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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 13-00912
)
)
Applicant for Security Clearance )
Appearances
For Government: Tovah Minster, Esq., Department Counsel
For Applicant: Jennifer Kies Mammen, Esq.
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Decision
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CURRY, Marc E., Administrative Judge:
Applicant mitigated the security concern generated by his relationship to his
family members who live in Israel. Clearance is granted.
Statement of the Case
On September 19, 2013, the Department of Defense Consolidated Adjudications
Facility (DOD CAF) issued a Statement of Reasons (SOR) detailing 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 DoD for SORs issued as of September
1, 2006. 
Applicant answered the SOR on October 23, 2013, admitting all of the allegations,
and requested a hearing. I received the case assignment on January 10, 2014. On
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January 29, 2014, the Defense Office of Hearings and Appeals (DOHA) issued a notice
of appeal scheduling the hearing for February 20, 2014. I held the hearing as scheduled.
During the hearing, I received two Government exhibits, marked as Government Exhibit
(GE) 1 and 2, and 13 Applicant Exhibits marked as Applicant Exhibits (AE) A through M.
DOHA received the hearing transcript (Tr.) on March 5, 2014.
Evidentiary Rulings
Department Counsel asked that I take administrative notice of Hearing Exhibits
(HE) I through XIII. After considering Applicant’s objections, I granted Department
Counsel’s request with respect to HE I through VI, and HE VIII, and reserved judgment
on HE VII and HE IX through XIII. (Tr. 32)
HE VII is a settlement order (the Order) related to a U.S. company that was
accused of trading with Israel and two other countries without obtaining the required
licenses from the United States Department of Commerce Bureau of Industry and
Security (BIS). The Order memorializes an agreement between BIS and the U.S.
company in which the company neither admitted nor denied the allegations, but agreed
to accept a civil penalty, suspended for one year, so long as it committed no additional
violations. HE IX through XIII are BIS press releases summarizing settlement of civil and
criminal charges involving companies that either illegally or improperly exported sensitive
technology to Israel.
Administrative notice is the means by which agencies make factual findings
without the adversarial presentation of evidence. (See McCormick on Evidence § 339 at
1029 (3d ed. 1988)) Facts that are received in this manner are considered legislative
facts. Legislative facts are established truths, facts, or pronouncements that do not
change from case to case, but apply universally. They form the basis upon which
adjudicative facts are evaluated. (See, e.g., Brown v. Board of Education, 347 U.S. 483,
494 (1954), Baker v. Carr, 369 U.S. 186 (1962), and Neeld v. National Hockey League,
594 F. 2d, 1297, 1300 (9  Cir. 1979))th
According to the Appeal Board, “official pronouncements by the President, State
Department, Department of Defense, or other appropriate federal agency on matters of
national security are equivalent to legislative facts for the purposes of DOHA
adjudications in that they bind the judge and are not subject to refutation.” (See ISCR
Case No. 02-04786 at n.6 (App. Bd. Jun. 27, 2003) In order for a fact to be legislative, it
must concern an issue over which reasonable people could not disagree. (de la Llana-
Castellon v. U.S. Immigration and Naturalization Service (16 F. 3d 1093, 1097, C.A. 10,
1994 (February 16, 1994).
The information of which I took administrative notice consisted of copies of
various political, military, and economic agreements between Israel and the United
States over the years. Also, it consisted of agency reports and presidential
announcements covering topics ranging from general information about travel to Israel,
HE X concerns an Israel man who was charged with concealing an illegal transfer of an infrared camera from1
the U.S. Commerce Department’s Bureau of Export Administration.
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to information regarding the current security/intelligence profile of Israel vis a vis the
United States. 
Conversely, the hearing exhibits, on which I reserved judgment, do not analyze or
discuss the relationship between Israel and the United States. Instead, these exhibits are
simply copies of press releases or court orders regarding companies that settled export
violation cases with BIS. Although each press release sets forth cases involving
technology being exported to Israel, HE X  is the only one that involved an Israeli. Also,1
these press releases do not indicate that the companies involved were attempting to help
Israel, or whether they were driven to circumvent the BIS regulations out of profit motive.
Consequently, I decline to take administrative notice of any of the information
encapsulated within the hearing exhibits, upon which I reserved judgment, other than HE
X.
Findings of Fact
Applicant is a 43-year-old married man with two children, ages three and one. He
is a licensed pilot who works for a commercial airline. (Tr. 95) He also owns a company
that specializes in integrating aerial technology software for various government
agencies. (Tr. 97-98) He requires a security clearance for the latter position. (Tr. 10) 
Applicant was born and raised in Israel. When Applicant was ten, his father left his
family, leaving Applicant’s mother indigent, and unable to support their family.  (Answer
at 2) Consequently, Applicant’s mother sent him to live at a kibbutz that had a program
with children from “broken” families. (Tr. 87, 121) Applicant spent the remainder of his
childhood there. (Tr. 88) While living at the kibbutz, Applicant only saw his mother once
every few months, and rarely talked to her because the kibbutz had no phone service.
(Tr. 121)
Applicant finished high school in 1989, then completed his mandatory military
service. After finishing his stint in the Israeli military in 1992, Applicant moved to the
United States. (Tr. 90) He enrolled in flight school and took a job as a security guard at
the Israeli Embassy. (Tr. 90) He was a contract employee, not an employee of the Israeli
government. (GE 2 at 44)
Applicant graduated from flight school in 1996. (Tr. 90) He then left his
employment with the Israeli Embassy and took a job with an airline company. (Tr. 91)
Shortly after getting this job, Applicant was furloughed. (Tr. 98) Because the furlough
coincided with the expiration of Applicant’s green card, he returned to Israel, earned an
Israeli pilot’s license, and began job-hunting for positions in both Israel and the United
States. (Tr. 91, 93) 
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In 1998, after getting a job with another U.S. airline company, Applicant returned
to the United States. (Tr. 93) He worked for this airline through 2004, before taking a job
with the airline company with whom he works currently. (Tr. 95) Since working for his
current employer, Applicant has helped three friends, U.S. citizens and former coworkers
from the company that downsized in the mid-1990s, get jobs with his current employer.
(Tr. 95) He became a naturalized U.S. citizen in 2005. (GE 1 at 7)
In 2004, Applicant started a side business selling aerial photography (Tr. 96).
Initially, he worked with realtors, then increasingly became interested in geospatial
technologies. (Tr. 96) In 2007, Applicant started his current business. (GE 1 at 13) He
develops software that supports multiple government agencies and allows them to share
geospatial data more quickly and efficiently. (Answer at 3; Tr. 97)
Applicant’s mother and two brothers are citizens and residents of Israel.
Applicant’s mother is an accountant who works at a local university. (Tr. 120) It is not
affiliated with the Israeli government. Applicant speaks to his mother approximately once
per week, and he sees her once per year when he travels to Israel. (Tr. 120, 125)
Although Applicant and his mother currently are not estranged, their relationship is not
normal “like other people’s normal” because Applicant is still deeply hurt by his mother’s
decision to leave him at the kibbutz. He feels like she “gave up on [him] when he was
ten.” (Tr. 152)
When Applicant moved to the kibbutz, his younger brother was five years old, and
his youngest brother was one year old. Because they were not raised together, they do
not have a close relationship. The brother who is five years younger then Applicant is a
policeman. (Tr. 125) Applicant does not talk to him regularly, and he last saw him at their
youngest brother’s wedding two years ago. (Tr. 125; Answer at 10) 
Applicant’s youngest brother is a software programmer. (Tr. 122) He does not
work for the Israeli government. They communicate by SKYPE once every few months.
(Tr. 123) Applicant’s mother and youngest brother visited Applicant in the United States
approximately a year ago when Applicant’s youngest child was born. Applicant neither
receives, nor provides financial support from any of his family members. (Tr.118).
Life on the kibbutz was tough. There was a social hierarchy among the children
there. They treated anyone who was not born on the kibbutz as “B scale citizens.” (Tr.
151) Nevertheless, Applicant remains in touch with the people at the kibbutz who raised
him. Applicant speaks to his “kibbutz mom” and her daughter approximately once per
year. (GE 2 at 25) He only speaks to his “kibbutz brothers” when he visits Israel. (GE 2 at
25) His “kibbutz father” is deceased. (GE 2 at 25) 
Applicant has several Israeli friends with whom he remains in touch. These
contacts include his mentor, a dual U.S./Israeli citizen who owns a flight school in Israel
and a flight school in the United States. (Tr. 129) This friend splits his time between
Israel and the United States. Applicant talks to him a few times per year, and last saw
him a year ago. (Tr. 130, 135) Applicant is also friends with this gentleman’s son, a
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doctor who lives in northern Israel. (Tr. 130) Applicant has not talked to him in several
years.
Applicant is acquainted with an Israeli citizen and resident who works in the airline
business. Applicant talks with him a few times per year. Over the years, this friend visited
Applicant in the United States once, and Applicant visited him in Israel twice. (GE 2 at
25)
Applicant’s business generates approximately $250,000 of revenue annually. (Tr.
147) His home is valued at more than two million dollars, and he has $250,000 in a 401k
plan. (Tr. 147) Applicant has no assets in Israel. When his grandfather died in the mid-
1990s, his mother informed him that he could possibly receive money through his
grandfather’s estate. Applicant never pursued this possibility. (Tr. 117) 
Applicant is active in a national professional organization for practicioners in the
geospatial technology field. (Tr. 97) Several personal and professional acquaintances
vouch for his integrity, his excellent job performance, and his good character, including
two retired naval officers, and an air force officer. (AEs A-C, J)  
Israel is a parliamentary democracy with strong historic and cultural ties with the
U.S. (HE II at 1; HE VI at 2). Commitment to Israel’s security has been a cornerstone of
U.S. Middle East policy since Israel’s inception (HE XXIX at 3; HE XXXI at 1). Both
countries have a mutual interest in a peaceful, secure Middle East. On July 27, 2012,
President Obama signed the United States-Israel Enhanced Security Cooperation Act.
(HE XXX) The goal of this legislation is to strengthen the military edge that Israel enjoys
over its regional enemies. (Id.) 
Israel aggressively targets sensitive U.S. technology. (HE VI at 38) There have
been some cases of U.S. government employees who have been prosecuted and
convicted of spying against the U.S. for Israel. (Exhibit VI at 39) In 1998, Israel
acknowledged that one of these individual’s had been its agent. (HE VI at 39)
The threat of terrorist attacks is growing in ungoverned or minimally governed
areas near Israel’s borders with Syria, Lebanon, the Sinai Peninsula, and Libya. (HE VI
at 17) However, some unconventional security threats have been reduced because of
factors such as heightened security measures vis a vis Palestinians, missile defense
systems, and cyberwarfare capabilities. (HE VI at 17)
Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the revised adjudicative guidelines (AG). In addition
to brief introductory explanations for each guideline, the adjudicative guidelines list
potentially disqualifying conditions and mitigating conditions.
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These guidelines are not inflexible rules of law. Instead, recognizing the
complexities of human behavior, these guidelines are applied together with the factors
listed in the adjudicative process. 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.” 
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. . . .” The
applicant has the ultimate burden of persuasion for obtaining a favorable security
decision.
Analysis
Guideline B, Foreign Influence
Under this guideline, “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 the U.S. interests, or is vulnerable to pressure or coercion by any foreign interest” (AG
¶ 6). Moreover, “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” (Id.).
Israel aggressively targets protected or sensitive U.S. technologies. Also, over the
past 25 years, several people have been caught spying against the United States on
Israel’s behalf. AG ¶ 7(a), “contact with a foreign family member, business or
professional associate, friend, or other person who is a citizen of or resident in a foreign
country if that contact creates a heightened risk of foreign exploitation, inducement,
manipulation, pressure, or coercion.”
The following mitigating conditions under AG ¶ 8 are potentially applicable:
(a) the nature of the relationships with foreign persons, the country in which
these persons are located, or the positions and 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.;
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(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
(c) 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 has minimal contact with his younger brother, the policeman. He
communicates with his brother, the software designer, a few times per year. They were
never close because Applicant’s brothers were both under six years old when his mother
sent him to live at the kibbutz. Applicant’s contact with his kibbutz family, friends, and
acquaintances living in Israel is similarly casual and infrequent. AG ¶ 8(c) is applicable.
Applicant’s relationship with his mother is not casual. Moreover, they talk and visit
one another fairly regularly given that she lives overseas. AG ¶ 8(c) does not apply to
Applicant’s relationship with his mother. 
There have been episodes of espionage conducted on Israel’s behalf against U.S.
interests. Although this limits the probative value of Israel’s friendly relationship and its
shared values with the United States, it does not nullify it. Israel is a democracy. It has
no history of brute oppression or intimidation of its citizens. Although its foreign policy
objectives are not always congruent with the United State’s foreign policy objectives,
they are  by no means antithetical to those of the United States. 
Of course, there are more subtle types of exploitation, inducement, manipulation,
pressure, or coercion that a foreign country can exert on an individual with relatives or
friends living in that country. Appeals to patriotism and ego, or the exploitation of a
targeted person’s natural desire to help loved ones or friends are tactics employed by
friendly and hostile countries, alike. Although Applicant was raised in Israel, his
childhood memories of Israel are not fond. His mother “gave up on him when he was
ten,” sending him to live on a kibbutz where he was treated like a “B scale citizen” for the
next ten years. Conversely, once Applicant moved to the United States, he successfully
pursued his dream of becoming an aviator, finishing flight school, nurturing his interest in
geospatial technology, and parlaying it into a successful business that enabled him to
become wealthy and respected in the field as a subject-matter expert. Also, since
moving to the United States, Applicant has gotten married, started a family, and
purchased a home. 
With the exception of three years in the mid-1990s, Applicant has been living in
the United States since immigrating here in 1992. In that time, he formally renounced his
Israeli citizenship and did not pursue a potential inheritance in Israel after the death of
his grandfather. Under these circumstances, AG ¶¶ 8(a) and 8(b) apply. 
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Whole-Person Concept
Under the whole-person concept, 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.
Upon evaluating this case in the context of the whole-person concept, I conclude
that it is highly unlikely that Applicant would sacrifice his job, the well-being of himself
and his family, and his prestige by compromising classified or sensitive information for
the benefit of a mother whom he feels abandoned him, or a country where he was
treated like a second-class citizen. Applicant has mitigated the foreign influence security
concern. 
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
 Subparagraphs 1.a - 1.c: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is clearly
consistent with national security to grant Applicant eligibility for a security clearance.
Eligibility for access to classified information is granted.
                                             
MARC E. CURRY
Administrative Judge