1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-01653 ) Applicant for Security Clearance ) Appearances For Government: Nicole A. Smith, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ CERVI, Gregg A., Administrative Judge: Applicant did not mitigate the foreign influence security concerns. Eligibility for access to classified information is denied. Statement of the Case Applicant submitted a security clearance application (SCA) on January 26, 2014. On June 17, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) sent him a Statement of Reasons (SOR) alleging security concerns under Guideline B.1 Applicant answered the SOR on July 6, 2016, and elected to have the case decided on the written record in lieu of a hearing. The Government’s written brief with supporting documents, known as the File of Relevant Material (FORM), was submitted by Department Counsel on August 22, 2016. 1 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. 2 A complete copy of the FORM was provided to Applicant, who was afforded an opportunity to file objections and submit material to refute, extenuate, or mitigate the security concerns. Applicant received the FORM on September 6, 2016. He submitted a letter in response to the FORM. The Government’s exhibits included in the FORM (Items 1 to 4), and the Applicant’s exhibit (AE) marked as AE A, are admitted into evidence. The case was assigned to me on May 19, 2017. Request for Administrative Notice Department Counsel requested that I take administrative notice of certain facts about Afghanistan. (HE 1) The facts administratively noticed are summarized in the Findings of Fact, below. Findings of Fact Applicant is a 33-year-old employee of a defense contractor. He was born in Afghanistan in 1984. He is a high school graduate. He married in Afghanistan in 2009 to a naturalized U.S. citizen. They have no children. He was sponsored for immigration by his spouse, and moved to the United States in 2010. Applicant was naturalized as a U.S. citizen in December 2013, and, with that act, renounced his Afghan citizenship. Applicant is a linguist/interpreter for a U.S. government contractor. He was previously employed as an interpreter in support of international security assistance forces (ISAF) in Afghanistan from March 2007 to November 2010, while he was an Afghan national. He stated that he again deployed to Afghanistan in about 2014, in support of U.S. forces, although the dates and type of work done in Afghanistan are unclear. Applicant’s mother and father are residents and citizens of Afghanistan. His mother is a homemaker, and his father is a retired grocer who does not receive a pension or government assistance. Applicant speaks to them about once per month, and he sends them about $200 per month to assist them with living expenses. Applicant has four brothers and one sister who are residents and citizens of Afghanistan. Applicant’s sister has five children and is a school teacher. Two of his brothers are teachers. He describes his other two brothers as businessmen that occupy themselves with “land work” and the grocery business. He speaks to some of his siblings about once per month when he calls to speak to his parents. Applicant noted his dedication, honesty and loyalty to the United States since becoming a citizen, especially given his work with U.S. forces in Afghanistan. He did not provide documentation of the frequency and character of his work in Afghanistan, or letters of recommendation, awards, or certificates resulting from that work. Also, the record does not contain documentary evidence of Applicant’s U.S. assets or other ties to the United States. Since Applicant elected to have this case decided on the written record in lieu of a hearing, I was unable to further inquire into the SOR allegations. 3 Afghanistan Afghanistan is a country in Southwestern Asia that is approximately the size of Texas (249,935 square miles). Pakistan borders it on the east and the south. Iran borders it on the west and Russia to the north. It is a rugged and mountainous country which has been fought over by powerful nations for centuries. In 2009, the population was about 28 million people with about 3,000,000 Afghans living outside Afghanistan. Afghanistan is presently an Islamic Republic with a democratically-elected president. Afghanistan has had a turbulent political history, including an invasion by the Soviet Union in 1979. After an accord was reached in 1989, and the Soviet Union withdrew from Afghanistan, fighting continued among the various ethnic, clan, and religious militias. By the end of 1998, the Taliban rose to power and controlled 90% of the country, imposing aggressive and repressive policies. In October 2001, U.S. forces and coalition partners led military operations in the country, forcing the Taliban out of power by November 2001. The new democratic government took power in 2004 after a popular election. A U.S. State Department Travel Warning remains in effect. The State Department warns U.S. citizens against travel to Afghanistan because of continued instability and threats by terrorist organizations against U.S. citizens. Travel to all areas of Afghanistan remains unsafe due to the ongoing risk of kidnapping, hostage-taking, military combat operations, landmines, banditry, armed rivalry between political and tribal groups, militant attacks, direct and indirect fire, suicide bombings and insurgent attacks, including attacks using vehicle- borne or other improvised explosive devices (IEDs). Attacks may also target official Afghan and U.S. governmental convoys and compounds, foreign embassies, military installations, and other public areas. Extremists associated with various Taliban networks, the Islamic State of Iraq and the Levant - Khorasan Province (ISKP) and members of other armed opposition groups are active throughout the country. ISKP has shown its operational capability, having attacked both Afghan and foreign government facilities. The Taliban and its affiliates routinely attack Afghan, Coalition, and U.S. targets with little regard for civilian casualties. Due to security concerns, unofficial travel to Afghanistan by U.S. government employees and their family members is restricted and requires prior approval from the State Department. According to the State Department’s 2015 Country Reports on Terrorism, Afghanistan continued to experience aggressive and coordinated attacks by the Taliban, including the Haqqani Network and other insurgent and terrorist groups. The Haqqani Network continued to plan and conduct high profile attacks and assassinations against U.S., Coalition and Afghan interests, particularly in Kabul and other key government centers. According to the State Department, the border region of Afghanistan and Pakistan remains a safe haven for terrorists. It is an under-governed area that terrorists exploit to conduct attacks in both countries. Terrorist groups active in Afghanistan, such as al-Qa’ida (AQ), the Haqqani Network and others, operate in Afghanistan and Pakistan. ISIL-Khorasan (ISIL-K) is largely based in Afghanistan, but its support network also reaches into Pakistan's 4 tribal areas along the border. The Afghan government has struggled to assert control over this remote terrain where the population is largely detached from national institutions. According to the U.S. Defense Department's June 2016 report on Afghanistan, although al-Qa’ida’s core leadership in the Afghanistan-Pakistan border region has been degraded, elements continue to seek safe haven on both sides of the border to regenerate and conduct attack planning. The continued development of an al-Qa’ida affiliate in the region (al-Qa’ida in the Indian Subcontinent (AQIS)), highlights the dynamic nature of the terrorist and militant landscape of the region, posing risks to the mission and to U.S. interests. In its annual Human Rights Report for 2015, the U.S. Department of State reported that the most significant human rights problems in Afghanistan during the year were widespread violence, armed insurgent groups' attacks on civilians and killing of persons affiliated with government, torture and abuse of detainees by government forces; widespread disregard for the rule of law, and little accountability for those who conduct human rights abuses, as well as targeted violence and societal discrimination against women and girls. The United States’ extraordinary commitment to Afghanistan is balanced against the inherent dangers of the ongoing conflict in Afghanistan to its citizens and residents and Afghan Government problems developing and complying with the rule of law. A top national security goal of the United States is to establish relationships, cooperation, training, and support of the Afghanistan Government and military in the ongoing war against terrorism. Law and Policies The Director of National Intelligence (DNI) issued revised adjudicative guidelines (AG) in a Security Executive Agent Directive, effective for all decisions issued after June 8, 2017. “[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. National security eligibility 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 a person’s stability, trustworthiness, reliability, discretion, character, honesty, and judgment. AG ¶ 1(b). 5 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 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; see AG ¶ 1(d). Analysis Guideline B, Foreign Influence AG ¶ 6 explains the security concern about “foreign contacts and interests” stating: 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, 6 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 has two conditions that could raise a security concern and may be disqualifying 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; and (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. Applicant is a U.S. citizen who maintains regular monthly contact with his parents and one or more of his siblings who are residents and citizens of Afghanistan. He sends $200 per month to his parents to assist them with living expenses. In addition, he travels to Afghanistan to serve as an interpreter for international and U.S. forces, a highly risky and dangerous profession that may put him in direct contact with enemy forces or intelligence operatives fighting against the United States and allied forces. The mere possession of close family ties with one or more family members living in Afghanistan is not, as a matter of law, disqualifying under Guideline B; however, if an applicant has a close relationship with even one relative living in a foreign country, this factor alone is sufficient to create the potential for foreign influence and could potentially result in the compromise of classified information. See Generally ISCR Case No. 03- 02382 at 5 (App. Bd. Feb. 15, 2006); ISCR Case No. 99-0424 (App. Bd. Feb. 8, 2001). There is a rebuttable presumption that a person has ties of affection for, or obligation to, their immediate family members. See generally ISCR Case No. 01-03120, 2002 DOHA LEXIS 94 at *8 (App. Bd. Feb. 20, 2002). 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 or inducement. The risk of coercion, persuasion, or duress is significantly greater if the foreign country has an authoritarian government, the government ignores the rule of law including widely accepted civil liberties, a family member is associated with or dependent upon the government, the government is engaged in a counterinsurgency, terrorists cause a substantial amount of death or property damage, or the country is known to conduct intelligence collection operations against the United States. The relationship of Afghanistan with the United States, places a significant, but not insurmountable burden of persuasion on Applicant to demonstrate that his relationships with his family members living in Afghanistan do not pose a security risk. Applicant should not be placed into a position where he might be forced to choose between loyalty to the United States and a desire to assist a family member living in Afghanistan. 7 Applicant’s relationship with his relatives who are foreign citizens or living in Afghanistan create a potential conflict of interest because of the potential for pressure to be placed on his family living in Afghanistan in an effort to cause Applicant to compromise classified information. These relationships create “a heightened risk of foreign inducement, manipulation, pressure, or coercion” under AG ¶ 7. Department Counsel produced substantial evidence of Applicant’s contacts with family who are citizens of Afghanistan and has raised the issue of potential foreign pressure or attempted exploitation. AG ¶¶ 7(a) and (b), apply, and further inquiry is necessary about potential application of any mitigating conditions. AG ¶ 8 lists conditions that could mitigate foreign influence security concerns, including: (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 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; (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. Based on the record, there is insufficient evidence to fully apply any of the mitigating conditions. Applicant has frequent contact with his parents and some siblings, who are citizens and residents of Afghanistan. A key factor in the AG ¶ 8(b) analysis is Applicant’s “deep and longstanding relationships and loyalties in the United States.” Applicant immigrated to the United States in 2010, and he became a U.S. citizen in 2013. His spouse lives in the United States and she is a U.S. citizen. 8 Applicant’s years of support to ISAF and DOD in Afghanistan as a linguist/translator, including the dangers that service may entail, weigh heavily towards mitigating security concerns. Applicant’s relationship with the United States must be weighed against the potential conflict of interest created by his relationships with relatives who are citizens and residents of Afghanistan. Applicant’s parents and siblings currently live in Afghanistan. Like every other resident of Afghanistan, they are at risk from terrorists and the Taliban. It is important to be mindful of the United States’ huge investment of manpower and money in Afghanistan, and Applicant has supported U.S. goals and objectives in Afghanistan. Applicant and his relatives living in Afghanistan are potential targets of terrorists and the Taliban, and Applicant’s potential access to classified information could theoretically add risk to his relatives living in Afghanistan from lawless elements in Afghanistan. Applicant has frequent contact with his family, and he regularly sends money to his parents to help support them. Applicant has not shown evidence of “deep and longstanding relationships and loyalties in the United States.” His patriotism is not being questioned, rather he has not shown that his ties to the U.S. outweigh his familial interests in Afghanistan, especially given his professional work in Afghanistan. The record evidence has not been sufficiently developed in Applicant’s favor. His request for an administrative decision without a hearing and his failure to provide documentary evidence of the character and quality of his work for U.S. forces, and his financial ties to the U.S., leave me with little discretion to find in his favor. Applicant’s marriage to a U.S. citizen and the sparse description of his term of work for ISAF and U.S. forces in Afghanistan, taken together, are insufficient to fully overcome the foreign influence security concerns. Foreign influence concerns under Guideline B are not 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 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 9 the guidelines and the whole-person concept. I have incorporated my comments under Guideline B in my whole-person analysis. A Guideline B decision concerning Afghanistan must take into consideration the geopolitical situation and dangers there.2 Afghanistan is a dangerous place because of violence from the Taliban and terrorists. The Taliban and terrorists continue to threaten the Afghan Government, the interests of the United States, U.S. armed forces, and those who cooperate and assist the United States. The Afghan Government does not fully comply with the rule of law or protect civil liberties in many instances. The United States and Afghan Governments are allies in the war on terrorism. Applicant immigrated to the United States in 2010, and became a U.S. citizen in 2013. When he became a U.S. citizen, he took an oath of allegiance to the United States. However, the record is devoid of information about the character of his overseas work and the personal risks he may have taken in support of U.S. forces. Without additional information in the form of testimony, character letters, awards and certificates, I am unable to apply significant credit for his service in support of U.S. combat forces in Afghanistan. Additionally, he has not provided evidence of his financial or other ties to the United States. His frequent contact with family in Afghanistan and financial support for his parents are a manifestation of his care and concern for them, and are admirable qualities. However, in the context of security law, those relationships raise important foreign influence security concerns, and they must be balanced against his connections to the United States. In a future application for a security clearance with additional evidence as described above, it is possible that Applicant can show sufficient mitigation, however, the sparse record as presented here, does not overcome the Guideline B concerns raised in the SOR. I have carefully applied the law, as set forth in Department of Navy v. Egan, 484 U.S. 518 (1988), Exec. Or. 10865, the Directive, and the AGs, to the facts and circumstances in the context of the whole person. After weighing the disqualifying and mitigating conditions and evaluating all the evidence in the context of the whole person, I conclude Applicant has not mitigated the foreign influence security concerns raised in the SOR. Accordingly, I conclude Applicant has not carried his burden of showing that it is clearly consistent with the national interest to grant him eligibility for access to classified information. 2 See ISCR Case No. 04-02630 at 3 (App. Bd. May 23, 2007) (remanding because of insufficient discussion of geopolitical situation and suggesting expansion of whole-person discussion). 10 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: Against Applicant Subparagraphs 1.a - 1.d: Against Applicant Subparagraphs 1.e - 1.f: For Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant’s eligibility for a security clearance. Eligibility for access to classified information is denied. ________________________ Gregg A. Cervi Administrative Judge