DATE: September 30, 2003

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SSN: -----------

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

ROBERT ROBINSON GALES

APPEARANCES

FOR GOVERNMENT

Eric H. Borgstrom, Esquire, Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Fifty-seven year old British-born Applicant, naturalized as a U.S. citizen in 1978--a dual citizen of both countries--renewed his British passport in March 2002. His failure to surrender the British passport, and his failure to obtain official approval for the foreign passport's use from the appropriate agency of the United States Government, in light of the August 2000 ASD/C³I memorandum implementing a passport policy "clarification," raises grave questions and doubts as to his allegiance to the United States and as to his security eligibility and suitability. Clearance is denied.

STATEMENT OF THE CASE

On February 28, 2003, 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 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, written statement, dated April 2, 2003, Applicant responded to the allegations set forth in the SOR, and elected to have his case decided on the written record, in lieu of a hearing. Department Counsel submitted the Government's written case on July 3, 2003. A complete copy of the file of relevant material (FORM) ⁽¹⁾ was provided to Applicant, and he was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation. He apparently chose not to do so. The case was initially assigned to another Administrative Judge on September 2, 2003, but, due to caseload considerations, was subsequently reassigned to, and received by, this Administrative Judge on September 29, 2003.

Applicant has admitted all of the factual allegations pertaining to foreign influence under Guideline B (subparagraphs 1.a. through 1.c.) and foreign preference under Guideline C (subparagraphs 2.a. through 2.c.). Those admissions are incorporated herein as findings of fact.

After a complete and thorough review of the evidence in the record, and upon due consideration of same, I make the following additional findings of fact:

Applicant is a 57-year-old employee of a defense contractor, and he is seeking to retain a SECRET security clearance previously granted to him in November 1987. ⁽²⁾

Applicant was born in 1946 in the United Kingdom of British parents, ⁽³⁾ and became a naturalized U.S. citizen in November 1978. ⁽⁴⁾ His mother is deceased, ⁽⁵⁾ but his father and two sisters are citizens and residents of the United Kingdom. ⁽⁶⁾ His wife, whom he married in 1969 in the United Kingdom, was born in that country but became a naturalized U.S. citizen in 1990. ⁽⁷⁾ His two daughters, both of whom were born in the United Kingdom, one in 1979 and the other in 1981, were registered as U.S. citizens at the U.S. Embassy in London on an unspecified date, but neither was issued a certificate of citizenship. ⁽⁸⁾

In June 1999, when asked if he had ever been a dual citizen of the U.S. and another country, he responded "no." ⁽⁹⁾ In fact, Applicant has continued to be a dual citizen of the United Kingdom as well as the U.S., and has maintained a passport from each country. His British passport was last reissued in March 2002, ⁽¹⁰⁾ and expires in March 2012. ⁽¹¹⁾

Applicant and his wife have two bank accounts and own a residence and two automobiles in the United Kingdom. ⁽¹²⁾ The value of those holdings has not been specified.

He maintains close friendships with individuals residing in the United Kingdom, ⁽¹³⁾ but contends his "closest" friends and associates are citizens of the U.S. ⁽¹⁴⁾

Applicant has been employed by United Kingdom-based subsidiaries of U.S. corporations since August 1990. ⁽¹⁵⁾ Likewise, he has resided in the United Kingdom at least since February 1991. ⁽¹⁶⁾ He commenced his current position as a subsidiary chief executive in March 1995. ⁽¹⁷⁾ The quality of his professional performance has not been characterized.

On August 16, 2000, the Assistant Secretary of Defense, Command, Control, Communications, and Intelligence (ASD/C³I) issued a passport policy "clarification" pertaining to Adjudicative Guideline C--foreign preference. A photocopy of the memorandum was furnished to Applicant along with the FORM on July 3, 2003. ⁽¹⁸⁾ The memorandum states, in pertinent part:

The purpose of this memorandum is to clarify the application of Guideline C to cases involving an applicant's possession or use of a foreign passport. The guideline specifically provides that "possession and/or use of a foreign passport" may be a disqualifying condition. It contains no mitigating factor related to the applicant's personal convenience, safety, requirements of foreign law, or the identity of the foreign country. The only applicable mitigating factor addresses the official approval of the United States Government for the possession or use. The security concerns underlying this guideline are that the possession and use of a foreign passport in preference to a U.S. passport raises doubt as to whether the person's allegiance to the United States is paramount and it could also facilitate foreign travel unverifiable by the United States. Therefore, consistent 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. odification of the Guideline is not required. (Emphasis supplied)

Applicant offered no evidence subsequent to receipt of the ASD/C³I memorandum to indicate he had either actually received official approval to use his British passport or that he had surrendered it to the British Embassy. As of the date of the closing of the record herein, it appears Applicant still possesses a British passport, and its use has not been officially approved by the appropriate agency of the United States Government.

Enclosure 2 of the Directive sets forth adjudicative guidelines which must be considered in the evaluation of security suitability. In addition to brief introductory explanations for each guideline, the adjudicative guidelines are divided into those that may be considered in deciding whether to deny or revoke an individual's eligibility for access to classified information (Disqualifying Conditions) and those that may be considered in deciding whether to grant an individual's eligibility for access to classified information (Mitigating Conditions).

An Administrative Judge need not view the adjudicative guidelines as inflexible ironclad rules of law. Instead, acknowledging the complexities of human behavior, these guidelines, when applied in conjunction with the factors set forth in the Adjudicative Process provision set forth in Section E.2.2., Enclosure 2, of the Directive, are intended to assist the Administrative Judge in reaching fair and impartial common sense decisions.

Because the entire process is a conscientious scrutiny of a number of variables known as the "whole person concept," all available, reliable information about the person, past and present, favorable and unfavorable, should be considered in making a meaningful decision. The Adjudicative Process factors which an Administrative Judge should consider are: (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 voluntariness of participation; (6) the presence or absence of rehabilitation and other pertinent 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.

Based upon a consideration of the evidence as a whole, I find the following adjudicative guidelines most pertinent to an evaluation of the facts of this case:

GUIDELINE B - FOREIGN INFLUENCE: 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: (1) not citizens of the United States or (2) 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.

GUIDELINE C - FOREIGN PREFERENCE: 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.

Conditions that could raise a security concern and may be disqualifying, as well as those which could mitigate security concerns, pertaining to each of the adjudicative guidelines are set forth and discussed in the Conclusions section below.

Since the protection of the national security is the paramount determinant, the final decision in each case must be arrived at by applying the standard that the issuance of the clearance is "clearly consistent with the interests of national security," ⁽¹⁹⁾ or "clearly consistent with the national interest." For the purposes herein, despite the different language in each, I have concluded both standards are one and the same. 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.

In the decision-making process, the burden of producing evidence initially falls on the Government to establish a case which demonstrates, in accordance with the Directive, it is not clearly consistent with the national interest to grant or continue an applicant's access to classified information. If the Government meets its burden, the heavy burden of persuasion then falls upon the applicant to present evidence in refutation, explanation, extenuation or mitigation sufficient to overcome the doubts raised by the Government's case, and to ultimately demonstrate it is clearly consistent with the national interest to grant or continue the applicant's clearance.

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. It is a relationship that transcends normal duty hours and endures throughout off-duty hours as well. It is because of this special relationship that the Government must be able to repose a high degree of trust and confidence in those individuals to whom it grants access to classified information. Decisions under this Directive include, by necessity, consideration of the possible risk that an 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.

Upon consideration of all the facts in evidence, an assessment of credibility, 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:

With respect to Guideline B, the Government has established its case. Applicant has been portrayed as a person who is a potential security risk because members of his immediate family or persons to whom he is bound by affection, influence, or obligation--in this instance, his father, two sisters, and a brother-in-law are citizens and residents of the United Kingdom--are either not citizens or residents of the United States or may be subject to duress. These situations raise the potential for vulnerability to coercion, exploitation, or pressure, and the exercise of foreign influence that could result in the compromise of classified information. However, the mere possession of family ties with a person in a foreign country is not, as a matter of law, disqualifying under Guideline B:

The language of [Guideline] B (Foreign Influence) in the Adjudicative Guidelines makes clear that the possession of such family ties may pose a security risk. Whether an applicant's family ties in a foreign country pose a security risk depends on a common sense evaluation of the overall facts and circumstances of those family ties. See ISCR Case No. 98-0419 (April 30, 1999) at p. 5. ⁽²⁰⁾

The citizenship status of Applicant's father, sisters, and brother-in-law, when considered in light of the nature of the government in the United Kingdom--a constitutional monarchy which has been the United States' oldest and closest international brother, ally, and friend, and whose interests are not inimical to the United States--facilitates an analysis involving the adjudicative guidelines and the various applicable conditions set forth therein. Applicant's wife and two children are already naturalized U.S. citizens, and only the continuing British citizenship and residency of his father, two sisters, and brother-in-law, as well as the United Kingdom residency of his wife and two children, raise the issue of potential foreign influence. In this regard, see Foreign Influence Disqualifying Condition (DC) 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).

However, also applicable, in this instance, is Foreign Influence Mitigating Condition (MC) 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 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). After an examination of the evidence, I determine that Applicant's father, siblings, and brother-in-law, considering their citizenship and residency status, do not constitute an unacceptable security risk. Furthermore, their continuing personal relationship has no security significance. Considering the nature of the government in the United Kingdom, and the absence of any scintilla of evidence that they are targets of any intelligence gathering efforts, their citizenship and residency status does not establish any doubts regarding possible duress.

Also, Applicant's wife and two children are all U.S. citizens. While they may not be residing in the U.S., the fact they have accompanied Applicant to his overseas employment cannot be looked upon in a negative way. Thus, I conclude Applicant has, through evidence of extenuation and explanation, successfully mitigated and overcome the Government's case with respect to Guideline B. Accordingly, allegations 1.a. through 1.c. of the SOR are concluded in favor of Applicant.

With respect to Guideline C, the Government has established its case. Applicant has been portrayed as an American citizen who failed to formally renounce the British citizenship derived from his birth and acted in such a way as to indicate a preference for a foreign country--in this instance, the United Kingdom--over the United States, and in so doing, he may be prone to provide information or make decisions harmful to the interests of the United States. In support of its contentions, the Government has cited Applicant's active exercise of dual citizenship with the United Kingdom and the United States; and his acceptance and use of a British passport; and his failure to surrender that passport. Applicant's actions clearly fall within foreign preference disqualifying condition (DC) E2.A3.1.2.1. (the exercise of dual citizenship).

On the other hand, the fact Applicant is employed by a U.S. corporation as a senior executive with a subsidiary in the United Kingdom should not be looked upon with disfavor or considered to be of security concern. Likewise, simply because he and his wife own a residence and two automobiles, and have two bank accounts, in the United Kingdom, does not, in my estimation, considering the nature of the government in the United Kingdom, constitute a security concern.

As noted above, in August 2000, ASD/C³I issued a passport policy "clarification." Under that policy "clarification," it is clear the possession and repeated use--or any use for that matter--of the British passport falls within DC E2.A3.1.2.2.(possession and/or use of a foreign passport). The ASD/C³I memo states there are no mitigating factors "related to an applicant's personal convenience, safety, requirements of foreign law, or the identity of the foreign country," a phrase which I construe to relate solely to the use of a foreign passport, and not to mere possession of same. On the other hand, the memo requires a 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."

In this instance, the evidence is silent as to either of the two possible alternatives. While there may be lingering skepticism as to this policy "clarification;" or the mandated disinterest in the identity of the foreign country--even one as closely aligned to the United States in democratic principles, ideals, and policies as the United Kingdom, one fact is inescapable: the policy, as "clarified" by ASD/C³I and interpreted by the Appeal Board, must be complied with. Consequently, I conclude Applicant has failed to mitigate or overcome the Government`s case. Accordingly, allegation 2.a. of the SOR is concluded against Applicant. For the reasons expressed above, I conclude Applicant has, through evidence of extenuation and explanation, successfully mitigated certain other portions of the Government's case. Accordingly, allegations 2.b. and 2.c. of the SOR are concluded in favor of Applicant.

For the reasons stated, I conclude Applicant is not eligible for access to classified information.

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 THE APPLICANT

Subparagraph 1.a.: For the Applicant

Subparagraph 1.b.: For the Applicant

Subparagraph 1.c.: For the Applicant

Paragraph 2. Guideline C: AGAINST THE APPLICANT

Subparagraph 1.a.: Against the Applicant

Subparagraph 1.b.: For the Applicant

Subparagraph 1.c.: For 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 Applicant.

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