1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-01576 ) Applicant for Security Clearance ) Appearances For Government: Tovah Minster, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ KILMARTIN, Robert J., Administrative Judge: Applicant has mitigated foreign influence and personal conduct security concerns. Eligibility for access to classified information is granted. Statement of the Case On June 29, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline B (foreign influence) and Guideline E (personal conduct). The action was taken under Executive Order (EO) 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’s) implemented by the DOD on September 1, 2006. On December 10, 2016, the Director of National Intelligence issued Security Executive Agent Directive (SEAD) 4, revising the 2006 AGs. The revised AG’s apply to all adjudicative decisions issued on or after June 8, 2017. I have based my decision on the newly effective AG. 2 Applicant answered the SOR on July 15, 2016, and elected to have his case decided on the written record. Department Counsel submitted the Government’s file of relevant material (FORM) on August 25, 2016. Applicant received the FORM on September 11, 2016, and had 30 days to submit material in refutation, extenuation, or mitigation. Applicant responded on September 11, 2016, by providing a two page typed statement. This response was marked as Applicant’s Exhibit (AE) A and it was admitted into evidence without objection. The Government’s documents, identified as Items 1 through 7, were also admitted into evidence without objection. The case was assigned to me on June 1, 2017. Procedural and Evidentiary Rulings Request for Administrative Notice Department Counsel submitted a written request that I take administrative notice of certain facts about Afghanistan. The request and the attached source documents were not admitted into evidence but were included in the record as Hearing Exhibit (HE) I. All of the documents referenced in the Request for Administrative Notice and the facts asserted therein, are from open sources and are dated. Afghanistan has been plagued by corruption and human rights abuses; it is often lawless; and it has been described as a failed-nation-state. The United States has been at war there for over 15 years. Applicant did not object, and I have taken administrative notice of the facts contained in the HE I source documents, and incorporated them by reference. The facts are summarized in the written request and will not be repeated in this decision. Findings of Fact1 Applicant is a 36-year-old interpreter-translator sponsored for a security clearance by a defense contractor. He has been employed intermittently for for various federal contractors in Afghanistan since late 2009. His specialty was Pashto and Dari languages. This is precisely why the United States sought Applicant out and hired him – for his esoteric language skills. He was born in Afghanistan and graduated from high school in 2000. Applicant came from a family of six children and worked since he was 13 years old. He has contributed to his parents’ living expenses when he could. Applicant submitted a Questionnaire for National Security Positions (SCA) on May 5, 2013.2 He came to the United States in 2007 and stayed until 2009 working as a role-player sporadically. During those two years, he tried to join the U. S. Army but did not pass the math portion of the entrance test. So, he returned to Afghanistan again to work again as a translator in 2009. He next came to the United States and was naturalized under a special-immigrant-visa program in April 2013. He renounced his Afghan citizenship at that time. 1 Unless otherwise stated, the basis for these findings of fact is Applicant’s Questionnaire for National Security Positions (SCA) dated May 5, 2013 (Item 3) and the summary of his clearance interview by a clearance investigator on September 11, 2013. (Item 4) 2 Item 3. 3 Applicant has never married and reports no children. Applicant’s parents and most of his siblings, all live in Afghanistan. Applicant has little contact with them. None are affiliated with the Afghanistan government, or any other foreign government. They know about Applicant’s translator services, but tell others that he is working in another country. In his clearance interview, Applicant stated that he intended to sponsor his parents and siblings to come to the United States.3 Also, he does not feel that his family members in Afghanistan are under any threat, and he was never approached for classified or sensitive information at any time by any person. Applicant has no sympathy, preference for, or alliance with foreign nationals. Applicant admitted the SOR allegations under Guideline B, SOR ¶¶ 1.a through 1.e, in his Answer to the SOR of June 2016. In his response to the FORM, he stated that he sent his father approximately $10,000 between 2010 and 2013 via Western Union because his father was unemployed. However, he “overlooked” the question in Section 20A of his SCA, Foreign National Support, because he did not understand it. He never considered his family members to be foreign nationals. Thus, he denied the falsification allegation in SOR ¶ 2.a. He also admitted in his response that he sent approximately $2,000 to a female friend from Kyrgyzstan over a two-year period (2012 to 2014) because she was not earning enough to support herself. He met her when she was working as a masseuse at the barbershop on a U.S. military base in Afghanistan in 2012. They dated, and she returned to Kyrgyzstan in 2013. They broke up in 2015 and have had no contact since then.4 Applicant also sent $500 to his roommate’s father in Afghanistan for transportation at one time. 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(c), 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. 3 Item 4. 4 Item 1, at 1. 4 The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for national security eligibility will be resolved in favor of the 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 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 EO 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 EO 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 that is 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, such considerations as whether the foreign country is known to target United States 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: 5 (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; (c) failure to report or fully disclose, when required, association with a foreign person, group, government, or country; 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 heightened risk of foreign influence or exploitation or personal conflict of interest. Applicant’s parents and siblings are citizens and residents of Afghanistan. Afghanistan is continuously at war and continues to have human rights problems, rampant corruption, and terrorist attacks. It remains a safe haven for terrorism, and has been for at least 15 years. Applicant’s foreign contacts may create a potential conflict of interest and a heightened risk of foreign exploitation, inducement, manipulation, pressure, and coercion, both directly and through his family members. AG ¶¶ 7(a) and 7(b) have been raised by the evidence. Conditions that could potentially 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 U.S., 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; 6 (d) the foreign contacts and activities are on U.S. Government business or are approved by the agency head or designee; (e) the individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons, groups, or organizations from a foreign country; 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. I considered the totality of Applicant’s foreign contacts and interests. 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.5 The distinctions between friendly and unfriendly governments must be made with caution. Relations between nations can shift, sometimes dramatically and unexpectedly. Furthermore, friendly nations can have profound disagreements with the United States over matters they view as important to their vital interests or national security. Finally, we know friendly nations have engaged in espionage against the United States, especially in the economic, scientific, and technical fields. 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, the country is known to conduct intelligence operations against the United States, or the foreign country is associated with a risk of terrorism. Applicant came to the United States in 2007. He became a U.S. citizen in 2013. He intends to sponsor his family members to become U.S. citizens. Applicant has gone in harm’s way repeatedly over the last eight years, and supported the U.S. military in a war zone. He has longstanding relationships and loyalties here. Although he has provided financial support to foreign citizens in the past, it was de-minimis and reasonable under the circumstances. He is gainfully employed by a federal contractor and appears to be a solid citizen. He continues to have only fleeting, occasional contact with his family members in Afghanistan. There is no indication that they are affiliated with the Afghanistan government or intelligence services. His siblings know about his interpreter services and are not vulnerable to foreign coercion or exploitation. Applicant is committed to his new life here. AG ¶¶ 8(a), (b), and (c) are applicable to the 5 ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004). 7 Afghanistan family members and girlfriend foreign contacts, which are alleged in SOR ¶¶ 1.a through 1.e. Because Applicant’s ties to Afghanistan are minimal and inconsequential, I find that all foreign influence concerns have been mitigated. Guideline E, Personal Conduct The security concern for personal conduct is set out in AG ¶ 15, as follows: The Concern. Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness and ability to protect classified or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security investigative or adjudicative processes. The following normally will result in an unfavorable national security eligibility determination, security clearance action, or cancellation of further processing for national security eligibility: (a) refusal, or failure without reasonable cause, to undergo or cooperate with security processing, including but not limited to meeting with a security investigator for subject interview, completing security forms or releases, cooperation with medical or psychological evaluation, or polygraph examination, if authorized and required; and (b) refusal to provide full, frank, and truthful answers to lawful questions of investigators, security officials, or other official representatives in connection with a personnel security or trustworthiness determination. AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying. The following disqualifying conditions are potentially applicable: (a) deliberate omission, concealment or falsification of relevant facts from any personnel security questionnaire, personal history statement or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities; and (b) deliberately providing false or misleading information; or concealing or omitting information, concerning relevant facts to an employer, investigator, security official, competent medical or mental health professional involved in making a recommendation relevant to a national security eligibility determination, or other official government representative. 17. Conditions that could potent ia l ly mitigate security concerns include: (c) the offense is so minor, or so much time has passed, or the behavior is 8 so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment; and (d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances or factors that contributed to untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur. Applicant overlooked or misunderstood the question in the SCA in section 20A about foreign contacts. He was hired precisely because of his Pashto and Dari language skills that are indigenous to people who were born and raised and have family in Afghanistan. He was not trying to hide these family-member contacts, or his Afghanistan roots. They are the reason why he was hired. He sent financial support to his unemployed father and girlfriend for subsistence only. I find that his conduct in taking care of family members, and oversight in not disclosing it, has no national security significance or concern. Applicant lacked any specific intent to falsify his SCA. 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 considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I have incorporated my comments under Guidelines B and E in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under those guidelines. 9 Overall, the record evidence leaves me with no questions or doubts as to Applicant’s eligibility and suitability for a security clearance. I conclude Applicant has mitigated foreign influence and personal conduct security concerns. 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: FOR Applicant Subparagraphs 1.a – e: For Applicant Paragraph 2, Guideline E: For Applicant Subparagraph a: For Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to continue Applicant’s eligibility for a security clearance. Eligibility for access to classified information is granted. ________________________ Robert J. Kilmartin Administrative Judge