1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 15-03523 ) Applicant for Security Clearance ) Appearances For Government: Ross Hyams, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ RICCIARDELLO, Carol G., Administrative Judge: Applicant failed to mitigate the security concerns under Guideline B, foreign influence, and Guideline C, foreign preference. Applicant’s eligibility for a security clearance is denied. Statement of the Case On November 10, 2015, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline B, foreign influence, and Guideline C, foreign preference. The action was taken under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD 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 on September 1, 2006. Applicant answered the SOR on December 8, 2015, and requested a hearing before an administrative judge. The case was assigned to me on June 6, 2016. The 2 Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on June 22, 2016. I convened the hearing as scheduled on July 20, 2016. The Government offered exhibits (GE) 1 and 2, which were admitted into evidence without objection. Applicant testified and offered Applicant Exhibits (AE) A through D, which were admitted into evidence without objection.1 DOHA received the hearing transcript (Tr.) on July 28, 2016. Request for Administrative Notice Department Counsel submitted written requests, with supporting documents,2 that I take administrative notice of certain facts about Iraq and Jordan. Applicant did not object, and I have taken administrative notice of the facts contained in the request that is supported by source documents from official U.S. Government publications. The facts are summarized in the Findings of Fact, below. Findings of Fact Applicant admitted the allegations in the SOR. His admissions are incorporated into the findings of fact. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact. Applicant is 55 years old. He was born in Iraq. He earned a bachelor’s degree from a service academy in Iraq in 1984 and was commissioned an officer in the Iraqi military. He married in 1988 and has a 26-year-old son and 21-year-old daughter. He is sponsored by a federal contractor for a job.3 Applicant served with the U.S. military in Iraq beginning in late 2005 until approximately 2007. He described his service as dangerous as he was traveling throughout Iraq to military bases, and he was targeted because of his service. He testified he was shot at and a bullet grazed his forehead. He indicated he worked for a defense contractor sometime in 2010 supporting operations in Iraq.4 In 2007, because of Applicant’s service he was granted a special visa, and he and his family were permitted to immigrate to the United States. He and his wife made a decision that he would immigrate to the United States, but she and the children would remain in Iraq so the children could complete school. They did not want their children’s education to be disrupted. In 2012 after completion of his schooling, Applicant’s son immigrated to the United States. In November 2012, Applicant became a citizen of the United States. His wife and daughter remained in Iraq so his daughter could complete 1 Hearing Exhibits I and II are Department Counsel Memoranda. Although there were no objections, Department Counsel commented on some of the exhibits. 2 GE 3, 4, 5 and 6 are the administrative notice requests and supporting documents. 3 Tr. 15-18. 4 Tr. 28-31. 3 school, which she did in 2014. At that time, they applied for visas to come to the United States. Their applications are still pending. Applicant has requested updates of their status from the U.S embassy, but has not received a response. He has no indication of when his wife and daughter will be permitted to immigrate to the United States. It is too risky for him to travel to Iraq using a U.S. passport; otherwise he would travel there to go to the U.S. embassy and attempt to inquire in person as to the status of his family’s visa applications.5 Applicant’s son is an Iraqi citizen, and a permanent resident of the United States. Applicant’s wife, daughter, mother, brother, older sister, and mother-in-law are citizens and residents of Iraq. His brother is a retired banker. He has three children. Applicant’s last contact in person with his brother was in 2012, and he maintains telephonic monthly contact. He does not know if his brother is interested in immigrating to the United States. His older sister is self-employed and has a daughter. He last saw his sister, who lives in Iraq, in 2012, but maintains monthly telephonic contact. His younger sister is a citizen of Iraq residing in Jordan. He contacts her by telephone annually. She and her husband are permanent residents of Jordan. They have applied for humanitarian visas to immigrate with their two children to the United States. Applicant’s mother visited him in the United States for eight months and then returned to Iraq. He maintains contact with her in Iraq regularly. Applicant indicated he has no control over his brother’s and sisters’ choices.6 Applicant’s wife and daughter live together with his wife’s three sisters, (along with one sister’s husband), and her mother in Iraq. He acknowledged that it is not a safe area, and they do not go outside their compound often. Applicant has minimal contact with his mother-in-law. His family is aware that he worked for the U.S. military in the past, and they are aware that he is applying for a security clearance. Applicant has made numerous trips to Iraq since 2007 for his work. He did not visit his family during these trips. He has also made two trips in 2008 and 2009 to visit his family. He testified that he has not used his Iraqi passport to travel since becoming a U.S. citizen in 2007. He communicates every week with his wife and daughter through video on the computer.7 Applicant served in the Iraqi military from 1981 until he retired as an Army captain in 1991. He is entitled to a military pension from the Iraqi government. On his December 2012 security clearance application (SCA), he indicated he received the pension from November 1991, and it was expected to end in January 2013. During his background interview with a government investigator in January 2013, he indicated that he no longer received a retirement pension. He indicated that the procedure for maintaining his pension was complex and difficult, and he did not wish to continue the process. At his hearing, he testified that he continues to receive a retirement pension 5 Tr. 18-22, 24-25; AE A. 6 Tr. 27, 32-35, 45; GE 1, 2. 7 Tr. 33, 39-43. 4 from the Government of Iraq. The pension goes to his wife and daughter to support them while they live in Iraq. He estimated the amount was $100 a month. He testified that once his wife and daughter immigrate to the United States, he will no longer be entitled to the pension. His wife’s family provides additional support for her and his daughter. Applicant also occasionally sends money to help. He does not own any property in Iraq.8 Applicant has purchased a house in the United States. His son will apply for U.S. citizenship once he completes the required time period. He lives with Applicant. His son has obtained a state license so he can work in his field of study.9 Applicant possessed an Iraqi passport that was issued in August 2007 and was valid through August 2015. He provided a letter from his prospective employer that indicated he relinquished his Iraqi passport to the employer.10 Applicant provided a 2007 copy of a letter from Iraqi Automated Fingerprint Information System, Ministry of Interior of Iraq verifying no adverse findings were detected in his background.11 He also provided Performance Certificates he received from the U.S. government contractors for whom he worked and the U.S. Army from 2005, 2006, and 2007, recognizing him for his attitude, dedication, initiative, hard work, and bravery. Applicant provided a character letter from 2006, which indicated he was held in high regard by the Coalition Force, and he was frequently requested by name to work because of his proven skills. He demonstrated a strong work ethic and was considered a valuable contributor to the team. His intelligence, resourcefulness and adaptability were considered a tremendous asset.12 A character witness who has known Applicant for six years testified on his behalf. He considers Applicant a friend who is trustworthy. Because of Applicant’s cultural expertise he is a highly sought after employee. He is considered a respected professional.13 IRAQ The U.S. Embassy warns U.S. citizens to avoid all but essential travel to Iraq. U.S. citizens remain at high risk for kidnapping and terrorist violence while in Iraq. The 8 Tr. 25-27, 37-39; GE 1, 2. 9 Tr. 35-36, 40. 10 Tr. 23, 28, 36-37; GE 1; AE B. 11 AE C. 12 AE D. 13 Tr. 49-51. 5 U.S. Government considers the potential threat to U.S. citizens to be serious enough to require them to live and work under strict security guidelines. Iraq’s sectarian and ethnic divisions have reemerged and create a major challenge to Iraq’s stability. Al-Qaeda continues to be a major threat to Iraqi stability. In 2013, Al Qaeda in Iraq adopted the name Islamic State of Iraq and Levant (ISIL), or alternately, Islamic State of Iraq and Syria (ISIS). In 2014, the group changed its name to the Islamic State (IS). In May 2014, the Department of State amended the Foreign Terrorist Organization designation to add ISIL. ISIL conducts widespread active insurgency in parts of Iraq and Syria as it seizes territory in both countries. Within areas under ISIL control, the Iraqi government has little or no ability to control and ensure public safety. People belonging to minorities, religious, ethnic, or otherwise, and those who express support for the government of Iraq or western institutions are at grave risk in these areas and may be subject to kidnapping, imprisonment, or execution. ISIL has murdered numerous journalists and aid workers, and posted their executions on YouTube. There has been a surge in terrorist activities in Iraq since 2014 from other insurgent groups as a result of ISIL’s activity. The 2014 U.S. Department of State’s annual human rights report on Iraq reflects that due to attacks and offensive operations by ISIL, the Iraqi government lost effective control over large areas of the country. Control over the security forces was inconsistent and the deterioration of the security situation led to the reemergence of militia operating outside of the authority of the government. ISIL committed the overwhelming number of serious human rights abuses. It systematically targeted government officials and members of the security forces, as well as religious and ethnic minorities, and women and children.14 Jordan Jordan is a constitutional monarchy. The U.S. Department of State’s 2015 human rights report indicated Jordan’s most significant human rights problems were (1) restrictions on the freedom of expression, including the detention of journalists, which limited the ability of citizens and media to criticize government policies and officials; (2) citizens’ inability to change their government peacefully; and (3) the mistreatment and allegations of torture by security and government officials. Other human rights problems included restrictions on freedom of association, poor prison conditions, arbitrary arrest and denial of due process through administrative detention, prolonged detention, and allegations of nepotism and influence of special interest on the judiciary. In addition, there are infringements on citizens’ right to privacy, interference in the media, violence against women and abuse of children, and trafficking in persons. 14 GE 3, 4. 6 The U.S. State Department assesses the threat of terrorism in Jordan as high. The State Department remains concerned about the continued threat of terrorist attacks and other violent actions against U.S. citizens and interests overseas. It warns travelers to be cognizant of the fact that violent extremist groups have carried out terrorist activities against U.S. and government of Jordan targets in Jordan.15 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. Likewise, I have not drawn 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, 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 the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible 15 GE 5, 6. 7 extrapolation of potential, rather than actual, risk of compromise of classified information. Section 7 of EO 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 C, Foreign Preference The security concern for foreign preference is set out in AG ¶ 9: When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may be prone to provide information or make decisions that are harmful to the interests of the United States. The guideline notes several conditions that could raise security concerns under AG ¶ 10. The following are potentially applicable in this case: (a) exercise of any right, privilege or obligation of foreign citizenship after becoming a U.S. citizen or through the foreign citizenship of a family member. This includes but is not limited to: (1) possession of a current foreign passport; and (c) accepting educational, medical, retirement, social welfare, or other such benefits from a foreign country. Applicant held a valid Iraqi passport after becoming a United States citizen. He receives a retirement pension from the Iraqi Government for his military service. The above disqualifying conditions apply. AG ¶ 11 provides conditions that could mitigate security concerns. The following is potentially applicable: (c) exercise of the rights, privileges, or obligations of foreign citizenship occurred before the individual became a U.S. citizen or when the individual was a minor; and (e) the passport has been destroyed, surrendered to the cognizant security authority, or otherwise invalidated. Applicant’s Iraqi passport expired in 2015. He surrendered it to his prospective employer. AG ¶ 11(e) applies to SOR ¶ 2.b. Applicant served in the Iraqi military and 8 earned a retirement pension. He received the pension before becoming a United States citizen. He continues to receive the retirement pension, which he provides to his wife and daughter who continue to live in Iraq. AG ¶ 11(c) does not apply. Foreign preference security concerns are not mitigated. Guideline B, Foreign Influence AG ¶ 6 expresses the security concern regarding foreign influence: Foreign contacts and interests may be a security concern if the individual has divided loyalties or foreign financial interests, may be manipulated or induced to help a foreign person, group, organization, or government in a way that is not in U.S. interests, or is vulnerable to pressure or coercion by any foreign interest. Adjudication under this Guideline can and should consider the identity of the foreign country in which the foreign contact or financial interest is located, including, but not limited to, such considerations as whether the foreign country is known to target United States citizens to obtain protected information and/or is associated with a risk of terrorism. AG ¶ 7 describes conditions that could raise a security concern and may be disqualifying. I have considered all of them. The following conditions potentially apply: (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 (d) sharing living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation pressure, or coercion. AG ¶¶ 7(a) and 7(d) require evidence of a “heightened risk.” The “heightened risk” required to raise one of these disqualifying conditions is a relatively low standard. “Heightened risk” denotes a risk greater than the normal risk inherent in having a family member living under a foreign government. 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.16 16 ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004). 9 Furthermore, “even friendly nations can have profound disagreements with the United States over matters they view as important to their vital interests or national security.”17 Finally, we know friendly nations have engaged in espionage against the United States, especially in the economic, scientific, and technical fields. Nevertheless, 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 or the country is known to conduct intelligence operations against the United States. In considering the nature of the government, an administrative judge must also consider any terrorist activity in the country at issue.18 Applicant’s wife, daughter, mother, brother, older sister and mother-in-law are all citizens and residents of Iraq. His younger sister is a citizen of Iraq and resident of Jordan. His son is a citizen of Iraq and a resident of the United States. Applicant has regular contact with his family living in Iraq. That country is a high-risk country for kidnapping and terrorist violence. The influence and activities of ISIL within the country makes it an extremely dangerous place. There is a serious threat to U.S. citizens and its interests in Iraq. The terrorist threat in Jordan is also high. Violent extremist groups have carried out terrorist activities against United States and government of Jordan targets in Jordan. I find that these factors rise to the level of creating a heightened risk. The above disqualifying conditions apply.19 I have analyzed all of the facts and considered all of the mitigating conditions for this security determination under AG ¶ 8. The following are potentially applicable: (a) the nature of the relationship 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 and 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 interests in favor of the U.S. interests; and 17 ISCR Case No. 00-0317, 2002 DOHA LEXIS 83 at **16-16 (App. Bd. Mar. 29, 2002). 18 See generally; ISCR Case. No. 02-26130 at 3 (App. Bd. Dec. 7, 2006) (reversing decision to grant clearance where administrative judge did not consider terrorist activities in area where family members resided). 19 GE 5, 6. 10 (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’s wife, daughter, mother, brother, sister, and mother-in-law live in Iraq. Applicant has frequent contact with his wife, daughter and mother. He provides his Iraqi military pension to them. His contact with his family is not casual or infrequent. He and his wife made a decision for her and their children to remain in Iraq so the children could complete their education. Applicant’s mother visited him in the United States for about eight months before returning to Iraq. He maintains contact with his brother and sister in Iraq. Applicant acknowledged it is too dangerous for him to return to Iraq using his U.S. passport. Applicant’s family in Iraq is aware that he is seeking to obtain a security clearance. Applicant’s relationship with his family, the instability of security and the terrorist activities that are prevalent in Iraq makes is likely that Applicant could be placed in a position of having to choose between the interests of his family and the interests of the United States. Applicant’s devotion to his family living in Iraq is not minimal and the difficulty he would potentially encounter in having to choose between his family or his adopted country would be too difficult. I find the same analysis applicable for Applicant’s contact with his sister in Jordan. That country has the same type of risks. AG ¶¶ 8(a), 8(b), and 8(c) do not apply. Applicant’s son is a citizen of Iraq and a permanent resident of the United States. Because Applicant’s son lives with him in the United States the security risk is reduced. It is unlikely Applicant would be placed in a position of having to choose between the interests of his son and the interests of the United States. I find AG ¶ 8(a) applies to Applicant’s son. Foreign influence security concerns are not mitigated. 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. 11 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 Guidelines C and B in my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under those guidelines, but some warrant additional comment. Applicant is 55 years old. He served in the Iraqi military and earned a retirement pension. I have considered his service with the U.S. Army and defense contractors in Iraq. He and his family were granted special visas to immigrate to the United States in 2007. Applicant immigrated, but he and his wife decided that she would remain in Iraq until the children completed school. His son immigrated in 2012 after completing his schooling. Applicant became a U.S. citizen in 2012. In 2014, he surrendered his Iraqi passport, which expired in 2015, to his prospective employer. In 2014 when his daughter completed her schooling, Applicant applied for visas for his wife and daughter to immigrate. The visas have not yet been issued. Applicant continues to receive an Iraqi retirement pension that is given to his wife and daughter for support. They live in a family compound in Iraq and are also supported by her family. His family is aware he has worked for the U.S. government and its contractors in the past. They are aware he is applying for a security clearance. There is no question that Applicant has been loyal to the United States through his work, but at this time, his continued close contacts with family in living in Iraq and Jordan make him vulnerable to pressure and coercion and therefore are a security concern. Overall, the record evidence leaves me with questions and doubts about Applicant’s eligibility and suitability for a security clearance at this time. For all these reasons, I conclude Applicant failed to mitigate the security concerns arising under the foreign preference and foreign influence guidelines. 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.b: Against Applicant Subparagraph 1.c: For Applicant Paragraph 2, Guideline C: AGAINST APPLICANT Subparagraph 2.a: For Applicant Subparagraph 2.b: Against Applicant 12 Conclusion In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant a security clearance. Eligibility for access to classified information is denied. _____________________________ Carol G. Ricciardello Administrative Judge