1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-02000 ) Applicant for Security Clearance ) Appearances For Government: Bryan J. Olmos, Esq., Department Counsel For Applicant: Jacob Ranish, Esq. ______________ Decision ______________ GARCIA, Candace Le’i, Administrative Judge: Applicant mitigated the foreign preference security concerns, but she did not mitigate the foreign influence security concerns. Eligibility for access to classified information is denied. Statement of the Case On September 16, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline B (foreign influence) and Guideline C (foreign preference). The action was taken under Executive Order (Exec. Or.) 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) implemented by the DOD on September 1, 2006. Applicant responded to the SOR on October 8, 2016, and requested a hearing before an administrative judge. The case was assigned to me on April 7, 2017. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on April 24, 2 2017, scheduling the hearing for May 19, 2017. I convened the hearing as scheduled. DOHA received the hearing transcript (Tr.) on May 31, 2017. Procedural and Evidentiary Rulings New AG On June 8, 2017, the DOD implemented new AG under the Directive.1 Accordingly, I have applied the June 2017 AG.2 However, because the September 2006 AG were in effect on the date of the hearing, I have also considered the September 2006 AG. Having considered both versions of the AG, I conclude that my decision would have been the same had I applied the September 2006 AG. Motion to Withdraw SOR ¶ 2.a Applicant’s counsel moved to dismiss SOR ¶ 2.a on the basis that it would be moot under the June 2017 AG. Department Counsel objected, arguing that the September 2006 AG were still in effect, SOR ¶ 2.a presented foreign preference concerns under both the September 2007 and June 2017 AG, and Applicant could present evidence of mitigation. I denied the motion.3 Evidence Government Exhibit (GE) 1 was admitted in evidence without objection. The Government’s exhibit list was appended to the record as Hearing Exhibit (HE) 2. Applicant testified and submitted Applicant’s Exhibits (AE) A through L, which were admitted in evidence without objection. After the hearing, the record was reopened at Applicant’s request and without objection for additional documentation. Applicant submitted documentation that was marked as AE M and admitted without objection. Request for Administrative Notice Department Counsel requested that I take administrative notice of certain facts about Russia. The request was not admitted in evidence but was appended to the record as Hearing Exhibit (HE) I. The facts administratively noticed are summarized in the Findings of Fact, below. 1 On December 10, 2016, the Security Executive Agent issued Directive 4 (SEAD-4), establishing a “single, common adjudicative criteria for all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position.” (SEAD-4 ¶ B, Purpose). The SEAD-4 became effective on June 8, 2017 (SEAD-4 ¶ F, Effective Date). The National Security AG, which are found at Appendix A to SEAD-4, apply to determine eligibility for initial or continued access to classified national security information. (SEAD-4 ¶ C, Applicability). 2 ISCR Case No. 02-00305 at 3 (App. Bd. Feb. 12, 2003) (security clearance decisions must be based on current DOD policy and standards). 3 Tr. at 7-8. 3 Findings of Fact Applicant admitted SOR allegations ¶¶ 1.a - 1.h and 2.b, and denied SOR allegation ¶ 2.a.4 Applicant is a 39-year-old training manager employed by a defense contractor since September 2000. She has never held a DOD security clearance. She obtained a high-school diploma in the United States in 1995, a bachelor’s and master’s degree from U.S. universities in 2000 and 2005, and a master certificate in July 2008. She is married to a native-born U.S. citizen, and has an adult stepchild and two children who are also native-born U.S. citizens. She owns three properties in the United States, consisting of her residential home that she has owned since 2012, and two investment properties.5 Applicant was born in Russia. She graduated from high-school in Russia, then immigrated to the United States in 1994 as an exchange student. After completing one year at a U.S. high-school, she obtained a U.S. high-school diploma. She obtained a work visa in 2000, became a permanent U.S. resident in 2007, and was naturalized as a U.S. citizen and obtained a U.S. passport in 2011.6 Applicant’s mother is a citizen and resident of Russia. She is a 69-year-old retired teacher. She receives a pension and social security benefits in Russia of $200 monthly. After Applicant’s first stepfather died, Applicant provided $50,000 in financial support to her mother and half-brother between 2001 and 2015. Since 2015, Applicant has sent her mother around $2,000 as gifts. Applicant stated that her mother and stepfather support themselves through farming. Applicant speaks with her mother weekly to biweekly. Applicant’s mother also visits Applicant in the United States once every two years, at Applicant’s expense, and last visited in 2016. Applicant last traveled to Russia in 2010, with her husband, mother-in-law, and eldest daughter, during which time they stayed with Applicant’s mother and father. Applicant stated that her mother is unaware she is seeking a DOD security clearance.7 Through Applicant’s sponsorship, Applicant’s mother has held a U.S. green card since 2011. Applicant stated that her mother and half-brother plan on moving to the United States once her half-brother’s green card, whom Applicant also sponsored in 2011, is approved. Applicant indicated that her mother recently moved into her half- brother’s apartment, as she and Applicant’s stepfather are heading towards divorce. Applicant purchased her mother a one-way ticket to the United States, and her mother plans on using it after her mother sells her half-brother’s apartment.8 4 Applicant’s response to the SOR. 5 Tr. at 17-76; GE 1; AEs A, B, E-G, J. 6 Tr. at 17-76; GE 1; AEs A, L. 7 Tr. at 17-76; GE 1. 8 Tr. at 17-76; GE 1; AE M. 4 Applicant’s stepfather is a citizen and resident of Russia. He is Applicant’s second stepfather, and her mother’s third husband. Applicant’s mother met him in 2003, when she was ill, and married him in 2013. He is 70 years old and retired from the KGB. Applicant stated that she is unaware of his duties when he was in the KGB, and whether he receives any retirement benefits from the KGB. As previously noted, Applicant stated that her stepfather and mother support themselves through farming. Applicant met him twice, in 2000 and 2008; Applicant did not see her stepfather when she last visited Russia in 2010. She speaks to him around three times yearly to annually, during the holidays. Applicant stated that she is not close to her stepfather. As previously noted, Applicant indicated that her mother and stepfather are heading towards divorce.9 Applicant’s father is a citizen and resident of Russia. Applicant’s mother and father divorced when Applicant was a toddler. He is a 69-year-old retired contractor. Applicant believes he receives a pension, though she is unaware of the details. Applicant stated that her father owns land in Russia, and he and her stepmother support themselves through farming. Applicant speaks with him monthly, and she last saw him in 2014 when he visited her in the United States at her expense. Applicant and her family also stayed with her father during Applicant’s 2010 trip to Russia. Applicant stated that her father is unaware she is seeking a DOD security clearance.10 Applicant’s stepmother is a citizen and resident of Russia. She is a 70-year-old homemaker. She has been married to Applicant’s father since Applicant was a toddler. Applicant stated that she does not have a relationship with her stepmother. Applicant speaks to her monthly to bi-annually, during the holidays, and Applicant last saw her stepmother during Applicant’s 2010 trip to Russia. She is unaware Applicant is seeking a DOD security clearance.11 Applicant’s half-brother is a citizen and resident of Russia. He is the son of Applicant’s mother and deceased stepfather. He is 28 years old and owns a company in Russia. Applicant is unsure whether he needs a business license from the Russian government to operate his company. He has never served in the Russian military. He is not married and does not have any children. Applicant speaks to him weekly to bi- monthly, and she last saw him during her 2010 trip to Russia. Applicant stated that she has a good relationship with her half-brother. As previously noted, Applicant provided about $50,000 in financial support to her mother and half-brother between 2001 and 2015. Since 2015, Applicant has not sent her half-brother any money. Applicant applied for a U.S. green card for her half-brother in 2011, and the application is currently pending review. Applicant indicated that he intends on moving to the United States once his green card is approved. He is unaware Applicant is seeking a DOD security clearance.12 9 Tr. at 17-76; GE 1; AE M. 10 Tr. at 17-76; GE 1. 11 Tr. at 17-76; GE 1. 12 Tr. at 17-76; GE 1. 5 Applicant’s stepsister is a citizen and resident of Russia. She is the daughter of Applicant’s father and stepmother. She is a 32-year-old cashier. She was previously married from 2003 to 2008, has two or three children, and previously lived with Applicant’s father and stepmother. Applicant stated that she does not have a relationship with her stepsister. Applicant last saw her stepsister during her 2010 trip to Russia, and talks to her primarily by text monthly or during holidays. She is unaware Applicant is seeking a DOD security clearance.13 Applicant’s two stepbrothers, ages 46 and 43, are citizens and residents of Russia. They are her stepfather’s children from a previous relationship. Applicant stated that she has never met or spoken to them. She believes one stepbrother works in construction, and is unaware of the other stepbrother’s employment. She is unaware if they are married or if they have any children.14 Applicant surrendered her Russian passport, issued to her on June 2014 with an expiration date of June 2024, to her security officer in December 2014. She did so because she understood from her employer that she was required to in order to apply for a DOD security clearance. Upon doing so, Applicant no longer considered herself a Russian citizen. Applicant still had in her possession a Russian identification card issued to her, as required, by the Russian government when she was 20 years old. She held on to the card because she did not understand it had any security implications. She never used it after immigrating to the United States in 1994. She destroyed the card in January 2016, and has no intentions of reapplying for another one.15 Applicant applied for and obtained Russian citizenship and a Russian passport for her second daughter in December 2014. Applicant previously applied for and obtained Russian citizenship and a Russian passport for her elder daughter in 2012. Applicant explained that she did so for travel convenience. She stated that neither of her daughters have traveled to Russia on their Russian passports. She indicated that she was unaware her actions would have any security implications, and is willing to have the Russian passports destroyed.16 Applicant stated that she is loyal to the United States. She lived in Russia for 17 years, but has lived in the United States for 23 years. Her entire life is in the United States. She received her formal education in the United States and has worked for the same company for many years. Her family is in the United States, and she would not do anything to place them in jeopardy. She is a registered U.S. voter, and has never voted in Russia. All of her financial interests are in the United States, and she has none in 13 Tr. at 17-76; GE 1. 14 Tr. at 17- 76; GE 1. 15 Tr. at 17-76; GE 1; AEs A, I, K, L. 16 Tr. at 17-76; GE 1. 6 Russia. She is extensively involved in her community in the United States. She does not plan to live in Russia in the future.17 Russia In 2016, Russia continues to be one of the leading state intelligence threats to U.S. interests. Russian intelligence services continue to target U.S. and allied personnel with access to sensitive computer network information. Russia remains one of the top two most aggressive and capable collectors of sensitive U.S. economic information and technologies, particularly in cyberspace. Non-cyberspace collection methods include targeting of U.S. visitors overseas, especially if the visitors are assessed as having access to sensitive information. One of the two trends that may increase Russia’s threat over the next several years is that many Russian immigrants with advanced technical skills, who work for leading U.S. companies, may be increasingly targeted for recruitment by Russian intelligence services. Russia’s extensive and sophisticated intelligence operations are motivated by Russia’s high dependence on natural resources, the need to diversity its economy, and the belief that the global economic system is titled toward the United States at Russia’s expense. As a result, Russia’s highly capable intelligence services are using HUMINT, cyber, and other operations to collect economic information and technology to support Russia’s economic development and security. In June 2010, the U.S. Department of Justice announced the arrests of ten alleged secret agents for carrying out long-term, “deep-cover” assignments on behalf of Russia. Within weeks, all ten defendants pled guilty in federal court, and were immediately expelled from the United States. Russia continues to take information warfare to a new level, working to fan anti- U.S. and anti-Western sentiment both within Russia and globally. Moscow will continue to publish false and misleading information in an effort to discredit the West, construe or distort events that threaten Russia’s image, undercut consensus on Russia, and defend Russia’s role as a responsible and indispensable global power. The most significant human rights problems of 2015 in Russia involved the following: restrictions on the ability to choose one’s government and freedoms of expression, assembly, association, and the media, as well as internet freedoms; political prosecutions and administration of justice; and government discrimination against racial, ethnic, religious, and sexual minorities. Other problems include allegations of torture and excessive force by law enforcement officials that sometimes led to deaths, executive branch pressure on the judiciary, electoral irregularities, and extensive official corruption. The government failed to take adequate steps to prosecute or punish most officials who committed abuses, resulting in a climate of impunity. Although Russian law prohibits officials from entering a private residence, except in cases prescribed by federal law or when authorized by a judicial decision, government officials entered residences and premises without warrants. In addition, 17 Tr. at 17- 76; AEs A-J. 7 while Russian law prohibits government monitoring of correspondence, telephone conversations, and other means of communication without a warrant, government officials engaged in electronic surveillance without appropriate authorization. Russia is considered to be at a high risk of local, regional, and international terrorism threats and concerns. In September 2015, Russia initiated military operations in Syria. In response, the Islamic Group of Iraq and the Levant and affiliated terrorist organizations have issued threats vowing retaliatory terrorist attacks in Russia. The Russian Federal Security Service reported no terrorist attacks in the Russian Federation in 2015, however in October 2015, a Russian charter plane exploded in mid-air over Egypt due to an improvised explosive device on board. All 224 people on board, including 219 Russian nationals, were killed. Russian authorities, in addition to the United States and the United Kingdom, determined the incident was an act of terrorism. 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 to be 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, administrative judges apply the guidelines 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(a), 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.” Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel.” The applicant 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 8 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 Exec. Or. 10865 provides that adverse 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 Exec. Or. 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information). Analysis Guideline B, Foreign Influence The security concern for foreign influence is set out in AG ¶ 6: Foreign contacts and interests, including, but not limited to, business, financial, and property interests, are a national security concern if they result in divided allegiance. They may also be a national security concern if they create circumstances in which the individual may be manipulated or induced to help a foreign person, group, organization, or government in a way inconsistent with U.S. interests or otherwise made vulnerable to pressure or coercion by any foreign interest. Assessment of foreign contacts and interests should consider the country in which the foreign contact or interest is located, including, but not limited to, considerations such as whether it is known to target U.S. citizens to obtain classified or sensitive information or is associated with a risk of terrorism. The guideline notes several conditions that could raise security concerns under AG ¶ 7. The following are potentially applicable in this case: (a) contact, regardless of method, with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion; and (b) connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual's obligation to protect classified or sensitive information or technology and the individual's desire to help a foreign person, group, or country by providing that information or technology. 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. See generally ISCR 9 Case No. 02-26130 at 3 (App. Bd. Dec. 7, 2006) (reversing decision to grant clearance where administrative judge did not consider terrorist activity in area where family members resided). AG ¶ 7(a) requires substantial 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. Applicant does not have a relationship with her two stepbrothers in Russia. She has never met or spoken to them. Given these facts, none of the disqualifying conditions under AG ¶ 7 apply, and I find SOR ¶¶ 1.g and 1.h in Applicant’s favor. Applicant has a relationship with her mother, stepfather, father, stepmother, half- brother, and stepsister in Russia. Russia is one of the leading state intelligence threats to U.S. interests. Russia remains one of the top two most aggressive and capable collectors of sensitive U.S. economic information and technologies, particularly in cyberspace. Non-cyberspace collection methods include targeting of U.S. visitors overseas, especially if the visitors are assessed as having access to sensitive information. Russia continues to take information warfare to a new level, working to fan anti-U.S. and anti-Western sentiment both within Russia and globally. Russian government officials enter private residences and premises without warrants, and engage in electronic surveillance without appropriate authorization. Applicant’s foreign contacts in Russia create a potential conflict of interest and a heightened risk of foreign exploitation, inducement, manipulation, pressure, and coercion. AG ¶¶ 7(a) and 7(b) have been raised by the evidence. Conditions that could mitigate foreign influence security concerns are provided under AG ¶ 8. The following are potentially applicable: (a) the nature of the relationships with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the United States; (b) there is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, or allegiance to the group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the United States, that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest; and (c) contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation. 10 Applicant’s mother, stepfather, father, stepmother, half-brother, and stepsister are Russian citizens residing in Russia. Accordingly, AG ¶ 8(a) is not established for the reasons set out in the above discussion of AG ¶¶ 7(a) and 7(b). Applicant indicated that she does not have a relationship with her stepfather, stepmother, or stepsister in Russia. However, Applicant’s mother remains married to Applicant’s stepfather despite their recent separation. Applicant has a relationship with her stepmother through her father, and Applicant speaks to her stepmother monthly to bi- annually during the holidays. Finally, Applicant communicates with her stepsister monthly and during the holidays. AG ¶ 8(c) is not established. Applicant has lived in the United States since 1994. She received her formal education in the United States, and has worked for the same company for many years. She became a naturalized U.S. citizen in 2011. Her husband and children are native- born U.S. citizens residing in the United States. She has substantial financial interests in the United States and none in Russia. She is a registered U.S. voter, and has never voted in Russia. She is extensively involved in her community in the United States. These are factors that weigh in Applicant’s favor. However, Applicant’s ties to her family in Russia are equally as strong. Applicant failed to meet her burden to demonstrate that she would resolve any conflict of interest in favor of the U.S. interest. AG ¶ 8(b) is not established. 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 provide information or make decisions that are harmful to the interests of the United States. Foreign involvement raises concerns about an individual's judgment, reliability, and trustworthiness when it is in conflict with U.S. national interests or when the individual acts to conceal it. By itself; the fact that a U.S. citizen is also a citizen of another country is not disqualifying without an objective showing of such conflict or attempt at concealment. The same is true for a U.S. citizen's exercise of any right or privilege of foreign citizenship and any action to acquire or obtain recognition of a foreign citizenship. The guideline notes several conditions that could raise security concerns under AG ¶ 10. The following is potentially applicable in this case: (a) applying for and/or acquiring citizenship in any other country. Applicant’s Russian identification card was issued to her by the Russian government when she was 20 years old. While she held on to the card until January 2016, she had never used it after immigrating to the United States in 1994, and destroyed it upon realizing its security clearance implications. She has no intentions of reapplying for another one. Given these facts, none of the disqualifying conditions under AG ¶ 10 apply, and I find SOR ¶ 2.a in Applicant’s favor. 11 Applicant applied for and obtained Russian citizenship and a Russian passport for her second daughter in December 2014. She did so around the same time she surrendered her Russian passport to her security officer, after being told it was required in order to apply for a DOD security clearance. While Applicant no longer considered herself a Russian citizen, Applicant nonetheless obtained Russian citizenship and a Russian passport for her minor daughter through her own Russian citizenship. AG ¶ 10(a) has been raised by the evidence. Conditions that could mitigate foreign preference security concerns are provided under AG ¶ 11. The following is potentially applicable: (c) the individual has expressed a willingness to renounce the foreign citizenship that is in conflict with U.S. national security interests. Applicant stated that she obtained Russian citizenship and a Russian passport for her second daughter for travel convenience. She stated that neither of her daughters have traveled to Russia on their Russian passports. She indicated that she was unaware her actions would have any security implications, and is willing to have the Russian passports destroyed. AG ¶ 11(c) is applicable. 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(d): (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 B and C in my whole-person analysis. After weighing the disqualifying and mitigating conditions under Guideline B, and evaluating all the evidence in the context of the whole person, I conclude Applicant has no t mitigated the security concerns raised by her mother, stepfather, father, stepmother, half-brother, and stepsister in Russia. Accordingly, I conclude she has not carried her burden of showing that it is clearly consistent with the national interest to grant her eligibility for access to classified information. 12 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.f: Against Applicant Subparagraphs 1.g - 1.h: For Applicant Paragraph 2, Guideline C: For Applicant 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 eligibility for a security clearance. Eligibility for access to classified information is denied. ________________________ Candace Le’i Garcia Administrative Judge