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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
----------------------- )       ISCR Case No. 11-14530
)
Applicant for Security Clearance )
Appearances
For Government: 
Melvin A. Howry, Esquire, Department Counsel
For Applicant: 
Brian P. Cruz, Esquire
McKenna, Long & Aldridge LLP
June 10, 2013
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Decision
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ROSS, Wilford H., Administrative Judge:
Applicant submitted his Electronic Questionnaire for Investigations Processing on
May 25, 2011. (Government Exhibit 1.) On August 31, 2012, the Department of Defense
issued a Statement of Reasons (SOR) detailing the security concerns under Guideline
B (Foreign Influence). 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 (AG) effective within the Department of Defense on September
1, 2006. 
 
Applicant answered the SOR in writing on October 1, 2012, and requested a
hearing before an administrative judge (Answer). Department Counsel was prepared to
proceed on December 7, 2012. This case was assigned to me on December 14, 2012.
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DOHA issued notices of hearing on January 17, and January 18, 2013. I convened the
hearing as scheduled on March 4, 2013. The Government offered Government Exhibits
1 and 2, which were received without objection. Applicant testified on his own behalf,
and submitted Applicant Exhibits A through H, which were also received without
objection. DOHA received the transcript (Tr.) of the hearing on March 13, 2013. Based
upon a review of the pleadings, exhibits, and testimony, eligibility for access to classified
information is granted.
 
Procedural and Evidentiary Rulings
Request for Administrative Notice
Department Counsel submitted a formal request that I take administrative notice
of certain facts relating to the Democratic and Popular Republic of Algeria (Algeria). (Tr.
10-13.) The request and the attached documents were not admitted into evidence, but
are included in the record. The facts administratively noticed are set out in the Findings
of Fact, below. 
Findings of Fact
Applicant is 58, married, and has a post-graduate degree. He is employed by a
defense contractor and seeks to retain a security clearance in connection with his
employment in the defense industry. In his Answer to the SOR, Applicant admitted the
factual allegations in subparagraphs 1.a and 1.b. He denied the central allegations in
Paragraph 1 itself. He also provided additional information to support his request for a
security clearance.  
Paragraph 1 (Guideline B - Foreign Influence)  
The Government alleges in this paragraph that Applicant is ineligible for
clearance because he has foreign contacts and interests that could lead to the exercise
of poor judgment, unreliability, or untrustworthiness on the part of Applicant.
Applicant is a naturalized American citizen from Algeria, born in 1955. After going
to undergraduate school in Algeria, Applicant moved to France in 1978 to continue his
studies. While in France, he met his wife, who worked for the United Nations in
Switzerland. Applicant’s wife is a native-born American citizen. They were married in
1983. They have three native-born American children. His children do not speak Arabic,
none of them have been to Algeria, and none of them have any plans to visit Algeria in
the future. (Tr. 26-27, 36-41.)
Applicant emigrated to the United States in 1982, just before he was married. He
then went to graduate school in the U.S. He has lived permanently in the United States
since that time, except for two years of mandatory military service in Algeria between
Applicant’s wife lived in Algeria with Applicant during this time. She was employed by the American embassy1
in Algeria.
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1986 and 1988. (Tr. 28-32.)  He became an American citizen on June 22, 1990.1
(Government Exhibit 1.) Applicant has been employed in the defense industry almost
continually since 1993, and has also held a security clearance since 1993, without
incident. He began work for his present employer in June 2008. (Tr. 62-65; Government
Exhibit 1.)
With the exception of one sister, his immediate family members all live in the
United States. Applicant’s mother is a citizen of the U.S. (Tr. 33-34.) His father was a
victim of the Algerian civil war in 1992. Applicant has four brothers and four sisters. As
stated, one sister is a citizen of Algeria and lives there. (SOR 1.a.) She and her
husband are medical professionals in Algeria, as are their three children. They applied
for Permanent Residency status in the United States approximately seven years ago
and are awaiting approval of the petition. He talks to his sister two or three times a year
by telephone. His sister visited Applicant in the U.S. about eight years ago. (Tr. 43-48.)
Two of the remaining sisters are U.S. citizens, and the third has Permanent
Residency status. (Tr. 57-59.) Three of Applicant’s brothers are American citizens. (Tr.
59-60.) The fourth has Permanent Residency status. (SOR 1.a.) This fourth brother
received his Green Card five or six years ago, and has recently applied to become an
American citizen. At the time the SOR was issued he was living in Algeria. He resides in
the U.S. now, not in Algeria. (Tr. 48-50, 52-53.) 
The SOR alleges in subparagraph 1.b that one of Applicant’s brothers resides in
Algeria, although he is an American citizen. At the time the SOR was issued that was
true. This brother now lives permanently in the U.S., but travels to Algeria for business.
(Tr. 54-55.)
Applicant is knowledgeable about his security responsibilities, having taken the
required courses provided by his employer. (Applicant Exhibit G; Tr. 56, 67, 71.) He
would respond appropriately if any member of his family were approached concerning
Applicant’s employment. (Tr. 48.) (See Applicant Exhibit H.)
Including his three children, as well as nieces and nephews, 22 of the 29
members of Applicant’s immediate family are either American citizens or Permanent
Residents of the U.S. None of Applicant’s family desires to remain in Algeria. (Applicant
Exhibit E; Tr. 61-62.)
Applicant has not been to Algeria since 1992 and has no desire or intention to
travel there in the future. (Tr. at 33-36, 81.) 
All of the following statements are supported by the documents submitted by Department Counsel in support2
of his request for administrative notice.
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Applicant has contacts with Algeria. Accordingly, it is appropriate to discuss the
situation in Algeria at this time.  Algeria is a multi-party state in northern Africa. It2
endured a multi-year civil war in the 1990s. Even though the terrorist situation in Algeria
has improved markedly from its high of more than 150,000 deaths in 1990, it continues
to pose a threat to the safety and security of U.S. citizens. Algeria is now considered a
source of international terrorists, and many Algerian terrorists have been arrested in
counter-terrorism operations in Europe and the United States. Human rights problems
for the government in Algeria include restrictions on freedom of assembly and
association, inability of citizens to change their government, and the failure to account
for disappearances. Other human rights concerns were reports of unlawful killings,
overuse of pretrial detention, poor prison conditions, abuse of prisoners, lack of judicial
independence, and widespread corruption. The State Department has warned U.S.
citizens of the risk of travel to Algeria.
On the other hand, their has been a growing relationship between the United
States and Algeria. Since the September 11, 2001, terrorist attacks in the United States,
contacts in key areas of mutual concern, including law enforcement and
counterterrorism cooperation, have intensified. Cooperation between the Algerian and
U.S. militaries continues to grow. Exchanges between both sides are frequent, and
Algeria has hosted senior U.S. military officials. The United States and Algeria have also
conducted bilateral naval and Special Forces exercises.
Mitigation
Applicant has substantial assets in the United States. He has a diversified
portfolio that includes considerable real property, investments, and retirement accounts.
He estimates his net worth at over one million dollars. (Applicant Exhibits G through H;
Tr. 87-88, 92.)
Applicant submitted declarations and other documents in support of his request
for a security clearance. Applicant Exhibit A is a letter from the Vice President for
International Business Development of Applicant’s employer. This official is a retired
senior officer in the U.S. military, who had substantial command experience during
Operation Enduring Freedom. He has known Applicant for four years. He states that
Applicant is a man of “unwavering integrity.” This person goes on to say, “[Applicant] is
a loyal American who is dedicated to our country. The fact that he has family members
who are citizens of and residing in Algeria does not raise any loyalty concerns to me.”
He concludes, “Based on the high level of trust that I have in [Applicant], his propensity
to follow the rules, and his excellent work ethic, I would fully recommend [Applicant] for
renewal of his security clearance.”
Additional declarations show that Applicant is a highly respected expert in his
field, and that he has provided valuable services to the defense efforts of the United
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States.  His direct and second line supervisors believe him to be an honest man, a loyal
and committed American, and recommend him for a security clearance. (Applicant’s
Exhibits B and C.) (See Applicant Exhibit F.)
Applicant testified about his feelings concerning the United States. “America is
my home and my country.” (Tr. at 26.) (See Applicant Exhibit D.) He would support the
United States whole-heartedly in any conflict with Algeria. (Tr. 75.)
Policies
Security clearance decisions are not made in a vacuum. 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 to be used as appropriate 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 AG ¶ 2(a), describing 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. In addition, the administrative judge may also rely on
his or her own common sense, as well as knowledge of the law, human nature, and the
ways of the world, in making a reasoned decision.
The protection of the national security is the paramount consideration. AG ¶ 2(b)
requires that “[a]ny doubt concerning personnel being considered for access to
classified information will be resolved in favor of national security.” In reaching this
decision, I have drawn only those conclusions that are reasonable, logical, and based
on the evidence contained in the record. Likewise, I have avoided drawing inferences
grounded on mere speculation or conjecture.
Under Directive ¶ E3.1.14, the Government must present evidence to establish
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, “The applicant is
responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or
mitigate facts admitted by applicant or proven by Department Counsel, and has the
ultimate burden of persuasion as to obtaining a favorable clearance decision.” 
A person who is granted 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
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grants access to classified information. Security clearance decisions include, by
necessity, consideration of the possible risk that the 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.
 
Finally, as emphasized in Section 7 of Executive Order 10865, “Any
determination under this order adverse to an applicant shall be a determination 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
It is the Government's responsibility to present substantial evidence to support
the finding of a nexus, or rational connection, between the applicant's situation and the
continued holding of a security clearance. If such a case has been established, the
burden then shifts to the applicant to go forward with evidence in rebuttal, explanation or
mitigation, which is sufficient to overcome or outweigh the Government's case. The
applicant bears the ultimate burden of persuasion in proving that it is clearly consistent
with the national interest to grant him or her a security clearance.
In this case the Government has met its initial burden of proving by substantial
evidence that Applicant has contacts with Algeria (Guideline B).
Paragraph 1 (Guideline B - Foreign Influence) 
The concern under Guideline B is styled 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 States citizens to obtain protected information and/or is
associated with a risk of terrorism.
Almost all of Applicant’s immediate family lives in the United States. Most of them
are American citizens, including his mother. His wife and children are native-born
American citizens. He has one sister who lives in Algeria with her family, and is an
Algerian citizen. She and her husband applied for U.S. Permanent Resident status
years ago, and are only awaiting approval. In addition to his American family, Applicant
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has considerable financial holdings in the United States. I have also considered the
information concerning the situation in Algeria, which was provided by Department
Counsel in his Administrative Notice documents. 
Based on the evidence the Government has presented, the following
Disqualifying Conditions apply to this case: 
AG ¶ 7(a) contact with a foreign family member . . . who is a citizen of or
resident in a foreign country if that contact creates a heightened risk of
foreign exploitation, inducement, manipulation, pressure, or coercion; and
(b) connections to a foreign person . . . 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 . . . by
providing that information.  
On the other hand, Applicant has provided compelling evidence to show that the
following Mitigating Condition also applies to this particular case, given his background: 
AG ¶ 8(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. 
The evidence shows that Applicant has been a successful member of the
defense industry for almost 20 years. He has been a loyal and upstanding American
citizen for over 20 years. Since 1993 he has put his abilities to work in the defense
industry, as shown by the statements in Applicant Exhibits A, B and C. The statement in
Applicant Exhibit A, from a former senior officer and major component commander in
the United States military, is particularly compelling. Applicant is respected by his family,
friends, and colleagues. His connections to the United States are deep and long-
standing. Under the facts of this case, including the whole-person concept as further
described below, the presence of his one sister in Algeria does not have current security
significance.  
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 relevant circumstances. 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 administrative judge should consider the nine adjudicative process factors
listed at AG ¶ 2(a): 
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(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.      
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case. This particular Applicant has been
extremely forthcoming with the Government. He has shown himself to be trustworthy,
and a person who shows good judgment. His current foreign connections are not of a
type to cause security issues. Applicant has shown that he is knowledgeable about
security rules and is willing and able to follow them. Based on his actions and testimony,
as well as the statements of others, I find that there is little or no “potential for pressure,
coercion, exploitation, or duress” as set forth in AG ¶ 2(a)(8).  
Overall, the record evidence leaves me with no questions or doubts as to
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I
conclude Applicant has mitigated the security concerns arising from his foreign
connections. On balance, I conclude that Applicant has successfully overcome the
Government's case opposing his request for a security clearance. Accordingly, the
evidence supports granting his request for a security clearance.
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
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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.
                                          
WILFORD H. ROSS
Administrative Judge