The Applicant testified credibly at the hearing and did not appear deceptive on any
issues of concern. Accordingly, I find for the Applicant under this guideline.
A letter of recommendation from the Applicant's supervisor indicates that the
Applicant is an experienced, qualified, responsible engineer capable of resolving
technical issues and problems. He brings new ideas and has received commendations
for his work. (Applicant's Post-Hearing Exhibit 1.)
A letter from the Applicant's nephew, who served in the United States Marine
Corps until he was honorably discharged as a corporal in 2009, indicates that his uncle
is an honorable person who shares his same commitment to the country and its values.
(Applicant's Post-Hearing Exhibit 2.)
The Applicant has received a number of awards, certificates of achievement and
commendations and patents for his work product. (Applicant's Post-Hearing Exhibits 3,
4,5,6,7,8,9,10 and 11.)
I have taken official notice of the following facts concerning the country of Israel.
Israel is a parliamentary democracy whose prime minister is head the government and
exercises executive power. The United States and Israel have a close friendship based
on common democratic values, religious affinities, and security interests. However,
there are differences on some issues. The United States is concerned, inter alia, with
Israeli military sales, inadequate Israeli protection of U.S. intellectual property, and
espionage-related cases. The United States and Israel have regularly discussed
Israel's sale of sensitive security equipment and technology to various countries,
especially China. Israel reportedly is China's second major arms supplier, after Russia.
The National Counterintelligence Center's 2000 Report to Congress on Foreign
Economic Collection and Industrial Espionage lists Israel as an active collector of
proprietary information. The 2005 Report to Congress from the National
Counterintelligence Executive, released in 2006, states that the major collectors have
been repeatedly identified as targeting multiple U.S. Government organizations since at
least 1997. And, over the last several years this threat has not abated as economic
espionage cases went up. Furthermore, Israeli military officers have been implicated in
this type of technology collection in the United States. The Pollard case in 1985, and
other subsequent cases involving the illegal export or attempted illegal export of U.S.
restricted dual use technology to Israel, continues to be a threat to the national security.
POLICIES
Security clearance decisions are not made in a vacuum. Accordingly, the
Department of Defense, in Enclosure 2 of the 1992 Directive sets forth policy factors
and conditions that could raise or mitigate a security concern; which must be given
binding consideration in making security clearance determinations. These factors
should be followed in every case according to the pertinent criterion. However, the
conditions are neither automatically determinative of the decision in any case, nor can
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they supersede the Administrative Judge's reliance on her own common sense.
Because each security clearance case presents its own unique facts and
circumstances, it cannot be assumed that these factors exhaust the realm of human
experience, or apply equally in every case. Based on the Findings of Fact set forth
above, the factors most applicable to the evaluation of this case are: -
Foreign Preference
9. The Concern. 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.
Conditions that could raise a security ~oncern:
10. (c) performing or attempting to perform duties, or otherwise acting, so as to
serve the interest of a foreign person, group, organization, or government in conflict with
the national security interest; -
10. (d) 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.
Conditions that could mitigate security concerns:
None.
Guideline E (Personal Conduct)
15. The Concern. 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. .
Conditions that could raise a security concern:
16. (a) The deliberate omission, concealment, or falsification of relevant and
material 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;
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.
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Conditions that could mitigate security concerns:
None.
In addition, as set forth in Enclosure 2 of the Directive at pages 18-19, in
evaluating the relevance of an individual's conduct, the Administrative Judge should
consider the following general factors: ,.
a. The nature, extent, and seriousnes~ of the conduct;
b. The circumstances surrounding the conduct, to include knowledgeable
participation;
c. The frequency and recency of the conduct;
d. The individual's ag~ and maturity at the time of the conduct;
e. The extent to which participation is voluntary;
f. The presence or absence of rehabilitation and other permanent behavior
changes;
g. The motivation for the conduct;
h. The potential for pressure, coercion, exploitation or duress; and
i. The likelihood of continuation or recurrence.
The eligibility criteria established in the 000 Directive identify personal
characteristics and conduct which are reasonably related. to the ultimate question,
posed in Section 2 of Executive Order 10865, of whether it is "clearly consistent with the
national interest" to grant an Applicant's request for access to classified information.
The 000 Directive states, "The adjudicative process is an examination of a
sufficient period of a person's life to make an affirmative determination that the person is
eligible for a security clearance. Eligibility for access to classified information is
predicated upon the individual meeting these personnel security guidelines. The
adjudicative process is the careful weighing of a number of variables known as the
whole-person concept. Available, reliable information about the person, past and
present, favorable and unfavorable should be considered in reaching a determination."
The Administrative Judge can draw only those inferences or conclusions that have
reasonable and logical basis in the evidence of record. The Judge cannot draw
inferences or conclusions based on evidence which is speculative or conjectural in
nature. Finally, as emphasized by President Eisenhower in Executive Order 10865,
"Any determination under this order ... shall be a determination in terms of the national
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interest and shall in no sense be a determination as to the loyalty of the Applicant
concerned."
The Government must make out a case under Guideline C (Foreign Preference)
and Guideline E (Personal Conduct) that establishes doubt about a person's judgment,
reliability and trustworthiness. While a rational connection, or nexus, must be shown
between Applicant's adverse conduct and his ability to effectively safeguard classified
information, with respect to sufficiency of proof of a rational connection, objective or
direct evidence is not required.
Then, the Applicant must remove that doubt with substantial evidence in
refutation, explanation, mitigation or extenuation that demonstrates that the past
adverse conduct is unlikely to be repeated, and that the Applicant presently qualifies for
a security clearance.
An individual who demonstrates a foreign preference and has made false
statements may be prone to provide information or make decisions that are harmful to
the interests of the United States. The Government must be able to place a high
degree of confidence in a security clearance holder to abide by all security rules and
regulations, at all times and in all places.
CONCLUSIONS
Having considered the evidence of record in light of the appropriate legal
standards and factors, and having assessed the Applicant's credibility based on the
record, this Administrative Judge concludes that the Government has established its
case as to all allegations in the SOR.
The evidence shows that the Applicant has strong foreign ties to the country of
Israel and its people. His statements and actions show his attachment to Israel, that he
relates closely with Israel, and that he has warm feelings for the Israeli people. Posed
with a hypothetical, he is unable to unequivocally state that he could bear arms for the
United States against Israel if it were necessary. In that situation, he would be torn
between the two. Other indications of his strong preference for Israel are apparent by
his efforts to volunteer to help the country as well as his financial donations. He has
volunteered in Israel to support their military and has supported charitable organizations
that assist their people and their country. Given these facts, there is cause for concern
in this case.
Under Foreign Preference, Disqualifying Conditions 1O(c) performing or
attempting to perform duties, or otherwise acting, so as to serve the interest of a foreign
person, group, organization, orgovernment in conflict with the national security interest,
and 10.(d) 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;
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renunciation of United States citizenship applies. None of the mitigating conditions are
applicable. Therefore, there is an indication of foreign preference that exists that could
create the potential for conduct resulting in the compromise of classified information.
Thus, I find that the Applicant is vulnerable to foreign preference. Accordingly, I find
against the Applicant under Guideline C (Foreign Preference).
Under Personal Conduct, none of the disqualifying conditions apply since it
cannot be determined with any real certainty whether the Applicant was simply naive
and did not know the true extent of his involvement with "Volunteers for Israel", or
whether he in fact knew and simply concealed the information from the Government.
The Applicant testified credibly at the hearing that he did not know that the organization
was associated with the Israeli government or the military, and I will give him the benefit
of the doubt. Accordingly, I find for the Applicant under Guideline E (Personal Conduct).
Furthermore, there is insufficient evidence in support of mitigation under the
whole person analysis. I have considered the "whole person concept" in evaluating the
Applicant's eligibility for access to classified information. Under the particular facts of
this case, the totality of the conduct set forth under all of the guidelines viewed as a
whole, support a whole person assessment of poor judgement, untrustworthiness,
unreliability, a lack a candor, an unwillingness to comply with rules and regulations,
and/or other characteristics indicating that the person may not properly safeguard
classified information.
Considering all the evidence, the Applicant has not met the mitigating conditions
of Guideline C of the adjudicative guidelines set forth in Enclosure 2 of the Directive.
Accordingly, he has failed to meet his ultimate burden of persuasion under Guideline C.
FORMAL FINDINGS
Formal Findings For or Against the Applicant on the allegations in the SOR, as
required by Paragraph 25 of Enclosure 3 of the Directive are:
Paragraph 1: Against the Applicant.
Subpara. 1.a.: Against the Applicant
Subpara. 1.b.: Against the Applicant
Paragraph 2: For the Applicant.
Subpara. 2.a.: For the Applicant
Subpara. 2.b.: For the Applicant
Subpara. 2.c.: For the Applicant
Subpara. 2.d.: For the Applicant
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" DECISION
In light of the circumstances presented by the record in this case, it is not clearly
consistent with the national interests to grant or continue. a security clearance for the
Applicant. .
Darlene Lokey Anders()J:J
Administrative Judge
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