DATE: September 24, 2003
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SSN: -----------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
CLAUDE R. HEINY
APPEARANCES
FOR GOVERNMENT
Jonathan A. Beyer, Esquire, Department Counsel
FOR APPLICANT
Michael P. Heiskell, Esquire
SYNOPSIS
The Applicant was a dual Turkish-U.S. citizen, whose parents, sister, and brother are Turkish citizens living in Turkey. His wife is a Turkish citizen and a permanent U.S. resident, living with him in the U.S. The Applicant has renounced his Turkish citizenship and surrendered his Turkish passport to the Turkish consulate. The record evidence is sufficient to mitigate or extenuate the negative security implications stemming from his relatives' citizenship and his use of his Turkish passport. Clearance is granted.
STATEMENT OF THE CASE
On January 13, 2003, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant stating DOHA could not make the preliminary affirmative finding it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. (1) On February 7, 2003, the Applicant answered the SOR and requested a hearing. The case was assigned to me on March 20, 2003. A Notice of Hearing was issued on March 27, 2003, scheduling the hearing, which was set for April 11, 2003. For good cause presented, a motion for continuance was granted, and the hearing was held on ay 16, 2003.
The Government's case consisted of four exhibits (Gov Ex). The Applicant relied on his own testimony, the testimony of seven witnesses, and a single exhibits (App Ex) with 31 sub parts. The transcript (Tr.) of the hearing was received on May 27, 2003.
FINDINGS OF FACT
The SOR alleges foreign preference (Guideline C) and foreign influence (Guideline B). The Applicant admits: his parents, sister and brother are citizens and residents of Turkey and his wife is a Turkish citizen living in the U.S. 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.
The Applicant is 49-years-old, has worked for a defense contractor since December 1986, and is seeking to maintain a security clearance. The Applicant is highly self-motivated, dedicated to performing well, extremely capable technically and functionally, "outstandingly skillful" in communication and the ability to coordinate and accomplish assignments, and has outstanding potential for management and leadership assignments. (App Ex A, parts 1-16 and 30) The Applicant has gained the trust and friendship of those who know him both professionally and privately. (App Ex A, part 23) The Applicant is a trusted, honest, hardworking, conscientious, loyal, and valued employee--a "straight arrow" whose behavior is beyond reproach and has a high level of integrity. He is devoted to his family and his job. (Tr. 35) In 2001 and 2002, he received special recognition awards for his duty performance. (App Ex A, parts 17 and 19) He consistently puts in 10 to 20 hours of overtime weekly. (Tr. 45)
In 1954, the Applicant was born in Turkey to Turkish citizens. In 1974, the Applicant--then age 20-- came to the U.S. to attend college. The Applicant was very eager to come to the U.S. (Tr. 99) His older brother was already in the U.S. attending school. In 1980, the Applicant obtained his master of science degree. (Tr. 100) In 1974, prior to leaving Turkey, the Applicant obtained a Turkish passport. He used this passport to return to Turkey for summer visits in 1978, 1979, 1980, and twice in 1982. He also used it during December 1982 through August 1985 and December 1986 through December 1989. During these periods he used it only to enter Turkey. His most current Turkish passport was to expire in May 2006. In April 2003, the Turkish Vice Council acknowledged receiving his petition wherein the Applicant relinquished his Turkish citizenship and forwarded that to the Ministry of interior in Turkey. (App Ex A, part 24) In May 2003, the Applicant returned his Turkish passport to the Turkish consulate. (App Ex A, part 22)
The Applicant's wife is a citizen of Turkey living in the U.S. and has been a permanent resident of the U.S. for two years. (Tr. 83) Five years after becoming a permanent resident, she can file to become a naturalized U.S. citizen, which she intends to do when possible. (Tr. 83) She has received an achievement scholarship to attend classes at an American university (App Ex A, part 25- 27) She has completed her studies at a local county college. (App Ex A, part 28) While living in Turkey, his wife worked for various U.S. companies that had offices in Turkey. (Tr. 80-81) While in the U.S., she worked as a substitute teacher and a project manager for a U.S. company. The Applicant has two sons, both U.S. citizens living in the U.S. His older son is attending college in the U.S. and his younger son is in middle school.
The Applicant knew he would be required to perform Turkish military duty following his college deferment. Military service is mandatory for Turkish male citizens and the normal period of service is 18 months. In August 1981, the Applicant returned to Turkey to reluctantly perform his duty. He took a leave of absence from his job to serve his military commitment. He was allowed to pay $12,000 and served approximately 50 days of mandatory military training with the Turkish army as a conscript. (Tr. 102) During this time he had no rank. Most of his time was spent marching and going through basic training.
In the mid-1980s, the U.S. and Turkey entered into a joint venture to build aircraft in Turkey. In late 1982, the Applicant, having been selected based on his qualifications, was asked by his company to go to Turkey and work on this project. In 1985, the Applicant returned to the U.S. to further his training with his company. In late 1986, he returned to Turkey to continue working on the joint venture. (Tr. 109-109) From December 1986 to December 1998, Applicant worked for a U.S. company in Turkey. The company considered the job a long-term foreign assignment in excess of one year. While working in Turkey he lived in company-provided housing, his moving expenses were paid for by his U.S. company, he was paid by his U.S. company in U.S. currency, was registered with the U.S. Embassy, and treated as the U.S. citizen. Under the Status of Forces Agreement (SOFA) he and his family were allowed to use U.S. military facilities while in Turkey. Prior to going to Turkey for the job, the Applicant was told the Turkish embassy would not issue a work visa to an individual who, at the time, had a valid Turkish passport. (Tr. 193)
The Applicant's father--age 80--a citizen and resident of Turkey, is a retired civil engineer who was employed for 25 to 30 years as a site manager for construction by the U.S. military at a U.S. military installation in Turkey. (Tr. 98) The Applicant has weekly to once every other week telephone communication with his father and sends letters or cards to him once or twice a year. The Applicant's father received his civil engineering degree at a U.S. university. (Tr. 96) The Applicant--then in his early childhood--accompanied his father while his father was in the U.S. The Applicant's mother, a homemaker, is a citizen and resident of Turkey. His brother, a citizen and resident of Turkey, is a deputy general manager for a construction company in Turkey. (Tr. 95) The Applicant has monthly to every other month telephone contact with his brother. The sister, a resident and citizen of Turkey, is an executive administrative assistant for a software company and her husband is an electrical power contractor. The Applicant has monthly telephone contact with her and twice monthly e-mail.
The Applicant has other distant relatives who are Turkish citizens residing there. The Applicant does not have close contact with these relatives and his only contact is when he is in Turkey. None of his foreign relatives are employed by or affiliated with a police, government, or intelligence agency.
The Applicant does not provide any financial support to citizens of foreign countries. Neither he nor his wife, have any property or real estate in Turkey. They have no financial assets overseas, foreign interest, investments, land holdings, or business connections. He did not maintain his dual citizenship to protect financial interest in Turkey. The Applicant owns a home in the U.S., all of his property, his bank accounts, and all of his financial assets are in the U.S. The Applicant pays taxes in the U.S. and has never paid taxes to a foreign government. (Tr. 126) He has voted in U.S. election but never in a foreign election. The Applicant has no retirement benefits in Turkey, never having worked for a Turkish company or any other foreign company. He has no income from Turkish sources or any other foreign sources. He has never considered returning to Turkey to permanently live or work. He intends to stay in the U.S. even after retirement. (Tr. 128) The Applicant would support U.S. military action, even against Turkey. (Tr. 141)
In August 1986, the Applicant--then age 32--became a naturalized U.S. citizen. (App Ex A, part 21) Shortly after becoming a U.S. citizen, the Applicant obtained a U.S. passport. Ten years later, in September 1996, he was issued another U.S. passport (App Ex A, part 20) On his trips to Turkey after becoming a U.S. citizen, he would present his U.S. passport. (Tr. 110, App Ex A, part 20) Between 1997 and 1998, his U.S. passport was stamped when he entered and left Turkey. (Tr. 120) In mid-2000, the Applicant was in Turkey for one week to apply for his wife's immigration visa at the U.S. Embassy. Entry to Turkey, was stamped in his U.S. passport for this trip. In mid-2001, the Applicant traveled to Turkey for three weeks with his children to vacation and visit his parents. His U.S. passport was stamped entering and leaving Turkey. Between 1986 and 1989, while working in Turkey, the Applicant if asked for a work permit would show his Turkish passport. (Tr. 123)
In October 2001, the Applicant completed a signed, sworn statement indicating he was unwilling to renounce his Turkish citizenship, because renunciation of his citizenship would cause inheritance problems. (Gov Ex 2) Having further considered the matter, the Applicant chose to renounce his Turkish citizenship. In arch 2003, the Applicant completed the necessary documents to renounce his Turkish citizenship. In April 2003, the Turkish Vice Council acknowledged receiving the Applicant's his petition wherein the Applicant relinquished his Turkish citizenship. The petition was forwarded to the Ministry of interior in Turkey. (App Ex A, part 24) The Applicant was informed his renunciation would take six months or longer.
The Adjudicative Guidelines in the Directive are not a set of inflexible rules of procedure. Instead they are to be applied by Administrative Judges on a case-by-case basis with an eye toward making determinations that are clearly consistent with the interests of national security. In making overall common sense determinations, Administrative Judges must consider, assess, and analyze the evidence of record, both favorable and unfavorable, not only with respect to the relevant Adjudicative Guidelines, but in the context of factors set forth in section E 2.2.1. of the Directive as well. The government has the burden of proving any controverted fact(s) alleged in the SOR, and the facts must have a nexus to an applicant's lack of security worthiness.
The adjudication process is based on the whole person concept. All available, reliable information about the person, past and present, is to be taken into account in reaching a decision as to whether a person is an acceptable security risk. Although the presence or absence of a particular condition for or against clearance is not determinative, the specific adjudicative guidelines should be followed whenever a case can be measured against this policy guidance.
Considering the evidence as a whole, this Administrative Judge finds the following adjudicative guidelines to be most pertinent to this case:
Foreign Preference (Guideline C) 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. E2.A3.1.1.
Conditions that could raise a security concern and may be disqualifying include:
1. The exercise of dual citizenship. E2.A3.1.2.1.
2. Possession and/or use of a foreign passport. E2.A3.1.2.2.
Conditions that could mitigate security concerns include:
4. Individual has expressed a willingness to renounce dual citizenship. E2.A3.1.3.4.
Foreign Influence (Guideline B) 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.
Conditions that could raise a security concern and may be disqualifying include (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.A2.1.2.1.
Conditions that could mitigate security concerns include:
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.A2.1.3.1.
As noted by the United States Supreme Court in Department of Navy v. Egan, 484 U.S. 518, 528 (1988), "no one has a 'right' to a security clearance." 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. 484 U.S. 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." Executive Order 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.
Initially, the Government must establish, by substantial evidence, that conditions exist in the personal or professional history of the applicant which disqualify, or may disqualify, the applicant from being eligible for access to classified information. See Egan, at 531. All that is required is proof of facts and circumstances which indicate an applicant is at risk for mishandling classified information, or that an applicant does not demonstrate the high degree of judgment, reliability, or trustworthiness required of persons handling classified information. Where the facts proven by the Government raise doubts about an applicant's judgment, reliability or trustworthiness, then the applicant has ultimate burden of establishing his security suitability with substantial evidence in explanation, mitigation, extenuation, or refutation, sufficient to demonstrate that despite the existence of guideline conduct, it is clearly consistent with the national interest to grant or continue his security clearance.
Security clearances are granted only when "it is clearly consistent with the national interest to do so." See Executive Orders 10865 § 2 and 12968 § 3.1(b). "Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security." Directive ¶ E2.2.2 "The clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials." See Egan, at 531. Doubts are to be resolved against the applicant.
The Government has satisfied its initial burden of proof under Guideline B, Foreign Influence. Under Guideline B, a security risk may exist when an individual's immediate family, and other persons to whom he or she may be bound by affection, influence, or obligation are not citizens of the U.S., reside in a foreign country, or may be subject to duress. These situations could create the potential for foreign influence that could result in the compromise of classified information. The Government established the Applicant's parents, sister, and sister are citizens and residents of Turkey. His wife is a citizen of Turkey and a permanent U.S. resident living with him in the U.S. His two minor children are U.S. citizens. Disqualifying Condition (DC) 1 (2) applies.
Although the Government established a prima facie case against him, he has nevertheless, successfully mitigated those security concerns. After observing and hearing the Applicant, I am convinced that his family members in Turkey do not represent a credible security risk to this nation.
Neither his parents, brother, sister, nor wife are agents of a foreign power. Nor are his relatives in a position that they could be exploited by a foreign power such that Applicant would be forced to choose between his loyalty to his family and the U.S. MC 1 (3) applies. It is in the national interest to grant him a clearance. Finding is for Applicant as to SOR subparagraphs 1.a., 1.b., and 1.c.
The Government has satisfied its initial burden of proof under Guideline C, Foreign Preference. Under Guideline C, the security eligibility of an applicant is placed into question when the person acts in such a way as to indicate a preference for a foreign country over the U.S. The Applicant's previous dual citizenship raised concerns over the Applicant's possible foreign preference.
The Applicant chose to exercise his dual citizenship by availing himself of the benefits of citizenship by maintaining his Turkish passport, which was issued prior to him leaving Turkey in 1974 and subsequently extended until May 2006. Disqualifying Condition (DC) 1 (4) applies. The Applicant possessed a Turkish passport until March 2003, when he renounced his Turkish citizenship and returned his Turkish passport to the Turkish Consulate. On occasion, when entering or leaving Turkey, the Applicant would show his U.S. passport and then, if requested, would show his Turkish passport. This use of the Turkish passport occurred after he had been issued a U.S. passport. DC 2 (5) applies.
The issue of the Applicant exercising dual citizenship and possessing and using the Turkish passport requires an in-depth review. The Applicant came to the U.S. at age 20. He had been in the U.S. at a much younger age when his father attended college. Since coming to the U.S., it has been his intent to make the U.S. his home. He graduated from college here, got a job here, lives here, and will remain here. He has no property, real estate, financial assets, investments, or business connections in any foreign country. He did not maintain his dual citizenship to protect financial interest in Turkey. He owns a house in the U.S., all of his property, his bank accounts, and all of his financial assets are in the U.S. The Applicant pays taxes in the U.S. and has never paid taxes to a foreign government. The Applicant has no retirement benefits in Turkey, has never worked for a Turkish company, nor any other foreign company. He votes in U.S. elections and has never voted in a foreign election. The Applicant is committed to the U.S. and the American way life. He intends to remain a citizen of the U.S. and to raise his family here.
When he returned to Turkey in the mid-1980's, he was told the Turkish Consulate would not issue a visa or work permit to an individual who held a Turkish passport. While working in Turkey, the Applicant would show his Turkish passport if asked for a work permit. In 1997, 1998, 2000, and 2001, the Applicant's U.S. passport was stamped when he entered and left Turkey. (App Ex A, part 20)
In March 2003, the Applicant surrendered his Turkish passport and renounced his Turkish citizenship. MC 4 (6) requires only a willingness to renounce foreign citizenship and does not require the actual renouncement of foreign citizenship. However, the Applicant has gone further than merely expressing a willingness to renounce; he has actually done so. The renouncement of his Turkish citizenship, the surrender of his Turkish passport, coupled with the entire picture presented by the Applicant, are sufficient to apply MC 4. The Applicant has taken objective steps to show and prove his preference and loyalty to the U.S. I find for the Applicant as to SOR subparagraphs 2.a., and 2.b.
In reaching my conclusions I have also considered: the nature, extent, and seriousness of the conduct; the Applicant's age and maturity at the time of the conduct; the circumstances surrounding the conduct; the Applicant's voluntary and knowledgeable participation; the motivation for the conduct; the frequency and recency of the conduct; presence or absence of rehabilitation; potential for pressure, coercion, exploitation, or duress; and the probability that the circumstance or conduct will continue or recur in the future.
Formal Findings as required by Section 3., Paragraph 7., of Enclosure 1 of the Directive are hereby rendered as follows:
Paragraph 1. Foreign Influence (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. Foreign Preference (Guideline C): FOR THE APPLICANT
Subparagraph 2.a.: For the Applicant
Subparagraph 2.b.: For the Applicant
In light of all the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for the Applicant. Clearance granted.
1. Required by Executive Order 10865, as amended and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992 as amended.
2. DC 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.A2.1.2.1.
3. MC 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.A2.1.3.1.
4. DC 1. The exercise of dual citizenship. E2.A3.1.2.1.
5. DC 2. Possession and/or use of a foreign passport. E2.A3.1.2.2.
6. MC 4. Individual has expressed a willingness to renounce dual citizenship. E2.A3.1.3.4.