DATE: January 31, 2007
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SSN: ------------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
HENRY LAZZARO
APPEARANCES
FOR GOVERNMENT
Candace Le'i, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Applicant, a dual citizen of the United Kingdom and the United States, is a retired officer of the Royal Australian Navy. His daughters live in Australia and Scotland, his sister lives in Australia, and his in-laws live in Canada. Applicant has used a British passport, which he has now surrendered, to travel to the United Kingdom and elsewhere. Applicant has mitigated the security concerns that existed. Clearance is granted.
STATEMENT OF THE CASE
On June 22, 2006, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant stating it was unable to find it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. (1) The SOR, which is in essence the administrative complaint, alleges security concerns under Guideline B (foreign influence) and Guideline C (foreign preference). Applicant submitted a response to the SOR, dated July 22, 2006, requested a hearing, and admitted all SOR allegations except those contained in subparagraphs 2.b and 2.d.
The case was assigned to another administrative judge on September 8, 2006, and reassigned to me on October 31, 2006, to be heard with other cases I had pending in the same region. A notice of hearing was issued on November 1, 2006, scheduling the hearing for November 29, 2006. The hearing was conducted as scheduled. The government submitted nine documentary exhibits that were marked as Government Exhibits (GE) 1-9. GE 1 and 2 were admitted into the record and administrative notice was taken of the information contained in GE 4-9 without objections. GE 3 was admitted into the record without objection after the testimony of an authenticating witness was taken. Applicant testified, called three witnesses to testify on his behalf, and submitted 17 documentary exhibits that were marked as Applicant's Exhibits (AE) 1-17, and admitted into the record without objection. The transcript was received on December 8, 2006.
FINDINGS OF FACT
Applicant's admissions to the SOR allegations are incorporated herein. In addition, after a thorough review of the pleadings, testimony, and exhibits, I make the following findings of fact:
Applicant is a 60-year-old man who was born in the United Kingdom (UK). He moved with his parents and sister to Australia when he was six years old. His parents are now deceased, but his sister still resides in Australia. She is 65 years old, has never worked for the Australian government, and is now retired. Applicant attended college in the UK where he was awarded a bachelor of science degree in electrical engineering in 1969.
Applicant served in the Royal Australian Navy (RAN) from January 1962 until he retired as a commander in May 1984. While in the RAN, Applicant served tours of duty in the United States from April 1973 until April 1974, and from July 1979 to December 1981. Both of those tours were undertaken in connection with the U.S. Foreign Military Sales (FMS) program. The first tour dealt with a combat data system that had been purchased by Australia from a U.S. company and was to be installed in RAN destroyers. The second tour dealt with a ship that was being built by a U.S. company for the RAN and on which Applicant was to serve as the weapons electronic engineering officer.
The tours of duty Applicant served in the U.S. and his work with weapons and electronics systems acquired as part of the FMS program required him to have access to classified U.S. information. He also was required to have access to Australian and other foreign country's classified information as part of his official military duties. Applicant has possessed a security clearance in the U.S. since 1990. No complaints have ever been made alleging he mishandled or risked the compromise of any country's classified information.
Applicant served a tour of duty in the U.K. from 1966 to 1970 with the RAN. While in the U.K., he married a U.K. citizen in July 1968. That marriage ended in divorce in Australia in November 1981. He has two daughters, ages 35 and 32, from that marriage. One of Applicant's daughters is a citizen and resident of Australia. She owns a travel business and operates a bed and breakfast inn in that country. Applicant's second daughter is a citizen of Australia, but resides in Scotland where she is seeking a university teaching position. Neither daughter has ever worked for the Australian government.
Applicant has been remarried since April 1982. He married this wife in Australia. Her parents are Canadian residents and citizens. He has two adult stepsons from this marriage who are also citizens and residents of Canada. Applicant's parents-in-law are both 86 years old and retired. His father-in-law served with the Royal Air Force in Canada during World War II, but has not otherwise ever worked for either the British or Canadian governments.
Applicant acquired Australian citizenship in December 1970. Although the SOR alleges he obtained Australian citizenship to facilitate his acquisition of an Australian security clearance, the record evidences discloses he was issued an Australian security clearance approximately four years before he became an Australian citizen. Applicant's Australian citizenship was either renounced or revoked sometime in the late 1980s.
Applicant immigrated to the U.S. in 1984, very shortly after he retired from the RAN. He had decided to move to the U.S. following his retirement from the RAN while serving in the U.S. in 1979-81. Applicant became a naturalized U.S. citizen on December 14, 1990. His wife became a naturalized U.S. citizen in January 2001. Both retain dual citizenship with the U.K. Applicant has been employed as a senior engineer within the defense industry by a succession of government contractors since at least 1991. His performance appraisals and character witnesses establish that he has earned a reputation as an outstanding employee, trustworthy individual, and loyal American.
Applicant acquired a U.K. passport in July 1996, and used it several times to enter the U.K. on vacations. He used his U.S. passport on earlier vacations in the U.K., and explained he acquired the U.K. passport because it was quicker to pass through customs in the U.K. with that passport. He surrendered the U.K. passport in March 2006, in compliance with the dictates of the so called "Money memo." Applicant has indicated he is unwilling to renounce his U.K. citizenship because when he retires he may want to vacation in that country for longer periods than the six months he believes he would be limited to if traveling on a U.S. passport. However, when he was informed by Department Counsel at the hearing that he could apply for a visa instead of relying on a U.K. passport to visit for longer than six months, Applicant testified: "Well - well, then I really have no need for the passport." (Tr. 81)
Applicant does not own any property outside the U.S. However, he anticipates his wife will inherit about $250,000 from the sale of her parent's home in Canada following their deaths. He owns a house in the U.S., valued at approximately $600,000, that is mortgage free. He has approximately $300,000 invested in mutual funds and 401(k) accounts in the U.S. Applicant receives a pension from the RAN in the amount of about $12,000 U.S.C. annually. In accordance with Australian requirements, that money is deposited directly into an Australian bank account and is then transferred, at Applicant's request, into his U.S. bank account quarterly. Applicant is required to pay taxes in Australia on the money he receives as a pension.
Applicant last visited Australia in 1996. His daughters visit him in the U.S. about every other year. He maintains regular telephone and e-mail contact with them. He speaks with his in-laws in Canada about five times a year, and with his sister in Australia about twice a year. Applicant frequently vacations in Canada and Britain.
Australia is a highly developed stable democracy with a federal-state system. (GE 5, p. 1)
Australia has been [sic] active participant in international affairs since World War I and has fought beside the United States and other Allies in every significant conflict to the present day. . . . In addition to contributing to UN forces in Korea - it was the first country to announce it would do so after the United States. . . . The U.S., Australia, and New Zealand signed the ANZUS Treaty in 1951, which remains Australia's only formal security treaty alliance. Australia also sent troops to assist South Vietnamese and U.S. forces in Vietnam (2) and joined coalition forces in the Persian Gulf conflict in 1991, in Afghanistan in 2002, and in Iraq in 2003. (GE 6, p. 5)
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The U.S. - Australia alliance under the ANZUS Treaty remains in full force. Defense ministers of one or both nations have joined the annual ministerial meetings, which are supplemented by consultations between the U.S. Combatant Commander, Pacific and the Australian Chief of Defense Force. There are also regular civilian and military consultations between the two governments at lower levels.
ANZUS has no integrated defense structure or dedicated forces. However, in fulfillment of ANZUS obligations, Australia and the United States conduct a variety of joint activities. These include military exercises ranging from naval and landing exercises at the task-group level to battalion-level special forces training, assigning officers to each other's armed services, and standardizing, where possible, equipment and operational doctrine. The two countries also operate joint defense facilities in Australia.
Following the terrorist attacks in the United States on September 11, 2001, Australian Prime Minister Howard invoked the ANZUS Treaty for the first time on September 14, 2001. Australia was one of the earliest participants in Operation Enduring Freedom. Australian Defense Forces participated in coalition military action against Iraq in Operation Iraqi Freedom. Australian military and civilian specialists are participating in the training of Iraqi security forces and the reconstruction of Iraq. Australian Special forces redeployed to Afghanistan to help provide security for the country's September 18, 2005 elections. (GE 6, p. 6)
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The World War experience, similarities in culture and historical background, and shared democratic values have made U.S. relations with Australia exceptionally strong and close. Ties linking the two nations cover the entire spectrum of international relations - from commercial, cultural, and environmental contacts to political and defense cooperation. . . . More than 400,000 Americans have visited Australia in a single year.
Traditional friendship is reinforced by the wide range of common interests and similar views on most major international questions. For example, both countries sent forces to the Persian Gulf in support of UN Security Council resolutions relating to Iraq's occupation of Kuwait; both attach high priority to controlling and eventually eliminating chemical weapons, other weapons of mass destruction, and anti-personnel landmines; and both work closely on global environmental issues such as slowing climate change and preserving coral reefs. The Australian Government and opposition share the view that Australia's security depends on firm ties with the United States, and the ANZUS Treaty enjoys broad bipartisan support. Recent Presidential visits to Australia (in 1991, 1996 and 2003) and Australian Prime Minister visits to the United States (in 1995, 1997, 1999, 2001, 2002, 2003, 2004, 2005, and 2006) have underscored the strength and closeness of the alliance. (GE 6, pp.6-7)
The United Kingdom of Great Britain and Northern Ireland is a highly developed constitutional monarchy comprised of Great Britain (England, Scotland, and Wales) and Northern Ireland. (GE 7, p. 1)
The United Kingdom stood shoulder to shoulder with the United States following the September 11, 2001 terrorist attacks in the U.S., and its military forces participated in the war in Afghanistan. The U.K. was the United States' main coalition partner in Operation Iraqi Freedom and continues to have more than 8,000 troops deployed in Iraq to help stabilize and rebuild the country. Under UN Security Council Resolution 1483, the U.K. also shared with the United States the responsibility for civil administration in Iraq and was an active participant in the Coalition Provisional Authority before the handover of Iraqi sovereignty on June 28, 2004. Britain's participation in the Iraq war and its aftermath remains a domestically controversial issue.
U.S. - UNITED KINGDOM RELATIONS
The United Kingdom is one of the United States' closest allies, and British foreign policy emphasizes close coordination with the United States. Bilateral cooperation reflects the common language, ideals, and democratic practices of the two nations. Relations were strengthened by the United Kingdom's alliance with the United States during both World Wars, and its role as a founding member of NATO, in the Korean conflict, in the Persian Gulf War, and in Operation Iraqi Freedom. The United Kingdom and the United States continually consult on foreign policy issues and global problems and share major foreign and security policy objectives.
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The United States and the United Kingdom share the world's largest foreign direct investment partnership. U.S. investment in the United Kingdom reached $255.4 billion in 2002, while U.K. direct investment in the U.S. totaled $283.3 billion. This investment sustains more than 1 million American jobs. (GE 7, p. 6)
POLICIES
The Directive sets forth adjudicative guidelines to consider when evaluating a person's eligibility to hold a security clearance. Chief among them are the Disqualifying Conditions (DC) and itigating Conditions (MC) for each applicable guideline. Additionally, each clearance decision must be a fair and impartial commonsense decision based upon the relevant and material facts and circumstances, the whole person concept, and the factors listed in ¶ 6.3.1 through ¶ 6.3.6 of the Directive. Although the presence or absence of a particular condition or factor for or against clearance is not outcome determinative, the adjudicative guidelines should be followed whenever a case can be measured against this policy guidance. Considering the evidence as a whole, Guideline B, pertaining to foreign influence, and Guideline C, pertaining to foreign preference, with their respective DC and MC, are most relevant in this case.
BURDEN OF PROOF
The sole purpose of a security clearance decision is to decide if it is clearly consistent with the national interest to grant or continue a security clearance for an applicant. (3) The government has the burden of proving controverted facts. (4) The burden of proof in a security clearance case is something less than a preponderance of evidence, (5) although the government is required to present substantial evidence to meet its burden of proof. (6) "Substantial evidence is more than a scintilla, but less than a preponderance of the evidence." (7) Once the government has met its burden, the burden shifts to an applicant to present evidence of refutation, extenuation, or mitigation to overcome the case against him. (8) Additionally, an applicant has the ultimate burden of persuasion to obtain a favorable clearance decision. (9)
No one has a right to a security clearance (10) and "the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials." (11) Any reasonable doubt about whether an applicant should be allowed access to classified information must be resolved in favor of protecting national security. (12)
CONCLUSIONS
Guideline B: 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.
Disqualifying Condition (DC) 1: An immediate family member, or a person to whom the individual has close ties of affection or obligation, is a citizen of, or resident or present in, a foreign country applies in this case based upon Applicant's daughter and sister being citizens and residents of Australia and his in-laws being citizens and residents of Canada.
Applicant receives a pension from the RAN based upon his more than 20 years service. That pension is deposited into an Australian bank account until the funds are routinely transferred to an American bank on a quarterly basis. However, considering the absence of any other foreign assets or investments, Applicant's long-term residence in the U.S., and the comparatively substantial assets he has accrued in the U.S., that pension and the foreign deposits he regularly accumulates as a result of it are insufficient to give rise to a separate security concern.
Although no specific mitigating condition applies based upon the adjudicative guidelines in effect in this case, the foreign countries in which Applicant's relatives reside, their positions and/or activities in those countries, and Applicant's personal history and relationship to the U.S. are sufficient to find the foreign influence concerns alleged in this case mitigated. Specifically, Australia and Canada each have long-standing, friendly, and close relationships with the United States. Those relationships are sufficient to warrant finding it is unlikely Applicant's foreign relatives would ever be exploited by those countries in such a manner that he would find himself in a position where he would have to choose between the interests of those individuals and the interests of the U.S.
Further, Applicant has been a resident of the U.S. since 1984 and a U.S. citizen since 1990. He has possessed a U.S. issued security clearance since 1990, and has been entrusted with U.S. classified information, at least periodically, since 1973. He was entrusted with information classified by Australia and other countries from about 1966 until he retired from the RAN in 1984. There have never been any allegations made that he has mishandled any nation's classified information or otherwise risked its compromise. To the contrary, he has established a 40-year history for being trustworthy when it comes to protecting national secrets.
Additionally, Applicant personally assisted U.S. war efforts during the Vietnam war while assigned to an Australian warship, and was entrusted to learn and integrate U.S. combat systems into Australian warships. He has accumulated substantial wealth since immigrating to the U.S. and established a reputation with his supervisors and coworkers as an outstanding employee, loyal American, and a trustworthy individual. Accordingly, I conclude Applicant has mitigated the foreign influence security concern that existed in this case.
Guideline C: When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may be prone to provide information or make decisions that are harmful to the interests of the United States.
Disqualifying Condition (DC) 1: The exercise of dual citizenship; DC 2: Possession and/or use of a foreign passport; DC 3: Military service or a willingness to bear arms for a foreign country; and DC 4: Accepting educational, medical, or other benefits, such as retirement and social welfare, from a foreign country are all acts that demonstrate a foreign preference. Applicant is a dual citizen of the U.S. and the United Kingdom. He exercised his U.K. citizenship by obtaining and using a U.K. passport to enter the U.K. after he became a U.S. citizen. He served in and retired from the Royal Australian Navy, and has accepted retirement benefits from Australia for more than 20 years.
Applicant moved to Australia with his parents while a young boy and was thereafter raised in that country. He joined the RAN when he was very young and served in the RAN until he retired in 1984. While serving in the RAN he obtained Australian citizenship. The record evidence refutes the SOR allegation that Applicant obtained Australian citizenship to facilitate acquisition of an Australian security clearance.
Applicant immigrated to the United States almost immediately after he retired from the RAN, and he obtained U.S. citizenship as soon as he was eligible. His Australian citizenship was either renounced or revoked in the late-1980s, before he even became a U.S. citizen. Mitigating Condition (MC) 2: Indicators of possible foreign preference (e.g., foreign military service) occurred before obtaining United States citizenship applies as to Applicant's Australian military service.
Applicant is a dual citizen of the U.S. and U.K. based upon his birth in the U.K. to parents who were U.K. citizens. MC 1: Dual citizenship is based solely on parents' citizenship or birth in a foreign country applies. He obtained and used a U.K. passport for reasons of convenience when vacationing in the U.K. as opposed to a preference for that country over the U.S. Although he intends to retain his dual citizenship, Applicant surrendered the U.K. passport as required to comply with the "Money memo" and expressed an opinion that he would not need to obtain a U.K. passport in the future once he learned he did not require it to vacation in the U.K. for periods longer than six months.
The same "whole person" factors that were discussed under the foreign influence security concern apply herein. Applicant has overwhelmingly demonstrated that he is a trustworthy and loyal American since immigrating here in 1984 and since becoming a naturalized U.S. citizen in 1990. He has accumulated substantial assets in the U.S. and shown his allegiance is to this country. Applicant has mitigated the foreign preference security concerns that existed in this case.
In all adjudications the protection of our national security is the paramount concern. The objective of the security-clearance process is the fair-minded, commonsense assessment of a person's trustworthiness and fitness for access to classified information. Indeed, the "whole person" concept recognizes we should view a person by the totality of their acts and omissions. Each case must be adjudged on its own merits, taking into consideration all relevant circumstances, and applying sound judgment, mature thinking, and careful analysis. I have done so in this case and am satisfied Applicant has presented sufficient evidence of refutation, extenuation, and mitigation to overcome the case against him. Guidelines B and C are decided for Applicant.
FORMAL FINDINGS
SOR ¶ 1-Guideline B: For Applicant
Subparagraphs a-e: For Applicant
SOR ¶ 2-Guideline C: For Applicant
Subparagraphs a-d: For Applicant
DECISION
In light of all the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance is granted.
Henry Lazzaro
Administrative Judge
1. This action was taken under Executive Order 10865 and DoD Directive 5220.6, dated January 2, 1992, as amended and modified (Directive). Applicant himself served aboard an Australian warship shuttling supplies from Sydney to Vietnam for a period of about four months. (Tr. 96) ISCR Case No. 96-0277 (July 11, 1997) at p. 2. ISCR Case No. 97-0016 (December 31, 1997) at p. 3; Directive, Enclosure 3, Item E3.1.14. Department of the Navy v. Egan 484 U.S. 518, 531 (1988). ISCR Case No. 01-20700 (December 19, 2002) at p. 3 (citations omitted). ISCR Case No. 98-0761 (December 27, 1999) at p. 2. ISCR Case No. 94-1075 (August 10, 1995) at pp. 3-4; Directive, Enclosure 3, Item E3.1.15. ISCR Case No. 93-1390 (January 27, 1995) at pp. 7-8; Directive, Enclosure 3, Item E3.1.15. Egan, 484 U.S. at 528, 531. Id at 531. Egan, Executive Order 10865, and the Directive.