1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) [Redacted] ) ISCR Case No. 16-00080 ) Applicant for Security Clearance ) Appearances For Government: Nicole A. Smith, Esq., Department Counsel For Applicant: Charles D. Swift, Esq., and Ashraf Nubani, Esq. ______________ Decision ______________ FOREMAN, LeRoy F., Administrative Judge: This case involves security concerns raised under Guideline B (Foreign Influence). Eligibility for access to classified information is granted. Statement of the Case Applicant submitted a security clearance application on July 23, 2014. On May 31, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) sent him a Statement of Reasons (SOR) alleging security concerns under Guideline B. The DOD CAF acted 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, 2006.1 1 Security Executive Agent Directive 4 (SEAD 4), was issued on December 10, 2016, revising the 2006 adjudicative guidelines. The SEAD 4 guidelines apply to all adjudicative decisions issued on or after June 8, 2017. My decision is based on the guidelines in SEAD 4, referred to in this decision as “AG.” The changes resulting from issuance of SEAD 4 did not affect my decision in this case. 2 Applicant answered the SOR on June 23, 2016, and requested a hearing before an administrative judge. Department Counsel was ready to proceed on October 27, 2016, and the case was assigned to me on March 1, 2017. On March 20, 2017, the Defense Office of Hearings and Appeals (DOHA) notified Applicant that the hearing was scheduled for April 26, 2017. I convened the hearing as scheduled. Government Exhibits (GX) 1 through 9 were admitted in evidence without objection. Applicant testified, presented the testimony of three witnesses, and submitted Applicant’s Exhibits (AX) A through G, which were admitted without objection. DOHA received the transcript (Tr.) on May 4, 2017. Department Counsel requested that I take administrative notice of relevant facts about Egypt and Saudi Arabia. (GX 8; GX 9.) I took administrative notice as requested. On July 26, 2017, on my own motion and without objection from either party, I also took administrative notice of the updated information in the U.S. Department of State fact sheet, “U.S. Relations with Saudi Arabia,” dated February 2, 2017, and the U.S. Department of State travel warnings for Egypt (dated July 19, 2017) and Saudi Arabia (dated March 29, 2017). These documents are attached to the record as Hearing Exhibits. I kept the record open until August 3, 2017, to enable the parties to object or comment on my intention to take administrative notice. Neither party objected. The facts administratively noticed are set out below in my findings of fact. On August 3, 2011, Applicant’s attorney notified me that Applicant’s sister-in-law was killed in an automobile accident on July 31, 2017. I kept the record open until August 11, 2017, to enable him to submit documentation of the sister-in-law’s death. He timely submitted AX H, which was admitted without objection. Findings of Fact2 The SOR alleges that Applicant’s brother (SOR ¶ 1.a), three sisters (SOR ¶ 1.b), and mother-in-law (SOR ¶ 1.c) are citizens and residents of Egypt. It also alleges that he maintains a bank account in Egypt (SOR ¶ 1.d) and that he has two brothers-in-law and sisters-in-law who are citizens of Egypt residing in Saudi Arabia (SOR ¶ 1.e). In his answer to the SOR, Applicant admitted the allegations in SOR ¶¶ 1.a and 1.c. His admissions in his answer and at the hearing are incorporated in my findings of fact. Applicant denied the allegation in SOR ¶ 1.b, stating that he had two sisters who are citizens and residents of Egypt and that his older sister passed away in January 2015. He denied the allegation in SOR ¶ 1.d, stating that the bank account was closed. He denied the allegation in SOR ¶ 1.e, stating that he had only one brother-in-law and one sister-in-law residing in Saudi Arabia. 2 Applicant’s personal information is extracted from his security clearance application (GX 1) unless otherwise indicated by a parenthetical citation to the record. 3 Applicant is a 53-year-old self-employed sub-contractor working as a computer programmer for a defense contractor since March 2014. He has held public-trust positions but has never held a security clearance. (Tr. 6.) He applied for a security clearance in July 2010. His application was denied by an administrative judge in February 2013, and the unfavorable decision was affirmed by the Appeal Board in May 2013. (GX 6; GX 7.) Applicant was and born and educated in Egypt. He completed college and received a bachelor’s degree in accounting and business administration from a university in Egypt in May 1985. He lived and worked in Italy from May 1985 until he came to the United States in June 1992. He did not visit Egypt until 1994 because he was vulnerable to being drafted into the Egyptian armed forces. (Tr. 62.) After 1994, he visited his family in Egypt about once a year. (Tr. 62-63.) He earned professional certifications from U.S. universities in June 2006 and August 2009. He became a U.S. citizen in August 2009. He worked as a database administrator for federal contractors from February 2001 to May 2008 and for another government agency from May 2008 to March 2010. He has worked as a self- employed sub-contractor for federal contractors from March 2010 to the present. Applicant married in February 1996. His wife was born in Egypt and became a U.S. citizen in August 2008.They have three children, ages 19, 16, and 9, who are native-born U.S. citizens. Applicant’s father passed away when Applicant was in high school. His mother passed away in 2008, and his older sister suffered a stroke and passed away in January 2015. His brother, two surviving sisters, and mother-in-law are citizens and residents of Egypt. His brother is a lawyer but unable to work because of mental health issues. One of his sisters is a medical doctor; the other sister is a high school teacher. (Tr. 58-60.) His mother-in-law is a widow and does not work outside the home. His brother-in-law is a construction engineer, living and working in Saudi Arabia. His sister-in-law was a trained pharmacist but did not work outside the home. (GX 4.) She was killed in an automobile accident on July 31, 2017. (AX H.) None of his living family members know what he does for a living. (Tr. 65-66.) Applicant has monthly telephone contact with his siblings and his in-laws. (GX 1 at 31-38; GX 3 at 27-39.) Communication with his brother is difficult because of his brother’s mental condition. (Tr. 59.) His last personal contact with his brother-in-law was five or six years ago when his brother-in-law accompanied his mother-in-law on a visit to the United States. (Tr. 64.) When Applicant first applied for a security clearance, he owned a townhome in Egypt and kept a bank account in Egypt. He sold the townhome in November 2014 and closed the bank account in March 2016. (Enclosure to SOR Answer; GX 5; AX A-C.) In the United States, Applicant has owned the family home since December 1999. (GX 1 at 8-9.) He and his wife also own a second home, have savings accounts in U.S. banks, and have a net worth of about $700,000. (GX 6 at 2.) 4 Applicant served as vice-president of his community’s homeowners’ association from 2011 to 2013. He remains active in the association, and he recently coordinated with an adjoining homeowners’ association on the construction of sidewalks and bicycle paths. (Tr. 34-35, 66-67.) A close friend of Applicant, with whom Applicant socializes, plays tennis, and worships, has worked with Applicant on community projects and found that he played an “essential role” in improving their community. (Tr. 34-35.) Three of Applicant’s neighbors who are involved in the homeowners’ association described Applicant as an active, cooperative, and helpful member of the association. (Tr. 43-47; AX D; AX F.) Another neighbor describes Applicant as “a good, decent family man of great character and judgment.” (AX G.) Applicant’s supervisor for the past seven years testified that Applicant is humble, hardworking, and “somebody that I can close my eyes and count on.” He is aware of Applicant’s foreign family ties and has no concerns about his loyalty to the United States. (Tr. 26-27.) A former supervisor for two or three years describes Applicant as an open- minded, hardworking colleague. (AX E.) Egypt is the most populous country in the Arab world and the second-most populous on the African Continent. In the past, the United States and Egypt have had a strong and friendly relationship based on shared mutual interest in Middle East peace and stability. U.S. policy toward Egypt has long been regarded as an investment in regional stability. There is no evidence that Egypt has targeted the United States for military or economic intelligence. However, after a popular revolution which began in January 2011, the relationship has become uncertain, with more indications of anti- Americanism, radical Islamist policies, and antipathy towards Israel. Egypt has suffered from numerous terrorist attacks, where foreigners, including Americans, have been killed, injured, or kidnapped. The U.S. Department of State has warned U.S. citizens considering travel to Egypt about potential terrorist attacks and violent political protests. The U.S. Mission in Egypt restricts its employees and their family members from traveling outside greater Cairo and Alexandria without prior approval, and it advises all U.S. citizens to carefully consider the security implications of travel outside Cairo, Alexandria, and major tourist destinations. Significant human-rights abuses by security forces have occurred, including excessive use of force, unlawful killings and torture, excessive use of preventative custody and pretrial detention, and limitations on due process during trials. Saudi Arabia is a monarchy ruled by a king who is both head of state and head of government. The Koran is the constitution of the country and Islamic (Sharia) Law is the basis for its government. The United States and Saudi Arabia have a longstanding security relationship. Saudi Arabia is the United States’ largest customer for foreign military sales. The United States provides training and advisory services for the Saudi Ministry of Defense and assists in the modernization of the Saudi National Guard. The U.S. Army Corps of Engineers is significantly involved in military and civilian construction in Saudi Arabia. The two countries have various governmental exchange programs. They enjoy a strong economic relationship, in that the United States is Saudi Arabia’s largest trading partner and Saudi Arabia is one of the United States’ largest trading partners in the Middle East. Relations between the United States and Saudi Arabia were strained 5 after the terrorist attacks on the World Trade Towers in September 2001. There were 34 terrorist attacks in Saudi Arabia in 2016, targeting Saudi and Western government interests, significant religious sites, and places frequented by U.S. citizens and other Westerners. Saudi Arabia has ongoing human-rights problems, including abuse of prisoners and detainees; restrictions on freedom of speech, press, peaceful assembly, and religion; and systematic discrimination against women and ethnic and religious minorities. The U.S. Department of State warns U.S. citizens to carefully consider the risks of travel because of continuing threats from terrorist groups. Policies “[N]o 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 applicants 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 § 2. 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, an administrative judge applies these guidelines 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 and 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 that 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 made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance 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 6 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. 92-1106 at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993). 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 burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. See ISCR Case No. 02- 31154 at 5 (App. Bd. Sep. 22, 2005). An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01- 20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531. Analysis Guideline B, Foreign Influence The security concern under this guideline 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 maybe 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. Guideline B is not limited to countries hostile to the United States. “The United States has a compelling interest in protecting and safeguarding classified information from any person, organization, or country that is not authorized to have access to it, regardless of whether that person, organization, or country has interests inimical to those of the United States.” ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004). Furthermore, “even friendly nations can have profound disagreements with the United States over matters they view as important to their vital interests or national security.” ISCR Case No. 00-0317, 2002 DOHA LEXIS 83 at **15-16 (App. Bd. Mar. 29, 2002). Finally, we know friendly nations have engaged in espionage against the United 7 States, especially in the economic, scientific, and technical fields. Nevertheless, 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). The following disqualifying conditions are potentially applicable: AG ¶ 7(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; AG ¶ 7(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; AG ¶ 7(e): shared living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure, or coercion; and AG ¶ 7(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. When family ties are involved, the totality of an applicant’s family ties to a foreign country as well as each individual family tie must be considered. ISCR Case No. 01- 22693 at 7 (App. Bd. Sep. 22, 2003). A[T]here is a rebuttable presumption that a person has ties of affection for, or obligation to, the immediate family members of the person's spouse.@ ISCR Case No. 01-03120, 2002 DOHA LEXIS 94 at * 8 (App. Bd. Feb. 20, 2002). The evidence reflects that one of Applicant’s two sisters passed away in January 2015. It also reflects that he had one brother-in-law and one sister-in-law living in Saudi Arabia, instead of two brothers-in-law and sisters-in-law as alleged in SOR ¶ 1.e, and it reflects that his sister-in-law was recently killed in an automobile accident. 8 AG ¶¶ 7(a), 7(e), and 7(f) all require 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 no longer has financial interests in Egypt. However, presence of his brother, sister, and mother-in-law in Egypt; the presence of his brother-in-law in Saudi Arabia; and the activities of terrorist and insurgent groups in both countries are sufficient to establish the “heightened risk” of foreign influence encompassed by AG ¶¶ 7(a) and 7(e) and the potential conflict of interest in AG ¶ 7(b). The following mitigating conditions are potentially applicable: AG ¶ 8(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; AG ¶ 8(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 AG ¶ 8(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. AG ¶ 8(a) is not established. The unsettled nature of the current relationship between the United States and Egypt and the terrorist and insurgent activity in Egypt and Saudi Arabia preclude a finding that a situation requiring a choice between the interests of the United States and the foreign country is unlikely. AG ¶ 8(b) is established. Applicant’s only connection with Saudi Arabia is through the employment of his brother-in-law in that country. He has ties of affection and obligation to his mother, mother-in-law, brother, and sister in Egypt, but those ties are outweighed by his deep and longstanding relationships and loyalties in the United States. He has lived in the United States for 25 years. He has worked for federal contractors for 16 years. He has been a U.S. citizen for almost nine years. His wife and children are U.S. citizens. The net worth of his financial interests in the United States is about $700,000, and he no longer has any financial interests in Egypt. He has earned the trust of his supervisors. He is an active and respected member of his community. I am satisfied that he would resolve any conflict of interest in favor of the United States. 9 AG ¶ 8(c) is not established for Applicant’s communication with his mother, siblings, and in-laws. There is a rebuttable presumption that contacts with an immediate family member in a foreign country are not casual. ISCR Case No. 00-0484 at 5 (App. Bd. Feb. 1, 2002). Applicant has not overcome the presumption. He also has not overcome the presumption that he has ties of affection or obligation to his in-laws. Whole-Person Concept 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. In applying the whole-person concept, an 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. An 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. I have incorporated my comments under Guideline B in my whole-person analysis and considered the factors in AG ¶ 2(d). Applicant was candid, sincere, and credible at the hearing. He left Egypt after he graduated from college in May 1985 and has not returned except for visits to his family. His entire adult life and professional career has been in the United States. His ties to Egypt and Saudi Arabia are significantly less than they were when his previous application for a security clearance was denied in May 2013, because he no longer owns property in Egypt and his older sister and his sister-in-law have passed away. 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 refuted the allegation that he has a bank account in Egypt and mitigated the security concerns raised by his family ties to Egypt and Saudi Arabia. Formal Findings I make the following formal findings on the allegations in the SOR: Paragraph 1, Guideline B (Foreign Influence): FOR APPLICANT Subparagraphs 1.a-1.e: For Applicant 10 Conclusion I conclude that it is clearly consistent with the national security interests of the United States to grant Applicant eligibility for access to classified information. Clearance is granted. LeRoy F. Foreman Administrative Judge