DATE: June 22, 2006
-------------------
SSN: -----------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
LEROY F. FOREMAN
APPEARANCES
FOR GOVERNMENT
John Bayard Glendon, Esq., Department Counsel
James B. Norman, Esq., Department Counsel
FOR APPLICANT (1)
Pro Se
SYNOPSIS
Applicant's grandmother, two brothers and a sister are citizens and residents of Sudan. His parents and three sisters are citizens of Sudan residing in the United
Arab Emirates (UAE), and his mother is employed by the UAE school system. He has not mitigated the security concern based on foreign influence. Clearance
is denied.
STATEMENT OF THE CASE
On November 22, 2005, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the basis for its preliminary
decision to deny Applicant a security clearance. The SOR alleges security concerns under Guideline B (Foreign Influence). It alleges Applicant's two sisters,
two brothers, and grandmother are citizens and residents of Sudan (SOR ¶ 1.a), his three roommates are citizens of Sudan (¶ 1.b), he has traveled to Sudan (¶
1.c), his parents and two sisters are citizens of Sudan residing in the United Arab Emirates (UAE) (¶ 1.d), and he has traveled to the UAE (¶ 1.e).
Applicant answered the SOR in writing on December 21, 2005, partially denied the allegations in ¶¶ 1.a and 1.b, admitted the remaining allegations, and
requested a hearing. The case was assigned to me on February 27, 2006. On March 7, 2006, DOHA issued a notice of hearing setting the case for April 27,
2006. The case was heard as scheduled. I kept the record open until May 8, 2006, to enable Applicant to submit an affidavit from his supervisor, but he
submitted no post-hearing evidence. DOHA received the transcript (Tr.) on May 5, 2006.
FINDINGS OF FACT
Applicant's admissions in his answer to the SOR and at the hearing are incorporated into my findings of fact. I make the following findings:
Applicant is a 33-year-old security officer for a federal contractor. He has worked for his current employer since July 2004. (2) He has never received a security clearance.
Applicant was born in Khartoum, Sudan. He left Sudan with his family when he was ten years old, and went to the UAE, where he completed his elementary
and high school education. He returned to Sudan in 1990 to attend the University of Khartoum, but he was dismissed from the University in 1994 for
participating in a protest against the university examination policy and the government's educational and political philosophy. He then moved to the Republic
of Ukraine, where he studied civil engineering. He returned to his family in the UAE in 1997. In February 1999, he emigrated to the U.S. He served on active
duty in the U.S. Army from April 1999 to August 2002, and he was honorably discharged as a sergeant (pay grade E-5). (3) While on active duty he received
excellent evaluation reports and numerous awards, decorations, and commendations. (4) He became a naturalized U.S. citizen in December 2002. (5)
Applicant's parents are citizens of Sudan residing in the UAE. (6) His father is a retired veterinarian, and his mother is a high school English teacher in the UAE
school system. (7) His mother taught in a public school in Khartoum before moving to the UAE. (8) Applicant's father was a government employee when he
worked as a veterinarian in Sudan, and he receives a pension from Sudan, but he now works in the private sector in the UAE. (9)
One of Applicant's sisters and his two brothers are citizens and residents of Sudan, where they attend college. They attend college in Sudan instead of the UAE
because it is much less expensive. (10) His other three sisters are citizens of Sudan residing in the UAE. (11) His family members reside in the UAE on a
temporary business visa, subject to termination at will by their employers. (12) His grandmother is a citizen and resident of Sudan. (13) She has never been
employed outside the home, but she receives a pension as the widow of a Sudanese policeman. (14)
Applicant has traveled twice to Sudan and three times to the UAE to visit his family. (15) Applicant talks with his parents and siblings by telephone every two or
three weeks and maintains e-mail contact with one sister. (16) He aspires to have his siblings emigrate to the U.S. (17)
When Applicant answered the SOR, he had two roommates, one a U.S. citizen and the other a Sudanese citizen who was a permanent U.S. resident. He now
has only one roommate, a U.S. citizen, whose mother and two siblings live in Sudan. (18) He testified his roommate is "kind of a friend," but they do not
socialize together, and Applicant knows little about his roommate's family. (19)
Sudan has an authoritarian government. It has been designated as a state sponsor of terrorism since August 1993. Its relations with the U.S. are poor because of
its human rights violations, war policy in the south, and its support for international terrorism. Travel in the south of Sudan is dangerous because of ethnic and
sectarian violence. Sudan's human rights record is poor because of continuing genocide in Darfur, unlawful killings by government security forces and
government-allied militias, physical abuse by security forces, harsh prison conditions, arbitrary arrest and detention, and executive interference with the
judiciary. A wide network of government informants conducts surveillance in schools, universities, markets, workplaces, and neighborhoods, and the
government harasses university student groups. (20)
The UAE is a federation of seven independent emirates. The federal government is a constitutional republic based on Islamic ideals and beliefs. It has no
democratically elected institutions or political parties. Freedom of speech, assembly, and religion are restricted. Incommunicado detention is lawful and has
been used in sensitive criminal cases. About 85 percent of the country's population are expatriates. (21)
The U.S. has friendly relations with the UAE. Private commercial ties have developed into government ties, including security assistance. Relations were
strengthened during the U.S.-led coalition's campaign to expel Iraq from Kuwait. The UAE has been a key partner of the U.S. in the war on terror. (22)
POLICIES
"[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 authorized the Secretary of Defense or his designee to grant applicants
eligibility for access to classified information "only upon a finding that it is clearly consistent with the national interest to do so." Exec. Or. 10865,Safeguarding
Classified Information within Industry § 2 (Feb. 20, 1960), as amended and modified. Eligibility for a security clearance is predicated upon the applicant
meeting the security guidelines contained in the Directive. 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).
The Directive sets forth adjudicative guidelines for determining eligibility for access to classified information, and it lists the disqualifying conditions (DC) and
mitigating conditions (MC) for each guideline. Each clearance decision must be a fair, impartial, and commonsense decision based on the relevant and material
facts and circumstances, the whole person concept, and the factors listed in the Directive ¶¶ 6.3.1. through 6.3.6.
In evaluating an applicant's conduct, an administrative judge should consider: (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 applicant'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. Directive ¶¶ E2.2.1.1. through E2.2.1.9.
A person granted access to classified information enters into a special relationship with the government. The government must be able to have a high degree of
trust and confidence in persons with access to classified information. However, 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 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 which disqualify, or may
disqualify, the applicant from being eligible for access to classified information. See Egan, 484 U.S. at 531. "[T]he Directive presumes there is a nexus or
rational connection between proven conduct under any of the Criteria listed therein and an applicant's security suitability." ISCR Case No. 95-0611 at 2 (App.
Bd. May 2, 1996) (quoting DISCR Case No. 92-1106 (App. Bd. Oct. 7, 1993)).
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; 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 (App. Bd. Dec. 19, 2002). "[S]ecurity clearance determinations
should err, if they must, on the side of denials." Egan, 484 U.S. at 531; see Directive ¶ E2.2.2.
CONCLUSIONS
The concern under Guideline B is that a security risk may exist when an applicant's immediate family, or other persons to whom he or she may be 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." Directive ¶ E2.A2.1.1. A disqualifying condition (DC 1) may arise when "[a]n immediate family
member [spouse, father, mother, sons, daughters, brothers, sisters], 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." Directive ¶ E2.A2.1.2.1. Applicant's family ties in Sudan and the UAE establish DC 1.
A disqualifying condition (DC 2) may arise if 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 no longer resides with foreign citizens. His current roommate is a naturalized U.S. citizen
with family members in Sudan. However, Applicant does not have a close personal relationship with his roommate and knows little about his family. I
conclude DC 2 is not established, and I resolve SOR ¶ 1.b for Applicant.
A disqualifying condition (DC 3) may arise if an individual has relatives "who are connected with any foreign government." Directive ¶ E2.A2.1.2.3.
Applicant's parents formerly were employed by the Sudanese government. His father now works for a private employer in the UAE, but his mother is employed
by the UAE public school system. I conclude DC 3 is not established for his father, but it is established for his mother.
Since the government produced substantial evidence to establish DC 1 and DC 3, the burden shifted to Applicant to produce evidence to rebut, explain,
extenuate, or mitigate the facts. Directive ¶ E3.1.15. Applicant has the burden of proving a mitigating condition, and the burden of disproving it is never
shifted to the government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005).
In cases where an applicant has immediate family members who are citizens or residents of a foreign country or who are connected with a foreign government,
a mitigating condition (MC 1) may apply if "the immediate family members, 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."
Directive ¶ E2.A2.1.3.1.
Notwithstanding the facially disjunctive language of MC 1("agents of a foreign power or in a position to be exploited"), it requires proof "that an applicant's
family members, cohabitant, or associates in question are (a) not agents of a foreign power, and (b) 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); see 50
U.S.C. § 1801(b) (defining "agent of a foreign power"). The totality of an applicant's family ties to a foreign country as well as each individual family tie must
be considered. ISCR Case No. 01-22693 at 7 (App. Bd. Sep. 22, 2003).
Guideline B is not limited to countries hostile to the United States. "The 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) The distinctions between friendly and unfriendly
governments must be made with caution. Relations between nations can shift, sometimes dramatically and unexpectedly.
Furthermore, friendly nations can have profound disagreements with the United States over matters they view as important to their vital interests or national
security. Finally, we know friendly nations have engaged in espionage against the United States, especially in the economic, scientific, and technical fields.
SeeISCR Case No. 00-0317, 2002 DOHA LEXIS 83 at **15-16 (App. Bd. Mar. 29, 2002). Nevertheless, the nature of a nation's government, its relationship
with the U.S., and its human rights record are relevant in assessing the likelihood that an applicant's family members are vulnerable to government coercion.
The risk of coercion, persuasion, or duress is significantly greater if the foreign country has an authoritarian government, a family member is associated with or
dependent upon the government, or the country is known to conduct intelligence operations against the U.S.
Applicant's father, siblings, and grandmother are not agents of a foreign power under either the statutory definition in 50 U.S.C. § 1801(b) or the broader
definition apparently adopted by the Appeal Board. See ISCR Case No. 02-24254, 2004 WL 2152747 at *4-5 (App. Bd. Jun. 29, 2004) (employee of 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 MC 1). (23) Thus, I conclude the first prong of MC 1 is established for those family members. However, it is not established for his
mother because her employment by the UAE brings her within the broad definition adopted by the Appeal Board.
MC 1 is not established for Applicant's grandmother and siblings living in Sudan, which has a poor human rights record and is a state sponsor of international
terrorism. The Sudanese government has a record of targeting and harassing college students like Applicant's siblings. His grandmother is dependent on the
Sudanese government for her pension. No other mitigating conditions are established for these family members. I resolve SOR ¶ 1.a against Applicant.
Applicant's parents and some of his siblings work and reside in the UAE, a country closely allied with and friendly to the U.S. While the UAE has a patriarchal
government and restricted personal rights, it does not engage in espionage against the U.S. The governmental and commercial ties between the U.S. and the
UAE are strong and deep. The nature of the UAE's government, its human rights record, and its relationship with the U.S. are clearly not determinative.
Nevertheless, they are all relevant factors in determining whether the UAE would risk damaging its relationship with the U.S. by exploiting or threatening
expatriate private citizens of Sudan in order to force a U.S. citizen to betray the U.S. I conclude MC 1 is established for Applicant's siblings living in the UAE,
but not for his parents. His mother's government employment negates the first prong of MC 1, and his father's Sudanese pension negates the second prong of
C 1 because it makes him vulnerable to duress or coercion from the Sudanese government, even though he now lives and works in the UAE. I resolve SOR ¶
1.d against Applicant.
Applicant's travel to Sudan and the UAE was related solely to his family relationships and has no independent security significance. I resolve SOR ¶¶ 1.c and
1.e in his favor.
Applicant is a loyal and trustworthy citizen of the U.S. who served in the Army with distinction. He aspires to bring his siblings to the U.S. His sincerity and
honesty were obvious during the hearing. He has mitigated the security concern based on his three siblings living in the UAE. Nevertheless, I must consider
the totality of Applicant's family ties as well as individual ties. After weighing the disqualifying and mitigating conditions and evaluating the evidence in the
context of the whole person, I conclude Applicant has not mitigated the security concern based on foreign influence.
FORMAL FINDINGS
The following are my findings as to each allegation in the SOR:
Paragraph 1. Guideline B (Foreign Influence): AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: For Applicant
Subparagraph 1.c: For Applicant
Subparagraph 1.d: Against Applicant
Subparagraph 1.e: For Applicant
DECISION
In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant a security clearance.
Clearance is denied.
LeRoy F. Foreman
Administrative Judge
1. The case caption reflects Applicant's full name, even though the Statement of Reasons (SOR) lists only his middle initial.
2. Government Exhibit (GX) 1 at 1-2.
3. Applicant's Exhibit (AX) B.
4. AX D through L.
5. Tr. 45-46, 54.
6. Tr. 50-51.
7. Tr. 45.
8. Tr. 59.
9. Tr. 57.
10. Tr. 71-72.
11. Tr. 69.
12. Tr. 51.
13. Id., Answer to SOR.
14. Tr. 66-67.
15. Tr. 47, 51.
16. Tr. 64, 73.
17. Tr. 73-74.
18. Id.
19. Tr. 87.
20. Hearing Exhibit (HX) I at 1; HX III at 1, 6, 10; HX V at 3, 4, 16; HX VIII at 1.
21. HX IX at 1, 2, 6; HX XI at 1.
22. HX X at 5.
23. The Appeal Board has declined to reexamine its broad definition of "agent of a foreign power," but it has not addressed the applicability of 50 U.S.C. § 438(6), which expressly applies the definitions in 50 U.S.C. § 1801(b) to security clearance determinations.