1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 11-00831 ) Applicant for Security Clearance ) Appearances For Government: Gregg A. Cervi, Esquire, Department Counsel For Applicant: Pro se ______________ Decision ______________ HENRY, Mary E., Administrative Judge: Based upon a review of the pleadings, exhibits, and testimony, Applicant’s eligibility for access to classified information is granted. Statement of the Case Applicant signed an Electronic Questionnaire for Investigations Processing (e- QIP) on August 1, 2010. The Defense Office of Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) on August 30, 2011, detailing security concerns under Guideline B, foreign influence, Guideline C, foreign preference, and Guideline E, personal conduct. 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 Adjudicative Guidelines For Determining Eligibility for Access to Classified Information (AG) implemented on 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). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 08-06605 at 3 (App. Bd. Feb. 4, 2010); ISCR Case No. 08-07290 at 2 (App. Bd. Nov. 17, 2009). 2 Applicant received the SOR on November 19, 2011, which he answered on the same day. Applicant requested a hearing before an administrative judge. DOHA received the request, and Department Counsel was prepared to proceed on February 6, 2012. I received the case assignment on February 9, 2012. DOHA issued a Notice of Hearing on February 22, 2012, and I convened the hearing as scheduled on March 6, 2012. The Government offered exhibits marked as GE 1 through GE 3, which were received and admitted into evidence without objection. Applicant testified. He submitted exhibits marked as AE A through AE M, which were received and admitted into evidence without objection. The record closed on March 6, 2012. DOHA received the hearing transcript (Tr.) on March 21, 2012. Procedural Rulings Notice Applicant received the hearing notice less than 15 days before the hearing. I advised Applicant of his right under ¶ E3.1.8 of the Directive to receive the notice 15 days before the hearing. Applicant affirmatively waived his right to the 15-day notice. (Tr. 9) Request for Administrative Notice Department Counsel submitted a formal request that I take administrative notice of certain facts relating to Jordan. The request was not admitted into evidence, but is included in the record as Hearing Exhibit (HE) 1. The facts administratively noticed will be limited to matters of general knowledge and matters not subject to reasonable dispute, and 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.b of the SOR. His admissions are incorporated herein as findings of fact. He denied the factual allegations in ¶¶ 1.a, 1.c, 2.a, and 3.a of the SOR. He also provided additional1 information to support his request for eligibility for a security clearance. After a complete and thorough review of the evidence of record, I make the following additional findings of fact. GE 1; Tr. 20, 53-55.2 GE 1; Tr. 53-55.3 GE 4; AE A; Tr. 20, 50.4 AE B - AE E; Tr. 20-21.5 AE M; Tr. 21-22, 48-496 GE 1; GE 2; Tr . 25, 31, 42, 46.7 3 Applicant, who is 45 years old, works as a merchant seaman for a Department of Defense contractor. He began working for his current employer in June 2008. Applicant has worked in the maritime industry for more than 20 years.2 Applicant was born in Israel. His parents are citizens and residents of Jordan. His father worked as a welder for a large oil company. His father worked in countries in the Middle East, including Kuwait and the United Arab Emirates, where Applicant grew up. Applicant graduated from high school in Kuwait in 1983 and from training to be a licensed seaman in 1987. 3 Applicant immigrated to the United States in 1988 and became a naturalized citizen in 1995. He married in 1991 and has two daughters, ages 13 and 4. His wife and daughters are U.S. citizens by birth and are not citizens of Jordan. They reside with him in the United States. His wife’s family resides in the United States. His wife’s niece resides with him, as her mother died in 2008. She is a high school senior and plans to start college this summer.4 When Applicant arrived in the United States, he learned that the United States Coast Guard did not recognize his foreign maritime license, but it did recognize his time at sea. In 1995, he took a seaman test required by the Coast Guard, which he passed. He has a valid seaman license from the Coast Guard. In 1996, he began his career in the Merchant Marines as a fireman. In 1999, he became a junior officer and obtained his third engineer license. He continued to improve his skills and regularly advance to second engineer, third engineer, and chief engineer.5 Applicant owns his home in the United States, which he purchased in 1998. He also owns a time share, some stock, and three older cars. His assets are in the United States. 6 Applicant’s parents and brother are citizens and residents of Jordan. His brother works as an accountant for a private Jordanian company. His brother is married, and his family lives in an apartment owned by their father in Jordan.7 Applicant’s parents lived with him in the United States for many years. They obtained permanent resident status, which entitled them to a green card. They traveled GE 2; Tr. 25-30.8 Tr. 34-35, 44-49.9 GE 3.10 Tr. 34-36, 38-3911 4 between the United States and Jordan until 2008. His father, who is now 80 years old, suffered from diabetes, high blood pressure, heart problems and joint problems. In 2008, his parents returned to Jordan for a visit. During the visit, his father’s health declined, and his parents decided to remain in Jordan. Their green card expired in 2008, but can be renewed. In May 2011, medical professionals diagnosed Applicant’s father with Alzheimer disease. His brother cares for his parents, when needed. Applicant calls his parents once a week to talk and to inquire about their general well- being. He talks with his brother infrequently. He visits his parents in Jordan once every one or two years. He last visited his parents in February 2012. His prior visit was in the summer of 2010. He sees his brother during these visits. Otherwise, his contacts with his brother are less frequent than his contacts with his parents.8 Many years ago, Applicant’s father purchased land in a rural area. This land is now in the city. It is located next to a major road and is zoned commercial. The property remains undeveloped. His father also owns one apartment building in Jordan. Applicant receives no income from either of these properties, although his father receives income from the apartment building. Applicant and his brother will inherit this property upon the death of their parents.9 Applicant regularly travels on his U.S. passport. After he became a U.S. citizen, he retained his Jordanian passport, which he regularly renewed. He retained a Jordanian passport for convenience and to avoid a fine by the Jordanian government should he remain in Jordan for more than 30 days. He also believed he needed to retain his Jordanian citizenship to inherit, but has learned that such retention is not needed. Applicant advised the Office of Personnel Management (OPM) investigator that he was willing to renounce his Jordanian citizenship. In January 2011, Applicant voluntarily surrendered his Jordanian passport to his facility security officer, who destroyed the passport. 10 Applicant has never served in the Jordanian military or voted in Jordan. He does not receive any benefits from the Jordanian government nor does he have bank accounts in Jordan. His parents and brother are not involved with the Jordanian government and have not experienced problems with the government.He is not aware of terrorist activities in Jordan nor does he have knowledge of the Jordanian government seizing private property. Only his wife is aware of his need for a security clearance.11 GE 2; Tr. 36, 39-41.12 AE F- AE l.13 5 When he completed his e-QIP in 2010, Applicant listed his parents address as his home address in the United States, not their address in Jordan. He denied intentionally falsifying this information on his e-QIP. He explained that when he completed his e-QIP, he still anticipated his parents would be returning to the United states, as his father always stated he wanted to come back. He knew they could renew their green cards, and he knew the U.S. immigration service required an address in the United States. He also indicated that he did not know a street address for his parents, although they have a post office box in Jordan.12 Applicant submitted nine letters of recommendation from coworkers and friends. All describe him as a hard working and dedicated engineer. They trust him. He is an asset to the ship, and he has a strong work ethic and good moral character. They strongly recommend him for a clearance. None indicate that they know the reason for his hearing, but one individual indicated they had discussions about his international background. Applicant always made it clear that the United States was his country.13 Jordan Jordan is a constitutional monarchy with a developing economy and a modern infrastructure. Jordan’s population is about 5.9 million. Jordan has followed a pro- western foreign policy, and has had close relations with the United States for sixty years. The Jordanian government respects human rights in some areas, but its overall record continues to reflect some problems. Torture, arbitrary arrest, prolonged detention, overcrowded prisons, denial of due process, and restrictions on freedom of speech are Jordanian human rights problems. Jordan does not have a history of targeting U.S. or Jordanian citizens for protected information. The Jordanian government publicly condemned terrorist acts throughout the world, implemented strict security measures, passed new anti-terror legislation, and disrupted several terrorist plots. Jordan has placed a strong emphasis on countering violent extremism, fighting radicalization, and strengthening interfaith coexistence and dialogue. Jordanian officials, including the King, strongly condemned extremist violence and the ideology that promotes it. Despite aggressive governmental action against terrorists, the threat of terrorism in Jordan remains high. Al-Qaida has focused terrorist activities against Jordan and U.S. interests in Jordan. Terrorists in Jordan target U.S. interests to exploit and undermine U.S. national security interests. Terrorist groups conduct intelligence activities as effectively as state intelligence services. In recent HE 1.14 6 years, Jordanian security forces have disrupted numerous terrorist plots against U.S. interests. Jordan continues to prosecute terrorism cases.14 Policies When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. 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. 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 for 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 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. 7 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 B, Foreign Influence AG ¶ 6 expresses the security concern regarding foreign influence: 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. AG ¶ 7 describes the disqualifying conditions that could raise security concerns. I have considered all the conditions, and the following are potentially applicable: (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; (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; and (e) a substantial business, financial, or property interest in a foreign country, or in any foreign-owned or foreign-operated business, which could subject the individual to heightened risk of foreign influence or exploitation. Applicant’s immediate family, which includes his wife, his children, and his niece, are United States citizens who reside with him in the United States. Thus, no security concern is raised by these family members. His parents and brother are citizens of and reside in Jordan. Applicant maintains a normal familial relationship with his parents and brother in Jordan. He talks with his parents by telephone once a week and visited them in Jordan in February 2012 about 18 months after his previous visit to them. His contact 8 with his brother is less frequent because of Applicant’s work-related travel and his brother’s work schedule. He talks with his brother, if his brother is at his parents home when he calls. He does not provide financial support to his parents or his brother. His family relationships are not per se a reason to deny Applicant a security clearance, but his contacts with his family members must be considered in deciding whether to grant Applicant a clearance. The Government must establish that these family relationships create a risk of foreign exploitation, inducement, manipulation, pressure, or coercion by terrorist or would create a potential conflict of interest between his obligations to protect sensitive information and his desire to help his family members who may be threatened by terrorists. In determining if such a risk exists, I must look at Applicant’s relationship and contacts with family members as well as the activities of the Government of Jordan and terrorist organizations within these countries. 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 parents and brother in Jordan raises a heightened risk of security concerns because of the activities of terrorists organizations in Jordan as the terrorist threats to safety and security is greater than concerns that the Jordanian Government will seek classified information. The evidence of record fails to show that the Jordanian Government engages in espionage activities in the United States or that it targets U.S. citizens in the United States or Jordan by exploiting, manipulating, pressuring, or coercing them to obtain protected information. Under the guideline, the potentially conflicting loyalties must 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 Jordan cause security concerns, I considered that Jordan and the United States have a close relationship, and that Jordan is cooperating with the United States in the fight against terrorism, including taking new and increased actions against terrorists in Jordan. There is no evidence that the Jordanian government targets U.S. citizens for protected information. The human rights issues in Jordan continue to be a concern, and the terrorist organizations, not the Jordanian government, target U.S. citizens and interests in Jordan. 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 in Jordan. Because of the significant activities of terrorist organizations in Jordan, Applicant’s trips to Jordan and contacts with his family in Jordan raise a heightened risk concern under AG ¶¶ 7(a) and (b). Applicant’s father owns property in Jordan, not Applicant. A heightened risk concern is not raised under AG ¶ 7(e). In deciding if Applicant has established mitigation under AG ¶ 8(a), I must consider: 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 9 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; and under AG ¶ 8(c), I must consider whether Applicant has established: 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. Applicant’s normal relationship with his family members is not a basis to deny him a security clearance; however, his burden of proof on mitigation requires him to provide information that shows that his family is not subject to coercion. His family members have never held a political position and have not been targeted by the Jordanian government or terrorists. His family members in Jordan have not suffered any abuses from the Jordanian government or been threatened by terrorists. His immediate family members are citizens and residents of the United States. He owns no property in Jordan. He does not have financial assets in Jordan. Balancing these factors as well as Jordan’s cooperation in counterterrorism, and the lack of evidence that the Jordanian government targets U.S. citizens for protected information against Jordan’s poor human rights record, I find that Applicant would resolve any conflict in favor of the U.S. interests. Likewise, any threats by terrorists organizations against Applicant’s family in Jordan would be resolved in favor of U.S. interests. His loyalties are to the United States, not Jordan or terrorist organizations. Applicant has mitigated the Government’s security concerns as to his family contacts specified in the SOR under AG ¶¶ 8(a) and 8(b). 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.” AG ¶ 10 describes the disqualifying conditions that could raise security concerns. I have considered all the conditions, and the following are potentially applicable: 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. This includes but is not limited to: (1) possession of a current foreign passport; (2) military service or a willingness to bear arms for a foreign country; (3) accepting educational, medical, retirement, social welfare, or other such benefits from a foreign country; (4) residence in a foreign country to meet citizenship requirements; (5) using foreign citizenship to protect financial. or business interests in another country; (6) seeking or holding political office in a foreign country; and (7) voting in a foreign election. After becoming a U.S. citizen in 1995, Applicant continued to renew his Jordanian passport. He has not exercised any other rights of Jordanian citizenship nor does he receive any benefits from the Jordanian government. He has not served in the Jordanian army. AG ¶ 10(a)(1) applies in this case. The Foreign Preference guideline also includes examples of conditions that can mitigate security concerns. I have considered mitigating factors AG ¶ 11(a) through 11(f), and the following are potentially applicable: (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 Applicant met with the OPM investigator, he expressed a willingness to renounce his Jordanian citizenship. In January 2011, he surrendered his Jordanian passport to his facility security officer, who then destroyed the passport. Applicant has mitigated the Government’s security concerns under Guideline C. Guideline E, Personal Conduct AG ¶ 15 expresses the security concern pertaining to personal conduct: See ISCR Case No. 03-09483 at 4 (App. Bd. Nov.17, 2004) (explaining holding in ISCR Case No. 02-2313315 at 5 (App. Bd. Jun. 9, 2004)). 11 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. AG ¶ 16 describes the disqualifying conditions that could raise security concerns. I have considered all the conditions, and the following are potentially applicable: (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; For AG ¶ 16(a) to apply, Applicant’s omission must be deliberate. The Government established that Applicant omitted material facts from his September 2009 e-QIP, when he failed to identify Jordan as his parents place of residence in 2010. In his response to the SOR and at the hearing, he denied that he intentionally falsified this information on his e-QIP. When the allegation of falsification is controverted, the Government has the burden of proving it. Proof of an omission, standing alone, does not establish or prove an applicant’s intent or state of mind when the omission occurred. An administrative judge must consider the record evidence as a whole to determine whether there is direct or circumstantial evidence concerning an applicant’s intent or state of mind at the time the omission occurred.15 Because he believed that his parents intended to return to the United States, Applicant gave his address in the United Sates as their address. His parents had obtained permanent resident status, which enabled them to travel between the United States and Jordan easily. They always lived with him when in the United States and after 2008, continued to tell him that they wanted to return to the United States when his father’s health improved. Applicant identified his parents as Jordanian citizens and listed his brother’s citizenship as Jordanian and gave his address as a post office box number. A review of the record and testimony indicates that Applicant provided honest and clear information about his parents’ residence based on his belief that they would be returning to the United States. The Government has not established intentional falsification by Applicant under Guideline E. 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 12 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 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 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’s elderly parents and his brother are citizens of and residents in Jordan. His parents had permanent resident status in the United States, which gave them a green card and allowed them to travel freely between the United States and Jordan. On a return trip to Jordan in 2008, the health of Applicant’s father deteriorated. As a result, his parents decided to remain in Jordan, where they have lived for the last four years. His parents and his brother do not have any involvement with the Jordanian government nor has the Jordanian government abused his family members. Applicant’s wife and children are United States citizens and residents, who have no loyalty to Jordan. Applicant was primarily raised in the United Arab Emirates. He has lived in the United States for 23 years and has chosen the United States as his home. He began working as a seaman on U.S. military ships in 1996. He continually developed his skills, which lead to regular promotions. He is a dedicated worker, who supports the United States. He is well-respected by his coworkers and ship commanders. He is trustworthy, dependable and reliable. His Jordanian family is not a likely source for pressure, coercion, exploitation, or duress from the Jordanian government or terrorists. 13 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 Guidelines B, C and E. 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 B: FOR APPLICANT Subparagraph 1.a: For Applicant Subparagraph 1.b: For Applicant Subparagraph 1.c: For Applicant Paragraph 2, Guideline C: FOR APPLICANT Subparagraph 2.a: For Applicant Paragraph 3, Guideline E: FOR APPLICANT Subparagraph 3.a: 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