1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-01436 ) Applicant for Security Clearance ) Appearances For Government: Tovah Minster, Esq., Department Counsel1 For Applicant: Alan V. Edmunds, Esq. ___________ Decision ___________ HARVEY, Mark, Administrative Judge: From 2003 to present, Applicant served on behalf of the United States for more than 11 years in Iraq, and he was injured in combat. From about 2007 to about 2014, he engaged in an extramarital affair with a woman who served with him in Iraq. In 2014, he divorced his spouse. He did not disclose the divorce to his father and son until 2017. His failure to disclose his extramarital affair to some family members does not create “a vulnerability to exploitation, manipulation, or duress” because I am convinced he would report any attempt to coerce him using this negative private information, and he would refuse to disclose classified information. Personal conduct and sexual behavior security concerns are mitigated. Access to classified information is granted. History of the Case On April 9, 2015, Applicant completed and signed a Questionnaire for National Security Positions (SF 86) or security clearance application (SCA). (Government Exhibit 1 Applicant objected to the presence of spectators in his hearing, and he requested a closed hearing. (Tr. 6) Three newly assigned Department Counsel were present as spectators for training purposes. (Tr. 6, 15-17) I ruled that Applicant’s statutory right to privacy outweighed the necessity of having Department Counsel present for training and excluded the three Department Counsel. (Tr. 7) The Chief Department Counsel assigned the three Department Counsel to represent the Government. (Tr. 15-17) I overruled Applicant’s objection to the assignment of three additional Department Counsel to represent the Government. (Tr. 16-18) After my ruling on the motion, I excused Chief Department Counsel, who had entered an appearance to argue the motion, over Applicant’s Counsel’s objection. (Tr. 14-18) 2 (GE) 1) On July 25, 2016, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued a statement of reasons (SOR) to Applicant pursuant to Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry, February 20, 1960; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), January 2, 1992; and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (AG), which became effective on September 1, 2006. The SOR detailed reasons why the DOD CAF did not find under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for him, and recommended referral to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked. (Hearing Exhibit (HE) 2) Specifically, the SOR set forth security concerns arising under Guidelines E (personal conduct) and D (sexual behavior). On August 13, 2016, Applicant responded to the SOR. On October 5, 2016, Department Counsel was ready to proceed. On November 10, 2016, the case was assigned to me. On January 3, 2017, Applicant’s Counsel requested a hearing on January 24, 2017. (HE 1) On January 12, 2017, the Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing, setting the hearing for January 24, 2017. (HE 2) Applicant’s hearing was held as scheduled. During the hearing, Department Counsel offered two exhibits; Applicant offered five exhibits; and all exhibits were admitted without objection. (Transcript (Tr.) 20-21; Government Exhibits (GE) 1-2; Applicant Exhibits (AE) A-E) On February 2, 2017, DOHA received a copy of the transcript of the hearing. On February 2, 2017, Applicant provided five documents, which were admitted into evidence without objection. (Tr. 60; AE F-J) The record closed on February 24, 2017. (Tr. 72) Findings of Fact In Applicant’s SOR response, he did not admit or deny the SOR allegations. He made some partial admissions, and he provided extenuating and mitigating information. His admissions are accepted as findings of fact. Additional factual findings follow. Applicant is a 62-year-old employee of a defense contractor, who has worked as a linguist and cultural advisor in Iraq for more than 11 years. (Tr. 64; GE 1) In 1976, he emigrated from Iraq to the United States, and in 1984, he became a U.S. citizen. (Tr. 63) In 1981, he received a bachelor’s degree, and he needed one additional class to complete his master’s degree in business administration. (GE 2; AE C) In 1986, he married, and in 1997, he divorced. (Tr. 38) He has three children from his first marriage, who were born in 1987, 1990, and 1993. (Tr. 38; GE 1) His net worth in the United States is about $1.25 million. (Tr. 35) He served in Iraq with U.S. forces or the U.S. State Department from 2003 to 2013, and from 2015 to present. (Tr. 64) He provided a detailed resume and biography describing his assignments and contributions to U.S. interests in Iraq. (AE C; AE E) 3 Personal Conduct and Sexual Behavior The SOR alleges: ¶ 1.a Applicant and Ms. A were divorced in 2014; however, Applicant concealed the divorce from family and friends, and continued to live with Ms. A in an attempt to appear to be married; ¶ 1.b Applicant had an extramarital affair with Ms. W, and he concealed the affair from his former spouse, friends, and family; and ¶ 2.a cross alleged the extramarital affair in SOR ¶ 1.b. Applicant disclosed his 2014 divorce in his April 9, 2015 SCA. (GE 1) In his April 14, 2015 Office of Personnel Management (OPM) personal subject interview (PSI) and response to DOHA interrogatories, he described his relationships with Ms. A and Ms. W, including trips to foreign countries he took with Ms. W and his sexual relationship with Ms. W. (GE 2) He did not tell his parents about his divorce from Ms. A because they would be upset about it, and his mother’s health was poor. (GE 2) He denied that he would allow himself to be coerced by threats to reveal his relationship with Ms. W to anyone. (GE 2) In 1998, when he was 44 years old, Applicant’s parents and Ms. A’s parents arranged his marriage to an Iraqi woman, Ms. A, who was born in 1959. (Tr. 23, 38; GE 1) In 1999, Ms. A emigrated from Iraq to the United States. (Tr. 65) Applicant’s family and Ms. A’s family have been close for many generations, and Applicant’s parents and Ms. A’s parents were particularly close. (Tr. 25, 44) Ms. A’s family lives in Europe, and most of Applicant’s family members live in the United States. (Tr. 46-47; GE 2) Ms. A never visited Applicant while he was supporting U.S. interests in Iraq after 2002. (Tr. 28; GE 2) Applicant had an extramarital affair with Ms. W while he was married to Ms. A and while they were both supporting U.S. interests in Iraq. (Tr. 24; GE 2) He disclosed his extramarital affair to security officials, to his employer, and to some of his friends. (Tr. 24, 40-44; GE 2) In April 2014, he and Ms. A were divorced. (Tr. 23, 65; GE 1) Ms. A was aware of the divorce (the divorce decree is in English, and she signed it). (Tr. 65; AE A) The record of divorce is public. (AE A) His mother had cancer, and he did not disclose his divorce to his parents because he was worried about the effect it would have on his mother’s health. (Tr. 25) Ms. A lived with Applicant’s parents in the United States, and his parents were close to her. (Tr. 26, 36) Applicant’s father takes care of Applicant’s investments in the United States when Applicant is deployed overseas. (Tr. 36) Applicant did not have any children with Ms. A. (Tr. 26) In 2007, Applicant met Ms. W, and eventually he had an affair with her. (Tr. 27) Applicant and Ms. W were stationed at the same location in Iraq, and they publicly socialized together including at dinners. (Tr. 27-28, 56-59) Colleagues in Iraq were aware that they were together overnight. (Tr. 59) He continues to maintain contact with Ms. W. (Tr. 48) The last time he met with Ms. W was 18 months ago in the United States. (Tr. 27, 49) Applicant intends to marry Ms. W; however, they have not selected a date for the wedding. (Tr. 51) He has met Ms. W’s family and Ms. W has met Applicant’s parents; however, he does not know how much Ms. W has told her family about him. (Tr. 52-54; GE 2) He did not know whether Ms. W’s family knew about: Applicant’s current marital status; his intimate relationship with Ms. W; or his intention to marry her. (Tr. 52-55) 4 At the time of his hearing, Applicant had not disclosed his divorce to his father or children. (Tr. 37, 56) When he visited his father, he had minimal interactions with his former spouse, Ms. A. (Tr. 39) Applicant’s closest living relative is his father, and after his hearing, he told his father and son about his divorce from Ms. A. (Tr. 65; AE F; AE G) Ms. A was not aware of Applicant’s relationship with Ms. W. (Tr. 55) Applicant’s children know about his relationship with Ms. W and its importance to him; however, he had not told them his intention to marry Ms. W. (Tr. 55) Character Evidence When Applicant served with the U.S. Government in Iraq, he was injured several times. (Tr. 29-30; AE I) He received six corrective surgeries, and he continues to have some disability connected to his service in Iraq. (Tr. 32; AE I) Two surgeries were in military hospitals. (Tr. 32-33) He worked closely on a daily basis as personal linguist with three Army generals in Iraq. (Tr. 31-32) He received several coins from U.S. generals for his contributions to mission accomplishment. (Tr. 69; AE J) He returned to Iraq shortly after his hearing, and he wants to continue to serve the U.S. Government in Iraq. (Tr. 33) He believes his service to the United States in Iraq is important to the United States, and he wishes to continue that service despite the risks and dangers entailed with service in Iraq. (Tr. 67) Applicant provided five letters of recommendation attesting to his dedication, competence, professionalism, and diligence. (AE D) Applicant received the Expeditionary Service Award signed by the Secretary of State for four years of service in Iraq: In grateful recognition of your committed service in extraordinary and arduous conditions during your field assignments in Iraq. In spite of constant danger and difficulty your contributions to reconstruction, stability, and peace reflects great credit on yourself and on the Department of State. (AE B) Policies The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicant’s eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended. Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with an evaluation of the whole person. An administrative judge’s 5 overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable. The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. 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 about potential, rather than actual, risk of compromise of classified information. Clearance decisions must be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See Exec. Or. 10865 § 7. Thus, nothing should be construed to suggest that I have based this decision, in whole or in part, on any express or implied determination about applicant’s allegiance, loyalty, or patriotism. It is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance. Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996). Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his or her security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). The burden of disproving a mitigating condition never shifts to the Government. See ISCR Case No. 02- 31154 at 5 (App. Bd. Sep. 22, 2005). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b). Analysis Personal Conduct AG ¶ 15 expresses the security concern for personal conduct: Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information. Of special interest is any failure to provide truthful 6 and candid answers during the security clearance process or any other failure to cooperate with the security clearance process. AG ¶ 16 describes two conditions that could raise a security concern and may be disqualifying in this case: (c) credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, but which, when considered as a whole, supports a whole- person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the person may not properly safeguard protected information; and (e) personal conduct, or concealment of information about one's conduct, that creates a vulnerability to exploitation, manipulation, or duress, such as (1) engaging in activities which, if known, may affect the person's personal, professional, or community standing. . . . Applicant and Ms. A were divorced in 2014; however, Applicant did not disclose the divorce to some of his family and friends, and he continued to live with Ms. A whenever he was in the United States in an attempt to appear to his parents that he was still married to Ms. A. In addition, he had an extramarital affair with Ms. W, and he did not volunteer information about the affair to Ms. A and his parents. While he was open about his relationship with Ms. W to friends and colleagues in Iraq when he and Ms. W were in Iraq and traveling in foreign countries, he did not reveal the information to his parents and Ms. A because he believed it would reflect poorly on him. AG ¶¶ 16(c) and 16(e)(1) apply. The Appeal Board concisely explained Applicant’s responsibility for proving the applicability of mitigating conditions as follows: Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The standard applicable in security clearance decisions is that articulated in Egan, supra. “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Directive, Enclosure 2 ¶ 2(b). ISCR Case No. 10-04641 at 4 (App. Bd. Sept. 24, 2013). 7 AG ¶ 17 lists three conditions that could mitigate security concerns in this case: (c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment; (d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur; and (e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress. Applicant revealed his divorce to his father, his closest relative, after his hearing. He revealed the extramarital affair to security officials and discussed it at his hearing. Applicant is a private person, and he did not want his family to know about the extramarital affair with Ms. W. After his divorce in 2014, and the death of his mother in 2016, there is less reason for him to want to conceal his extramarital affair. His extramarital affair is not recent because he has been divorced since 2014. His extramarital affair is not criminal conduct. His failure to disclose his extramarital affair to some family members does not create “a vulnerability to exploitation, manipulation, or duress” because I believe he would report to security officials any attempt to coerce him using this private information, and he would refuse to disclose classified information to anyone not authorized to receive it. Personal conduct security concerns are mitigated. Even if personal conduct security concerns are not mitigated under AG ¶ 17, security concerns are mitigated under the whole-person concept, infra. Sexual Behavior AG ¶ 12 describes the security concern for sexual behavior: Sexual behavior that involves a criminal offense, indicates a personality or emotional disorder, reflects lack of judgment or discretion, or which may subject the individual to undue influence or coercion, exploitation, or duress can raise questions about an individual's reliability, trustworthiness and ability to protect classified information. No adverse inference concerning the standards in this Guideline may be raised solely on the basis of the sexual orientation of the individual. AG ¶ 13 lists two conditions that could raise a security concern and may be disqualifying in this case: “(c) sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress;” and “(d) sexual behavior of a public nature and/or that reflects lack of discretion or judgment.” AG ¶¶ 13(c) and 13(d) apply for the reasons stated in the previous section. 8 AG ¶ 14 provides four conditions that could mitigate security concerns including: (a) the behavior occurred prior to or during adolescence and there is no evidence of subsequent conduct of a similar nature; (b) the sexual behavior happened so long ago, so infrequently, or under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual's current reliability, trustworthiness, or good judgment; (c) the behavior no longer serves as a basis for coercion, exploitation, or duress; and (d) the sexual behavior is strictly private, consensual, and discreet. AG ¶¶ 14(b), 14(c), and 14(d) apply. Applicant’s private sexual conduct with Ms. W is protected conduct because of his interests in liberty and privacy of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. See Lawrence v. Texas, 539 U.S. 558 (2003)(discussing right of adults to engage in private, consensual sexual behavior). On the other hand, the Government has a right to inquire into such intimate private matters when necessary to make a security clearance determination. See NASA v. Nelson, 562 U.S. 134 (2011). His sexual behavior with Ms. W became a security issue when he indicated he did not wish his parents to know about it, and he indicated he was most worried about the effect of such information on his mother who was suffering from cancer. When his divorce was finalized in 2014, and his mother died in 2016, his desire to avoid disclosure of his sexual behavior with Ms. W was greatly reduced. His extramarital affair with Ms. W does not cast doubt on his current reliability, trustworthiness, and good judgment. The SOR cross-alleges under the sexual behavior guideline the same conduct alleged under the personal conduct guideline, and similar mitigating conditions apply under both guidelines. Moreover, Applicant has disclosed his sexual conduct to security officials and some friends in Iraq are likely to have assumed they had a sexual relationship. Even if sexual behavior security concerns were not mitigated under AG ¶ 14, security concerns are mitigated under the whole-person concept, infra. 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 9 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. I have incorporated my comments under Guidelines E and D 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 a 62-year-old employee of a defense contractor, who has worked as a linguist and cultural advisor in Iraq for more than 11 years. In 1976, he emigrated from Iraq to the United States, and in 1984, he became a U.S. citizen. In 1981, he received a bachelor’s degree, and he needed one additional class to complete his master’s degree in business administration. He served in Iraq with U.S. forces or the U.S. State Department from 2003 to 2013, and from 2015 to present. During Applicant’s U.S. Government service in Iraq, he was injured several times. He received six corrective surgeries, and he continues to have some disability connected to his service in Iraq. He worked closely on a daily basis as personal linguist with three Army Commanding Generals in Iraq. He received several coins from U.S. generals for his contributions to mission accomplishment. He returned to Iraq shortly after his hearing. He believes his service to the United States in Iraq is important to the United States. Applicant provided five letters of recommendation attesting to his dedication, competence, professionalism, and diligence. He received the Expeditionary Service Award signed by the Secretary of State for four years of service in Iraq which noted that he provided “committed service in extraordinary and arduous conditions during [his] field assignments in Iraq. In spite of constant danger and difficulty [his] contributions to reconstruction, stability, and peace reflects great credit on [Applicant].” (AE B) He served in a U.S. designated combat zone, and he made contributions to the United States at personal risk. He is willing to continue to serve in Iraq in support of U.S. interests as a linguist, risking his life as part of his duties on behalf of the U.S. in Iraq. He is fully aware of the risks to himself. All these circumstances increase the probability that Applicant will recognize, resist, and report any attempts by a foreign power, terrorist group, or insurgent group to coerce or exploit him. See ISCR Case No. 07-00034 at 2 (App. Bd. Feb. 5, 2008). His past honorable service as a linguist weigh heavily towards approval of his security clearance. From about 2007 to about 2014, Applicant engaged in an extramarital affair with Ms. W primarily while they served in Iraq. In 2014, he divorced his spouse. He disclosed the divorce to his father and son in 2017. He is credited with voluntarily reporting the adverse information during his OPM PSI and for being truthful and complete in responding to questions during his OPM PSI and at his hearing. See Generally Enclosure 2, to the Directive, Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, para. 2(e)(1) and 2(e)(2). His failure to disclose his extramarital affair to some 10 family members does not create “a vulnerability to exploitation, manipulation, or duress” because I am convinced he would report any attempt to coerce him using this private information, and he would refuse to disclose classified information. I have carefully applied the law, as set forth in Egan, Exec. Or. 10865, the Directive, and the AGs, to the facts and circumstances in the context of the whole person. Personal conduct and sexual behavior security concerns are mitigated. 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 E: FOR APPLICANT Subparagraphs 1.a and 1.b: For Applicant Paragraph 2, Guideline D: FOR APPLICANT Subparagraph 2.a: 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 or continue Applicant’s eligibility for a security clearance. Eligibility for access to classified information is granted. _________________________ Mark Harvey Administrative Judge