1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-02401 ) Applicant for Security Clearance ) Appearances For Government: Chris Morin, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ RICCIARDELLO, Carol G., Administrative Judge: Applicant mitigated the Guideline C foreign preference security concerns, but failed to mitigate the security concerns under Guideline B, foreign influence. Eligibility for a security clearance is denied. Statement of the Case On August 3, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued to Applicant a Statement of Reasons (SOR) detailing security concerns under Guidelines B, foreign influence, and 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 August 23, 2016, and requested a hearing before an administrative judge. The case was assigned to me on October 31, 2016. The 2 Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on December 19, 2016. I convened the hearing as scheduled on January 24, 2017. The Government offered exhibits (GE) 1 through 3.1 Applicant testified and offered Applicant’s Exhibit (AE) A. All exhibits were admitted into evidence without objection. DOHA received the hearing transcript (Tr.) on February 1, 2017. Request for Administrative Notice Department Counsel submitted HEs II and III, which are written requests that I take administrative notice of certain facts about Iraq and Egypt, respectively. Applicant did not object, and I have taken administrative notice of the facts contained in the requests that are supported by source documents from official U.S. Government publications.2 The facts are summarized in the Findings of Fact, below. Findings of Fact Applicant admitted all of the SOR allegations, except ¶ 2.b, which he failed to provide a response. I will consider the nonresponse as a denial. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact. Applicant is 56 years old. He was born in Iraq and earned bachelor degrees there in 1983 and 1986. He married an Iraqi citizen in 1989 and they divorced in 2006. He has two children from the marriage, a son born in 1990 and a daughter born in 1994. Both children are students residing in Egypt. He remarried an American citizen in 2007. She was working in Iraq, and they married in Sri Lanka. She returned to the United States and applied for a visa for him to join her. He came to the United States in March 2010 and became a naturalized U.S. citizen in 2013.3 Applicant was an officer in the Iraqi military from 1983 until he retired in the rank of major in 1994. He collected a retirement pension from the Iraqi government. He stated it was about $200 a month. In 2003, he joined the new Iraqi military and his previous pension was terminated. He is still entitled to a pension, but must return to Iraq and apply for it. He does not receive any other benefits from the Iraqi government. He testified that from 2003 to 2010, he worked and lived with the U.S. forces and received certificates of appreciation as a military officer from 2003, 2005, 2009, and 2010. He retired from the Iraqi military in 2010.4 1 Hearing Exhibit (HE) I is the Government’s discovery letter. 2 Attached to the requests are the source documents. 3 Tr. 23-33. 4 Tr. 40, 42-49; AE A. He also provided certificates of completion for courses, along with photographs of him with various American military members. 3 Applicant testified he left Iraq in 2010. He returned in April 2014, as an employee for a U.S. government contractor. Their work was suspended in June 2014, due to security issues and concern for their safety. Applicant and the other employees transited and stayed in the United Arab Emirates until their work was officially suspended. Applicant testified he returned to the United States in October 2014. However, his counterintelligence investigative report shows that instead of returning to the United States, Applicant traveled to Egypt and resided with his children there from July to December 2014, when he returned to the United States.5 Applicant’s mother is a citizen and resident of Iraq. He last saw her in 2010 and spoke with her once by telephone in February 2016. Before then he spoke with her monthly. He has limited contact with her because he is concerned that “they” may find out that he is communicating with his mother, intercept cell phone calls, and cause her trouble. Because “they” know that he works with the U.S. government, and he has to consider everything so he can avoid problems for his mother. He stated he has to account for everything to avoid problems. When asked who “they” were, he explained there are a lot of militia in Iraq and ISIS is a major terrorist organization. The militia may know he works with U.S. troops. He does not know for certain, but he explained he cannot trust anyone, so he is concerned if these groups become aware he works for the U.S. military. He does not send his mother money, as she is self-sufficient and has considerable resources. She owns two homes. He stated that when his mother passes away he will share the inheritance with his brother.6 Applicant’s brother is a citizen and resident of Iraq. He is employed by the Ministry of Education, as a teacher. His brother, his brother’s wife, and their two children live together with their mother. Applicant last saw his brother when he visited his mother in 2010, and last spoke with him by telephone in February 2016. He has limited his contact with his brother for the same reasons as with his mother, due to safety concerns.7 Applicant’s children live together in Egypt and are students. They moved there in 2006, and live with their mother and her father. Their mother and grandfather travel back and forth between Egypt and Iraq, but the children remain in Egypt. Both children are citizens of Iraq. Applicant visits them annually and last visited them in October 2016. He speaks telephonically with his son daily and his daughter every three to four days. He provides financial support to his children from $500 to $700 monthly or more if needed. Applicant stated that his son is responsible for his sister. His son has completed college and is attending language school. Applicant testified that his son has been approved to move to the United States and is waiting for a special immigration visa that is granted for relatives of those who served with U.S. forces in Iraq. Applicant did not have the document verifying his son has been approved. His son will immigrate 5 Tr. 33-34, 49-50. 6 Tr. 36, 50-55. 7 Tr. 36-37, 55; AE B 4 as soon as he is approved. Applicant intends to request his daughter also receive the special immigration visa. She has two years remaining to complete her education and will remain in Egypt until then. After his son moves, his daughter will likely move into the same apartment as her mother and grandfather, who live in the same building. Applicant has no assets in Egypt. His children have not visited him in the United States.8 Applicant owns land in Iraq. He did not disclose this information on his SCA or during his background interview. He stated the land was gifted to him in 1983 from the Iraqi government when he graduated from college. He estimated its value at between $60,000 and $100,000, depending on the market. He is not required to pay tax on the land. He stated that when the situation in Iraq improves, he intends to sell the land and use the proceeds to purchase a home in the United States.9 Applicant and his wife currently reside in different states and visit each other every two months. They own a home jointly that she lives in. They purchased it in 2011 for approximately $120,000 and have about $45,000 remaining on the mortgage. Applicant has savings and checking accounts in the United States, with about $17,000 in them. Applicant owns a late model car. He is registered to vote and did so in the last election.10 Iraq11 The United States Department of State warns that U.S. citizens in Iraq are at high risk for kidnapping and terrorist violence. It is recommended that they avoid all but essential travel to Iraq. The potential threat to U.S. Government personnel in Iraq is serious and requires them to live and work under strict security guidelines. The Islamic State of Iraq and the Levant (ISIL) controls a significant portion of Iraq’s territory. Within areas of ISIL control, the Iraqi government has little or no ability to control and ensure public safety. Anti-U.S. sectarian militias may threaten U.S. cities and western companies throughout Iraq. Violence and attacks by improvised explosive devices (IED) occur frequently in many areas of the country. There are numerous methods of attack including human and vehicle-borne IEDs, mines, mortars, and rockets. Such attacks take place in public venues. 8 Tr. 27-29, 37-40, 42, 55-62, 66-67. Applicant did not disclose that he had a daughter on his security clearance application (SCA; GE 1). He also did not disclose that information in his Counterintelligence- Focused Investigation (GE 2) or during his background interview with a government investigator (GE 3). Applicant’s failure to disclose said information and his contact with his daughter was not alleged. It will not be considered for disqualifying purposes, but will be considered when analyzing his credibility, the whole person, and in mitigation. 9 Tr. 62-69. 10 Tr. 65, 68-79. 11 HE II. 5 Iraq continues to witness a surge in terrorist attacks, primarily as a result of ISIL. It continues to be the greatest terrorist threat globally, maintaining formidable forces in Iraq, including a large number of foreign terrorist fighters. Despite Iraq’s efforts to combat ISIL, there remains a security vacuum in parts of the country. Human rights violations were predominantly carried out by ISIL. These included attacks on civilians, especially members of other religious and ethnic minorities, women and children. The acts of violence committed by ISIL included killings by suicide bombers, IEDs, execution-style shootings, public beheadings, and other forms of executions. Sectarian hostility, widespread corruption, and lack of transparency at all levels of government and society weakened the Iraqi government’s authority and worsened human rights protections. Egypt12 Egypt has experienced increased terrorism and violent extremism since 2013. There are a number of terrorist organizations known to be operating in Egypt and attacks are prevalent throughout the country. Egypt acknowledges the threat of foreign terrorist fighters traveling to fight with ISIL in Syria and returning to Egypt. In 2014, the Egyptian government continued to confront active terrorist groups, which conducted deadly attacks on government and military targets throughout the country. One group, Ansar Bayt Al-Maqdis (ABM) has pledged its allegiance to ISIL increasing the risk that terrorist attacks could target U.S. and Western interests, including civilians, and the country’s tourist industry. Terrorist attacks continued throughout the country. Political protests occur, often without warning. Some demonstrations have led to violent clashes between protesters and the police, resulting in deaths, injuries, and property damage. Egypt has significant human rights problems that include excessive use of force by security forces, including unlawful killings and torture; the suppression of civil liberties that include government restrictions on freedoms of expression and the press, and, freedom of peaceful assembly and association; and limitation of due process in court proceedings. Domestic and international human rights organizations reported security forces killed demonstrators and police tortured suspects at police stations, sometimes resulting in death. 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. 12 HE III. 6 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 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 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 7 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 and the following are potentially applicable: (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, or in any foreign-owned or foreign-operated business, which could subject the individual to heightened risk of foreign influence. AG ¶¶ 7(a) and 7(e) require evidence of a “heightened risk.” The “heightened risk” required to raise this disqualifying condition 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 or owning property in a foreign country. The totality of Applicant’s family ties to a foreign country as well as each individual family tie must be considered. The mere possession of a close personal relationship with a person who is a citizen and resident of a foreign country is not, as a matter of law, disqualifying under Guideline B. However, depending on the facts and circumstances, this factor alone is sufficient to create the potential for foreign influence and could potentially result in the compromise of classified information. 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 13 ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004). 8 Applicant’s mother and brother are citizens and residents of Iraq. His children are citizens of Iraq, residing in Egypt. He has regular contact with the children. Before February 2016, he had regular contact with his mother and brother, but consciously ceased it due to concerns about their safety, in the event that it became known to militia and terrorist groups that he has connections with the United States or entities associated with the United States. Applicant also owns real estate in Iraq that is worth between $60,000 and $100,000. Terrorist activity, the infiltration of ISIL, sectarian hostility, widespread corruption, and lack of transparency at all levels of the Iraqi government, in addition to its failure to protect human rights, is a concern. Egypt also has problems with terrorist activities and significant human rights issues. Applicant’s close relationship with his relatives living in Iraq and his concern for their safety creates a heightened risk of foreign exploitation, inducement, manipulation, pressure or coercion. It also creates a potential conflict of interest. Applicant’s close ties with his children living in Egypt could create a potential foreign influence concern. AG ¶¶ 7(a) and 7(b) have been raised by the evidence. I have considered the value of Applicant’s property in Iraq compared with his assets in the United States. I find that although he has financial interests in the United States, the value of his land in Iraq is substantial, which could subject Applicant to a heightened risk of foreign influence or exploitation. AG ¶ 7(e) also applies. I have analyzed the facts and considered all of the mitigating conditions under AG ¶ 8 and conclude 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; (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; 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. Applicant worked as an Iraqi Army officer with the U.S. Government and military forces from 2003 to 2010, when he retired. He married a U.S. citizen in 2007 and 9 immigrated to the United States in 2010. He became a naturalized citizen in 2013. Applicant maintained close ties with his family in Iraq until February 2016, when he became concerned for their safety if his connections to the United States were to become known. He indicated he could not trust anyone in Iraq, and therefore ceased contact with his family living there. Kidnappings and terrorist activity are prevalent in Iraq. I am unable to find that it is unlikely Applicant would be placed in a position of having to choose between the interests of family members and the interests of the United States. AG ¶ 8(a) does not apply to his family members in Iraq. Applicant’s children live in Egypt, a country that also has significant terrorist threats. With their unique status as Iraqi citizens residing in Egypt with their Iraqi mother and grandfather, who travel frequently back and forth between the two countries, I am unable to conclude that it is unlikely Applicant would be placed in a position of having to choose between the interests of his children and the interests of the United States. AG ¶ 8(a) does not apply to his children. Applicant is close with his family members in Iraq and is concerned about protecting them. He had regular contact with them before he decided to cease contact for their safety. He expressed concern that if a militant group were to discover his ties to the U.S. government, his family would be in danger. Applicant loyally served U.S. forces in Iraq. However, his relationship with his family in Iraq and the potential for them to be exploited by terrorist groups, if they learn about his past service or future service with the U.S. government or its contractors, creates a conflict of interest. His familial ties are too significant and longstanding to expect him to resolve any conflict of interest in favor of the interests of the United States instead of his family. AG ¶ 8(b) does not apply. The same analysis applies for Applicant’s children, who are Iraqi citizens living in Egypt, a country where terrorist activities are prevalent. AG ¶ 8(c) does not apply to Applicant’s family in Iraqi or Egypt because their contact and communication is more than casual and infrequent. Applicant has owned real estate in Iraq valued between $60,000 and $100,000, since 1983. Applicant has some assets in the United States. He and his wife jointly own a house they purchased for approximately $120,000, with a remaining mortgage of about $45,000. He has cash accounts worth about $17,000. The property in Iraq is a significant holding in Applicant’s financial portfolio, and he intends to use the prospective profits from sale of the property to purchase a home in the United States. I cannot find that the value of this property is so nominal that it is unlikely to result in a conflict and could not be used effectively to influence, manipulate, or pressure Applicant. AG ¶ 8(f) does not apply. Guideline C, Foreign Preference AG ¶ 9 expresses the security concern involving foreign preference: 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 10 provide information or make decisions that are harmful to the interests of the United States. AG ¶ 10 describes conditions that could raise a security concern and may be disqualifying. I have considered all of them and the following is potentially applicable. (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: . . . (2) military service or a willingness to bear arms for a foreign country; (3) accepting educational, medical, retirement, social welfare, or other such benefits from a foreign government. Applicant served in the Iraqi military from 1983 to 1994, when he retired and received a pension. In 2003, he ceased receiving the military pension when he joined the new Iraqi military and served until 2010. I find the above disqualifying condition applies. AG ¶11 describes conditions that could mitigate the security concerns. I have considered all of them and 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. Applicant’s service in the Iraqi military occurred before he became a U.S. citizen. He ceased receiving a pension when he rejoined the Iraqi military. He served with U.S. forces and retired in 2010, when he came to the United States and became a citizen in 2013. Although he is entitled to receive a military pension from the Iraqi government, he has not applied for it. He has not received any benefits from the Iraqi government since becoming a U.S. citizen. AG ¶ 11(c) 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 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 11 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 Guidelines B and C 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 56 years old. He served in the Iraqi military and in support of U.S. forces in Iraq from 2003 to 2010. He married a U.S. citizen in 2007 and moved to the United States in 2010. He became a U.S. citizen in 2013. He and his wife own a home in the United States. He also has strong familial ties to Iraq where her mother and brother are citizens and residents. He expressed concern for their safety, if it were known by terrorists that Applicant works for the U.S. government. I have considered his service as an Iraqi officer serving with U.S. forces and the special consideration afforded to those willing to serve. The Appeal Board has held that “an applicant’s proven record of action in defense of the United States is very important and can lead to a favorable result for an applicant in a Guideline B case.”14 Although I do not question Applicant’s service and loyalty to the United States, I find that his strong family ties create a significant burden should a conflict of interest arise or if he were placed in a position of having to choose between the interest of his family living in Iraq or his family living in Egypt, and the interests of the United States. I also have considered that Applicant has significant financial interests in Iraq. Applicant’s service in the Iraqi military occurred before he became a U.S. citizen. He is entitled to a military pension from the Iraqi government, but he does not receive it. 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 mitigated the foreign preference guideline security concerns, but failed to mitigate the foreign influence guideline 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: Against Applicant Paragraph 2, Guideline C: FOR APPLICANT 14 ISCR Case 04-02511 at 4 (App. Bd. Mar. 20, 2007). 12 Subparagraphs 2.a-2.b: For Applicant 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