1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-02241 ) Applicant for Security Clearance ) Appearances For Government: Caroline E. Heintzelman, Esq., Department Counsel For Applicant: Pro se __________ Decision __________ DAM, Shari, Administrative Judge: Applicant was born and educated in Iraq. Security concerns raised under the foreign influence guideline relating to his connections and travel there are not mitigated. He mitigated the personal conduct security concerns based on his failure to disclose trips to Iraq. National security eligibility for access to classified information is denied. History of the Case On November 7, 2016, the Department of Defense (DOD) issued to Applicant a Statement of Reasons (SOR), alleging security concerns under the guidelines for foreign influence and personal conduct. The action was taken under Executive Order 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) effective 2 after September 1, 2006. This decision applies the new AG that became effective on June 8, 2017.1 Applicant answered the SOR in writing on December 14, 2016 (Answer), and requested a hearing before an administrative judge. The Defense Office of Hearings and Appeals (DOHA) assigned the case to me on February 15, 2017, and issued a Notice of Hearing on March 9, 2017. The hearing convened on April 5, 2017, as scheduled. Department Counsel offered Government Exhibits (GE) 1 through 5 into evidence. Applicant testified and offered Applicant Exhibits (AE) A through L into evidence. All exhibits were admitted without objections. DOHA received the hearing transcript (Tr.) on April 13, 2017. Procedural Rulings At the commencement of the hearing, Department Counsel moved to withdraw the allegation in SOR ¶ 2.b. Applicant had no objection. The motion was granted. (Tr. 12.) Department Counsel requested administrative notice of facts concerning Iraq and Lebanon, as documented in Hearing Exhibits (HE) 1 and 2. Applicant did not object, and Department Counsel’s request was granted. (Tr. 19-20.) Findings of Fact Applicant admitted the facts alleged in ¶ 1 of the SOR. He neither admitted nor denied the allegation in ¶ 2 of the SOR. (Answer.) His answer to that allegation is considered a denial. His admissions are incorporated into these findings. Applicant is 66 years old and married. He and his wife were born in Iraq. They have five adult children, who were born in Iraq. He attended high school there and earned a bachelor’s degree from an Iraqi university in 1972. His wife earned a bachelor’s degree from the same university. After graduating, he was conscripted into the Iraqi army from 1972 to 1973, and 1981 to 1982. From 1974 until 2000, he worked for an Iraqi ministry, except during his conscription. Applicant’s wife and five children immigrated to the United States in 1999. He came in December 2000 on a refugee status visa. His wife and children are naturalized U.S. citizens, residing in the United States. (Tr. 21-31; GE 2.) After arriving in the United States in 2000, Applicant worked in a factory until he obtained a position with a defense contractor in July 2004. He became a naturalized U.S. citizen in December 2008. He worked in Iraq as a linguist for the defense contractor until May 2011. He did not have a security clearance. After leaving Iraq and returning to the United States Applicant was unemployed. In April 2015, he obtained a security position with a different defense contractor and returned to Iraq. He continues to work for that company in Iraq. (Tr. 25-30, 32; GE 3.) He does not leave the U.S. compound while stationed there. (Tr. 33.) 1 I considered the previous AG, as well as the new AG. This decision would be the same if the case was decided under the previous AG. 3 While employed in Iraq between 2004 and 2011, Applicant visited Lebanon for a vacation for seven to ten days in March 2010. He had permission from his employer to travel. He went sightseeing there. (Tr. 34-35, 37; GE 2.) After completing his contract and returning to the United States in May 2011, he vacationed in Iraq four times: from June 2012 to August 2012; from September 2012 to October 2012; in October 2013; and from April 2014 to May 2014. (GE 2, GE 3.) Applicant visited childhood areas while vacationing. During the June to August 2012 trip, he visited a priest he knew and stayed at an apartment at a church. He gave the priest $180 as rent for his stay. Subsequently, the church was destroyed by terrorists. He has had no further contact with the priest. (Tr. 39-42; GE 2; GE 3.) Applicant vacationed in Iraq because he was bored at home in the U.S. and wanted to see places there before he died. He visited various churches because of his religion. He always traveled alone. (Tr. 43-46, 68.) He went to his birthplace and hiked in mountains near it. He stayed in hotels. He did not interact with people and only spoke Kurdish, not Arabic, in order to stay safe while traveling. He is aware that being in Iraq creates a security risk for him because of his work with a defense contractor and former connections to the old Iraqi regime. He does not have family or friends in Iraq. (Tr. 47-50; GE 2.) He acknowledged that he does not leave the U.S. base while working because it is not safe for him. He does not want to be captured. He is concerned that if he were detained, terrorists would “push me to say something.” (Tr. 51.) He said the only person in Iraq that he has given money is the priest, and that was for rent. (Tr. 57.) Applicant did not disclose any foreign travel in his January 2015 security clearance application (SCA). (GE 1.) In March 2015, about three months after completing the SCA, Applicant submitted a list of foreign travel beginning with his place of birth, Iraq. He included countries through which he transited, such as Lebanon and Jordan. He listed the dates of his four vacations to Iraq. He disclosed his 2011 and 2012 vacations in Mexico. (GE 3.) During a December 2015 background interview, Applicant stated that he did not disclose specific trips to Iraq because he forgot about them. (GE 2.) He testified he did not know why he did not include the information. He testified that he brought an old (2012) passport with him to the interview. (Tr. 52.) He said the passport confirmed the dates of his trips and was consistent with information he disclosed in the March 2015 form he completed. (Tr. 65; GE 3.) He said he did not lie when he completed the SCA. (Tr. 70.) He did not disclose his travel to Mexico in his January 2015 SCA. (GE 1, GE 2.) Applicant’s immediate family members are citizens and residents of the United States. His daughter is in medical school. His financial accounts are in the United States. His wife owns real estate in the United States. He expressed his loyalty to the United States. (GE 2.) Applicant submitted numerous awards, certificates, and letters of recommendation from military personnel with whom he worked in Iraq. The exhibits attest to his abilities, hard work, and contributions to the U.S. mission in Iraq. (AE E through F; AE L.) 4 Iraq I take administrative notice of the following facts: In 2003, The United States led a coalition to remove Saddam Hussein from power in Iraq. After free elections, Iraq’s new government took office. Despite the elections and new government, Iraq remains engulfed in violence, perpetrated by Al Qaeda terrorists and other insurgents. Numerous attacks and kidnappings have targeted the U.S. Armed Forces, contractors, and other civilians, as well as Iraqis. Even with aggressive governmental action against terrorists, the threat of terrorism in Iraq remains high. Terrorist groups conduct intelligence activities as effectively as state intelligence services. (HE 1: Attachments.) Lebanon I take administrative notice of the following facts: The Lebanese government recognizes Hezbollah, a terrorist organization, as a legitimate political party. Hezbollah provides support to several Palestinian terrorist organizations and is known to be involved in numerous anti-U.S. and anti-Israeli terrorist attacks, in and around Lebanon. Lebanon has human rights problems, including the arbitrary arrest and detainment of individuals and instances of arbitrary and unlawful deprivation of life, torture, and other abuses. Americans have been the targets of numerous terrorist attacks in Lebanon. Presently there is a travel warning for U.S. citizens traveling to Lebanon due to the threat against westerners. (HE 2: Attachments.) Policies When evaluating an applicant’s national security eligibility for a security clearance, the administrative judge must consider the AG. In addition to brief introductory explanations for each guideline, the AG 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, these guidelines are applied in conjunction with the factors listed in AG ¶ 2 describing the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(b), the entire process is a conscientious scrutiny of applicable guidelines in the context 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 national security eligibility will be resolved in favor of the national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture. 5 Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Directive ¶ E3.1.15 states that “[t]he 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, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” A person applying for access to classified information seeks to enter 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 protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information. Finally, as emphasized in Section 7 of Executive Order 10865, “[a]ny determination under this order adverse to an applicant shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also Executive Order 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information.) Analysis Guideline B: Foreign Influence The security concerns under this guideline are set out in AG ¶ 6 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 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 describes 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 6 (i) conduct, especially while traveling or residing outside the U.S., that may make the individual vulnerable to exploitation, pressure, or coercion by a foreign person, group, government, or country. Iraq continues to experience significant internal anti-western terrorism threats that operate openly and contrary to U.S. interests. Applicant served in the Iraqi army for two years and worked for an Iraqi ministry for about 24 years. His former connections to the government could create the potential for conflict of interest between Applicant’s obligation to protect sensitive information or technology and his desire to help Iraq, or protect himself, by providing information. The evidence establishes a disqualifying condition under AG ¶ 7(b). Applicant acknowledged that traveling throughout Iraq could make him vulnerable to coercion by terrorist groups in the country. Despite that concern, he vacationed there four times between 2012 and 2014. In a 2012 visit, he saw a priest he knew and gave him money to stay at an apartment. Applicant also chose to vacation in Lebanon, which is a country that also poses a heightened risk of terrorism. The evidence established a disqualifying condition under AG ¶ 7(i). The Government met its burden of production by raising the above disqualifying conditions and shifting the burden to Applicant to prove mitigation. Two mitigating conditions under AG ¶ 8 are potentially applicable to the security concerns raised under this guideline: (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. AG ¶ 8(b) has limited application as to the allegations in SOR ¶¶ 1.a through 1.d that refer to Iraq. A key factor in the AG ¶ 8(b) analysis is Applicant’s “deep and longstanding relationships and loyalties in the United States.” Applicant has established some connections to the United States. In 2000, he immigrated to the United States from Iraq, and he became a U.S. citizen in 2008. His immediate family members are citizens and residents of the United States. His financial accounts, as well as his wife’s property, are located in the United States. Those facts demonstrate some deep connections to the United States; however, Applicant’s frequent and long vacations in Iraq, after becoming a U.S. citizen, also demonstrate his longstanding relationships and nostalgia for Iraq, the place of his birth and upbringing. 7 Applicant’s connections to the United States are stronger and deeper than the relationship he has with Lebanon, which appears to have involved one weeklong vacation he took in 2010 while working in Iraq. The evidence mitigates SOR ¶ 1.e. Since visiting the priest in 2012, Applicant has not had further communication with him. Nor has Applicant given any money to him, or anyone else in Iraq. Accordingly, he established mitigation under AG ¶ 8(c), as to the allegation in SOR ¶ 1.f. Guideline E: Personal Conduct The security concerns pertaining to the personal conduct guideline are set out in AG ¶ 15: 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 provide truthful and candid answers during national security investigative or adjudicative processes. The Government alleged in SOR ¶ 2.a that Applicant intentionally failed to disclose his foreign trips. AG ¶ 16 describes one condition that could raise a security concern and may be disqualifying in this case: (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 national security eligibility or trustworthiness, or award fiduciary responsibilities. Applicant denied that he deliberately falsified information in his 2015 SCA. In responding to the issue, he testified that he did not know why he failed to include the information, but insisted he did not lie. While in some cases that defense may not be credible, in this instance I find it believable. My conclusion is based on Applicant’s elaborate detailed disclosure of foreign trips in GE 3, which he completed three months after submitting the SCA. Additionally, he brought his passport to the background interview, which listed and confirmed his trips. After listening to his testimony and observing his demeanor, I find this guideline in his favor. Hence, a discussion of mitigating conditions is not necessary. 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 relevant circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d): 8 (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 national security eligibility 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 pertinent facts and circumstances surrounding this case. Applicant is an intelligent and articulate 66-year-old man, who has been a U.S. citizen since 2008. He has commendably worked for a defense contractor in Iraq for over ten years. He has many connections to the United States, including his immediate family and financial accounts. He expressed his loyalty for the United States. These are facts in favor of granting Applicant a security clearance. However, the factors that weigh against granting Applicant a security clearance are more persuasive than the above facts. Applicant was born and raised in Iraq. He graduated from an Iraqi university. He served in the Iraqi army and worked for an Iraqi ministry for about 24 years before arriving in the United States. The most significant factor is his recognition that traveling around Iraq created a personal security threat to him, because of his previous association with the old Iraqi regime and current connections to the United States. Although he knew that, he chose to vacation there four times between 2012 and 2014. He preferred traveling in Iraq because he was familiar with the country and he wanted to visit his birthplace and other areas before he died. While those reasons are nostalgic and understandable, his decision to take significant security risks is concerning given his work for defense contractors. Overall, the record evidence leaves me with significant doubt as to Applicant’s present eligibility and suitability for a security clearance. He mitigated the personal conduct security concerns. He did not meet his burden to mitigate the security concerns arising under the foreign influence guideline. Formal Findings Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1, Guideline B: AGAINST APPLICANT Subparagraphs 1.a through 1.d: Against Applicant 9 Subparagraphs 1.e and 1.f: For Applicant Paragraph 2, Guideline E: FOR APPLICANT Subparagraph 2.a: For Applicant Subparagraph 2.b: Withdrawn Conclusion In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the interests of national security to grant Applicant a security clearance. National security eligibility for access to classified information is denied. __________________ Shari Dam Administrative Judge