1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 11-01618 ) Applicant for Security Clearance ) Appearances For Government: Daniel F. Crowley, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ COACHER, Robert E., Administrative Judge: Applicant failed to mitigate either the foreign influence or the personal conduct security concerns. Eligibility for access to classified information is denied. Statement of the Case On March 16, 2012, the Defense Office of Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline B, foreign influence, and Guideline E, personal conduct. DOHA acted under Executive Order (EO) 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 (AG) effective within the Department of Defense on September 1, 2006. Applicant answered the SOR on April 12, 2012, and requested a hearing before an administrative judge. The case was assigned to me on June 22, 2012. DOHA issued a notice of hearing on July 19, 2012, and the hearing was convened as scheduled on August 15, 2011. DOHA received the transcript of the hearing (Tr.) on August 31, 2012. 2 Procedural and Evidentiary Rulings Request for Administrative Notice Department Counsel submitted a written request that I take administrative notice of certain facts about India. There was no objection from Applicant and the request was approved. The request and the attached documents were not admitted into evidence but were included in the record as Hearing Exhibit (HE) II and IIa. The facts administratively noticed are set out in the Findings of Fact, below.1 Evidence The Government offered Exhibits (GE) 1 through 11, which were admitted into evidence without objection. Department Counsel’s exhibit index is marked as HE I. Applicant testified, presented the testimony of two witnesses, and offered Exhibit (AE) A,2 which was admitted without objection. Findings of Fact Applicant is a 64-year-old employee of a defense contractor. Applicant has worked as an engineer for defense contractors for over 27 years. He has held a security clearance since 1985. He is seeking to obtain a higher level security clearance. He was born in Bangladesh. He came to the United States in 1974 to attend a graduate engineering program. He completed that program and went on to earn a PhD and an MBA. He became a U.S. citizen in October 1979. He married in 1975. He divorced in June 2006 after over 30 years of marriage. He has two adult children. He is currently engaged to be married.3 The SOR alleged Applicant had several connections to India, as follows: 1. His brother is a citizen and resident of India, and a former pilot for the Indian Air Force (denied); 2. His three other brothers and three sisters are citizens and residents of India (admitted); 1 Tr. at 41-42. 2 AE A is a tabbed binder that Applicant identified as supporting documents (SD) followed by the tab number and then the page number. However not all documents are marked in this fashion. Where possible, I will cite to the exhibit using both the tab number and page number. One other note: the first eight tabs (1-8) of AE A correspond with numbers in the various tabbed sections, however, after tab eight, Applicant starts over with the tab numbering to begin section nine through fifteen. 3 Tr. at 6, 73-74, 82; GE 1, 2, 4, 6. 3 3. His extended family, including in-laws, nieces, and nephews are citizens and residents of India (admitted); 4. He owns an apartment in Calcutta, India, which is managed by persons in India (admitted); 5. He has several friends and family members who are citizens and residents of India (admitted); 6. He maintains contact with several fellow engineering graduates from his alma mater in Bangladesh (admitted); and 7. He had numerous Russian contacts, including space officials, cosmonaut trainers, fighter pilot trainers, a translator and her husband, a woman with whom he had a relationship, and some other Russian women (admitted).4 The SOR also alleged personal conduct concerns as follows: 1. He had ongoing contact from about 2002 to at least 2007, with a translator who is a citizen and resident of Russia and her husband, who is also a citizen and resident of Russia and a former Russian Air Force officer (admitted); 2. Between 2003 and November 2006, while he was married, he maintained a relationship with a woman who was a citizen and resident of Russia (admitted); 3. At various times, he engaged in multiple transient relationships with women who were citizens of other countries, including Russia, and he also videotaped intimate contact with some of the women (denied); 4. While working for a former employer, he received a personal loan from his employer, but he refused to make the final payment of about $20,000 (admitted); 5. He deliberately falsified his February 28, 2009, security clearance application when in response to a question about whether he had previously served in a foreign military service he denied serving in the Indian Air Force, even though he was a former MIG pilot for the Indian Air Force (denied).5 Applicant was born in Bangladesh (formerly known as East Pakistan). He and his family moved to India in 1971 because of the violence that was occurring in 4 See SOR ¶ 1; Applicant’s Answer (Answer). 5 See SOR ¶ 2, Answer. 4 Bangladesh. His siblings (four brothers and three sisters6) became Indian citizens and currently reside there. B-1 is 79 years old and is retired from the steel industry. Applicant admitted that B-1 was in the Indian Air Force earlier in his life, but presented conflicting factual evidence regarding whether he was an officer or enlisted member. Applicant’s answer to the SOR and his statements to investigators state that his brother was enlisted in the Air Force. However, in an article written by Applicant for a magazine (unnamed), titled Sky is the Limit, he stated his brother was an officer in the Indian Air Force and took him out to the local Air Base to see the planes fly. There is no specific evidence identifying this brother as an Indian Air Force pilot. B-2 is 72 years old and is a retired engineer. B-3 is 55 and B-4 is 53. They both are currently bank officers in Kolkata (Calcutta), India. S-1, S-2, and S-3 are all housewives. S-1 and S-2 live near Kolkata and S-3 lives in Mumbai, India. Applicant’s frequency of contact with these relatives is normally about once a month, but because he is currently trying to sell his apartment located there, his contact is weekly. As far as contacts with his extended family, he has casual contact with them from time to time. He also attends family events such as his niece’s wedding in 2005. All these relatives were previously reported on prior security clearance applications where a clearance was granted. He also maintains casual contact with some friends residing in India with whom he grew up and attended school. His relationships with his professional friends are not close ones.7 In 2003, Applicant bought an apartment in Calcutta, India for $150,000. He believes it is worth $500,000 in today’s market. It is free and clear of any encumbrances. He has rented it out in the past and his brothers have managed it for him. It is currently unrented because he is trying to sell the property. He also established a bank account in India to deal with the financial transactions associated with the property.8 Applicant has lived an adventurous life. Included among his many adventures was his travel to Russia on several occasions where he engaged in Cosmonaut training and learning to fly a MIG-25 fighter plane. Both of these activities were paid for by Applicant. In both cases, these were commercial activities not associated with the Russian government. During his 2002 trip to Russia, Applicant hired a Russian translator to assist him while he participated in the above described activities. Through his translator, he met her husband who was a retired Russian Air Force pilot. He visited the translator’s home for dinner once or twice. He had no further contact with her husband. He corresponded with the translator through email about every seven to ten months with the last email coming in 2009. Applicant considered her to be a friend. He also met, through his translator, a Russian woman with whom he had a significant relationship during 2006. He visited her in June 2006 and she came to the United States 6 Applicant’s four brothers and three sisters will be referred to as B-1 through 4 and S-1 through 3, starting with the oldest to the youngest. 7 Tr. at 104-106, 112; GE 4, 6; Answer. 8 Tr. at 109-110; GE 6, 8; Answer. 5 in November 2006. He ended the relationship shortly thereafter and there has been no further contact.9 Applicant admitted that he videotaped intimate sexual events with his ex-wife, his current fiancée, and the girlfriend from Russia. According to Applicant, all the videotaping was consensual. He was separated from his wife in 1999 and began the divorce action in 2004, which resulted in a final divorce in June 2006. He further admits to seeing some women while he was still married, but separated.10 When Applicant was going through his divorce between 2004 and 2006, he found himself in a tight financial position because many of his assets were tied up by the divorce. His employers at that time gave him a personal loan of $100,000 to help pay credit card debt. The written terms of the loan agreement specified that the loan was personal and not connected in any way to the company that the employers owned and that Applicant worked for. The agreement also specified that it was a loan and not a gift. Applicant was expected to pay the loan with interest at the end of six months. The agreement was executed in September 2005 and the six month payment term was extended to July 2006. Applicant paid back approximately $83,000 of the loan, but refused to pay the remaining balance or any interest. When he left the company, he claimed that he was owed for bonuses and other payments and therefore offset those amounts against the remaining loan balance. He did not produce any documentation supporting a modification to the original loan agreement that would support his position. The loan balance remains unpaid and Applicant has no intention of paying it.11 In his February 28, 2009, security clearance application, Applicant denied ever serving in a foreign military service. There is conflicting evidence in the record on whether he served in the Indian Air Force. An FBI agent testified that during an interview on another subject, Applicant admitted to him that he served as a pilot in the Indian Air Force and that he was trained by the Indian Air Force. The agent also stated that this information was corroborated by a source. Applicant has denied that he ever served in the Indian Air Force. To support his denials he presented records that show the timeline he was in school or seeking admission to a U.S. school. Those records indicate he graduated from high school in Bangladesh in 1964; he graduated from intermediate school in Bangladesh in 1966; he graduated from college in Bangladesh with a bachelor’s degree in 1970; he had a recommendation letter showing he was working for a sewage authority in July 1972; he was admitted to an American university for graduate school in January 1974 and he came to the United States later that year. Applicant argues that based upon these dates, it was not possible for him to also receive pilot training from the Indian Air Force.12 9 Tr. at 122; GE 6-8, Answer. 10 GE 6, 8; Answer. 11 Tr. at 137, 141, 143; GE 3, 6; Answer. 12 Tr. at 44-55, 88, 91-92, 163-165; AE A (14-8) 6 In addition to his adventures described above, Applicant has also trekked to the North Pole, climbed to the base camp at Mount Everest, and swam the English Channel. He is also a licensed FAA pilot. He is recognized by his peers as an outstanding engineer who is brilliant and hard working. He is described as “an outstanding citizen, displaying unwavering and fervent loyalty to the United States.” His 2010 job appraisal rated him in the top category, “Far Exceeds Expectations.” He is well thought of by his students according to the written critiques he received while performing adjunct professor duties at two universities.13 India14 I take administrative notice of the following facts. India is a democratic republic with a cooperative relationship with the United States. The United States recognizes India as a key to strategic U.S. interests, and has sought to strengthen its relationship with India. The United States and India have been committed to a strategic partnership that has seen expanded cooperation in the areas of civilian nuclear activities, civilian space programs, and technology trade. The United States is India's largest trading partner and investment partner. Notwithstanding, differences remain between the two countries, including concerns about India’s nuclear weapons program, abuses of human rights (although, the Indian government is considered to generally respect the human rights of its citizens), and its refusal to sign weapons non-proliferation treaties. Of grave concern is India’s increasing cooperation and partnership with Iran and its military forces. Despite advancements in the United States-Indian relations, India has been identified by the U.S. intelligence community as one of the most active collectors of sensitive U.S. economic, industrial, and proprietary information. The United States has sanctioned Indian scientists and chemical companies for transferring to Iran weapons of mass destruction (WMD)-related equipment and/or technology. Additionally, there are numerous documented cases involving the illegal export, or attempted illegal export of U.S. restricted, dual use technology to India. Policies When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are to be 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, administrative judges apply the guidelines 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 13 Tr. at 69, 70, 100; AE A (2-2). 14 HE II, IIa. 7 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, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel.” The applicant has the ultimate burden of persuasion to obtain 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 the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information. Section 7 of EO 10865 provides that adverse 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 The security concern for Foreign Influence is set out in AG ¶ 7 as follows: 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 8 States citizens to obtain protected information and/or is associated with a risk of terrorism. The guideline notes several conditions that could raise security concerns under AG ¶ 7. Three are potentially applicable in this case: (a) contact with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion; (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, which could subject the individual to heightened risk of foreign influence or exploitation. Applicant’s four brothers, three sisters, and other relatives, such as brothers and sisters-in-laws, nieces, nephews and friends are citizens and residents of India. India has human rights issues, and is an active collector of U.S. sensitive information thereby creating a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion. It also creates a potential conflict of interest. Additionally, Applicant owns property in India valued at $500,000. AG ¶¶ 7(a), 7(b), and 7(e) have been raised by the evidence. Conditions that could mitigate Foreign Influence security concerns are provided under AG ¶ 8. The following are potentially applicable: (a) 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.; (b) 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; and (f) the value or routine nature of the foreign business, financial, or property interests is such that they are unlikely to result in a conflict and could not be used effectively to influence, manipulate, or pressure the individual. 9 Applicant has been in the United States since 1974, and he has been a U.S. citizen since 1979. His children are U.S. citizens. His siblings and other relatives and friends living in India have no affiliation with the Indian government. It is unlikely that Applicant would be put in a position of having to choose between the interests of his family and friends over the interests of the United States. AG ¶ 8(a) is applicable. Applicant served as an engineer for defense contractors since 1985. He was trusted to work on critical space-related programs. I find Applicant has such deep and longstanding relationships and loyalties in America that he can be expected to resolve any potential conflict of interest in favor of the United States. AG ¶ 8(b) is applicable. Applicant’s property interest in India is substantial and could possibly result in a conflict of interest. Additionally, Applicant failed to produce evidence to indicate that the property could not be used effectively to pressure, influence, or manipulate him. AG ¶ 8(f) is not applicable. GUIDELINE E, PERSONAL CONDUCT AG ¶ 15 expresses the security concern for personal conduct: Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual's reliability, trustworthiness and ability to protect classified information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process. AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying in this case. The following disqualifying conditions 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; (c) credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, but which, when considered as a whole, supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the person may not properly safeguard protected information; (d) credible adverse information that is not explicitly covered under any other guideline and may not be sufficient by itself for an adverse 10 determination, but which, when combined with all available information supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the person may not properly safeguard protected information. This includes but is not limited to consideration of: (1) untrustworthy or unreliable behavior to include breach of client confidentiality, release of proprietary information, unauthorized release of sensitive corporate or other government protected information: (2) disruptive, violent, or other inappropriate behavior in the workplace; (3) a pattern of dishonesty or rule violations; and, (4) evidence of significant misuse of Government or other employer's time or resources; and (e) personal conduct, or concealment of information about one's conduct, that creates a vulnerability to exploitation, manipulation, or duress, such as (1) engaging in activities which, if known, may affect the person's personal, professional, or community standing, or (2) while in another country, engaging in any activity that is illegal in that country or that is legal in that country but illegal in the United States and may serve as a basis for exploitation or pressure by the foreign security or intelligence service or other group. The Government presented substantial evidence indicating Applicant admitted receiving training and becoming a pilot in the Indian Air Force. He denied this affiliation in his security clearance application and has denied it ever since in his pleadings and evidence. To support his denial, he presented evidence showing a timeline of his educational pursuits while living in Bangladesh. He argues that the timeline from 1966 through his emigration to the United States in 1974 makes it impossible for him to have been in the Indian Air Force at that time. I am persuaded by Applicant’s documentary evidence. Additionally, Applicant is not shy about publicizing his accomplishments, which leads me to believe that if he had been a pilot in the Indian Air Force, he would readily publicize that information. Deliberate falsification was not established and AG ¶ 16(b) does not apply. Applicant’s association with Russian citizens, starting a romantic relationship with a Russian citizen, engaging in transient relationships while he was still married, even if separated, videotaping some sexual encounters, and failing to pay back a personal loan made by his employer, when considered as a whole, supports a whole-person assessment of questionable judgment. These actions also create a vulnerability to exploitation, manipulation or duress affecting his personal, professional, or community standing. AG ¶¶16(c) - 16(e), apply. 11 The guideline also includes conditions that could mitigate security concerns arising from personal conduct. I have considered all of the mitigating conditions under AG ¶ 17 and considered the following as potentially applicable: (c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment. Applicant’s association with his Russian translator and her husband ended in 2009 and was minor and infrequent. Likewise, he ended his romantic relationship with the Russian women in 2006 and has had no further contact with her. This relationship happened under such unique circumstances that it is unlikely to recur. Both his actions of videotaping his sexual encounters and failing to pay back the personal loan to his employer casts doubt on his reliability, trustworthiness and good judgment. AG ¶ 17(c) applies in part to several allegations, but not to SOR ¶¶ 2.c – 2.d. 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 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. I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I have incorporated my comments under Guideline B and Guideline E in my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under those guidelines, but some warrant additional comment. I also considered Applicant’s favorable character evidence, including all his accomplishments, adventures, and his service to his employers. I also took into account the totality of Applicant’s family ties to India. Guideline B is not limited to countries hostile to the United States. “The United States has a compelling interest in protecting and safeguarding classified information from any person, organization, or country that is not 12 authorized to have access to it, regardless of whether that person, organization, or country has interests inimical to those of the United States.”15 The distinctions between friendly and unfriendly governments must be made with caution. Relations between nations can shift, sometimes dramatically and unexpectedly. Furthermore, friendly nations can have profound disagreements with the United States over matters they view as important to their vital interests or national security. Finally, we know friendly nations have engaged in espionage against the United States, especially in the economic, scientific, and technical fields. The nature of a nation’s government, its relationship with the United States, and its human rights record are relevant in assessing the likelihood that an applicant’s family members are vulnerable to government coercion. The risk of coercion, persuasion, or duress is significantly greater if the foreign country has an authoritarian government, a family member is associated with or dependent upon the government, the country is known to conduct intelligence operations against the United States, or the foreign country is associated with a risk of terrorism. Applicant is a loyal U.S. citizen who has worked for over 25 years as a contractor in support of the national defense. However, he has exercised poor judgment with several of his decisions. Specifically, he engaged in conduct, as discussed above, that raises questions about his reliability and judgment. Therefore, Applicant failed to meet his burden to mitigate the foreign influence and the personal conduct concerns. Overall, the record evidence leaves me with questions and doubts about Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant has not mitigated either the foreign influence or the personal conduct security 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 B: AGAINST APPLICANT Subparagraphs 1.a - 1.c: For Applicant Subparagraph 1.d: Against Applicant Subparagraphs 1.e - 1.g: For Applicant Paragraph 2, Guideline E: AGAINST APPLICANT Subparagraphs 2.a - 2.b: For Applicant Subparagraphs 2.c – 2.d: Against Applicant Subparagraph 2.e: For Applicant Conclusion 15 ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004). 13 In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to continue Applicant’s eligibility for a security clearance. Eligibility for access to classified information is denied. ________________________ Robert E. Coacher Administrative Judge