1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-03590 ) Applicant for Security Clearance ) Appearances For Government: Andrew H. Henderson, Esq., Department Counsel For Applicant: Pro se __________ Decision __________ HARVEY, Mark, Administrative Judge: Applicant is on an advisory board funded by a foreign government (AB). She has strong connections to the United States; she has contributed to the welfare of the United States for 50 years; and the foreign government does not engage in espionage against the United States. Her immediate family are all citizens and residents of the United States. Foreign influence and foreign preference security concerns are mitigated; however, outside activities security concerns are not mitigated. Eligibility for access to classified information is denied. Statement of the Case On August 18, 2015, Applicant completed and signed a Questionnaire for National Security Positions (e-QIP) (SF 86) (SCA). (Government Exhibit (GE) 1) On January 6, 2017, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued an SOR to her, alleging security concerns under Guidelines L (outside activities), C (foreign preference), and B (foreign influence). (Hearing Exhibit (HE) 2) The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1990), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG), which became effective on September 1, 2006. 2 The SOR further informed Applicant that, based on information available to the Government, DOD adjudicators could not make the affirmative finding that it is clearly consistent with national security to grant or continue Applicant’s security clearance, and the DOD CAF recommended that her case be submitted to an administrative judge for a determination whether her clearance should be granted, continued, denied, or revoked. (HE 2) On March 7, 2017, Applicant responded to the SOR, and she waived her right to a hearing. (HE 3) On April 10, 2017, Department Counsel requested a hearing. (Tr. 12) On April 10, 2017, Department Counsel was prepared to proceed. On April 27, 2017, the Defense Office of Hearings and Appeals (DOHA) assigned the case to me. On May 8, 2017, DOHA issued notice of the hearing, setting the hearing for June 14, 2017. The hearing was held as scheduled. Department Counsel offered two exhibits; Applicant did not offer any exhibits; there were no objections; and all proffered exhibits were admitted into evidence. (Tr. 15-16; AE A and B) I received the transcript of the hearing on June 22, 2017. While this case was pending a decision, the Director of National Intelligence (DNI) issued Security Executive Agent Directive 4, establishing in Appendix A the National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position (AGs), which he made applicable to all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position. The new AGs supersede the Sept. 1, 2006 AGs and are effective “for all covered individuals” on or after June 8, 2017. Accordingly, I have evaluated Applicant’s security clearance eligibility under the new AGs.1 Findings of Fact2 The SOR alleges Applicant received an annual salary of $20,000 for being a member of an AB. Applicant admitted the allegation. The allegation was cross alleged under Guidelines L, C, and B. Applicant is more than 80 years old. (Tr. 6) She was born in a European country. (Tr. 16) In 1964, she received a Ph.D. in electrical engineering from a European university, and in 1972, she received a Ph.D. in computer science. (Tr. 7) She married in 1953, and divorced in 1972. (Tr. 7) She married in 1978. (Tr. 7) Her husband was born in the United States in 1922; he is disabled; and he lives in the United States. (Tr. 28; GE 1) Her children and stepchild were born in 1957, 1964, and 1965, and they are all citizens and residents of the United States. (GE 1) In 1967, she immigrated to the United States from a European country. (Tr. 8) She became a U.S. citizen in 1981. (Tr. 1 Application of the AGs that were in effect as of the issuance of the SOR would not change my decision in this case. The new AGs are available at http://ogc.osd.mil/doha/5220-6 R20170608.pdf. 2 To protect Applicant and her family’s privacy, the facts in this decision do not specifically describe employment, names of witnesses, and names of other groups or locations. The cited sources contain more specific information. 3 8; GE 1) She has never served in the U.S. military or the military of a foreign country. (GE 1) Applicant is a world-renowned scientist with extensive expertise in various technical areas. (Tr. 13) For most of the past five decades, U.S. universities have been her primary employers. (Tr. 18) She has part-time employment to conduct research from a U.S. Government-sponsored entity (USGSE) that advises the U.S. Government on various technical issues. (Tr. 19-22) She has also worked on research for the DOD, U.S. Army, and U.S. Navy as well as for a corporation. (Tr. 18-19) The USGSE is sponsoring Applicant for a security clearance. (Tr. 19) Applicant’s total annual income is about $200,000. (Tr. 29) Applicant receives $20,000 annually plus travel expenses to travel from the United States to a foreign country once each year for her AB work. (24-25) The foreign government sponsoring the AB provides tens of millions of dollars to several U.S. universities. (Tr. 14) Applicant’s AB evaluates the technical products and research of the universities on behalf of the foreign government. (Tr. 14, 24) She also attends an AB annual meeting in the United States, and the foreign government funds her travel. (Tr. 24-25) She has worked on the AB for six years; she is invested in the AB’s success; and she did not wish to divest or terminate her relationship with the AB because it would be a breach of her commitment to her colleagues. (Tr. 30) There is a large U.S. Army base located in the country sponsoring the AB, and the U.S. Government has long-standing agreements with the country. Numerous U.S. corporations have contracts with the government of the country sponsoring the AB. 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 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. 4 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. See also Executive Order 12968 (Aug. 2, 1995), § 3.1. Thus, nothing in this Decision 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, the Secretary of Defense, and DNI 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 Outside Activities AG ¶ 36 describes the security concern pertaining to outside activities, “Involvement in certain types of outside employment or activities is of security concern if it poses a conflict of interest with an individual’s security responsibilities and could create an increased risk of unauthorized disclosure of classified or sensitive information.” AG ¶ 37 has one condition that could raise a security concern and may be disqualifying in this case: (a) any employment or service, whether compensated or volunteer, with: 5 (1) the government of a foreign country; (2) any foreign national, organization, or other entity; (3) a representative of any foreign interest; and (4) any foreign, domestic, or international organization or person engaged in analysis, discussion, or publication of material on intelligence, defense, foreign affairs, or protected technology. Applicant receives $20,000 annually for her work on an AB. A foreign government provides the compensation for those on the AB. AG ¶ 37(a) applies. AG ¶ 38 provides two conditions that could mitigate security concerns: (a) evaluation of the outside employment or activity by the appropriate security or counterintelligence office indicates that it does not pose a conflict with an individual's security responsibilities or with the national security interests of the United States; and (b) the individual terminated the employment or discontinued the activity upon being notified that it was in conflict with his or her security responsibilities. None of the mitigating conditions apply. If security officials in the USGSE, sponsored Applicant to work on the AB; security officials monitored her work for the AB; and the $20,000 payment was made to Applicant by the USGSE, then there would be sufficient security protocols to safeguard classified information. Here, there is no USGSE supervision of Applicant’s activities, and no security protocols are established to protect classified information. A security or counterintelligence office has not indicated her work on the AB “does not pose a conflict with an individual's security responsibilities or with the national security interests of the United States.” Applicant said she was not going to terminate her AB employment. Outside activities security concerns are not mitigated. Foreign Preference AG 9 describes the security concern relating to 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 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 6 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. AG ¶ 10 lists two conditions that could raise a security concern and may be disqualifying: (d) participation in foreign activities, including but not limited to: (1) assuming or attempting to assume any type of employment, position, or political office in a foreign government or military organization; and (2) otherwise acting to serve the interests of a foreign person, group, organization, or government in any way that conflicts with U.S. national security interests. SOR ¶ 2.a cross alleges the same conduct under the foreign preference guideline as in SOR ¶ 1.a under the outside activities guideline. AG ¶ 10(d)(1) does not apply because Applicant does not have a position or employment in a foreign government or military organization. AG ¶ 10(d)(2) is raised for the reasons stated in the outside activities section, supra. AG ¶ 11 provides two conditions that could mitigate security concerns: (f) the foreign preference, if detected, involves a foreign country, entity, or association that poses a low national security risk; and (g) civil employment or military service was authorized under U.S. law, or the employment or service was otherwise consented to as required by U.S. law. Applicant’s employment on the AB is authorized under U.S. law. Her employment is well known to security officials, and the foreign country’s investments in U.S. universities are clearly beneficial to the United States. The foreign country paying the AB presents a low security risk. There is no evidence that the foreign country commits espionage against the United States, and the national security risk is low. AG ¶¶ 11(f) and 11(g) are established, and foreign preference security concerns are mitigated. Foreign Influence AG ¶ 6 explains the security concern about foreign influence as follows: 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 7 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. AG ¶ 7 indicates two conditions that could raise a security concern and may be disqualifying in this case: (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; and (f) substantial business, financial, or property interests in a foreign country, or in any foreign owned or foreign-operated business that could subject the individual to a heightened risk of foreign influence or exploitation or personal conflict of interest. SOR ¶ 3.a cross alleges the same conduct under the foreign influence guideline as in SOR ¶ 1.a under the outside activities guideline. AG ¶¶ 7(b) and 7(f) are raised for the reasons stated in the outside activities section. AG ¶ 8 lists two conditions that could mitigate foreign influence security concerns including: (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 interest in favor of the U.S. interest; 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. AG ¶¶ 8(b) and 8(f) apply. In 1967, Applicant emigrated from Europe to the United States, and in 1981, Applicant was naturalized as a U.S. citizen. Her husband, children, and stepchild are all citizens and residents of the United States. When Appellant took an oath and swore allegiance to the United States, as part of her naturalization as a U.S. citizen, and through her decades of employment in the United States, she manifested her patriotism, loyalty, and fidelity to the United States over all other countries. 8 Applicant has minimal connections to the foreign country funding the AB. Applicant and her family live in the United States. Her employment on the AB benefits the United States. Her income from the AB is about 10 percent of her total annual income, and her income from her AB employment could not be used effectively to influence, manipulate, or pressure her. Foreign influence security concerns under Guideline B are mitigated. Whole-Person Concept Under the whole-person concept, the administrative judge must evaluate an Applicant’s eligibility for a security clearance by considering the totality of the Applicant’s conduct and all the 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), “[t]he ultimate determination” of whether to grant a security clearance “must be an overall commonsense judgment based upon careful consideration” of the guidelines and the whole-person concept. My comments under Guidelines L, C, and B are incorporated in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under those guidelines but some warrant additional comment. Applicant is more than 80 years old. She has a Ph.D. in electrical engineering, and a Ph.D. in computer science. Applicant’s husband, stepchild, and children are U.S. residents and citizens. In 1967, she immigrated to the United States from a European country, and she became a U.S. citizen in 1981. Applicant is a world-renowned scientist with extensive expertise in various technical areas. For most of the past five decades, U.S. universities have been her primary employers. She has part-time employment to conduct research from a USGSE, and she has also worked on research for the DOD, U.S. Army, and U.S. Navy as well as for a corporation. Applicant’s total annual income is about $200,000. She receives $20,000 annually plus travel expenses for her AB work. The foreign government sponsoring the AB provides tens of millions of dollars to U.S. universities. Her employment with the AB has benefited U.S. universities. She has worked on the AB for six years; she is invested in the AB’s success; and she did not wish to terminate her relationship with the AB because it would be a breach of her commitment to her colleagues. Numerous U.S. 9 corporations and defense contractors have direct business relationships with foreign governments. The U.S. Government has a large base in the country sponsoring the AB. The sole security concern relates to the foreign government funding the AB that is employing Applicant without the security protocols and procedures used to ensure protection of classified information. Applicant is a credible witness, and she is a loyal U.S. citizen. 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. I conclude that foreign influence and foreign preference security concerns are mitigated. Outside activities security concerns are not 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 L: AGAINST APPLICANT Subparagraph 1.a: Against Applicant Paragraph 2, Guideline C: FOR APPLICANT Subparagraph 2.a: For Applicant Paragraph 3, Guideline B: FOR APPLICANT Subparagraph 3.a: For Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is not clearly consistent with national security to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied. __________________________ Mark Harvey Administrative Judge