1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 14-01522 ) Applicant for Security Clearance ) Appearances For Government: Pamela Benson, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ COACHER, Robert E., Administrative Judge: Applicant mitigated the security concerns under Guideline B, foreign influence. Applicant’s eligibility for a security clearance is granted. Statement of the Case On August 1, 2014, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline B, foreign influence. The DOD CAF acted 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 on August 21, 2014, and elected to have his case decided on the written record. Department Counsel submitted the Government’s File of 2 Relevant Material (FORM) on February 20, 2015.1 The FORM was mailed to Applicant and he received it on March 9, 2015. Applicant was given an opportunity to file objections and submit material in refutation, extenuation, or mitigation. Applicant submitted several documents, which I marked as Items 5-1 through 5-24 and admitted into the record. The case was assigned to me on March 30, 2015. Procedural Rulings Administrative Notice I took administrative notice of facts concerning the country of Afghanistan.2 Department Counsel provided supporting documents that verify, detail, and provide context for the facts in the Administrative Notice request. See the Afghanistan section of the Findings of Fact, infra, for the material facts from Department Counsel’s submissions on this country. Administrative or official notice is the appropriate type of notice used for administrative proceedings.3 Usually administrative notice in ISCR proceedings is accorded to facts that are either well known or from government reports.4 Findings of Fact In Applicant’s answer to the SOR, he admitted all the allegations with explanations. Those admissions are incorporated into the findings of fact. After a thorough and careful review of the pleadings and exhibits submitted, I make the following additional findings of fact. Applicant is 29 years old. He was born in Afghanistan in 1986. He is single and has no children. From 2003 to 2008 he served as an in-country linguist to U.S. forces in Afghanistan. He continues to serve as a linguist, working for his current employer since 2011. He came to the United States in August 2008 on a special immigration visa (SIV), which was granted due, in large part, to his actions as a linguist working for U.S. forces. He resides in the United States where he owns a home valued at $352,000. He became a naturalized U.S. citizen in September 2013.5 1 The FORM included as evidence Items 1-4, which I admitted into the record. 2 Item 4. 3 See ISCR Case No. 05-11292 at 4 n.1 (App. Bd. Apr. 12, 2007); ISCR Case No. 02-24875 at 2 (App. Bd. Oct. 12, 2006) (citing ISCR Case No. 02-18668 at 3 (App. Bd. Feb. 10, 2004) and McLeod v. Immigration and Naturalization Service, 802 F.2d 89, 93 n.4 (3d Cir. 1986)). 4 See Stein, Administrative Law, Section 25.01 (Bender & Co. 2006) (listing fifteen types of facts for administrative notice). 5 Items 2-3. 3 Applicant has the following relatives who are residents and/or citizens of Afghanistan: 1. His mother. She is a housewife. Applicant has at least monthly contact with his mother. He also sends her between $500 and $800 monthly to support her since his father died. The money is used for medical expenses and other living expenses. She is not aware of what he does for a living or where he works. She is not affiliated with the Afghan government.6 2. Applicant’s five brothers and five sisters. None of his brothers or sisters knows what he does for a living or where he works. None of his siblings have any Afghan government connections except for one brother who works for the Ministry of Internal Affairs as a police officer. He is not close to this brother. He has telephone contact with his siblings about every six months. He has bimonthly contact with his youngest brother who is a student and lives with their mother.7 3. His uncle on his mother’s side. Several months ago, he retired from his position at the Ministry of Agriculture. He is not aware of where Applicant works. Applicant’s contact with him is limited to once or twice a year.8 4. His cousin. He does not know what Applicant does for a living or where he works. Applicant’s contact with his cousin is no more than once a year.9 5. A friend. He does not know what Applicant does for a living or where he works. Applicant’s contact with his friend is no more than once a year.10 Applicant is supported in his effort to gain a security clearance by 13 U.S. military and diplomatic personnel who worked with Applicant in various positions in Afghanistan. Those people include a Major General, Brigadier General, several Colonels and Lieutenant Colonels, and several junior officers. One example of the high regard Applicant is held by these people is the following excerpt from a letter: “Linguist [Applicant] has served heroically as a linguistic and cultural advisor through some of the toughest combat in Afghanistan this year.” In another letter, the author wrote the following about Applicant: “In every instance, [Applicant] has demonstrated his limitless devotion to America by putting himself in the line of fire not only alongside U.S. troops, but in front of them. I would place his selfless service, personal sacrifice, and devotion to duty on the same level as our Soldiers, Sailors, Marines, and Airmen in the most 6 Items 1, 3. 7 Items 1, 3, 5-5. 8 Items 1, 3. 9 Items 1, 3. 10 Item 1. 4 dangerous and rigorous conditions.” He was frequently described as the best linguist and completely dedicated to the U.S. mission. He is further described as trustworthy, loyal, honest, and a person of high integrity.11 Afghanistan Formerly under the control of the United Kingdom, Afghanistan received independence in August 1919. It is a rugged and mountainous country in Southwestern Asia, approximately the size of Texas, and has common borders with Pakistan on the east and the south, Iran on the west, and Russia on the north. In 2009, the population was about 28 million people. Afghanistan has had a turbulent political history, including an invasion by the Soviet Union in 1979, occupation by the Soviet Union until 1989, and civil war between the occupiers and home-grown freedom fighters, known as Mujahidin. Anarchy ensued, and fighting continued among the various ethnic, clan, and religious warlords and their respective militias even after the Soviet Union withdrew from the country. By the mid-1990s, the Taliban rose to power and controlled significant portions of the country, imposing repressive policies and Sharia law, guiding all aspects of Muslim life. Afghanistan became a sanctuary for terrorist groups. After the September 11, 2001 terrorist attacks in the United States, U.S. demands that Afghanistan expel Osama Bin-Laden and his followers were rejected by the Taliban. In October 2001, U.S. forces and coalition partners conducted military operations in the country, forcing the Taliban out of power. Following a few years of governance by an interim government, a democratic presidential election took place in October 2004, and a new democratic government took power. Despite the election, many daunting challenges remained, largely because terrorists, including al-Qa’ida and the Taliban, continue to assert power and intimidation within the country. Terrorists continue to target United States and Afghan interests through suicide bombings, assassinations, and hostage taking. Afghanistan’s human rights record remains poor, for there are continuing extrajudicial killings; torture and other abuse; widespread official corruption with impunity; ineffective government investigations of abuses by local security forces; arbitrary arrest and detention; judicial corruption; violations of privacy rights; violence and societal discrimination against women; sexual abuse of children; trafficking in persons; and restrictions on freedoms of religion, the press, assembly, and movement. The Taliban-led insurgency in Afghanistan has diminished in some areas, but remains resilient and capable of challenging U.S. and international goals. Security gains are especially fragile in areas where International Security Assistance Forces (ISAF) have been concentrated since 2010 and are now transitioning the security lead to Afghan National Security Forces (ANSF). The ANSF will require international assistance through 2014 and beyond. 11 Items 5-1 through 5-24. 5 In May 2012, the United States and Afghanistan signed the Enduring Strategic Partnership Agreement (SPA). This ten-year agreement demonstrates the commitment by the United States to strengthen Afghanistan’s sovereignty, stability, and prosperity and continued cooperation to defeat al-Qa’ida and its affiliates.12 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, and 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 that an applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information. 12 Item 4. 6 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 explains the security concern about “foreign contacts and interests” stating: 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 indicates conditions that could raise a security concern and may be disqualifying 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; and (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. The mere possession of close family ties with a family member living in Afghanistan is not, as a matter of law, disqualifying under Guideline B. However, if an applicant has a close relationship with even one relative living in a foreign country, this factor alone is sufficient to create the potential for foreign influence and could potentially result in the compromise of classified information. 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 or inducement. 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, 7 the country is known to conduct intelligence collection operations against the United States, or the foreign country is associated with a risk of terrorism. The relationship of Afghanistan with the United States places a significant, but not insurmountable burden of persuasion on Applicant to demonstrate that his relationships with his relatives living in Afghanistan do not pose a security risk. Applicant should not be placed in a position where he might be forced to choose between loyalty to the United States and a desire to assist his relatives living in Afghanistan who might be coerced by terrorists or other governmental entities. 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 authorized to have access to it, regardless of whether that person, organization, or country has interests inimical to those of the United States.”13 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. While there is no evidence that intelligence operatives or terrorists from Afghanistan seek or have sought classified or economic information from or through Applicant, or his relatives living in Afghanistan, it is not possible to rule out such a possibility in the future. As demonstrated by his regular contacts with his family, he continues to feel an obligation to them and affection for them. Applicant’s concern for his relatives is a positive character trait that increases his trustworthiness; however, it also increases the concern about potential foreign influence. Department Counsel produced substantial evidence to raise the issue of potential foreign pressure or attempted exploitation. AG ¶¶ 7(a) and 7(b) apply because of Applicant’s relationships with his relatives and a friend who are living in Afghanistan. Applicant communicates with these relatives on a regular basis. There is a rebuttable presumption that a person has ties of affection for, or obligation to, their immediate family members. Applicant has not attempted to rebut this presumption. Given Afghanistan’s fragile security situation, Applicant’s relationships with his relatives living in that country are sufficient to create “a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion.” AG ¶ 8 lists conditions that could mitigate foreign influence security concerns: (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 13 ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004). 8 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 (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. AG ¶ 8(a) does not apply. Applicant’s current linguistics position could cause him to be placed in a position to choose between the interests of his relatives and those of the United States. AG ¶ 8(c) applies to his friend because of the limited contact he has with him. Applicant has met his burden to establish his “deep and longstanding relationships and loyalties in the U.S.” He moved to the United States, gained citizenship, and currently resides in a home he purchased in the United States. Additionally, he volunteered to go into harm’s way to serve as a linguist for U.S. forces in Afghanistan on multiple occasions since 2003. In performing his linguist duties, he earned the admiration and respect of numerous high-ranking officers and diplomats with whom he served. The evidence supports that Applicant has longstanding loyalties toward the United States and would resolve any conflict of interest in favor of the United States. AG ¶ 8(b) applies. 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 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. 9 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. The circumstances tending to support granting Applicant’s clearance are more significant than the factors weighing towards denying his clearance at this time. I considered the ties he established in this country and his service as a linguist in a hostile environment, thereby demonstrating his longstanding loyalty to this country. Therefore, he provided sufficient evidence to mitigate the security concerns. 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 Guideline B, foreign influence. 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.h: 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. _____________________________ Robert E. Coacher Administrative Judge