DATE: May 24, 2006
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SSN: -----------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
MICHAEL J. BRESLIN
APPEARANCES
FOR GOVERNMENT
Eric Borgstrom, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Applicant is a retired naval officer, who successfully held a security clearance during his military career. His wife is a naturalized citizen and resident of the
U.S. Her parents are citizens of the People's Republic of China and have permanent resident status in the United States. She also has a sister who is a citizen
and resident of China. Applicant mitigated the security concerns arising from possible foreign influence. Clearance is granted.
STATEMENT OF THE CASE
Applicant submitted an SF 86, Security Clearance Application, on June 6, 2001. The Defense Office of Hearings and Appeals (DOHA) declined to grant or
continue a security clearance for Applicant under Executive Order 10865, Safeguarding Classified Information Within Industry (Feb. 20, 1960), as amended,
and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended (the "Directive").
On July 7, 2004, DOHA issued a Statement of Reasons (SOR) detailing the basis for its decision. The SOR alleges security concerns raised under the
Directive, specifically, Guideline B, Foreign Influence.
Applicant answered the SOR in writing on July 15, 2004. He elected to have a hearing before an administrative judge.
The case was originally assigned to other administrative judges, but was re-assigned to me on November 28, 2005, because of workload considerations. With
the concurrence of Applicant and Department Counsel, I convened the hearing on April 10, 2006. DOHA received the final transcript of the hearing (Tr.) on
ay 3, 2006.
EVIDENTIARY RULINGS
At the hearing, the government offered Exhibits 1 through 11 for identification. I admitted Exhibits 1 through 5, 10, and 11.
I did not admit several documents offered by Department Counsel for administrative notice. Of course, the concept of "administrative notice" is not "totally
unconnected to or independent from basic, minimum principles of evidence law." (ISCR Case No. 02-18668 (App. Bd. Feb. 10, 2004).) An administrative
judge may take administrative notice of a variety of facts, including matters of common knowledge, factual matters not subject to reasonable dispute (ISCR
Case No. 02-29739 (App. Bd. Oct. 13, 2005)), an "easily verifiable, indisputable fact," (ISCR Case No. 99-0511 (App. Bd. Dec. 19, 2000)), and official
government documents that are publicly available (ISCR Case No. 02-06478 (App. Bd. Dec. 15, 2003); ISCR Case No. 99-0452 (App. Bd. Mar. 21, 2000).)
Exhibit 6 for identification included selected excerpts from an Intelligence Threat Handbook dated May 1996. I did not admit the document because it was too
old to be relevant and material to the issues in this case. (Directive, ¶ E3.1.19.) Moreover, it did not appear to be a document that was published, or readily
available from a reliable source.
I did not take administrative notice of the document marked as Exhibit 7 for identification, a statement by the Director of the Defense Intelligence Agency to the
Senate Armed Services Committee dated February 26, 2004, which focused on foreign military capabilities. Exhibit 7 did not contain matters of general
knowledge or matters capable of ready determination through accurate sources, nor did it appear to be publicly available. Moreover, the DIA Director's
testimony was not sufficiently relevant or material to the specific issues in this case to be helpful.
Exhibit 8 for identification was an article entitled, "Espionage by the Numbers: A Statistical Overview," written by Richards J. Heuer, Jr., from the Defense
Personnel Security Research Center, and Katherine Herbig, from TRW Systems. The article presented a statistical profile of the kind of person who engages in
espionage, recognizing its findings were "suggestive rather than conclusive." (Ex. 8 for I.D. at 1.) I did not admit the document for several reasons. I found
evidence of general profiles to be irrelevant and immaterial. Moreover, it did not appear that the document reflected a statement of official government policy,
nor were its conclusions easily verifiable or indisputable facts. I also note that in ISCR Case No. 03-04090 (App. Bd. Mar. 3, 2005), the Appeal Board rejected
consideration of the Adjudicative Desk Reference, a research compilation by the same author which was similar to the document offered as Exhibit 8.
I did not admit Exhibit 9, the Report to Congress on Foreign Economic Collection and Industrial Espionage for the year 2000 from the National
Counterintelligence Center. First, it was largely cumulative with Exhibit 10, a more recent version of the same report which I admitted. Department Counsel
maintained the 2000 report was necessary because it listed the countries thought to be the most active collectors of foreign economic information. However, I
note the report indicates the list was the result of a survey of "nearly a dozen selected Fortune 500 companies"; it does not indicate what companies were
selected, how they were selected, who selected them, or who provided the response. Moreover, the survey focused on the collection, by legal and illegal means,
of foreign economic information generally, rather than espionage having security concerns. Therefore, I found the proffered exhibit incompetent, irrelevant,
and immaterial to the issues in this case.
Applicant provided Exhibits A through D, which were admitted without objection. Applicant testified on his own behalf.
FINDINGS OF FACT
Applicant admitted, in whole or in part, the factual allegations in ¶¶ 1.b, 1.c, 1.d, 1.e, and 1.f of the SOR. (Applicant's Answer to SOR, dated July 15, 2004.)
Those admissions are incorporated herein as findings of fact. He denied the allegations in ¶ 1.a of the SOR. (Id.) After a complete and thorough review of the
evidence in the record, I make the following additional findings of fact.
Applicant was born in December 1949. (Ex. 1 at 1.) He enlisted in the U.S. Navy in September 1969. (Ex. 1 at 6; Ex. 3 at 2.) Applicant was rated as an
Electrician's Mate and served aboard nuclear submarines, where he held a security clearance. For his exceptional performance, Applicant was selected as the
best sailor in the submarine force in 1978. (Tr. at 60; Ex. A at 10.) In September 1984, he received a Navy Commendation Medal for his exemplary service.
(Ex. A at 5.) Applicant rose to the rank of Senior Chief Petty Officer (E-8). (Ex. 3 at 6.)
In 1984, Applicant applied for the Navy's limited duty officer program. His commander strongly endorsed the application, and praised Applicant's record of
dedicated performance of duty. (Ex. A at 6-7.) Previous commanders added their emphatic endorsements. (Ex. A at 8, 9, 14, 15.) The Navy accepted him into
the program and awarded him a commission. (Tr. at 60; Ex. A at 12.) In June 1987, he qualified as a Surface Warfare Officer. (Ex. A at 11.) Applicant
worked in the nuclear engineering field and held a high-level security clearance from about 1984 until he retired from the U.S. Navy in 1991. (Ex. 1 at 6; Ex. 3
at 2.)
Applicant was married in November 1971. (Ex. 3 at 3.) By the early 1990s, Applicant and his wife developed marital difficulties. He filed for divorce, but
allowed it to lapse. (Tr. at 64.) They continued to reside in the same house, but not as husband and wife. (Id.) His first wife moved from the marital home in
arch 1997. (Ex. 4.) Applicant was divorced from his first wife in December 1998. (Ex. 3 at 3.)
In 1991, shortly after his retirement from the Navy, he purchased a travel agency and operated the business for about six years. (Id.) In 1996, he was asked to
provide travel assistance to a group of businessmen from the People's Republic of China (P.R.C.) who were having troubles with airline tickets and hotel
reservations. (Tr. at 65, 70.) Applicant helped the group with their arrangements, and met the Chinese travel agent accompanying them, along with his female
assistant who served as a translator. (Tr. at 65.) Each travel agent was interested in making contact with an agency in the other country in an attempt to
facilitate each other's tours. (Tr. at 68.) The Chinese travel agent arranged for Applicant to take a tour of China for about two weeks in March 1996. (Tr. at
69.) The Chinese travel agent's female assistant served as his tour guide and translator. (Tr. at 71-72.)
Applicant believed the tour package he was shown would be highly profitable and competitive with larger companies. (Tr. at 74.) He later arranged a group
tour of China for clients, and visited the P.R.C. in June 1996 to arrange for visas and tickets. (Ex. 3 at 3.) The travel assistant/translator again served as his
guide. (Id.) During this trip, they became romantically involved. (Tr. at 78; Ex. 3 at 3.)
Over the ensuing months, Applicant returned to China several times to pursue his relationship with her, to meet her parents, to arrange trips for clients, and for
his personal travel in the region. (Ex. 1 at 7; Ex. 3 at 3; Tr. at 86.) After a significant set-back in the travel industry, Applicant sold his travel agency in about
April 1997. (Tr. at 100.) He began working as an independent contractor doing small home repair. (Tr. at 100; Ex. 1 at 2.)
He continued to travel to China to further the relationship. In January 1999, Applicant brought her to the U.S., and they were married in February 1999. (Ex. 3
at 3.)
Applicant then worked for about one year as the comptroller for a sports company. (Ex. 1 at 2.) In May 2001, he assumed his present position with a defense
contractor serving as a Senior Nuclear Test Engineer. (Ex. 1 at 1; Ex. 2 at 2.)
Applicant currently lives with his second wife, their three-year old daughter, and his wife's parents. (Tr. at 62.) His wife's parents care for their child. (Tr. at
89.)
Applicant is active in the local community; he has worked with the boy scouts for 20 years, taught hunting safety courses, instructed grade school students in
archery and wilderness survival courses, and worked with the 4-H Club. (Tr. at 59.) He was nominated as the Military Citizen of the Year for 1990 for his
support to the community. (Ex. A at 2.)
He obtained a bachelor of arts degree, cum laude, in 1994. (Ex. A at 3.) He is currently pursuing a master's degree in business administration specializing in
criminal justice administration and expects to graduate in June 2006, magna cum laude. (Ex. A at 4; Tr. at 59, 104.)
Applicant's wife was born in 1973. (Tr. at 79.) She received an academic scholarship and attended college in China where she studied tourism. (Tr. at 79, 96.)
She was not a member of the Communist Party. (Tr. at 96.) She became a U.S. citizen in February 2004. (Ex. C.) She is currently a student at a U.S. law school.
Applicant's wife has one sister, who is a citizen and resident of the P.R.C. (Tr. at 81.) The sister works in real estate with her husband. (Tr. at 82.) They have
one child. (Tr. at 93.) Applicant and his wife are not close to her sister. (Tr. at 82.)
His wife's parents are citizens of the P.R.C. Her father was a professional soccer player for a city team and her mother worked in a factory. (Tr. at 97.) They
came from affluent families and were anti-communist. (Tr. at 95.) During the Cultural Revolution in China, they were required to work on a labor farm. (Tr.
at 88.) Both parents are now over 60 years old and are retired. (Tr. at 94.) They receive a small pension from the government that goes into a bank account in
China. (Tr. at 97.) They came to the U.S. in 2003. (Tr. at 89) They have permanent resident status in the United States. (Ex. D.) In about 2005, her parents
went back to China for her mother's medical treatment in order to take advantage of lower costs, but later returned to the U.S. (Tr. at 88, 93.) Applicant now
provides medical insurance coverage for them.
According to the U.S. State Department, the People's Republic of China is controlled by the Communist Party. (Ex. 5 at 1.) The Consular Information Sheet
indicates Chinese security personnel may place under surveillance business people with access to advanced proprietary information. (Id. at 2.) The U.S. State
Department reports that terrorism is rare in China and that there "is no indication that acts of public violence have been directed against foreigners or that
foreign elements in China have carried out terrorist attacks." (Ex. 5 at 2-3.) The State Department also reports that China's record on human rights is poor. (Ex.
11.)
POLICIES
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." (Department of the Navy v. Egan, 484 U.S. 518, 527 (1988).) In
Executive Order 10865, Safeguarding Classified Information Within Industry (Feb. 20, 1960), the President set out guidelines and procedures for safeguarding
classified information within the executive branch.
To be eligible for a security clearance, an applicant must meet the security guidelines contained in the Directive. Enclosure 2 of the Directive sets forth
personnel security guidelines, as well as the disqualifying conditions and mitigating conditions under each guideline. Under the Directive, ¶ E2.A2.1.1, the
adjudicative guideline at issue in this case is:
Guideline B, Foreign Influence: A security risk may exist when an individual's immediate family, including cohabitants, or other persons to whom he 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, as well as those which could mitigate security concerns pertaining to this adjudicative
guideline, are set forth and discussed in the conclusions below.
"The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is eligible for a security
clearance." (Directive, ¶ E2.2.1.) An administrative judge must apply the "whole person concept," and consider and carefully weigh the available, reliable
information about the person. (Id.) An administrative judge should consider the following factors: (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. (Id.)
Initially, the Government must present evidence to establish controverted facts in the SOR that may disqualify the applicant from being eligible for access to
classified information. (Directive, ¶ E3.1.14.) Thereafter, the applicant is responsible for presenting evidence to rebut, explain, extenuate, or mitigate the facts.
(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 (App. Bd. Dec. 19, 2002).) "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.)
A person granted access to classified information enters into a special relationship with the government. 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. The decision to deny an individual a security clearance is not a
determination as to the loyalty of the applicant. (Exec. Ord. 10865, § 7.) It is merely an indication that the applicant has not met the strict guidelines the
President has established for issuing a clearance.
LEGAL PRECEDENT
It is helpful to review the legal precedents relevant to Guideline B cases established by the DOHA Appeal Board. As noted above, Guideline B of the Directive
addresses potential security concerns arising when applicants may be subject to foreign influence.
Guideline B, Foreign Influence: A security risk may exist when an individual's immediate family, including cohabitants, or other persons to whom he 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
countriesare also relevant to security determinations if they make an individual potentially vulnerable to coercion, exploitation, or pressure.
(Directive, ¶ E2.A2.1.1, emphasis added.) It is important to note that the Directive does not establish a per se rule for the guideline; for example, the mere fact
that family members or friends are citizens or residents of a foreign country is not automatically disqualifying. The Appeal Board has acknowledged many
times that the:
mere possession of family ties with persons in a foreign country is not, as a matter of law, automatically disqualifying . . . . [It] does raise a prima facie security
concern sufficient to require an applicant to present evidence of rebuttal, extenuation or mitigation sufficient to meet the applicant's burden of persuasion that it
is clearly consistent with the national interest to grant or continue a security clearance for the applicant.
(ISCR Case No. 99-0424, 2001 DOHA LEXIS 59 at **33-34 (App. Bd. Feb. 8, 2001).)
In order for many diverse adjudicators, counsel, and administrative judges to apply this guideline uniformly and consistently, the Directive sets out various
conditions illustrating the sort of matters that may raise security concerns and those that might alleviate such concerns. The Directive refers to these as
potentially "disqualifying" or "mitigating" conditions. An administrative judge must consider these conditions as part of a "whole person" concept in
determining whether a security concern exists and whether an applicant has mitigated or extenuated those concerns.
Mitigating Condition 1
Under Guideline B, Mitigating Condition 1 (Directive, ¶ E2.A2.1.3.1) provides that it is potentially mitigating where the "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 involved
and the United States." Notwithstanding the facially disjunctive language, applicants must establish both: (1) that the individuals in question are not "agents of
a foreign power," and (2) that they are not in a position to be exploited by a foreign power in a way that could force the applicant to chose between the person(s)
involved and the United States. (ISCR Case No. 02-14995 at 5 (App. Bd. Jul. 26, 2004).)
"Agent of a Foreign Power"
The Appeal Board has greatly reduced the applicability of this potentially mitigating condition by adopting an expansive definition of the phrase "agent of a
foreign power." The federal statute dealing with national security and access to classified information, 50 U.S.C. § 438(6), includes a definition for the term
"agent of a foreign power." For the purposes of the statute, Congress adopted the definitions of the phrases "foreign power" and "agent of a foreign power"
from 50 U.S.C. § 1801(a) and (b), respectively. 50 U.S.C. § 1801(b) defines "agent of a foreign power" to include anyone who acts as an officer or employee of
a foreign power in the United States, engages in international terrorism, or engages in clandestine intelligence activities in the U.S. contrary to the interests of
the U.S. or involving a violation of the criminal statutes of the United States. The definition was added to 50 U.S.C. § 438 by the Intelligence Authorization
Act for Fiscal Year 1995, Public Law 103-359, October 14, 1994. The term was subsequently included in the Directive through Change 4, dated April 20,
1999.
The Appeal Board, however, does not apply the statutory definition of "agent of a foreign power." Instead, it adopted a much broader definition of its own
invention. The Appeal Board seems to have taken the definition of "foreign power" from 50 U.S.C. § 1801(a), but then uses a general definition for the term
"agent," so that the phrase has the widest possible scope, to include anyone who has any connection to any government within a foreign country.
Following this expansive construction, the Appeal Board has held that, "An employee of a foreign government need not be employed at a high level or in a
position involving intelligence, military, or other national security duties to be an agent of a foreign power for purposes of Foreign Influence Mitigating
Condition 1." (ISCR Case No. 02-24254, 2004 WL 2152747 (App. Bd. Jun. 29, 2004).) The Appeal Board applies its definition very broadly. (See ISCR Case
No. 03-10954 at 3 (App. Bd. Mar. 8, 2006) (attorney/consultant to an entity controlled by a foreign ministry is an "agent of a foreign power"); ISCR Case No.
03-19101 at 6 (App. Bd. Jan. 21, 2006) (part-time secretary for the Ministry of Religion is an "agent of a foreign power"); ISCR Case No. 02-2454 at 4-5 (App.
Bd. June 29, 2004) (employee of a city government was an "agent of a foreign power"); ISCR Case No. 03-04090 at 5 (App. Bd. Mar. 3, 2005) (employee of the
Israeli government is an "agent of a foreign power"); ISCR Case No.02-29143 at 3 (App. Bd. Jan. 12, 2005) (a member of a foreign military is an "agent of a
foreign power").) The effect of the Appeal Board's broad application of this term is to greatly increase the numbers of applicants who are automatically
excluded from the provisions of Mitigating Condition 1.
Very recently, the Appeal Board explained its refusal to use the statutory definition of the term. In ISCR Case No. 03-10954 at 4 (App. Bd. Mar. 8, 2006), the
Board opined that the definition of "agent of a foreign power" in 50 U.S.C. § 1801(b) did not apply because it is part of the Foreign Intelligence Surveillance
Act (FISA) and that statute had a narrower scope than the security concerns in the Directive. However, the Appeal Board did not explain why the definition
would not apply where it was specifically incorporated by reference in 50 U.S.C. § 438, the federal statute directly concerning the grant of access to classified information.
The Appeal Board's position is inconsistent with a reasonable interpretation of the Directive. Had the drafters intended to exclude all relatives and associates
who were "connected to a foreign government," they would have employed such terminology; indeed, that very language was used in Disqualifying Condition 3
of Guideline B. Moreover, for the drafters to use that language as the basis for Disqualifying Condition 3 and then repeat it as an exception to Mitigating
Condition 1 is not logical. The only reasonable and rational interpretation is that the phrase "agent of a foreign power" is a term of art defined by 50 U.S.C. §
438(6), the statute dealing with access to classified information. The Appeal Board's decision not to use the statutory definition of the term greatly restricts the
applicability of Mitigating Condition 1 for applicants.
"In Position to be Exploited"
As noted above, the second prong of Mitigating Condition 1 (Directive, ¶ E2.A2.1.3.1) provides that it is potentially mitigating where the "associate(s) in
question are not . . . 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 involved
and the United States." The language "in a position to be exploited" is subject to interpretation. As discussed below, the reasonable and rational interpretation
consistent with the intent of the Directive is that the language requires a judge to consider all the circumstances, assess the likelihood of improper exploitation,
and determine whether it presents an unreasonable security concern.
The Appeal Board applies Mitigating Condition 1 very narrowly, however. The Appeal Board interprets the language as establishing an absolute standard; i.e.,
an applicant must affirmatively prove that there is no possibility that anyone might attempt to exploit or influence a foreign relative or acquaintance in the
future. (See ISCR Case No. 03-17620 at 4 (App. Bd. Apr. 17, 2006) ("MC1 does not apply because, as is well settled, it requires that Applicant demonstrate
that his relatives are not in a position which could force Applicant to choose between his loyalty to them and his loyalty to the United States.").) The Appeal
Board does not permit an administrative judge to engage in a balancing test to assess the extent of any security risk in a case. Rather, the Appeal Board requires
an applicant to prove that the presence of family members in a foreign country does not create even the possibility of pressure or coercion in the future. (ISCR
Case No. 03-02382 at 5 (App. Bd. Feb 15, 2005).) In determining the applicability of this potentially mitigating condition, the Appeal Board does not consider
whether an applicant is likely to be improperly influenced by a foreign relative, holding that "Foreign Influence Mitigating Condition 1 hinges not on what
choice Applicant might make if he is forced to choose between his loyalty to his family and the United States, but rather hinges on the concept that Applicant
should not be placed in a position where he is forced to make such a choice." (ISCR Case No. 03-15205 at 3-4 (App. Bd. Jan. 21, 2005); see also ISCR Case
No. 03-24933 at 8 (App. Bd. Jul. 28, 2005).)
Because the Appeal Board has set an absolute standard, it refuses to allow an administrative judge to consider any evidence that does not conclusively establish
the impossibility of a future attempt at influence. Even though ¶¶ E2.2.1, E2.2.2, and E2.2.3 of the Directive specifically require an administrative judge to
consider all the facts and circumstances when evaluating each individual case, the Appeal Board nonetheless holds it is error for a judge to do so when
considering the applicability of Mitigating Condition 1. For example, the Appeal Board finds it legal error to consider any of the following facts because they
are not "dispositive": a foreign relative's fragile health (ISCR Case No. 02-29403 at 4 (App. Bd. Dec. 14, 2004)); a foreign relative's advanced age (ISCR Case
No. 02-00305 at 7 (App. Bd. Feb. 12, 2003)); a foreign relative's financial independence (ISCR Case No. 02-31154 at 6 (App. Bd. Sep. 22, 2005)); the number
of family members in a foreign country (ISCR Case No. 03-02382 at 5 (App. Bd. Feb. 15, 2005)); the fact that foreign relatives spend part of each year in the
U.S. (ISCR Case No. 02-31154 at 6 (App. Bd. Sep. 22, 2005)); the lack of any connection between the foreign relative and the foreign government in question
(ISCR Case No. 02-31154 at 6 (App. Bd. Sep. 22, 2005)); the absence of any attempt at exploitation in the past (ISCR Case No. 03-15205 at 4 (App. Bd. Jan.
21, 2005)); the lack of a relative's financial dependency upon an applicant (ISCR Case No. 03-15205 at 4 (App. Bd. Jan 21, 2005)); a foreign country's friendly
relationship with the U.S., its stable, democratic government, or its extensive foreign military agreements with the U.S. (ISCR Case No. 02-22461 at 5-6 (App.
Bd. Oct. 27, 2005)).
While the Appeal Board refuses to consider any facts tending to mitigate security concerns under Mitigating Condition 1, it absolutely requires judges to
consider factors that might increase security concerns. For example, while the Appeal Board holds it is error for an administrative judge to consider a foreign
country's friendly relationship with the U.S., it also holds that it is error for a judge to fail to consider a hostile relationship between the U.S. and a foreign
country. (ISCR Case No. 02-13595 at 4 (App. Bd. May 10, 2005).) Similarly, the Appeal Board holds that a foreign state's favorable human rights record is
irrelevant, but that "a country's poor human rights record and its differences with the United States on important security issues such as terrorism are factors"
that a judge must consider. (ISCR Case No. 04-05317 at 5 (App. Bd. June 3, 2005).)
The general rules of statutory construction apply to administrative regulations. (M. Kraus & Bros. v. U.S., 327 U.S. 614, 621 (1946); 2 Am. Jur.
2dAdministrative Law § 245 (2006).) However, ordinary rules of regulatory construction do not support the Appeal Board's interpretation of the language in
question.
The primary rule of regulatory construction is to determine the intent of the drafters and to give it effect. To that end, judges must interpret a regulation
consistent with the purpose and policy within the overall regulatory plan. (Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 454-55 (1989); Cabell
v. Markham, 148 F.2d 737, 739 (2d Cir.), aff'd, 326 U.S. 404 (1945).) The Directive does not establish per se rules prohibiting the issuance of security
clearances in specific situations. To the contrary, it requires administrative judges to balance various factors-some potentially disqualifying, and some
potentially mitigating-to determine whether an individual is a security concern. To that end, ¶ 6.3 of the Directive provides general guidance:
6.3. Each clearance decision must be a fair and impartial common sense determination based upon consideration of all the relevant and material information
and the pertinent criteria and adjudication policy in enclosure 2, including as appropriate:
6.3.1. Nature a seriousness of the conduct and surrounding circumstances.
6.3.2. Frequency and recency of the conduct.
6.3.3. Age of the applicant.
6.3.4. Motivation of the applicant, and the extent to which the conduct was negligent, willful, voluntary, or undertaken with knowledge of the consequences involved.
6.3.5. Absence or presence of rehabilitation.
6.3.6. Probability that the circumstances or conduct will continue or recur in the future.
The Appeal Board's narrow interpretation creates a requirement of proof impossible to achieve and effectively eliminates the possibility that Mitigating
Condition 1 could ever apply. Also, the Appeal Board's rulings exclude from consideration all evidence that could tend to mitigate or extenuate the potential
security concern. Clearly, the Appeal Board's inflexible interpretation of the language would "compel an odd result." (Green v. Bock Laundry Machine Co.,
490 U.S. 504, 509 (1989).) This is inconsistent with the regulatory policy established in the Directive, and effectively denies due process to applicants.
Another rule of regulatory construction is that judges should not interpret language in such a way that renders it meaningless or leads to an absurd result.
(United States v. Turkette, 452 U.S. 576, 580 (1981).) Of course, the issue of the applicability of Mitigating Condition 1 only arises when an applicant has
immediate family members or close acquaintances who are citizens or residents of a foreign country. The Appeal Board presumes that the fact of such foreign
citizenship or residency creates a vulnerability to possible influence. Under such circumstances, it is impossible for an applicant to affirmatively prove that no
attempt at exploitation or influence could ever occur in the future. It is not logical that the drafters of the Directive would implement a mitigating condition that
could never apply.
It is helpful to consider the historical antecedents for this provision to shed light on the drafter's intent. The version of Mitigating Condition 1 set out in DoD
Directive 5220.6 promulgated in January 1992, couched this mitigating condition in these terms. "Conditions that could mitigate security concerns include: (1)
a determination that the immediate family member(s) , cohabitant, or associate(s) in question would not constitute an unacceptable security risk." Clearly, the
earlier version of MC1 did not establish a per se rule-rather it required the administrative judge to weigh all factors and determine whether the risk was
"unacceptable."
Significantly, this earlier version of Mitigating Condition 1 is still in effect for security clearance cases for military members and civilian employees of DoD
that are processed under DoD Regulation 5200.2-R. It is anomalous to apply a per se rule in some cases and a rule of reasonableness in others, where the
implementing regulations require a uniform process.
It is also helpful to review a later-enacted version of the same guideline to determine the drafter's original intent. (Branch v. Smith, 538 U.S. 254, 281 (2003)
(citing United States v. Freeman, 44 U.S. 556 (1845).) On December 29, 2005, the President approved the following new language to replace Mitigating
Condition 1:
8. Conditions that could mitigate security concerns include: (a) the nature of the relationships with foreign persons, the country in which the persons are
located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose
between the interests of a foreign individual, group, organization, or government and the interests of the U.S.
Notably, the new language requires an administrative judge to weigh numerous factors and assess the likelihood that an individual will be placed in a position
of conflict. Unlike the Appeal Board's present interpretation, the new language does not require an applicant to affirmatively prove that an attempt at influence
is impossible, nor does it bar consideration of evidence that might mitigate or extenuate security concerns. Most importantly, when one consider's the previous
version of this rule, the general policy of the Directive, and this recent language, it is apparent that the drafters did not intend the present language to be
interpreted as a per se rule as the Appeal Board now applies it.
Terrorism
The Appeal Board also construes Mitigating Condition 1 to make it inapplicable any time there is a history of terrorist acts within the foreign country in
question. Obviously, this greatly decreases the chance that any applicant could obtain the benefit of Mitigating Condition 1.
As noted above, Mitigating Condition 1 applies where a judge determines the applicant's relatives and associates in a foreign country are not "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." While the
definition of "foreign power" from 50 U.S.C. § 438(6) (incorporating the definition from 50 U.S.C. § 1801(a)) includes terrorist groups, it also includes foreign
governments, foreign-based political organizations, and foreign non-governmental organizations.
Mitigating Condition 1 does not, by its express terms, exclude from consideration applicants with relatives or associates in countries where terrorism has
occurred, any more than it excludes person from countries where there are foreign governments, foreign political organizations, or foreign non-governmental
organizations. Rather, it focuses on a very specific type of threat-the risk of a foreign power exploiting an applicant's foreign relatives in such a way as to cause
an applicant to act adversely to the interests of the United States.
The Appeal Board holds Mitigating Condition 1 does not apply where there is a history of terrorist activity-of any kind-in the foreign country in question.
(ISCR Case No. 03-22643, 2005 DOHA Lexis 159 (App. Bd. Jun. 24, 2005); ISCR Case No. 02-22461 at 5 (App. Bd. Oct. 22, 2005).) The Appeal Board
justifies this as "a matter of common sense" arising from "the war on terrorism." (ISCR Case No. 01-26893, 2002 DOHA LEXIS 505, 22-23 n.2 (App. Bd. Oct.
16, 2002).) To appreciate the extent to which the Appeal Board will consider the risk of terrorist acts, it is helpful to review the opinion in ISCR Case No.
02-29403 at 5 (App. Bd. Dec. 14, 2004). There the Appeal Board declared "it is possible to envision several ways in which terrorists could pose a threat to
classified information," and then went on to theorize extensively about what unspecified terrorists might do in hypothetical situations. While such things are
possible, they do not fall within the limited language contained in Mitigating Condition 1 of the Directive. The fact that the U.S. is presently engaged in a war
on terrorism is a matter to be considered along with all relevant facts; however, it does not amend Mitigating Condition 1 in the Directive.
"Heavy Reliance"
Under the Directive, ¶ E3.1.32.3, the Appeal Board's authority is limited to issues of law-it does not have the authority to conduct a de novo review of the case.
To reverse the decision of an administrative judge, the Appeal Board must find a "legal" error. Frequently in cases under Guideline B, the Appeal Board finds
legal error by concluding an administrative judge relied too heavily on a particular factor.
As noted above, the Appeal Board decided that evidence that a foreign country is hostile to the U.S. is so significant that it is legal error for an administrative
judge to fail to consider it. At the same time, however, the Appeal Board holds that the fact that a foreign country has friendly relations with the U.S., or that it
has long been a U.S. ally, is irrelevant. Moreover, when an administrative judge notes the history of friendly relations as part of the required discussion of all
the facts, the Appeal Board infers "heavy reliance" by the administrative judge upon that fact and holds it was legal error.
For example, in ISCR Case No. 02-22461, 2005 WL 1381919 (Jan. 2, 2005), the administrative judge considered the security risk arising from an applicant's
relatives in Taiwan. The judge wrote that "The following information about Taiwan . . . is significant," and discussed the evidence the government counsel
submitted for administrative notice. Later, while discussing the applicability of potentially mitigating conditions, the judge noted Taiwan's friendly relationship
with the U.S. The judge went on to discuss at length specific facts unique to Applicant's situation making him a good candidate for a clearance, and eventually
found in his favor. On appeal, the Appeal Board reasoned that the judge erred in relying too heavily on the finding that Taiwan was friendly. (ISCR Case No.
02-22461 at 6 (App. Bd. Oct. 27, 2005).)
The Appeal Board often employs this analysis to reverse decisions granting clearances under Guideline B. In ISCR Case No. 02-21927 at 7 (Jan. 18, 2005), the
administrative judge noted it was "helpful to consider several factors, including the character of the foreign country," and discussed various aspects of Saudi
Arabia's government. The Appeal Board concluded this demonstrated inappropriate "heavy reliance" on the fact that Saudi Arabia is an ally of the U.S. (ISCR
Case No. 02-21927 at 5 (App. Bd. Dec. 30, 2005).) (See also ISCR Case No. 02-31154 at 6 (App. Bd. Sep. 22, 2005); ISCR Case No. 02-23860, 2005 DOHA
LEXIS 43 (App. Bd. Jun. 30, 2005); ISCR Case No. 03-23806, 2005 DOHA LEXIS 162 (App. Bd. Apr. 28, 2005); ISCR Case No. 02-02892, 2004 DOHA
LEXIS 621 (App. Bd. Jun. 28, 2004); ISCR Case No. 02-11570, 2004 DOHA LEXIS 653 (App. Bd. May 19, 2004); ISCR Case No. 00-0317, 2002 DOHA
LEXIS 83 (App. Bd. Mar. 29, 2002).)
Shifting Burden of Proof/Persuasion
The Appeal Board frequently finds "legal error" by deciding that an administrative judge improperly shifted the burden of proof/persuasion to the government to
disprove the application of Mitigating Condition 1. (The Appeal Board uses the terms "burden of proof" and "burden of persuasion" interchangeably; a
discussion of the merits of that practice is beyond the scope of this discussion.) A careful examination of the cases in question reveals the Appeal Board's
rationale for finding error is insufficient to justify reversing the decision of an administrative judge.
According to the Directive, ¶ E3.1.14, the department counsel is responsible for presenting evidence to establish controverted facts alleged in the Statement of
Reasons. The Appeal Board interprets this as imposing on department counsel the burden of proving by substantial evidence that a disqualifying condition
applies. (ISCR Case No. 02-30587, 2005 DOHA LEXIS 73 (App. Bd. Jun. 15, 2005).) Thereafter, an Applicant has the burden of persuasion as to obtaining a
favorable security clearance. (Directive, ¶ E3.1.15.)
In cases arising under Guideline B, Foreign Influence, the Appeal Board holds an applicant must affirmatively prove that no one would in the future attempt to
exploit them through their foreign relatives or associates. (As discussed above, this imposes the impossible burden of affirmatively proving that an event will
not occur in the future.) In order for an applicant to persuade an administrative judge that he or she is not "in a position to be exploited by a foreign power," he
or she often must rely on evidence that a foreign country has not engaged in exploitive behavior in the past, including the absence of any evidence of improper
conduct. However, any time an administrative judge comments on the absence of evidence, the Appeal Board concludes the administrative judge improperly
shifted the burden of proof to the government to disprove a mitigating condition. (ISCR Case No. 03-15485 (App. Bd. Jun. 2, 2005); ISCR Case No. 03-02382
(App. Bd. Feb. 15, 2005); ISCR Case No. 01-20908 (App. Bd. Nov. 26, 2003).)
The Appeal Board's rulings appear to be based upon the premise that "when a party has the burden of proof on a particular point, the absence of any evidence on
that point requires a Judge to find or conclude that point against the party that has the burden of proof." (ISCR Case No. 99-0597, 2000 DOHA LEXIS 229
(App. Bd. Dec. 13, 2000).) However, the concept that the "absence of evidence" must always be deemed a failure of proof by the proponent is contrary to
prevailing federal practice. Indeed, the concept that the absence of evidence can be used to prove a negative proposition is so well ingrained in the law that it is
included among the statutory exceptions to the hearsay rule in Federal Rule of Evidence 803(7) (absence of entry in records of a regularly conducted activity)
and Rule 803(10) (absence of public record or entry).
An applicant attempting to prove the applicability of Mitigating Condition 1 has the burden of proving a negative, i.e., that a foreign power is not likely to
engage in exploitive conduct in the future, or has not done so in the past. Proving a negative can be difficult, of course. The law recognizes that the burden of
proving a negative can be satisfied by proof which renders probable the existence of the negative fact. (See Majestic Sec. Corp. v. Commissioner, 120 F.2d 12,
14 (8th Cir. 1941) ("A negative proposition may appropriately be established by proof of an affirmative opposite."); CareFirst of Md., Inc. v. First Care, P.C.,
434 F.3d 263, 269 (4th Cir. 2006) ("the absence of any evidence of actual confusion over a substantial period of time - here, approximately nine years - creates a
strong inference that there is no likelihood of confusion."); Aetna Casualty & Surety Co. v. General Electric Co., 758 F.2d 319, 325 (8th Cir. 1985) (citing 22 C.
J. Evidence § 15 (1940) "Whenever the establishment of an affirmative case requires proof of a material negative allegation, the party who makes such
allegation has the burden of proving it, especially where the most appropriate mode of proof is by establishing the affirmative opposite of the
allegation.");Leonard v. St. Joseph Lead Co., 75 F.2d 390, 397 (8th Cir. 1935) ("A negative in its very nature usually is susceptible of no more than
approximate proof, and generally is sufficiently proved by proving some affirmative fact or state of facts inconsistent with the affirmative of the proposition to
be negatived."); Ake v. GMC, 942 F. Supp. 869, 874 (D.N.Y. 1996) ("A lack of evidence of prior accidents is never conclusive proof that the defendant
exercised due care, but it is a factor that the fact-finder could consider.").)
Normally in cases presented under Guideline B, numerous documents are introduced as evidence of the nature of any security risk posed by the foreign country.
Typically these discuss in some detail any history of a friendly or hostile relationship between the foreign power and the United States, the foreign country's
human rights practices, and any reports of the history of intelligence-gathering activities by the foreign power. These documents constitute evidence of an
"affirmative opposite" tending to establish the negative proposition. For example, evidence that the U.S. and a foreign government have security alliances is
some evidence suggesting the foreign government would not act adversely to U.S. security interests Similarly, where a document reflects the extent of any
intelligence collecting activity, but does not include any indication that the foreign power has engaged in the kind of exploitive behavior which forms the basis
for concern in Mitigating Condition 1, the absence of evidence is some proof, though not conclusive, that such exploitive behavior has not occurred.
Of course, the important point is that this "absence of evidence" is competent evidence upon which an applicant may rely in attempting to prove his or her case,
and which an administrative judge is required to consider when weighing all the evidence. The simple fact that an administrative judge does so does not
constitute an improper "shifting of the burden of proof."
A close examination of the cases where the Appeal Board has found "burden shifting" is revealing. For example, in ISCR Case No. 02-22461 (Jan. 5, 2005),
the administrative judge carefully set out the proper burdens of proof for the government and the applicant, and found the government had presented evidence
raising security concerns under the applicable guideline. The administrative judge then specifically reiterated that, "Once the government meets its burden of
proving controverted facts, the burden shifts to an applicant . . . ." (Id. at 6.) While discussing all the evidence bearing on the relationship between the foreign
country in question and the United States, the administrative judge noted, "further, there is no indication that Taiwan has ever attempted to exploit any resident
of Taiwan for the purpose of compromising a security clearance holder within the United States." (Id. at 7.) The administrative judge issued a favorable
clearance decision and the government appealed. The Appeal Board concluded the administrative judge improperly shifted the burden of proof to the
government to disprove the existence of a mitigating condition. (ISCR Case No. 02-22461 at 4 (App. Bd. Oct. 27, 2005).) However, a review of the original
opinion reveals the administrative judge did not improperly shift the burden of proof; rather, he was commenting on the state of all the evidence, and making a
permissible comment on what the evidence did or did not show. (Compare ISCR Case No. 02-31154 at 5-6) (Jan. 27, 2005) with ISCR Case No. 02-31154 at 5
(App. Bd. Sep. 22, 2005) (finding "burden shifting"); and ISCR Case No. 03-16848 at 3-5 (Jan. 24, 2005) with ISCR Case No. 03-16848 at 8 (Aug. 30, 2005)
(finding burden shifting).) The Appeal Board's rulings on this issue effectively deny applicants the opportunity to present favorable evidence under Mitigating
Condition 1, thereby denying the due process afforded under Executive Order 10865 and Department of Defense Directive 5220.6.
Rebuttable Presumption
The Appeal Board has also made it more difficult for an applicant to obtain a favorable decision in cases brought under Guideline B through its application of a
"rebuttable presumption," long recognized by the courts as a "troublesome evidentiary device." (Ulster County Court v. Allen, 442 U.S. 140, 157 (1979).) The
Appeal Board created "a rebuttable presumption that an applicant has ties of affection for, or obligation to, his spouse's immediate family members." (ISCR
Case No. 01-03120 at 4 (App. Bd. Feb. 20, 2002).) As applied to these administrative cases, the Appeal Board's presumption is not rationally based and
exceeds the scope of its authority.
A rebuttable presumption requires the fact-finder to find the presumed element unless the applicant persuades him or her that such a finding is unwarranted.
(Francis v. Franklin, 471 U.S. 307, 314 (1985).) Under Rule 301 of the Federal Rules of Evidence (which serve as a guide for administrative hearings under the
Directive, ¶ E3.1.19) "a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the
presumption." In other words, a presumption places upon the opposing party the burden of establishing the non-existence of the presumed fact.
In order for a presumption to meet basic requirements of due process, there must be a "rational connection between the fact proved and the ultimate fact presumed." (Tot v. United States, 319 U.S. 463, 467 (1943).) A presumption is "'irrational' or 'arbitrary,' and hence, unconstitutional, unless it can be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." (Leary v. United States, 395 U.S. 6, 36 (1969); Barnes v. United States, 412 U.S. 837, 841-43 (1973).)
It is important to keep in mind that the presumption only arises in the narrow circumstance where an Applicant, a U.S. citizen, is married and his or her spouse
has immediate family members who are citizens or residents of a foreign country. In such cases, the immediate family members normally reside in a foreign
country; often the applicant has never met them or has only met them a few times, and cannot speak their language. Comparing the proved fact (the applicant's
spouse's immediate family members are citizens or residents of a foreign country) and the presumed fact (the applicant has close ties of affection or obligation
to them), it is readily apparent they do not coincide. Considering the normal circumstances for cases under Guideline B, there is no rational basis for the
presumption that an applicant has ties of affection or obligation to his spouse's immediate family members.
The presumption fashioned by the Appeal Board also has the effect of re-writing and expanding the scope of Disqualifying Condition 1 under Guideline B. As
currently written, the Directive, ¶ E2.A2.1.2.1, lists as a condition that could raise a security concern: "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." Paragraph E2.A2.1.3.1 of the Directive defines
immediate family members" as "spouse, father, mother, sons, daughters, brothers, sisters." As written, Disqualifying Condition 1 is raised-essentially
automatically-where there is evidence that immediate family members are citizens or residents of a foreign country. For Disqualifying Condition 1 to apply to
anyone else, it must be also shown that the applicant has close ties of affection or obligation to them. By applying the presumption, the Appeal Board has
effectively re-written Disqualifying Condition 1, expanding it to automatically apply where an applicant's spouse has immediate family members who are
foreign citizens or residents. Of course, had the drafters of the Directive intended that application, they could have written DC 1 that way. However, the
drafters did not do so, and it is beyond the authority of the Appeal Board to expand the scope of DC 1 through a rebuttable presumption.
Result
Comparing the balanced provisions of the Executive Order and the Directive against the absolute standards applied by the Appeal Board in Guideline B cases, it
appears the Appeal Board's rulings are not consistent with the Directive. Where the Appeal Board's rulings are inconsistent with the policy and terms of the
Directive, it creates enormous difficulties for administrative judges, who are torn between their responsibility to properly apply the Directive and the
requirement in remand cases to correct the errors identified by the Appeal Board. (Directive, ¶ E3.1.35.) In such circumstances, the recommended practice is to
follow the decision of the higher body, leaving to superior courts the prerogative of overruling incorrect decisions. (Rodriguez de Quijas v. Shearson/American
Express Inc., 490 U.S. 477, 484 (1989).) Of course, federal courts have the authority to compel agencies to follow their own regulations. (Cafeteria &
Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 892-93 (1960); Hill v. Department of the Air Force, 844 F.2d 1407, 1412 (10th Cir. 1988).)
Until a higher court intervenes, we are bound by the Appeal Board's holdings.
CONCLUSIONS
I considered carefully all the facts in evidence and the legal standards discussed above. I reach the following conclusions regarding the allegations in the SOR.
Paragraph E2.A2.1.2.1 of the Directive provides that it may be a disqualifying condition if "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." Paragraph E2.A2.1.3.1 defines "immediate family
members" to include a spouse, father, mother, sons, daughters, brothers, and sisters. None of Applicant's immediate family members fall within the terms of
this paragraph. His wife's parents are citizens of the P.R.C., although they reside permanently in the U.S. They live with Applicant and his family, care for his
young child, and rely on him for support. I conclude Applicant has close ties of affection or obligation for his wife's parents. These circumstances are sufficient
to raise possible security concerns.
Applicant's wife also has a sister who is a citizen and resident of the P.R.C. As discussed above, the Appeal Board holds that there is a rebuttable presumption
that Applicant has close ties of affection or obligation to his wife's sister. It appears Applicant has little or no contact with his sister-in-law, and what
relationship exists is not favorable. Considering all the evidence, I find Applicant has rebutted any presumption that he has close ties of affection or obligation
to his wife's sister in the P.R.C.
Under ¶ E2.A2.1.2.2 of the Directive, it may be disqualifying where an applicant is "[s]haring living quarters with a person or persons, regardless of their
citizenship status, if the potential for adverse foreign influence or duress exists." Applicant shares his living quarters with his wife's parents, who are citizens of
the P.R.C. They have several ties to the P.R.C., including their citizenship and a daughter, son-in-law, and grandchild living in China. I find the evidence
raises this potential security concern.
The Directive, ¶ E2.A2.1.2.7, provides that it may be a security concern where there are "[i]ndications that representatives or nationals from a foreign country
are acting to increase the vulnerability of the individual to possible future exploitation, coercion or pressure." Department Counsel argued this concern was
raised because Applicant's second wife was a citizen of the P.R.C. when she met and married Applicant, and because a Chinese travel agency provided tours of
China to Applicant. However, the available evidence is insufficient to establish that Applicant's second wife or the Chinese travel agent were representatives of
the P.R.C. or that they were motivated, in whole or in part, by a desire to increase Applicant's vulnerability to future exploitation, coercion, or pressure. I note
Applicant was a travel agent at that time-he had not assumed his present position-and thus had no access to classified material. I find the evidence insufficient
to raise this potentially disqualifying condition.
Under the Directive, potentially disqualifying conditions may be mitigated through the application the "whole person" concept and specific mitigating
conditions. When the Government produces evidence raising potentially disqualifying conditions, an Applicant has the burden to produce evidence to rebut,
explain, extenuate, or mitigate the conditions. (Directive, ¶ E3.1.15.) The government never has the burden of disproving a mitigating condition. (ISCR Case
No. 02-31154 at 5 (App. Bd. Sep. 22, 2005).)
Paragraph E2.A2.1.3.1 of the Directive provides that it is potentially mitigating where the "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 involved and the United States." As
noted above, applicants must establish: (1) that the individuals in question are not "agents of a foreign power," and (2) that they are not in a position to be
exploited by a foreign power in a way that could force the applicant to chose between the person(s) involved and the United States. (ISCR Case No. 02-14995
at 5 (App. Bd. Jul. 26, 2004).)
None of Applicant's in-laws meet the definition of "agent of a foreign power" under 50 U.S.C. § 438(6) and 50 U.S.C. § 1801(b). Similarly, none of them
would be considered as an "agent of a foreign power" under the more expansive definition adopted by the Appeal Board. The available evidence indicates his
wife's parents are both retired from non-governmental employment and her sister works in the private sector.
The second prong of the test is whether the relatives in question are "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." (Directive, ¶ E2. A2. 1.3.1.) The federal statute, 50 U.S.C. § 1801(a), defines "foreign
power" to include: a foreign government; a faction of a foreign nation; an entity openly acknowledged by a foreign government to be controlled by that foreign
government; a group engaged in international terrorism; a foreign-based political organization; or an entity directed and controlled by a foreign government.
To determine whether Applicant was "in a position to be exploited by a foreign power," I would ordinarily weigh Applicant's connection to his wife's family
against his strong ties to the United States. I would note that Applicant's wife and child are citizens and residents of the United States, and therefore entitled to
the liberties and protection afforded U.S. citizens. His wife's parents, while citizens of the P.R.C., reside permanently in the U.S. and thus are removed from the
physical control of foreign powers in the P.R.C. Moreover, they have no connection to or dependence upon a foreign power in the P.R.C. His wife's sister
presents a somewhat greater vulnerability; although she has no connection to or dependence upon a foreign power, she is still under the physical control of the
P.R.C. Applicant's record of successfully holding a security clearance for many years, and his career of distinguished service to the U.S. Navy, make it
extremely unlikely that he would be vulnerable to improper influence through his wife's relatives.
However, as discussed above, in order to apply the second prong of Mitigating Condition 1, the Appeal Board requires that applicants affirmatively prove that
there is no possibility that anyone would attempt to exploit a foreign relative in the future. Also, the Appeal Board prohibits any consideration of evidence that
is not dispositive of the issue. Finally, the Appeal Board finds it irrelevant to this issue whether an applicant is likely to be improperly influenced by a foreign
relative or associate. Applying that standard, Mitigating Condition 1 does not apply.
Under the Directive, ¶ E2.A2.1.3.3, it may be mitigating where "[c]ontact and correspondence with foreign citizens are casual and infrequent." Applicant's
contact with his wife's sister has been isolated and infrequent, but he has regular and frequent contact with his wife's parents. This potentially mitigating
condition applies only in part.
The "Whole Person" Concept.
The "whole person" concept-not the potentially disqualifying or mitigating conditions-is the heart of the analysis of whether an applicant is eligible for a
security clearance. (Directive, ¶ E2.2.3.) Indeed, the Appeal Board has repeatedly held that an administrative judge may find in favor of an applicant where no
specific mitigating conditions apply. (ISCR Case No. 03-11448 at 3-4 (App. Bd. Aug. 10, 2004); ISCR Case No. 02-09389 at 4 (App. Bd. Dec. 29, 2004).)
In assessing whether an applicant is a security risk because of his or her relatives or associates in a foreign country, it is necessary to consider all relevant
factors. As noted above, ¶¶ E2.2.1, E2.2.2, and E2.2.3 of the Directive specifically require each administrative judge to consider all the facts and
circumstances, including the "whole person" concept, when evaluating each individual case. To ignore such evidence would establish a virtual per se rule
against granting clearances to any person with ties to persons in a foreign country, contrary to the clear terms of the Directive. "Although the position of an
applicant's foreign family members is significant and may preclude the favorable application of Foreign Influence Mitigating Condition 1, the totality of an
applicant's conduct and circumstances (including the realistic potential for exploitation) may still warrant a favorable application of the relevant general
factors." (ISCR Case No. 03-17620 at 4 (App. Bd. Apr. 17, 2006) (footnotes omitted); accord ISCR Case No. 03-23259 at 3 (App. Bd. May 10, 2006).)
One of the "whole person" factors which must be considered is "the potential for pressure, coercion, exploitation, or duress." (Directive, ¶ E2.2.1.8.) In that
regard, an important factor for consideration is the character of any foreign power in question, including the government and entities controlled by the
government, within the relevant foreign country. This factor is not determinative; it is merely one of many factors which must be considered. Of course,
nothing in Guideline B suggests it is limited to countries that are hostile to the United States. (See ISCR Case No. 00-0317 at 6 (App. Bd. Mar. 29, 2002);
ISCR Case No. 00-0489 at 12 (App. Bd. Jan. 10, 2002).) The Appeal Board repeatedly warns against "reliance on overly simplistic distinctions between
'friendly' nations and 'hostile' nations when adjudicating cases under Guideline B." (ISCR Case No. 00-0317 at 6 (App. Bd. Mar. 29, 2002)). It is well
understood that "[t]he United States has a compelling interest in protecting and safeguarding classified information from any person, organization, or country
that is not authorized to have access to it, regardless of whether that person, organization, or country has interests inimical to those of the United States." (ISCR
Case No. 02-11570 at 5 (App. Bd. May 19, 2004).) Distinctions between friendly and unfriendly governments must be made with extreme caution. Relations
between nations can shift, sometimes dramatically and unexpectedly. Moreover, even friendly nations can have profound disagreements with the United States
over matters they view as important to their vital interests or national security. Finally, friendly nations have engaged in espionage against the United States,
especially in economic, scientific, military, and technical fields. (ISCR Case No. 00-0317, 2002 DOHA LEXIS 83 at **15-16 (App. Bd. Mar. 29, 2002).)
Nevertheless, the relationship between a foreign government and the U.S. may be relevant in determining whether a foreign government or an entity it controls
is likely to attempt to exploit a resident or citizen to against the U.S. through the applicant. The nature of the foreign government might also relate to the
question of whether the foreign government or an entity it controls would risk jeopardizing its relationship with the U.S. by exploiting or threatening its private
citizens in order to force a U.S. citizen to betray this country. A friendly relationship is not determinative, but it may make it less likely that a foreign
government would attempt to exploit a U.S. citizen through relatives or associates in that foreign country.
The government of the People's Republic of China is controlled by the Communist Party. The State Department reports it has a poor record of protecting
human rights. The P.R.C. has a history of poor relations with the U.S. These factors are not determinative, but suggest it is more likely that China would
attempt to exploit its residents or citizens to act adversely to the interests of the United States in the future.
It is also helpful to consider Applicant's relatives' vulnerability to exploitation by foreign powers in the P.R.C. Applicant's parents-in-law reside permanently in
the U.S. and are thus out of the physical control of the P.R.C. They are not attached to or economically dependent upon the P.R.C. government. His
sister-in-law lives in China and is therefore more vulnerable to the foreign powers there.
Most importantly, it is necessary to consider Applicant's vulnerability to exploitation through his relatives. Applicant is a mature individual with an impressive
history of service to this country. He is a U.S. citizen by birth. He provided many years of exceptional service to the U.S. Navy, as an enlisted member and an
officer, and successfully held a high-level security clearance during his military career. Applicant has strong ties to the United States. Because of Applicant's
deep and long-standing relationships and loyalties in the U.S., he can be expected to resolve any conflict of interest in favor of the United States. I find the
potential for pressure, coercion, exploitation, or duress does not constitute a security risk. (Directive, ¶ E2.2.1.8.)
I considered carefully the "whole person" concept, keeping in mind that any doubt as to whether access to classified information is clearly consistent with national security must be resolved in favor of the national security. I conclude Applicant has mitigated any potential security concerns arising from Applicant's family ties to the P.R.C.
FORMAL FINDINGS
My conclusions as to each allegation in the SOR are:
Paragraph 1, Guideline B: FOR APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Subparagraph 1.c: For Applicant
Subparagraph 1.d: For Applicant
Subparagraph 1.e: For Applicant
Subparagraph 1.f: For Applicant
DECISION
In light of all of 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 Applicant. Clearance is granted.
Michael J. Breslin
Administrative Judge