers, one sister is a civil engineer, and the youngest sister is a student.45 Applicant’s wife’s family is well known in their home town.46 While neither parent nor any sibling has ever had any “affiliation” with the Syrian government, armed forces, security service, police, ministry of foreign affairs, or intelligence service,47 considering the nature of the society, as teachers, the siblings have “worked” for the government.48 When Applicant applied for his initial visa to visit Syria, his father-in-law was visited one time by Syrian authorities, but no other follow-up visits occurred, and Applicant was never contacted by them.49 The frequency of Applicant’s on-going contacts with the members of his wife’s family is varied. He generally speaks with his wife’s sisters who still reside in Syria about once each month.50 He speaks with the two siblings who reside in Kuwait on a more frequent basis, estimated to be up to three times per week.51 Syria Syria is ruled by a ruthless authoritarian regime whose security forces continue to brutally repress, monitor internal dissent, arbitrarily arrest, torture, physically abuse, and 39 Some details have not been included in order to protect Applicant’s right to privacy. Specific information is available in the cited exhibits. 40 Government Exhibit 1, supra note 1, at 19-20. 41 Id.20-22. 42 Id. at 22-23; Government Exhibit 2 (Subject Interview), supra note 18, at 12. 43 Tr. at 45-46. 44 Government Exhibit 2 (Subject Interview), supra note 18, at 12; Tr. at 46. 45 Government Exhibit 2, at 12. 46 Id. 47 Id. at 14. 48 Tr. at 89-90, 95. 49 Government Exhibit 2 (Subject Interview), supra note 18, at 14. 50 Tr. at 47-48. 51 Id. at 46. 8 kill its own citizens. The Syrian Government conducts intense physical and electronic surveillance of both Syrian citizens and foreign visitors. There is an increase in anti- foreigner sentiment, and a travel warning urging U.S. citizens to defer non-essential travel to Syria was issued by the U.S. Department of State as recently as April 3, 2011. Syria has been designated by the U.S. Department of State as a State Sponsor of Terrorism since 1979. Syria provides safe-haven as well as political and other support to a number of Palestinian terrorist groups, including Hezbollah, Hamas, and Palestinian Islamic Jihad, who are headquartered or sheltered in Syria. Syria permits these terrorist groups to trans-ship foreign fighters and weapons in and out of the country for use in neighboring countries, including Israel, Lebanon, and Iraq. Syria maintains close ties with Iran, its strategic ally and fellow state sponsor of terrorism. President Bush determined that Syria’s actions constituted an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States, and in 2004, declared a national emergency to deal with the threat. The national emergency currently remains in effect, and executive orders have been promulgated to prohibit the exportation of certain goods to Syria and block the shipment of property of certain persons to Syria. Department Counsel has not argued, and there is no evidence, that Syria is an active participant in economic espionage, industrial espionage or trade secret theft, or violations of export-control regulations. Kuwait Kuwait is a small oil-rich constitutional hereditary emirate which gained independence from the United Kingdom in 1961. The government has sponsored many social welfare, public works, and development plans for Kuwaiti citizens financed with oil and investment revenues. Among the benefits are retirement income, marriage bonuses, housing loans, virtually guaranteed employment, free medical services, and education at all levels. While there are some limits on various freedoms, including speech, press, religion, etc., there have been no reports that the government or its agents have committed arbitrary or unlawful killings, and there have been no reports of politically motivated arrests or disappearances. There are laws against blasphemy, apostasy, and proselytizing, which are actively enforced. In 1990, after the invasion and occupation of Kuwait by Iraq, the United States, along with a multinational coalition under United Nations auspices, liberated Kuwait. Since the Gulf War, Kuwait publicly announced the abandonment of various aspects of the Arab boycott of Israel. The United States is currently the largest supplier of goods and services to Kuwait. Kuwait is an important partner in U.S. counterterrorism efforts, providing assistance in the military, diplomatic, and intelligence arenas and also supporting efforts to block financing of terrorist groups. There is no evidence of a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion on Applicant because of his presence or the presence of his wife and her siblings in Kuwait. While the risk of a terrorist attack in Kuwait remains high, the U.S. Department of State has advised U.S. citizens in Kuwait to take the same security precautions in Kuwait that one would practice in the United 9 ertaining to Brazil. States or any other large city abroad. There is no evidence that Kuwait is an active participant in economic espionage, industrial espionage or trade secret theft, or violations of export-control regulations. Foreign Preference Applicant’s employment as a contractor with a U.S. company operating in Brazil initially took him to Brazil where he remained for eight years until he transferred to Iraq in May 2004.52 While residing in Brazil, Applicant established a romantic relationship with a Brazilian woman and she eventually gave birth to Applicant’s daughter in 1999.53 He subsequently purchased a residence in Brazil for the child and her mother, putting the mother’s name on the title.54 He maintains a legal rental agreement with the mother to enable him to claim Brazilian residency.55 He also claims that Brazilian residency on his U.S. federal income tax returns.56 Applicant sends the mother approximately $500 each month for child support,57 and he maintains a friendly, but platonic, relationship with her.58 Applicant initially obtained permanent resident status in Brazil because he was working there as a contractor.59 After the birth of his daughter, he retained that status for his convenience so he could visit his daughter without the necessity of obtaining a visa each time he visited her.60 He generally visits his daughter in Brazil two times per year, and has done so for at least four years.61 In June 2008, Applicant indicated he intended to retain his permanent resident status in Brazil in order to purchase a farm there as an investment and retirement property.62 He intends to renew his Brazilian residency status in 2012 to maintain his relationship with his daughter.63 In April 2011, as circumstances have changed with his marriage and the birth of his youngest daughter, Applicant modified his intentions p 52 Id. at 51; Government Exhibit 1, supra note 1, at 13-15. 53 Applicant Exhibit Q, supra note 21; Applicant Exhibit U, supra note 21; Applicant Exhibit R, supra note 21. 54 Government Exhibit 2 (Subject Interview), supra note 18, at 13; Applicant Exhibit T, supra note 5. 55 Government Exhibit 2, at 14. But see Tr. at 88, wherein Applicant denied that was the reason and stated that his position as his daughter’s father enabled him to claim residency. 56 Government Exhibit 2 (Subject Interview), at 14. 57 Id. at 13. 58 Id. 59 Id. 60 Id. 61 Id. at 14. 62 Id. 63 Tr. at 48-49, 52-53. 10 When his current contract in Kuwait expires, or if his application for a security clearance is denied, Applicant intends to move back to the United States with his wife and youngest daughter.64 Although he has no intentions of removing his middle daughter from her present Brazilian residence with her mother, he does intend to complete the process to secure U.S. citizenship for her.65 His daughter has indicated a desire to attend college in the United States, and if she does, Applicant intends to relinquish his Brazilian residency status.66 The mother and sister of the daughter’s mother already reside in the United States.67 Applicant has no interest in acquiring Brazilian citizenship.68 In order to become a Brazilian citizen, he would have to relinquish his U.S. citizenship and he is not willing to do so.69 He has no financial interests, such as real estate or bank accounts, in Brazil, although he had previously indicated that he did in response to an interrogatory question.70 He maintains two bank accounts in the United States, and pays his bills from one of those accounts.71 Applicant has about $2,000 to $3,000 in one of those accounts, and about $500 in an account in Kuwait.72 He does not hold any citizenship other than his U.S. citizenship,73 and votes in the United States by absentee ballot.74 Department Counsel has not argued, and there is no evidence, that Brazil is an active participant in economic espionage, industrial espionage or trade secret theft, or violations of export-control regulations. Work Performance and Character References Applicant’s performance evaluation for the year 2008 has his overall performance rated as “exceptional performance or excellent performance,” the two highest of five categories.75 The performance evaluation for the following year was “satisfactory 64 Id. at 63, 86. 65 Id. at 116; Government Exhibit 2 (Subject Interview), supra note 18, at 13. 66 Tr. at 49, 117. 67 Id. at 117; Government Exhibit 2 (Subject Interview), supra note 18, at 13. 68 Government Exhibit 2 (Subject Interview), at 13. 69 Id. 70 Tr. at 53; Id. at 15; Government Exhibit 2, supra note 2, at 26 (Question 32.c.). 71 Tr. at 118-120. 72 Id. at 119. 73 Government Exhibit 2 (Subject Interview), supra note 18, at 15. 74 Tr. at 120-121. 75 Applicant Exhibit F (Performance Document, undated). 11 performance,” but noted that Applicant had been on long term disability since July 26, 2009.76 Applicant explained that he had colon cancer and underwent surgery and 18 months of chemotherapy.77 As a result of his experience, Applicant no longer consumes alcohol.78 His supervisors, managers, coworkers, and friends are very supportive of Applicant’s application for a security clearance. Applicant has been characterized in the following terms: self-starter, most productive, versatile, very highly competent, sincere, reliable, dependable, disciplined, responsible, honest, and trustworthy, and possessing integrity.79 One life-long friend and periodic coworker characterized Applicant as very honest and trustworthy, and noted that he would trust Applicant with his life.80 In recognition of his efforts and performance in support of the various missions in the Southwest Asia Theater of Operations, Applicant has been presented with numerous certificates of appreciation and certificates of achievement,81 as well as several challenge coins by senior officers.82 Policies The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no one has a ‘right’ to a security clearance.”83 As Commander in Chief, the President has the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information. The President has authorized the Secretary of Defense or his designee to grant an applicant eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.”84 When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the AG. In addition to brief introductory explanations for each guideline, the AG list potentially disqualifying conditions and mitigating conditions, which are used in evaluating an applicant’s eligibility for access to classified information. 76 Applicant Exhibit G (Performance Document, undated). 77 Tr. at 56. 78 Id. 79 Applicant Exhibits A through D, M, and N (Character References, various dates). 80 Tr. at 37-39. 81 Applicant Exhibits L and V (Certificates, various dates). 82 Applicant Exhibit W (Challenge Coins, undated). 83 Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 84 Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended and modified. 12 An administrative judge need not view the guidelines as inflexible, ironclad rules of law. Instead, acknowledging 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. 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 meaningful decision. In the decision-making process, facts must be established by “substantial evidence.”85 The Government initially has the burden of producing evidence to establish a potentially disqualifying condition under the Directive, and it has the burden of establishing controverted facts alleged in the SOR. Once the Government has produced substantial evidence of a disqualifying condition, under Directive ¶ E3.1.15, the applicant has the burden of persuasion to present evidence in refutation, explanation, extenuation or mitigation, sufficient to overcome the doubts raised by the Government’s case. The burden of disproving a mitigating condition never shifts to the Government.86 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 as well. It is because of this special relationship that the Government must be able to repose a high degree of trust and confidence in those 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 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. Furthermore, “security clearance determinations should err, if they must, on the side of denials.”87 Clearance decisions must be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.”88 Thus, nothing in this decision should be construed to suggest that I have based this decision, in whole or in part, on any express or implied determination as to Applicant’s allegiance, loyalty, or patriotism. It is merely an indication the Applicant has or has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance. In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. 85 “Substantial evidence [is] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all contrary evidence in the record.” ISCR Case No. 04-11463 at 2 (App. Bd. Aug. 4, 2006) (citing Directive ¶ E3.1.32.1). “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). 86 See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). 87 Egan, 484 U.S. at 531 88 See Exec. Or. 10865 § 7. 13 Analysis Guideline E, Personal Conduct The security concern relating to the guideline for Personal Conduct is set out in AG ¶ 15: 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 guideline notes several conditions that could raise security concerns. Under AG ¶ 16(a), a “deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities,” is potentially disqualifying. Similarly, under AG ¶ 16(b), “deliberately providing false or misleading information concerning relevant facts to an employer, investigator, security official, competent medical authority, or other official government representative,” may raise security concerns. The Government has argued that Applicant’s omissions of critical information in his SF 86 pertaining to his police record and in his answers to the interrogatories pertaining to his substance abuse provide sufficient evidence of deliberate falsifications. One possible alternative which must be examined is that his actions were the result of simple oversight or negligence on his part. Pending further comments below, AG ¶¶ 16(a) and 16(b) tentatively apply. The guidelines also include examples of conditions that could mitigate security concerns arising from personal conduct. Under AG ¶ 17(a), evidence that “the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts” is potentially mitigating. Similarly, AG ¶ 17(c) may apply where “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.” Also, when “the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress,” AG ¶ 17(e) may apply. As noted above, the Government alleges that Applicant deliberately falsified his SF 86 response by omitting the majority of his alcohol-related and drug-related incidents. Applicant denies he deliberately falsified his response and contends he answered the question to the best of his ability, and attributes his failure to list every incident required by the question to an inability to recall each of the incidents because he did not have the information with him. His responses were based on the information he either had with him in Kuwait or based on what his mother found when searching his records in the United States. While he believed there were other incidents that were 14 over 20 years earlier, he could not recall the specifics. Department Counsel rebutted his assertions by claiming Applicant had been apprised of the details of the incidents during his June 2008 interviews, and Applicant’s assertions were not plausible. The Government also alleges that Applicant deliberately falsified his response to the interrogatory by concealing his most recent use of marijuana which purportedly occurred in 1999 or 2000. Applicant denies he deliberately falsified his response and contends he answered the question to the best of his ability, and he did not recall any more recent marijuana use. He had previously estimated to an investigator of the BDS that he had used marijuana until he reached 41 or 42 years of age. Applicant contends his response was in error. Applicant has worked overseas about 25 years, in a variety of overseas locations, including South America, West Africa, and the Middle East, and his records from the 1980s and 1990s have been stored in his mother’s home in the United States. As to the alleged falsification pertaining to the SF 86, his reliance on his mother’s efforts to locate relevant information covering that period is significant. While Applicant did not list each and every incident that was alcohol-related or drug-related, he did list two of the most serious offenses, a DUI and the possession of marijuana. The inclusion of the information regarding the sentence for drug possession signaled the seriousness of the offense: $10,000 fine and three years probation, an indication of significant punishment. The incidents all occurred between 6 and 26 years before the date he completed the SF 86. His poor memory, without supporting documentation, in that amount of time, supports his contentions. Department Counsel’s rebuttal that Applicant’s memory should have been refreshed by the review of all his prior police incidents is not dispositive for several reasons. First, the primary focus during the interviews were on Applicant’s relationships in Syria, Kuwait, and Brazil; second, there were many other non-alcohol-related and non-drug-related incidents discussed during the June 2008 interviews; and third, there is no evidence that Applicant was ever furnished a copy of his statements or police record (“rap sheet’) before he received the statement along with the interrogatory in July 2009. The evidence leads to the conclusion that clearly contradicts the Government’s contentions that Applicant’s SF 86 omission was a deliberate falsification or concealment of the facts pertaining to his police record. As to Applicant’s response to the interrogatory, he had previously estimated to the BDS investigator that he had used marijuana until he reached 41 or 42 years of age. Applicant contends his response was in error. Other than Applicant’s purported misstatement to the investigator, there is no evidence to support the conclusion that his response to the interrogatory was deliberate. There is, however, evidence that Applicant’s response was uncertain because he apparently changed the number on the document from 20 years to 30 years. The evidence leads to the conclusion that clearly contradicts the Government’s contentions that Applicant’s interrogatory response was a deliberate falsification or concealment of the facts pertaining to his drug use. 15 Furthermore, I find Applicant’s explanations are credible in his denial of deliberate falsification.89 AG ¶¶ 17(a), 17(c), and 17(e) apply. 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. The mere possession of close family ties with a person in a foreign country is not, as a matter of law, disqualifying under Guideline B. However, if only one relative lives in a foreign country, and an applicant has contacts with that relative, this factor alone is sufficient to create the potential for foreign influence and could potentially result in the compromise of classified information.90 Applicant’s relationship with his wife, her parents, and siblings, are current security concerns for the Government. The guideline notes several conditions that could raise security concerns. Under AG ¶ 7(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” is potentially disqualifying. Similarly, under AG ¶ 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” may raise security concerns. In addition, under AG ¶ 7(d), “sharing living 89 The Appeal Board has explained the process for analyzing falsification cases, stating: (a) when a falsification allegation is controverted, Department Counsel has the burden of proving falsification; (b) proof of an omission, standing alone, does not establish or prove an applicant’s intent or state of mind when the omission occurred; and (c) a Judge must consider the record evidence as a whole to determine whether there is direct or circumstantial evidence concerning the applicant’s intent or state of mind at the time the omission occurred. [Moreover], it was legally permissible for the Judge to conclude Department Counsel had established a prima facie case under Guideline E and the burden of persuasion had shifted to the applicant to present evidence to explain the omission. ISCR Case No. 03-10380 at 5 (App. Bd. Jan. 6, 2006) (citing ISCR Case No. 02-23133 (App. Bd. June 9, 2004)). 90 See ISCR Case No. 03-02382 at 5 (App. Bd. Feb. 15, 2006); ISCR Case No. 99-0424 at 12 (App. Bd. Feb. 8, 2001). 16 quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure, or coercion,” may raise security concerns. I find AG ¶¶ 7(a), 7(b), and 7(d) apply in this case. However, the security significance of these identified conditions requires further examination of Applicant’s respective relationships with those family members and extended family members who are either Syrian citizen-residents or Syrian citizen- Kuwaiti residents, to determine the degree of “heightened risk” or potential conflict of interest. The guideline also includes examples of conditions that could mitigate security concerns arising from foreign influence. Under AG ¶ 8(a), the disqualifying condition may be mitigated where “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.” Similarly, AG ¶ 8(b) may apply where the evidence shows “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. interest.” In addition, AG ¶ 8(c) may apply where “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.” In this instance, Applicant’s relationship with his wife, her parents and her siblings is neither casual nor infrequent. Accordingly, AG ¶ 8(c) does not apply. In assessing whether there is a heightened risk because of an applicant’s relatives or associates in a foreign country, it is necessary to consider all relevant factors, including the totality of an applicant’s conduct and circumstances, in light of any realistic potential for exploitation. One such factor is the potential for pressure, coercion, exploitation, or duress. In that regard, it is important to consider the character of the foreign power in question, including the government and entities controlled by the government within the relevant foreign country. Nothing in Guideline B suggests it is limited to countries that are hostile to the United States.91 In fact, the Appeal Board has cautioned against “reliance on overly simplistic distinctions between ‘friendly’ nations and ‘hostile’ nations when adjudicating cases under Guideline B.”92 Nevertheless, the relationship between a foreign government and the United States may be relevant in determining whether a foreign government or an entity it controls is likely to attempt to exploit a resident or citizen to take action against the United States. It is reasonable to presume that although a friendly relationship, or the existence of a democratic government, is not determinative, it may make it less likely 91 See ISCR Case No. 00-0317 at 6 (App. Bd. Mar. 29, 2002); ISCR Case No. 00-0489 at 12 (App. Bd. Jan. 10, 2002). 92 ISCR Case No. 00-0317 at 6 (App. Bd. Mar. 29, 2002). 17 that a foreign government would attempt to exploit a U.S. citizen through relatives or associates in that foreign country. As noted above, Syria, designated a state sponsor of terrorism, is ruled by a ruthless authoritarian regime whose security forces continue to brutally repress, monitor internal dissent, arbitrarily arrest, torture, physically abuse, and kill its own citizens. The Syrian Government conducts intense physical and electronic surveillance of both Syrian citizens and foreign visitors. There is an increase in anti-foreigner sentiment, and a travel warning urging U.S. citizens to defer non-essential travel to Syria was issued by the U.S. Department of State as recently as April 3, 2011. Syria’s involvement in terrorism internationally and repression of its citizens internally have been deemed to constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States. While Applicant’s wife’s parents and some siblings still reside in Syria, there may be speculation as to “some risk,” but that speculation, in the abstract, does not, without more, establish sufficient evidence of a “heightened risk” of foreign exploitation, inducement, manipulation, pressure, or coercion to disqualify Applicant from holding a security clearance. There is no evidence that his wife’s parents or siblings are, or have been, political activists, challenging the policies of the Syrian government; that terrorists have approached or threatened Applicant or her parents or siblings for any reason; that the Syrian government has approached Applicant; that his wife’s parents or siblings currently engage in activities that would bring attention to themselves; or that they are even aware of Applicant’s work. As such, there is a reduced possibility that they would be targets for coercion or exploitation by the Syrian government, which may seek to quiet those who speak out against it. It is true that one Syrian authority checked with Applicant’s father-in-law when Applicant initially applied for a visa to enter Syria, but since that initial inquiry, neither Applicant nor his father-in-law have been revisited. As to Applicant’s wife and her siblings who reside in Kuwait, there is even less of a risk. The Kuwaiti government has sponsored many social welfare, public works, and development plans for Kuwaiti citizens, including retirement income, marriage bonuses, housing loans, virtually guaranteed employment, free medical services, and education at all levels. There have been no reports that the government or its agents have committed arbitrary or unlawful killings, and there have been no reports of politically motivated arrests or disappearances. Kuwait is an important partner in U.S. counterterrorism efforts, and supports efforts to block financing of terrorist groups. While the risk of a terrorist attack in Kuwait remains high, the U.S. Department of State has advised U.S. citizens in Kuwait to take the same security precautions in Kuwait that one would practice in the United States or any other large city abroad. Nevertheless, there is no evidence of a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion on Applicant because of his presence or the presence of his wife and her siblings in Kuwait. Furthermore, there is no evidence that Kuwait is an active participant in economic espionage, industrial espionage or trade secret theft, or violations of export-control regulations. 18 Applicant is a native-born citizen of the United States who has worked overseas for U.S. contractors for 25 years, including periods of time in the combat zones in the Middle East. His parents, siblings, and one daughter reside in the United States. His wife and the youngest of his three children, a U.S. citizen, reside with him in Kuwait. One child resides in Brazil. Despite Department Counsel’s position that Applicant’s wife remains beholden to Syria, she remains the wife of an American citizen and resides in Kuwait, not in Syria. Applicant has met his burden of showing there is little likelihood that those relationships could create a risk for foreign influence of exploitation. Applicant is fully involved in his children’s lives and activities. He has such deep and longstanding relationships and loyalties in the United States that he can be expected to resolve any conflict of interest in favor of the U.S. interest. AG ¶¶ 7(a) and 7(b) apply. Guideline C, Foreign Preference The security concern relating to the guideline for Foreign Preference is set out in AG ¶ 9: When 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. The foreign preference guideline notes several conditions that could raise security concerns. Under AG ¶ 10(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” is potentially disqualifying. This includes but is not limited to: AG ¶ 10(a)(4), “residence in a foreign country to meet citizenship requirements;” and AG ¶ 10(a)(5), “using foreign citizenship to protect financial or business interests in another country.” Similarly, under AG ¶ 10(b) “action to acquire or obtain recognition of a foreign citizenship by an American citizen” may raise security concerns. Also, “any statement or action that shows allegiance to a country other than the United States: for example, declaration of intent to renounce United States citizenship; renunciation of United States citizenship,” is potentially disqualifying under AG ¶ 10(d). Department Counsel has argued the applicability of AG ¶¶ 10(a), 10(a)(4) and 10(a)(5), but the evidence fails to support her contentions. Applicant has no interest in acquiring Brazilian citizenship, for in order to become a Brazilian citizen, he would have to relinquish his U.S. citizenship, and he is not willing to do so. He has no financial interests, such as real estate or bank accounts, in Brazil, although he had previously erroneously indicated that he did when he responded to an interrogatory question. He maintains two bank accounts in the United States and one account in Kuwait. He does not hold any citizenship other than his U.S. citizenship. Furthermore, acquiring permanent resident status is not to be equated with acquiring a foreign citizenship. Additionally, simply working as a contractor outside of the United States, especially while serving with the U.S. Merchant Marine, in support of U.S. missions, regardless of 19 the length of time involved, is not an indication of a desire to renounce U.S. citizenship or acquire a foreign citizenship. AG ¶¶ 10(a), 10(a)(4), 10(a)(5), and 10(d) do not apply. 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 commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. There is some disqualifying evidence regarding Applicant’s situation. His wife’s parents and some of her siblings are citizen-residents of Syria, a state sponsor of terrorism, ruled by a ruthless authoritarian regime that brutally represses, monitors internal dissent, arbitrarily arrests, tortures, physically abuses, and kills its own citizens. Because of their status, there is some concern of a “heightened risk” of foreign exploitation, inducement, manipulation, pressure, or coercion. Applicant’s wife is a Syrian citizen residing in Kuwait. One daughter is a U.S. citizen residing in Kuwait and another daughter is a Brazilian citizen residing in Brazil. Applicant has held Brazilian permanent resident status for a number of years. The mitigating evidence is more substantial. Applicant is a native-born citizen of the United States who has parents, siblings, and one child in the United States; a Syrian wife and one child – a U.S. citizen – residing with him in Kuwait, where he works as a government contractor; and a child – currently a Brazilian citizen, but soon to be a U.S. citizen – residing in Brazil. He works in support of U.S. government missions in a volatile area of the Middle East. He does not pine for “the old country” because his country has always been the United States and his allegiance has always been to the United States. A Guideline B decision concerning Syria and Kuwait must take into consideration the geopolitical situation in those countries, as well as the potential dangers existing there. Kuwait and the United States have both been victims of Islamic terrorists. It is in Kuwait’s interests to maintain friendship with the U.S. to counterbalance international terrorism. It is very unlikely Kuwait would forcefully attempt to coerce Applicant through 20 his wife or her siblings residing in Kuwait. Furthermore, there is no evidence that Kuwait is an active participant in economic espionage, industrial espionage or trade secret theft, or violations of export-control regulations, there is no evidence that Applicant has been targeted. Syria is different, for it is a ruthless authoritarian regime. Nevertheless, there is no evidence that Applicant’s wife’s parents or siblings are, or have been, political activists, challenging the policies of the Syrian government; that terrorists have approached or threatened Applicant or her parents or siblings for any reason; that the Syrian government has approached Applicant; that his wife’s parents or siblings currently engage in activities that would bring attention to themselves; or that they are even aware of Applicant’s work. As such, there is a reduced possibility that they would be targets for coercion or exploitation by the Syrian government. Applicant has turned his life around and no longer consumes alcohol or uses marijuana. His devotion to his country, employer, and children is laudable. He is well respected by his friends and colleagues for his loyalty, honesty, integrity, and truthfulness. That he has chosen to serve his country overseas for over 25 years should not be considered a negative factor. (See AG && 2(a)(1) through 2(a)(9).) 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 from his personal conduct, foreign influence, and foreign preference concerns. 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: FOR APPLICANT Subparagraph 1.a(1): For Applicant Subparagraph 1.a(2): For Applicant Subparagraph 1.a(3): For Applicant Subparagraph 1.a(4): For Applicant Subparagraph 1.a(5): For Applicant Subparagraph 1.a(6): For Applicant Subparagraph 1.a(7): For Applicant Subparagraph 1.b: 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 Subparagraph 2.e: For Applicant Subparagraph 2.f: For Applicant 21 Paragraph 3, Guideline C: FOR APPLICANT Subparagraph 3.a: For Applicant Subparagraph 3.b: For Applicant Subparagraph 3.c: For Applicant Subparagraph 3.d: For Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is clearly consistent with national security to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted. ________________________ ROBERT ROBINSON GALES Administrative Judge