1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ------------------------------ ) ISCR Case No. 16-00061 ) Applicant for Security Clearance ) Appearances For Government: Alison O’Connell, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ KATAUSKAS, Philip J., Administrative Judge: Applicant contests the Defense Department’s intent to deny her eligibility for access to classified information. She presented sufficient evidence to explain, extenuate, or mitigate the security concern stemming from her contacts and interests with Russia. Accordingly, this case is decided for Applicant. Statement of the Case On June 9, 2016, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) sent Applicant a Statement of Reasons (SOR) alleging that her circumstances raised security concerns under Adjudicative Guideline C for foreign preference and Guideline B for foreign influence.1 Applicant answered the SOR on July 5, 2016, and requested a hearing to establish her eligibility for access to classified information. 1 The DOD CAF took this action under Executive Order (E.O.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive). 2 On June 29, 2017, a date mutually agreed to by the parties, a hearing was held. Applicant testified at the hearing, and the exhibits offered by the Government at the hearing were admitted into the administrative record without objection. (Government Exhibits (GE) 1 and 2; Applicant did not offer any exhibits.) The transcript of the hearing (Tr.) was received on July 10, 2017. Procedural Issues 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.”2 The National Security Adjudicative Guidelines (hereinafter “new adjudicative guidelines” or “AG”), which are found in Appendix A to SEAD-4, are to be used in all security clearance cases decisions issued on or after June 8, 2017.3 In light of this explicit direction (and absent lawful authority to the contrary), I have applied the new adjudicative guidelines. ISCR Case No. 02-00305 at 3 (App. Bd. Feb. 12, 2003) (security clearance decisions must be based on current DoD policy and standards).4 DOD CAF adjudicators reviewed this case using the previous version of the adjudicative guidelines, dated September 1, 2006, which were then in effect. My decision and formal Findings under the revised Guideline B would not be different under the 2006 Guidelines. The SOR alleged a foreign preference under Guideline C. At the outset of the hearing, Department Counsel withdrew that allegation.5 Findings of Fact The SOR alleged under Guideline B that (1) Applicant’s mother and father are citizens and residents of Russia, (2) Applicant maintains contacts with friends who are citizens and residents of Russia, and (3) Applicant jointly owns real property in Russia worth about $80,000. Applicant admitted the first two allegations and admitted, with qualifications discussed below, the third allegation. Applicant is 38 years old and was born in Russia. She came to the United States in December 2002 and was naturalized in October 2009. She earned her bachelor’s degree from a Russian university in 2000 and has taken post-graduate courses from three United States universities in 2007. She married her first spouse, a U. S. citizen, in 2003 but divorced him in 2006. She married her current spouse, also a U. S. citizen, in 2007. 2 SEAD-4, ¶ B, Purpose. 3 SEAD-4, ¶ C, Applicability. 4 See also ISCR Case No. 07-00029 at 3 (App. Bd. Dec. 7, 2007) (when the guidelines were last revised, the Board stated: “Quasi-judicial adjudications must be made within the bounds of applicable law and agency policy, not without regard to them.”) 5 Tr. 11-12. 3 She has two adult stepsons (ages 34 and 38) by her current spouse. All of her in-laws live in the United States.6 She has worked for a defense contractor since 2006. In that employment, she was assigned to support her immediate supervisor, a high level corporate executive involved in intelligence analysis. Because of Applicant’s Russian language skills and having been born in Russia, her immediate supervisor and facility security officer asked her to apply for a clearance, so she could better support the mission.7 Applicant and her spouse have lived at their principal residence, which they own outright, since May 2005. She estimates the value of that home to be about $650,000. She and her spouse also own outright a rental property worth about $110,000. Applicant has a retirement account worth about $40,000 and a savings account with a balance of about $300,000. Applicant’s net worth is about $1.1 million. In her answer to the SOR and at the hearing, Applicant explained that her name is on the deed of real property in Russia that is her parents’ principal residence. She does not consider herself to be a co-owner. As an only child, her name was put on the deed so that when her parents pass, the property will go to Applicant instead of reverting to the Russian government. That property is paid for and is worth about $80,000. She has no other property interests or assets in Russia.8 Applicant’s mother is 62, and her father is 64. Both are retired and receive a government pension. At one time Applicant’s mother worked in a military factory, but she left that job almost 20 years ago. Other than receiving pension benefits, neither of her parents have any affiliation with the Russian government. Applicant speaks with her parents by telephone about once a week. Applicant maintains limited contacts via social media with friends from her college days in Russia. None of those friends have any affiliation to the Russian government. She has not been to Russia in four years. Applicant’s parents have long-term travel visas, and they have traveled to the United States to visit her.9 Administrative Notice (Russia) In response to the Government’s request, to which Applicant did not object, I have taken administrative notice of the following relevant facts about Russia:10 6 Exhibit 1; Tr. 16, 20-23. Because they are close to Applicant’s age, her step-sons are “more like brothers.” Tr. 23. 7 Tr. 16, 22. 8 Tr. 18-19, 23-25, 29-33. 9 Answer; Exhibit 1; Tr. 17, 25-29, 31. 10 Exhibit 2. 4 Russia continues is 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 is 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 tilted toward the United States at Russia’s expense. As a result, Russia’s highly capable intelligence services are using human intelligence, 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 pleaded 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 in Russia involves 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 enter residences and premises without warrants. In addition, while Russian law prohibits government monitoring of correspondence, telephone conversations, and other means of communication without a warrant, government officials engage in electronic surveillance without appropriate authorization. 5 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; in October 2015, however, 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. Law and Policies “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). Individuals are eligible for access to classified information “only upon a finding that it is clearly consistent with the national interest” to authorize such access. E.O. 10865 § 2; SEAD-4, ¶ E.4. When evaluating an applicant’s eligibility for a security clearance, an administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations, the guidelines list potentially disqualifying and mitigating conditions. The guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies the guidelines in a commonsense manner, considering all available and reliable information, in arriving at a fair and impartial decision. SEAD-4, Appendix A, ¶¶ 2(c), 2(d). Department Counsel must present evidence to establish controverted facts alleged in the SOR. Directive ¶ E3.1.14. Applicants are responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven . . . and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” Directive ¶ E3.1.15. Administrative Judges are responsible for ensuring that an applicant receives fair notice of the issues raised, has a reasonable opportunity to litigate those issues, and is not subjected to unfair surprise. ISCR Case No. 12-01266 at 3 (App. Bd. Apr. 4, 2014). In resolving the ultimate question regarding an applicant’s eligibility, “[a]ny doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.” SEAD-4, Appendix A, ¶ 2(b). See also SEAD-4, ¶ E.4. Moreover, the Supreme Court has held that officials making “security clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531. 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. 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 an applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain 6 degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information. Discussion 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; (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. The guideline also notes several conditions in AG ¶ 8 that could mitigate security concerns raised under AG ¶ 7. The following are potentially applicable in this case: (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; 7 (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; (c) contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation; and, (f) the value or routine nature of the foreign business, financial, or property interests is such that they are unlikely to result in a conflict and could not be used effectively to influence, manipulate, or pressure the individual. 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 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. Because Applicant’s parents are citizens and residents of Russia, AG ¶ 7(a) applies. Her relationship with her parents makes AG ¶ 7(b) applicable, as well. Being on the deed to her parents’ home triggers AG ¶ 7 (f). Applicant’s contacts with her friends in Russia triggers AG ¶ 7(b). The next inquiry is whether any mitigating conditions apply. Applicant has lived and worked in this country for 15 years and has been a citizen since 2009. Although Applicant speaks with her parents by telephone weekly, she has not visited her parents in Russia in four years. In fact, they travel to the United States to visit her. Her parents are both retired and have no affiliation with the Russian government. Although at one time her mother worked for a military factory, that was almost 20 years ago. Her parents’ only connection to the Russian government is that they receive government pension payments. Applicant is married to a U. S. citizen; because they are close to her age, Applicant’s two step-sons are like brothers to her. All of her in-laws live in the United States. Applicant has substantial financial holdings in this country worth over a $1 million. She is on the deed to her parent’s $80,000 Russian home as an estate- planning matter. She has no other assets in Russia. As an only child, Applicant will inherit 8 her parents’ home only when both parents are deceased. She has worked for a defense contractor since 2006, and because of Applicant’s Russian background, her employer urged her to apply for a security clearance in order to better support her employer’s mission. In sum, Applicant has her family, professional, and financial roots firmly planted in the United States. I find that security concerns raised by her relationship with her parents are mitigated under AG ¶¶ 8(a) and (b). I find that the security concern raised under AG ¶ 7(f) by virtue of being on the deed to her parents’ home is mitigated under AG ¶ 8(f). I find that Applicant’s communications with friends in Russia via social media are so casual and infrequent that there is little likelihood they could create a risk for foreign influence or exploitation. AG ¶ 8(c) applies. The record does not raise doubts about Applicant’s reliability, trustworthiness, good judgment, and ability to protect classified information. In reaching this conclusion, I weighed the evidence as a whole and considered if the favorable evidence outweighed the unfavorable evidence or vice versa. I also gave due consideration to the whole-person concept.11 Accordingly, I conclude that Applicant met her ultimate burden of persuasion to show that it is clearly consistent with the national interest to grant her eligibility 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 C (Foreign Preference): Withdrawn Subparagraph 1.a: Withdrawn Paragraph 2, Guideline B (Foreign Influence) For Applicant Subparagraphs 2.a-d: For Applicant Conclusion In light of the record as a whole, it is clearly consistent with the national interest to grant Applicant access to classified information. Philip J. Katauskas Administrative Judge 11 AG ¶ 2(a)(1)-(9). 9