1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-01890 ) Applicant for Security Clearance ) Appearances For Government: Andrea Corrales, Esq., Department Counsel For Applicant: Pro se __________ Decision __________ HARVEY, Mark, Administrative Judge: Applicant possessed child pornography between about 2012 and March 2014. Sexual behavior security concerns are not mitigated; however, personal conduct security concerns are mitigated as a duplication. Eligibility for access to classified information is denied. Statement of the Case On October 8, 2014, Applicant submitted his Electronic Questionnaire for National Security Positions (e-QIP) (SF 86). (Government Exhibit (GE) 1) On October 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, dated February 20, 1960, as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended; 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 2 clearance should be granted, continued, denied, or revoked. (Hearing Exhibit (HE) 2) The SOR alleged security concerns under Guidelines D (sexual behavior) and E (personal conduct). (HE 2) On November 10, 2016, Applicant responded to the SOR and requested a hearing. On December 5, 2016, Department Counsel was ready to proceed. On January 10, 2017, the case was assigned to me. On February 27, 2017, the Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing, setting the hearing for March 13, 2017. (HE 1) Applicant’s hearing was conducted as scheduled. Applicant waived his right to 15 days of notice of the date, time, and location of his hearing. (Tr. 12-13) During the hearing, Department Counsel offered seven exhibits; Applicant offered seven exhibits; and all proffered exhibits were admitted without objection. (Transcript (Tr.) 17-18, 27; GE 1-7; Applicant Exhibits (AE) A-F) On March 21, 2017, DOHA received a copy of the transcript of the hearing. Findings of Fact1 Applicant’s SOR response admitted with explanations the SOR allegations. (HE 3) He also provided extenuating and mitigating information. (HE 3) His admissions are accepted as findings of fact. Additional factual findings follow. Applicant is a 35-year-old senior principal information security engineer and software developer employed by a defense contractor for the previous 14 years. (Tr. 5- 6, 27; GE 1) He occupies a sensitive security position where he is entrusted with significant responsibilities. (AE E) In 1999, he graduated from high school, and in December 2002, he received a bachelor’s degree. (Tr. 5-6) He has not served in the U.S. armed forces. (Tr. 6) In 2003, he married, and he has two stepchildren who are ages 19 and 23. (Tr. 7) He has held a top secret security clearance since 2006. (Tr. 27) Applicant committed several security violations over the years; however, all of them were reported to his facility security officer (FSO). (Tr. 24; AE A) No adverse inference is drawn from his security violations, and he is credited with disclosing the adverse information to his FSO. Applicant received excellent performance evaluations from his employer. (Tr. 25, 67-71; AE A; AE F) Applicant is proud of his contributions to his employer and national security. (Tr. 25-26) There is no evidence of abuse of alcohol or use of illegal drugs. (GE 1) Sexual Behavior and Personal Conduct Applicant suffered from depression from age 10 or 11. (Tr. 22; AE A) His pornography compulsion started around age 13. (Tr. 22; AE A) Over the years, he hoarded hundreds of gigabytes of pornography. (Tr. 22; AE A) His urge to view 1 Some details have been excluded in order to protect Applicant’s right to privacy. Specific information is available in the cited exhibits. 3 pornography ebbed and flowed as he went through “binge and purge episodes.” (Tr. 22) During his binges, he would view pornography for up to six hours at a setting. (Tr. 30) In 2012, Applicant was prescribed drugs to treat his depression. (Tr. 22; AE E) Beginning in 2012, he began to be attracted to 14-year-old and older girls. (Tr. 29) From 2012 to January 2014, he downloaded child pornography from the Internet. (Tr. 22-23) He viewed images of underage girls performing sex acts on adults. (Tr. 31) Some of the children in the images appeared to be as young as 12 years old. (Tr. 31) When he viewed the pictures, he masturbated. (Tr. 31-33) Approximately once every six months, he opened videos of girls ranging from age 8 to 18 engaging in sexual acts with adult males. (Tr. 32) He estimated the ages of the girls and women based on their signs of puberty and maturation. (Tr. 32) He had approximately 1,000 images and 100 videos of child pornography on his personal computer. (Tr. 33-34; AE C) He was attracted to the innocence of the children in the child pornography. (Tr. 39) He hoarded child pornography. (Tr. 34) He denied that he was sexually interested in children. (Tr. 59, 101) He ended his possession of child pornography in March 2014. (Tr. 23, 36) After March 2014, he limited his compulsion to adult pornography. (Tr. 23) He has never distributed child pornography. (AE C) In March 2014, Applicant took a polygraph examination conducted by another government agency (AGA), and he described his “pornography compulsion.” (Tr. 23, 27; GE 2-6) Shortly after his AGA polygraph, he ended his viewing and possession of child pornography. (Tr. 36-37) He continued to have adult pornography compulsions; however, he was able to refrain from viewing child pornography. (Tr. 37-38) After March 2014, his compulsions are less frequent and shorter in duration depending on the medications he takes for depression. (Tr. 38, 49-50; AE E) His pornography compulsions have been dramatically reduced through ongoing therapy over the previous two years. (Tr. 45-52; AE C) His depression and suicidal ideation have been greatly reduced in the past year. (Tr. 52) Applicant received therapy and treatment from a psychiatrist. (Tr. 24; AE C) He disclosed his pornography compulsion and viewing of child pornography to his therapist. (Tr. 44) Applicant’s therapist believes his risk of returning to child pornography is very low. (Tr. 72) Applicant’s therapy sessions and psychometric testing results supported the conclusion that reoffending is unlikely. (Tr. 72-95; AE D) Applicant is a truthful and responsible patient who has made significant progress in controlling his pornography compulsion. (Tr. 75-77; AE C) His therapist opined that Applicant was trustworthy, did not have pedophilic interests, and should continue to have access to classified material. (Tr. 78, 98; AE D) Applicant disclosed his pornography compulsion to his spouse and employer; however, he did not disclose his viewing and possession of child pornography to his spouse or to his employer. (Tr. 37, 41; GE 5) His spouse is supportive of his efforts and therapy to control his pornography compulsion. He acknowledged the “strong stigma attached” to child pornography and the strain disclosure would cause in his relationships with his coworkers. (Tr. 42) 4 Applicant was aware that possession of child pornography is a federal crime. (Tr. 54) Possession of child pornography is also illegal under the state law where Applicant resides. (Tr. 100) Applicant got rid of his child pornography the night after the polygraph where he admitted his involvement with child pornography. (Tr. 55; AE C) He never considered going to the Federal Bureau of Investigation (FBI) to inform them he was possessing or had possessed child pornography. (Tr. 56) 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 that, “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 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 and modified. Eligibility for a security clearance is predicated upon meeting the criteria contained in the adjudicative guidelines (AG). 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 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 protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information. Adverse clearance decisions are made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the [a]pplicant concerned.” See Exec. Or. 10865 § 7. See also Executive Order 12968 (Aug. 2, 1995), Section 3. Thus, nothing in this decision should be construed to suggest that I have based this decision on any express or implied determination as to 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. 5 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 Sexual Behavior AG ¶ 12 describes the security concern pertaining to 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 conditions that could raise a security concern and may be disqualifying in this case: (a) sexual behavior of a criminal nature, whether or not the individual has been prosecuted; (b) a pattern of compulsive, self-destructive, or high risk sexual behavior that the person is unable to stop or that may be symptomatic of a personality disorder; (c) sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress; and (d) sexual behavior that . . . reflects lack of discretion or judgment. The record established that Applicant viewed and possessed about 1,000 images of child pornography. Possession of child pornography is a federal and state crime. Public disclosure of his possession of child pornography would damage his reputation and cause him to be vulnerable to coercion, exploitation, or duress. The record 6 establishes AG ¶¶ 13(a), 13(c), and 13(d). The record does not establish AG ¶ 13(b) because Applicant was able to stop his viewing and possession of child pornography in March 2014. 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). 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. None of the mitigating conditions apply; however, Applicant presented some important mitigating information. Applicant received therapy and counseling and his spouse is supportive of his efforts to refrain from viewing pornography. His therapist believes his risk of returning to child pornography is very low. His therapy sessions and psychometric testing results supported the conclusion that reoffending is unlikely. His therapist believes Applicant is a truthful and responsible patient who has made significant progress in controlling his pornography compulsion. His therapist opined that Applicant was trustworthy, did not have pedophilic interests, and should continue to have access to classified material. His viewing of pornography is private and discrete. Applicant disclosed his viewing of child pornography to AGA, his psychiatrist, his therapist, and DoD security officials. 7 I am mindful that “[a]s a general principle, the First Amendment bars the government from dictating what we see or read or speak or hear. The freedom of speech has its limits; it does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 246-47 (2002). Pornography depicting actual children can be proscribed whether or not the images are obscene because of the State’s interest in protecting the children exploited by the production process. New York v. Ferber, 458 U.S. 747, 758, 761 (1982). “[W]here the speech is neither obscene nor the product of sexual abuse, it does not fall outside the protection of the First Amendment. See id. at 764-765 (‘The distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection’).” Ashcroft, 535 U.S. at 421. Applicant’s private viewing of adult pornography on a personal computer or other privately owned media, and masturbation in private are protected conduct under the First Amendment and the liberty interest 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 to engage in private, consensual sexual behavior); United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000) (discussing adult pornography and First Amendment). His sexual conduct or behavior involving adult pornography in the privacy of his home is not a basis for coercion or duress, and it does not cast doubt on his current reliability, trustworthiness, and good judgment. Applicant viewed or possessed about 1,000 images of child pornography from 2012 through March 2014. His masturbation on numerous occasions when considering children engaged in sexual activity raises the concern that his compulsion was strong, and he will revert to viewing child pornography. His history of involvement with child pornography “creates a vulnerability to exploitation, manipulation, or duress” because such as conduct affects his “personal, professional, or community standing.” See AG ¶¶ 13(c), 14(c), and 16(e). He has only refrained from viewing and possessing child pornography for about three years. More time without involvement with child pornography is necessary. Sexual behavior security concerns are not mitigated. Personal Conduct AG ¶ 15 expresses the security concern pertaining to 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 and candid answers during the security clearance process or any other failure to cooperate with the security clearance process. 8 AG ¶ 16 describes three 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 (d) credible adverse information that is not explicitly covered under any other guideline and may not be sufficient by itself for an adverse determination, but which, when combined with all available information 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. This includes but is not limited to consideration of: (1) untrustworthy or unreliable behavior to include breach of client confidentiality, release of proprietary information, unauthorized release of sensitive corporate or other government protected information; (2) disruptive, violent, or other inappropriate behavior in the workplace; (3) a pattern of dishonesty or rule violations; and (4) evidence of significant misuse of Government or other employer's time or resources; 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. The SOR cross-alleges under the personal conduct guideline the same conduct alleged under the sexual behavior guideline. His viewing and possession of about 1,000 images of child pornography under Guideline D is sufficient to warrant revocation of his security clearance without incorporating or applying Guideline E. The concerns under Guidelines D and E address identical issues involving judgment, trustworthiness, and reliability. All personal conduct security concerns described in the SOR are directly related to his viewing and possession of child pornography. Personal conduct security concerns are established; however, as alleged in the SOR Guideline E concerns constitute an unwarranted duplication of the concerns under Guideline D, and accordingly are found for Applicant. 9 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. 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 D, and E in my whole-person analysis. Some of the factors in AG ¶ 2(a) warrant additional comment. Applicant is a 35-year-old senior principal information security engineer and software developer employed by a defense contractor for the previous 14 years. He occupies a sensitive security position where he is entrusted with significant responsibilities. In December 2002, he received a bachelor’s degree. Applicant received excellent performance evaluations from his employer, and he made important contributions to his company. Applicant is proud of his contributions to his employer and national security. There is no evidence of abuse of alcohol or use of illegal drugs. Although Applicant’s spouse is unaware of his child pornography possession, she supports his rehabilitation from his pornography compulsion. He received therapy, and his episodes of pornography compulsions are dramatically reduced after March 2014. His therapist believes his risk of returning to child pornography is very low. His therapy sessions and psychometric testing results support the conclusion that reoffending is unlikely. His therapist believes Applicant is a truthful and responsible patient who has made significant progress in controlling his pornography compulsion. His therapist opined that Applicant was trustworthy, did not have pedophilic interests, and should continue to have access to classified material. The evidence against approval of Applicant’s clearance is more substantial at this time. Applicant committed serious criminal offenses. He viewed and possessed about 1,000 child pornography images from 2012 to March 2014. His criminal sexual conduct is relatively recent. There are unresolved questions about Applicant’s reliability, trustworthiness, and ability to protect classified information. More time without criminal sexual behavior is necessary to fully mitigate security concerns. 10 I have carefully applied the law, as set forth in Department of Navy v. Egan, 484 U.S. 518 (1988), Exec. Or. 10865, the Directive, and the AGs, to the facts and circumstances in the context of the whole person. I conclude personal conduct security concerns are mitigated as a duplication; however, sexual behavior security concerns are not mitigated. For the reasons stated, I conclude he is not eligible for access to classified information. 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 D: AGAINST APPLICANT Subparagraph 1.a: Against Applicant Paragraph 2, Guideline E: FOR APPLICANT (Duplication) Subparagraph 2.a: For Applicant (Duplication) Conclusion In light of all of the circumstances presented by the record in this case, it is not clearly consistent with national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied. _________________________ Mark Harvey Administrative Judge