DATE: December 17, 2004
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SSN: -----------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
ELIZABETH M. MATCHINSKI
APPEARANCES
FOR GOVERNMENT
Stephanie C. Hess, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Applicant's spouse is a citizen of the People's Republic of China (PRC) whose parents and sibling are resident citizens of the PRC. There is an unacceptable risk of undue Foreign Influence where these family members are subject to the laws and/or physical reach of a foreign government known to aggressively target U.S. interests. Applicant was not candid about his past drug use when he completed his security clearance application (SF 86) in February 2001, and while he corrected the record voluntarily during a subsequent interview, his rectification was not sufficiently prompt to overcome the Personal Conduct and Criminal Conduct concerns. Clearance is denied.
STATEMENT OF CASE
On November 14, 2003, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to the Applicant. The SOR 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 the Applicant. (1) DOHA recommended referral to an Administrative Judge to conduct proceedings and determine whether clearance should be granted, continued, denied, or revoked. The SOR was based on foreign influence (Guideline B), personal conduct (Guideline E), and criminal conduct (Guideline J).
On December 4, 2003, Applicant executed an Answer to the SOR in which he admitted the allegations, and requested a hearing before a DOHA Administrative Judge. The case was assigned to me on March 23, 2004, and pursuant to formal notice of that date, a hearing was held on April 22, 2004. The Government submitted two exhibits. At the Government's request, administrative notice was taken of two U.S. Department of State publications, the Consular Information Sheet for China issued May 29, 2003 (information reported to be current as of February 27, 2004), and Country Reports on Human Rights Practices-2003 for China including Tibet, Hong Kong, and Macau, dated February 25, 2004; of a redacted version of the Final Report of the Select Committee on U.S. National Security and Military/Commercial Concerns with The People's Republic of China, issued January 3, 1999 (declassified May 25, 1999); and of extracts from the National Counterintelligence Center's Annual Report to Congress on Foreign Economic Collection and Industrial Espionage for 2000. Applicant's case consisted of one exhibit and his testimony. A transcript of the hearing was received on May 5, 2004.
On May 4, 2004, Applicant sought to clarify the hearing testimony regarding the date of his initial interview with a Defense Security Service (DSS) special agent. In light of Applicant's pro se status, and Section 6.3 of the Directive that requires a fair and commonsense determination, his request was taken under advisement even though no provision was made to keep the record open. In response, Department Counsel submitted on May 13, 2004, the DSS agent's report of investigation (ROI) documenting the dates of his interviews with Applicant. Applicant having no objection to its inclusion, the ROI was admitted as Government Exhibit 3.
The SOR alleges foreign influence concerns related to the PRC citizenship of Applicant's spouse and her frequent contact with her parents and brother who are PRC resident citizens. Also alleged were personal conduct and criminal conduct concerns raised by Applicant's failure to fully disclose his past illegal drug involvement on his security clearance application. In his Answer, Applicant admitted the allegations, but added that his spouse has been a U.S. permanent resident alien since 2001and that while he did not list all his "experimental drug use" on his application, he assumed the application served more as "an initial data collection tool" and he volunteered the information about his drug use at the beginning of his DSS interview without prompting. Applicant's admissions are accepted and incorporated as findings of fact. After a complete and thorough review of the evidence, I render the following additional findings:
Applicant is a 33-year-old physicist with a doctorate who has been employed by a research and development laboratory since February 2001. He seeks a secret security clearance for his duties involving lasers and sensors.
While pursuing his master's degree at a private university in the U.S. (university X), Applicant began to use marijuana when it was given to him at social gatherings. He continued his recreational use of marijuana about 20 times total until sometime in 1999, typically in conjunction with alcohol as it helped him to relax. Applicant considered the use of marijuana to be part of the social environment at graduate school. In 1997/98, Applicant experimented with other illicit drugs through his association with a college friend who was a regular user of controlled dangerous substances. Applicant used cocaine six times, ecstasy two to three times, heroin once, and opium once. He also tried hashish once while visiting a college friend living overseas in 1997. Applicant decided to stop using illegal drugs in case a potential employer required drug testing and he does not intend to use any controlled dangerous substance in the future.
In July 2000, Applicant married a native citizen of the PRC. Educated through the master's degree level in the PRC, Applicant's spouse was pursuing doctoral studies in anthropology at university X when they met in 1994. She was in the U.S. on a student visa. On earning her Ph.D., Applicant's spouse did a post-doctoral fellowship at another educational institution in the U.S. She was granted a work visa and, subsequently, U.S. permanent residency in mid-May 2001. She is pursuing naturalization in the U.S. In August 2001, she began working as an administrative assistant at a U.S. university.
In February 2001, Applicant began working for his current employer. On his Questionnaire for National Security Positions (SF 86) executed on February 20, 2001, Applicant listed the PRC citizenship of his spouse and PRC citizenship and residency of her parents. Seriously delinquent on some consumer credit card accounts because of his lack of income and financial irresponsibility while in graduate school, Applicant disclosed four credit card debts in collection and a $12,200 unpaid student loan obligation that was overdue because of his failure to request deferment. In response to inquiries into any illegal drug use in the preceding seven years, Applicant listed marijuana use from 1993 to 1997, "5-10-sometimes @ parties and such." Under the impression he would be interviewed by an agent of the government, and that the agent had some involvement in determining his security suitability, Applicant deliberately did not list all his drug use because he feared his application for clearance would be rejected outright if he did so, given the disclosed issues of his spouse's foreign citizenship and his unpaid debts. (2)
Applicant assumed he would be interviewed by a government investigator shortly after he submitted the SF 86, but he made no effort to contact security personnel at his place of employment or the government to inform of his omission of relevant and material drug usage from his SF 86 as the days and weeks passed. (3) Applicant was interviewed by a DSS agent on November 13, 2001, and April 2, 2002. During the first interview, the agent went over his SF 86. In response to inquiry concerning drug use, Applicant volunteered that he had used marijuana to 1999 or 2000 and had experimented with cocaine, opium, hashish, and heroin during the 1997/98 time frame. (4) On April 2, 2002, Applicant executed a signed, sworn statement detailing his spouse's and her relatives' foreign citizenship, Applicant's friendships with foreign nationals he met in graduate school, his efforts to repay his delinquent financial obligations, and his past drug use. Applicant had not met his in-laws, but he and his spouse were planning a trip to the PRC that summer so he could meet her family and possibly hold a modest wedding ceremony for her relatives.
Applicant and his spouse traveled to the PRC as planned for two weeks in the summer of 2002, Applicant entering on his U.S. passport and his spouse on her Chinese passport in different lines. They stayed with her parents for one week at her parents' apartment in a city in northeast PRC, and had to register with local police. The remainder of their stay, they toured Beijing accompanied by her parents. Applicant's parents-in-law are both retired and own their apartment. Prior to their retirements, Applicant's father-in-law had been an economics professor at a teacher's college in the PRC, his mother-in-law had been an administrator at the same university. A school teacher early in her career, she took the position with the university when her spouse got his appointment. Applicant's spouse has had frequent contact with her parents since her marriage to Applicant, contacting them once a week by telephone or electronic mail. She assumes all of her communication with them is monitored at some level. (5) Since they do not speak English and he does not speak Chinese, Applicant does not converse with them by telephone.
During the 2002 trip to the PRC, Applicant also met his brother-in-law, who resides in the same city in the PRC as Applicant's parents-in-law. Applicant's brother-in-law is employed by a privately-owned telecommunications company and is married to a school teacher. Applicant's spouse contacts her brother by telephone once a month. As of April 2004, his spouse's brother was pursuing immigration to Canada.
In about November 2003, Applicant and his spouse had their first child. In December 2003, Applicant's in-laws came to the U.S. on a six-month visa to help care for their infant granddaughter. As of April 2004, they were still residing with Applicant and his spouse. With Applicant's ability to converse with his in-laws limited due to the language barrier, Applicant has not discussed what he does for a living with his parents-in-law. Applicant's spouse has told her parents that Applicant is a scientist who works at the university where she works (rather than at its affiliated laboratory). They are unaware of the nature of his work.
Applicant has been briefed by security officials at his place of employment as to the methods the Chinese use to approach individuals for information and the need to report any suspect contacts with foreign nationals. Although Applicant has been given no reason to believe that his spouse or her relatives have any connection to the PRC government, its military, or its intelligence services, Applicant has discussed with his spouse the possibility of her parents being tortured or otherwise pressured by PRC authorities, impressing on her that the welfare of their daughter takes precedence over her parents and any attempts at undue foreign influence would need to be reported.
Applicant's current supervisor has found Applicant to be an honest, hardworking scientist who has skills much needed on projects that have security requirements. Applicant has consistently followed security guidelines and administrative requirements for property-control and after hours access to buildings. Applicant's supervisor considers him to be a good candidate for a security clearance.
"[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. Or. 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.
Enclosure 2 of the Directive sets forth personal security guidelines, as well as the disqualifying conditions (DC) and mitigating conditions (MC) under each guideline. In evaluating the security worthiness of an applicant, the administrative judge must also assess the adjudicative process factors listed in ¶ 6.3 of the Directive. The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of the applicant. See Exec. Or. 10865 § 7. It is merely an indication that 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 disqualify, or may disqualify, the applicant from being eligible for access to classified information. See Egan, 484 U.S. at 531. The Directive presumes a nexus or rational connection between proven conduct under any of the disqualifying conditions listed in the guidelines and an applicant's security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).
Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002); see Directive ¶ E3.1.15. 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.
Considering the evidence as a whole, I find the following adjudicative guidelines to be most pertinent to this case:
GUIDELINE B
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.
E2.A2.1.2. 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.A2.1.2.2. Sharing living quarters with a person or persons, regardless of their citizenship status, if the potential for adverse foreign influence or duress exists;
E2.A2.1.3. Conditions that could mitigate security concerns 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.
GUIDELINE E
Personal Conduct
E2.A5.1.1. Conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate that the person may not properly safeguard classified information.
E2.A5.1.2. Conditions that could raise a security concern and may be disqualifying also include:
E2.A5.1.2.2.The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities.
E2.A5.1.3. Conditions that could mitigate security concerns include:
E2.A5.1.3.3. The individual made prompt, good-faith efforts to correct the falsification before being confronted with the facts.
GUIDELINE J
Criminal Conduct
E2.A10.1.1. The Concern: A history or pattern of criminal activity creates doubt about a person's judgment, reliability and trustworthiness.
E2.A10.1.2. Conditions that could raise a security concern and may be disqualifying include:
E2.A10.1.2.1. Allegations or admission of criminal conduct, regardless of whether the person was formally charged.
E2.A10.1.3. Conditions that could mitigate security concerns include:
E2.A10.1.3.1. The crime was an isolated incident.
Having considered the evidence in light of the appropriate legal precepts and factors, and having assessed the credibility of the Applicant, I conclude the following with respect to Guidelines B, E, and J:
Under the foreign influence guideline, a security concern may exist when an individual's immediate family, including cohabitants, and other persons to whom he or she is bound by affection, influence, or obligation, are not citizens of the U.S. 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 if they make an individual potentially vulnerable to coercion, exploitation, or pressure.
In determining whether an applicant's family ties in a foreign country pose an unacceptable security risk, the Administrative Judge must consider the record evidence as a whole. Common sense suggests that the stronger the ties of affection or obligation, the more vulnerable a person is to being manipulated if the relative, cohabitant, or close associate is improperly influenced, brought under control, or even used as a hostage by a foreign intelligence or security service.
Applicant is married to a PRC citizen whose parents and brother are resident citizens of the PRC. Before his parents-in-law came to the U.S. on a six-month visa in December 2003, Applicant's spouse had telephone or email contact with them (primarily her mother) once a week. Applicant's spouse also called her brother in the PRC once a month.
The DOHA Appeal Board has held it reasonable for the Administrative Judge to consider the significance of an Applicant's spouse's ties to a foreign country and the possible effect they may have on an Applicant's contact under Guideline B (see ISCR 01-02452, November 21, 2002). In determining Applicant's suitability for continued access, disqualifying conditions 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, and E2.A2.1.2.2., sharing living quarters with a person or persons, regardless of their citizenship status, if the potential for foreign adverse influence or duress exists, are clearly pertinent to an evaluation of Applicant's security suitability.
As to the potential risk of undue foreign influence because of the PRC citizenship of Applicant's wife and the PRC citizenship and residency of her family members, these security concerns may be mitigated where it can be determined that the family members are not agents of a foreign power or in a position to be exploited by a foreign power in a way that could force Applicant to choose between loyalty to the family member and the United States (see E2.A2.1.3.1.). Applicant's spouse is seen as less of a risk given her status as a lawful permanent resident in the U.S. pursuing U.S. naturalization. From the grant to her of a work visa and more recently the continuation of her permanent resident alien status, it is reasonable to infer that the U.S. officials found nothing in her background or activities that would indicate she was a foreign agent. Before their retirements, Applicant's in-laws were employed by a state-run university, but there is nothing about their positions that suggests they are or ever were foreign agents. Although the nature of Applicant's brother-in-law's duties is not clear, he works for a private telecommunications company.
The analysis does not end with a determination that Applicant's spouse and in-laws are not agents of a foreign power, however. The risk of undue foreign influence must be evaluated in terms of the possible vulnerability to both coercive and non coercive means of influence being brought to bear on, or through the foreign relations. Applicant's spouse has an anthropology degree from a university in the PRC. While that discipline that would appear to be of little interest to a government that has a history of targeting U.S. technology for military purposes, Applicant testified that his spouse was interested in social issues (such as women's access to birth control) in the PRC and even decided to cancel a research trip to the PRC because she feared a problem with the PRC government. Applicant has a particularly heavy burden where his in-laws remain subject to the laws of the PRC and within the physical reach of PRC authorities. The PRC is undergoing rapid and profound economic and social change, but political power remains centralized in the Chinese Communist Party. (6) A House Select Committee for the 105th Congress looked at the PRC's attempts to acquire U.S. technology and concluded that the PRC has an "insatiable" appetite for information and devotes "enormous" energy to collection activities targeted at the U.S., often employing persons, including students studying in the U.S., and techniques outside of traditional counterintelligence methods. The PRC also continues to have a poor human rights record as of 2003, with the government committing numerous and serious abuses, (7) so attempts by the PRC to pressure its citizens remain very possible. Little is known of Applicant's in-laws other than their former occupations and the fact that they do not speak English. Their former positions at a state-run university were not so ordinary that their activities would have gone unnoticed by someone in authority, whether at the university or local government level, or even higher. Applicant's spouse's decisions to not publish a paper on abortion practices in the PRC and to cancel a research trip reflect her fear of targeting. She has apparently also expressed concern to Applicant that her contacts with her parents might be monitored. Based on the limited information of record about the activities and associates of these immediate family members, I am unable to conclude that there is little, if any, risk of undue foreign influence. While Applicant's spouse has taken a low profile herself, it does not make her parents less of a risk. Applicant has testified credibly that his daughter's welfare takes precedence over the well-being of his in-laws in the PRC should undue pressure be placed on his in-laws, but less weight can be given to necessarily speculative testimony as to what one would do under a particular set of circumstances that have yet to be tested. Applicant having failed to meet his heavy burden of overcoming the security concerns presented by his family ties to the PRC, adverse findings are returned as to subparagraphs 1.a., 1.b., 1.c., and 1.d. of the SOR.
Security significant personal conduct, Guideline E concerns are raised when an applicant has not been completely candid with the Government about matters relevant and material to his or her personnel security application and investigation. (See DC E2.A5.1.2.2. The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities). On his SF 86 signed on February 20, 2001, within 30 days of his hire by his present employer, Applicant disclosed only marijuana use from five to ten times at parties and such from 1993 to 1997, when he had in fact used marijuana approximately 20 times to as recently as 1999 or 2000, had used cocaine six times, and had experimented with ecstasy, hashish, heroin, and opium in 1997/98. While Applicant has indicated he thought the security clearance application was not binding on him and only an initial step in the adjudication process, he has also admitted he had not disclosed the full extent of his drug use out of fear that it would jeopardize his chances of obtaining a security clearance since there were other areas of security concern (foreign citizenship of his spouse and unpaid delinquencies). The government cannot allow individuals to choose for themselves the timing and extent of disclosure, and the knowing omission of material information such as illegal substance use raises significant personal conduct and criminal conduct concerns. The knowing and willful omission of relevant and material information from the government is a felony offense under Title 18, Section 1001 of the United States Code, so DC E2.A10.1.2.1. Allegations or admission of criminal conduct, regardless of whether the person was formally charged, of Guideline J must be considered as well.
It is noted Applicant detailed the extent of his drug use when interviewed by the DSS agent. The only evidence of his rectification is a signed, sworn statement of April 2002. Evidence submitted post hearing shows Applicant was interviewed initially by the DSS agent in November 2001, although what was said specifically on that occasion is not of record. It is during this first interview that Applicant submits he volunteered the truth about his past drug use, and he argues on that basis for the favorable application of MC E2.A5.1.3.3. The individual made prompt good-faith efforts to correct the falsification before being confronted with the facts. Applicant's testimony that he volunteered the information up-front, before being asked about drug use, is not supported by the sworn statement, which indicates the details were forthcoming in response to specific questions. Yet there is also no indication in the sworn statement or in the DSS ROI to suggest that Applicant was not candid during his initial interview. The most reasonable inference is that Applicant volunteered the details about his drug use when the agent asked him about past drug use, rather than at the start of the interview. While the disclosure was voluntary and in good-faith, it was not sufficiently prompt to fall within MC E2.A5.1.3.3. Applicant knew he had not provided an accurate answer to the drug inquiry on his SF 86. Despite knowing it was a serious issue, he waited until the DSS agent was available to interview him to correct the record.
While the falsification of one security clearance application more than three years ago and therefore not recent (see MC E2.A10.1.3.1. The criminal behavior was not recent, and E2.A10.1.3.2. The crime was an isolated incident) of the criminal conduct guideline, his rehabilitation is incomplete. While Applicant has acknowledged he was "wrong" in not listing all his drug use initially, he also continues to minimize his misconduct ("I think, at the time, I was rushed, I didn't know what to answer and I thought that it 'didn't count' until the final interview)." While Applicant has the support of his supervisor, who has found him to be trustworthy and reliable, concerns persist for his judgment, reliability, and trustworthiness. As a scientist with a doctorate degree, Applicant can be expected to understand that by signing the SF 86, he was certifying that his entries on the form were "true, complete, and correct to the best of [his] knowledge and belief." Adverse findings are returned as to subparagraphs 2.a. and 3.a. of the SOR as well.
FORMAL FINDINGS
Formal Findings as required by Section 3. Paragraph 7 of Enclosure 1 to the Directive are hereby rendered as follows:
Paragraph 1. Guideline B: AGAINST THE APPLICANT
Subparagraph 1.a.: Against the Applicant
Subparagraph 1.b.: Against the Applicant
Subparagraph 1.c.: Against the Applicant
Subparagraph 1.d.: Against the Applicant
Paragraph 2. Guideline E: AGAINST THE APPLICANT
Subparagraph 2.a.: Against the Applicant
Paragraph 3. Guideline J: AGAINST THE APPLICANT
Subparagraph 3.a.: 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 Applicant. Clearance is denied.
1. The SOR was issued under the authority of Executive Order 10865 (as amended by Executive Orders 10909, 11328, and 12829) and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992 (as amended by Change 4).
2. While Applicant does not deny that he was less than fully candid about his drug use, he also testified that he did not think the application was final at that time, or that his responses were legally binding because he would be interviewed. (Tr. 33, 53)
3. When initially asked by Department Counsel whether he had contacted anyone before his interview to let them know that he had not been truthful on his security clearance application, Applicant responded, "No, I didn't until the interview but I thought, at that time, again, I'm still not sure how the process was. I thought I would put in the form and the interview would be coming quickly. I think the interview took several months, but I kept expected to hear it." (Tr. 55) Applicant then explained, " What would happen is I would call up [the DSS agent] and I didn't want to tell him over the phone of course, and ask him when he's available, and he would be busy and wouldn't get back to me." There is record confirming that such calls were made by Applicant or any explanation as to why he knew to call that particular special agent. Assuming Applicant made at least one call, it is clear he did not disclose his drug involvement during any conversation before his interview of November 2001.
4. Applicant initially testified he could not recall whether he volunteered the information about his drug use at the start of the interview or when the agent got to the questions about drug use. While he then indicated the disclosures were at the beginning of the interview (Tr. 67-68), his sworn statement (Ex. 2) indicates the information was provided in response to specific inquiry.
5. Applicant testified his spouse once canceled a trip to the PRC in order to avoid any problems. Since Applicant became employed by the laboratory, she has become very concerned about being targeted. (Tr. 77)
6. See the U.S. State Department's Consular Information Sheet dated May 29, 2003 (information current as of February 27, 2004.
7. See the U.S. State Department's report on human rights practices for 2003.