DATE: May 27, 2003
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SSN: -----------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
JOAN CATON ANTHONY
APPEARANCES
FOR GOVERNMENT
Kathryn A. Trowbridge, Esq., Department Counsel
FOR APPLICANT
Mark J. Anderson, Esq.
SYNOPSIS
Applicant immigrated to the U.S. in 1982 from Lebanon. He became a U.S. citizen in 1993
and married a Lebanese citizen in 1994. Applicant and his wife claim dual citizenship as U.S. and Lebanese citizens. Since holding a U.S. passport, Applicant has renewed and used his Lebanese passport six times to travel to and from Lebanon. Applicant's parents and six siblings are citizens and residents of Lebanon and one brother is a dual citizen of Lebanon and Canada. Applicant's wife and children live in Lebanon with relatives for several weeks each summer. Applicant has continuing ties of affection and obligation to family members in Lebanon which create the potential for foreign influence that could result in the compromise of classified information. Clearance is denied.
On November 7, 2002, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865, "Safeguarding Classified Information Within Industry," dated February 20, 1960, as amended and modified, and Department of Defense (DoD) Directive 5220.6, "Defense Industrial Personnel Security Clearance Review Program," (Directive), dated January 2, 1992, as amended and modified, issued a Statement of Reasons (SOR) to Applicant which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant, and recommended referral to an Administrative Judge to determine whether a clearance should be granted, continued, denied, or revoked.
In a sworn statement, dated November 18, 2002, Applicant responded to the allegations set forth in the SOR and requested a hearing. The case was initially assigned to Judge Roger Willmeth, but, due to caseload considerations, was subsequently reassigned to me on February 12, 2003. A notice of hearing was issued on February 20, 2003, and I held a hearing in this matter on March 13, 2003. During the course of the hearing, the Government presented three documentary exhibits and three documents for official notice. The Applicant presented five documentary exhibits and provided typewritten transcriptions of the handwritten sworn statements he provided to the Defense Security Service on November 13, 2001 and November 7, 2001 (Government's Exhibits 2 and 3). Additionally, Applicant brought to the hearing his American and Lebanese passports, which were duplicated during a recess in the proceedings by Department Counsel to supplement Government's Exhibit 3. Applicant presented one witness, his supervisor at work. The transcript (Tr.) was received March 21, 2003.
In his answer to the SOR, Applicant admitted the factual allegations as set forth in paragraphs1.a and 1.b, involving Guideline C, Foreign Preference, and the allegations set forth in paragraphs 2.a and 2.b involving Guideline B, Foreign Influence. Applicant's admissions are incorporated as findings of fact.
After a complete and thorough review of the evidence in the record, and upon due consideration of the same, I make the following additional findings of fact:
Applicant immigrated to the United States from Lebanon in 1982, at the age of 19, from his home town of El Mina, near Tripoli. Applicant became a naturalized American citizen in 1993, and acquired a U.S. passport, which was issued to him on October 22, 1993. At the time Applicant became a U.S. citizen, he possessed a Lebanese passport which had been issued to him on June 4, 1992. Applicant renewed his Lebanese passport for a term of five years in 1998. After acquiring U.S. citizenship and a U.S. passport in 1993, Applicant made six trips to Lebanon, entering and exiting Lebanon by using his Lebanese passport. By using his Lebanese passport to enter Lebanon, Applicant avoided having to obtain and pay for a visa to enter the country. When taking these trips, Applicant would also use his U.S. passport to exit and enter the United States. Applicant last used his Lebanese passport to enter and leave Lebanon in May 2002. (Tr. 43-45) Applicant's Lebanese passport expired on February 16, 2003. In his Answer to the SOR, Applicant stated that he agreed to give up his Lebanese passport. He reiterated this at the hearing. (Tr. 48) Applicant also stated that renouncing his Lebanese citizenship could make it difficult for his relatives to emigrate. (Tr. 38-40)
In 1994, Applicant traveled to Lebanon to marry his wife, who was at the time a citizen of Lebanon. Applicant's wife is now a citizen of the United States. Applicant and his wife claim dual citizenship as citizens of the United States and Lebanon. Applicant's mother, father, sister, and five of his six brothers are citizens of Lebanon. Applicant has a sixth brother who is a dual citizen of Lebanon and Canada. Applicant's mother is a resident of the US, dividing her time between her home in Lebanon, and the homes of Applicant and his brother in Canada. (Tr. 49) When his mother is living in Lebanon, Applicant speaks with her by telephone once a week. (Tr. 50) He supplies his family in Lebanon with money when they need it. The amount of money he sends varies, but is at least $1,000 per year. (Tr. 50-51) Applicant has applied for U.S. residency for his father and three of his brothers. (Tr. 33-34; 50)
In 2001 and 2002, Applicant, his wife, and two young children traveled to Lebanon. Applicant and his wife did not obtain visas for their children, who are U.S. citizens, because they entered Lebanon under their mother's Lebanese passport. (Tr. 46) Applicant stayed with his family in Lebanon for three weeks and returned to the U.S. Applicant's wife and children remained in Lebanon with her family for several weeks longer. (Tr. 44)
"[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 occupy a position . . .that will give that person access to such information." Id. at 527. The President has restricted eligibility for access to classified information to "United States citizens . . . whose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling, and protection of classified information." Exec. Order No. 12968, Access to Classified Information, § 3.1(b) (Aug. 4, 1995). Eligibility for a security clearance is predicated upon the applicant meeting the security guidelines contained in the Directive. See Directive, Enclosure 2.
In the defense industry, the security of classified information is entrusted to civilian workers who must be counted on to safeguard classified information and material twenty-four hours a day. The Government is therefore properly concerned where available information indicates that an applicant for a security clearance may be involved in conduct that demonstrates poor judgment, untrustworthiness, or unreliability on the part of the applicant. These concerns include consideration
of the potential as well as the actual risk that an applicant may deliberately or inadvertently fail to properly safeguard classified information.
An evaluation of whether the applicant meets the security guidelines includes consideration of a number of variables known as the whole person concept. In evaluating the relevance of an individual's conduct, the adjudicator should consider the following factors: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct; (3) the frequency and recency of the conduct; (4) the individual's age and maturity at the time of time of the conduct; (5) the voluntariness of participation; (6) the presence or absence of rehabilitation and other behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; (9) the likelihood for continuation or recurrence. Directive, ¶ E2.2.1. Security clearances are granted only when "it is clearly consistent with the national interest to do so." Exec. Or. 10864 § 2. See Exec. Or. 12968 § 3.1(b).
Adjudicative Guidelines C, Foreign Preference (Attachment 3 to Enclosure 2), and B, Foreign Influence (Attachment 2 to Enclosure 2) are most pertinent to this case. The relevant provisions of Guideline C which apply to the facts of this case are:
E2.A3.1.1. The Concern: When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may be prone to provide information or make decisions that are harmful to the interests of the United States.
The following conditions under Adjudicative Guideline C could raise security concerns and may be disqualifying:
E2.A3.1.2.1. The exercise of dual citizenship.
E2.A3.1.2.2. Possession and/or use of a foreign passport.
The following conditions that could mitigate security concerns regarding foreign preference in the instant case include:
E2.A3.1.3.1. Dual citizenship is based solely on parents' citizenship or birth in a foreign country.
E2.A.3.1.3.4. Individual has expressed a willingness to renounce dual citizenship.
The relevant provisions of Guideline B which apply to the facts of this case are:
E2.A2.1.1. The Concern: A security risk may exist when an individual's immediate family, including cohabitants, and other persons to whom he or she may be bound by affection, influence, or obligation are not citizens of the United States or may be subject to duress. These situations could create the potential for foreign influence that could result in the compromise of classified information. Contacts with citizens of other countries or financial interests in other countries are also relevant to security determinations if they make an individual potentially vulnerable to coercion, exploitation, or pressure.
The following conditions under Adjudicative Guideline B could raise security concerns and may be disqualifying:
E2.A2.1.2.1. An immediate family member, or a person to whom the individual has close ties of affection or obligation, is a citizen of, or resident or present in, a foreign country.
E2.A2.1.2.2. Sharing living quarters with a person or persons, regardless of their citizenship status, if the potential for adverse foreign influence or duress exists.
E2.A2.1.2.6. Conduct which may make the individual vulnerable to coercion, exploitation, or pressure by foreign government.
Conditions that could mitigate security concerns regarding foreign influence in the instant case include:
E2.A2.1.3.1. A determination that the immediate family member(s) (spouse, father, mother, sons, daughters, brothers, sisters) cohabitant, or associate(s) in question are not agents of a foreign power or in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the person(s) involved and the United States;
E2.A2.1.3.3. Contact and correspondence with foreign citizens are casual and infrequent.
By Memorandum dated August 16, 2000, Assistant Secretary of Defense for Command, Control, Communications, and Intelligence Arthur L. Money clarified the application of Guideline C as follows: "[C]onsistent application of the Guideline requires that any clearance be denied or revoked unless the applicant surrenders the foreign passport or obtains official approval for its use from the appropriate agency of the United States Government." Under the provisions of the Directive, a decision to grant or to continue an applicant's clearance may be made only upon an affirmative finding that to do so is clearly consistent with the national interest. In reaching the fair and impartial overall common sense determination required, the Administrative Judge can only draw those inferences and conclusions which have a reasonable and logical basis in the evidence of record. See Directive, §§ 5, 6.
An applicant's admission of the information in specific allegations relieves the Government of having to prove those allegations. If specific allegations and/or information are denied or otherwise controverted by the applicant, the Government has the initial burden of proving those controverted facts alleged in the Statement of Reasons. If the Government meets its burden (either by an applicant's admissions or by other evidence) and establishes conduct that creates security concerns under the Directive, the burden of persuasion then shifts to the applicant to present evidence in refutation, extenuation or mitigation sufficient to demonstrate that, despite the existence of conduct that falls within specific criteria in the Directive, it is nevertheless consistent with the interests of national security to grant or continue a security clearance for the applicant.
A person seeking access to classified information enters into a fiduciary relationship with the Government based upon trust and confidence. Where the facts proven by the Government or admitted by the applicant raise doubts about the applicant's judgment, reliability, or trustworthiness, the applicant has a heavy burden of persuasion to demonstrate that he or she is nonetheless security worthy. In Egan, 484 U.S. at 531, the Supreme Court concludes that "[t]he clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials." Accordingly, doubts against an applicant's security worthiness are to be resolved against the applicant.
Upon consideration of all the facts in evidence, and after application of all appropriate legal precepts, factors, and conditions, including those described briefly above, I conclude the following with respect to each allegation set forth in the SOR:
Subparagraph 1.a of the SOR, alleges, under Guideline C, Foreign Preference, that Applicant exercises dual citizenship with Lebanon and the United States. Subparagraph 1.b of the SOR alleges that, as of November 17, 2001, Applicant possessed a Lebanese passport which would expire on February 16, 2003. Applicant has exercised dual citizenship and, since becoming a naturalized American citizen in 1993, he has traveled six times to Lebanon, using his Lebanese passport to enter and exit Lebanon, while also using his US. passport to exit and enter the United States. In 1998, after five years as a U.S. citizen, Applicant renewed his Lebanese passport, which expired on February 16, 2003. Applicant last used his Lebanese passport to enter and exit Lebanon in May 2002. While Applicant has no present intention of renewing his Lebanese passport, it is clear that he has exercised his dual citizenship and possessed and used both Lebanese and U.S. passports for travel outside of the United States after becoming a naturalized American citizen. These actions raise security concerns and may be disqualifying pursuant to subparagraph E2.A3.1.2.1 and E2.A3.1.2.2 of Guideline C. Mitigating factor E2.A3.1.3.1 does not apply to the facts of Applicant's case. While his dual citizenship was initially based solely on his birth in Lebanon, he then exercised his Lebanese citizenship after becoming a naturalized American citizen.
Applicant has expressed an intention to surrender his Lebanese passport, consistent with the guidance of the Money memorandum, and to renounce his Lebanese citizenship, which, under subparagraph E2.A.3.1.3.4 of Guideline C, could mitigate security concerns regarding foreign preference. At the same time, however, Applicant expresses concern that if he surrenders his Lebanese passport and renounces his Lebanese citizenship, he might not be able to demonstrate to the Lebanese government the requisite degree of familial relationship necessary to sponsor his immediate family members for emigration from Lebanon and for residency and eventual citizenship in the U.S. Applicant's equivocation regarding his allegiance and loyalties is evident in this concern, which admittedly presents him with a hard choice. Equivocal preferences with respect to the United States and a foreign country raise security concerns under the "clearly consistent with the national interest standard" and an applicant's ambivalence can raise doubts about whether the applicant can be expected to faithfully carry out the fiduciary obligations associated with being granted a security clearance. See ISCR Case No. 98-0419 (App. Brd. Apr. 30, 1999). These doubts must be resolved against the Applicant in the adjudication of allegations identified in subparagraphs 1.a and 1.b of the SOR.
A review of the facts of Applicant's case under Adjudicative Guideline B, Foreign Influence, must include taking notice of U.S. Department of State Travel Warning regarding Lebanon, dated February 7, 2003, and updated May 6, 2003, which identifies continuing public expressions of anti-U.S. rhetoric in Lebanon, bombings of U.S. franchises, the murder in November 2002 of a U.S. citizen in Sidon, and the continuing possibility of terrorist acts against American citizens who travel in both the northern and southern regions of the country Subparagraph 2.a .of the SOR under Guideline B, Foreign Influence, alleges that Applicant's immediate family members are citizens and residents of Lebanon. Subparagraph 2.b of the SOR alleges that one of Applicant's brothers is dual resident of Canada and Lebanon. The record shows that Applicant's father, five brothers, and a sister are citizens and residents El Mina and Tripoli, Lebanon, and his mother, a Lebanese citizen, divides her residency and lives part of the time in the United States, part of the time in Lebanon, and part of the time in Canada, where she resides with his brother, who is a dual citizen of Canada and Lebanon. These facts raise security concerns under Guideline B, the disqualifying condition enumerated at subparagraph E2.A2.1.2.1. While Applicant's immediate family members are not officials or agents of the Lebanese government, the unstable political and economic conditions in Lebanon do not preclude the possibility that Applicant's family members could be exploited in a manner detrimental to Applicant's loyalty to the U.S. government. Thus, mitigating factor E2.A2.1.3.1 applies only in part to the circumstances of Applicant's case.
Additionally, Applicant's wife holds dual Lebanese and United States citizenship, and their two young children are U.S. citizens. Applicant, his wife, and children travel to Lebanon for extended visits with their respective families in the summertime. After Applicant returns to the United States, his wife and children remain in Lebanon and live for several weeks with the wife's family, thus raising concerns under disqualifying conditions E2.A2.1.2.2 and E2.A2.1.2.6. Because these contacts with immediate family are neither casual nor infrequent, mitigating condition E2.A2.1.3.3 does not apply, nor are the vulnerabilities of Applicant's wife and children to exploitation by a foreign power mitigated under E2.A2.1.3.1. Applicant has put forward no facts that would mitigate these security concerns and demonstrate that he would not be vulnerable to foreign influence that would result in the compromise of classified information. Accordingly, allegations in subparagraphs 2.a and 2.b of the SOR are concluded against the Applicant.
In my evaluation of the record, I have carefully considered each piece of evidence in the context of the totality of evidence and under all of the Directive guidelines that were generally applicable or might be applicable under the facts of the case. Under the whole person concept, I conclude that Applicant has not successfully overcome the Government's case opposing his request for a DoD security clearance.
Formal finding 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, Foreign Preference (Guideline C): AGAINST THE APPLICANT
Subparagraph 1.a.: Against the Applicant
Subparagraph 1.b.: Against the Applicant
Paragraph 2, Foreign Influence (Guideline B): AGAINST THE APPLICANT
Subparagraph 2.a.: Against the Applicant
Subparagraph 2.b.: Against the Applicant
In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for the Applicant. Clearance is denied