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ISCR Case 07-14508.a1 — CASE

ISCR Case 07-14508.a1unknown

Case Headnote

ISCR Case No. 07-14508.a1

Oct 22, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

This case involves an applicant raised in the U.S.S.R. who maintains foreign contacts in Russia, specifically an ex-husband and a brother. The initial security clearance decision raised concerns under Guideline B (Foreign Influence), citing Disqualifying Conditions E2.7(a) and E2.7(b).

However, the Appeal Board found that the original decision lacked substantial evidence to support these security concerns. Consequently, the Board remanded the case for further review.

The remand specifically requires a current geopolitical assessment of Russia, taking into account its military actions in Georgia. The outcome of the security clearance decision is currently none, pending this updated assessment.

Conditions Referenced

Disqualifying

E2.7(a)raisedContact with a Foreign Family MemberThe government argued that the applicant's contacts with foreign relatives created a heightened risk of foreign exploitation.
E2.7(b)raisedConnections to a Foreign PersonThe government contended that the applicant's connections to foreign individuals could create a potential conflict of interest.

Key Rule Quoted

“A current and accurate assessment of the geopolitical situation and the security/intelligence profile of the country vis-a-vis the United States is crucial in Guideline B cases.”

Procedural Posture

SOR issuedApr 10, 2008
Answer filed—
Hearing heldJun 30, 2008
Decision dateOct 22, 2008Remanded for further evidence and argument.

Cite For

Need for Current Geopolitical Assessments in Security Clearance Cases
Impact of Foreign Contacts on Security Clearance Eligibility
Importance of Substantial Evidence in Guideline B Determinations

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance· Full written decision

Remanded

The appeal involved a security clearance decision where the Administrative Judge granted the applicant a clearance despite concerns under Guideline B related to foreign influence. The Department Counsel appealed, arguing that the Judge erred in his conclusions and analysis. The Board found the government's arguments persuasive and remanded the case for further consideration of the geopolitical context and security implications regarding Russia.

Appealed bythe Government (Department Counsel)

Applicant representationPro se (self-represented)

Judge belowJohn Grattan Metz, Jr. — granted the clearance

Decided ona hearing

Guidelines belowGuideline B

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the Government (Department Counsel)Error sustained
The Judge erred by concluding that the government had presented no evidence of heightened risk under Guideline B.
Decision arbitrary, capricious, or contrary to law — raised by the Government (Department Counsel)Error sustained
The Judge's application of the pertinent mitigating conditions was error.
Legal error — raised by the Government (Department Counsel)Error sustained
The Judge improperly shifted the burden of persuasion to the government.
Erroneous finding of fact — raised by the Government (Department Counsel)Error sustained
The Judge erred in concluding that the government had failed to meet its burden of production under Guideline B.

Why the Board ruled this way

The Board found that the Judge erred in his analysis of the evidence regarding the geopolitical situation in Russia and the implications for security concerns under Guideline B. The Board determined that a remand was necessary to allow for a current assessment of the geopolitical situation and to properly evaluate the evidence presented.

No rational connection between facts and conclusion

On remand, the judge must

Reopen the record, allow the parties an opportunity to proffer appropriate documents for official notice pertinent to the current geopolitical situation in Russia, or other relevant and material evidence, and allow the parties to reargue the case.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael Y. Ra’anan — Chair
William S. Fields
James E. Moody

Descriptive structured reading of this decided, public Appeal Board decision — what the case says, not a prediction or advice.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

SYNOPSIS

KEYWORD: Guideline B DIGEST: Department Counsel persuasively argues that the Judge erred in concluding that the government had failed to present substantial evidence of a security concern under Guideline B. In the meantime Russia has attacked Georgia. The Judge’s remand decision must have a current and accurate geopolitical assessment and security/intelligence profile of Russia. Favorable decision remanded. CASENO: 07-14508.a1 DATE: 10/22/2008 DATE: October 22, 2008 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-14508

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Candace L. Le’i, Esq., Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On April 10, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline B (Foreign Influence) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On June 30, 2008, after the hearing, Administrative Judge John Grattan Metz, Jr. granted Applicant’s request for a security clearance. Department Counsel filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raises the following issues on appeal: whether the Judge improperly shifted the burden of persuasion to the government; whether the Judge erred by concluding that the government had presented no evidence of heightened risk under Guideline B; whether the Judge erred in concluding that the government had failed to meet its burden of production under Guideline B; and whether the Judge’s application of the pertinent mitigating conditions was error. For the reasons set forth below, we remand the case to the Judge. Whether the Record Supports the Judge’s Factual Findings A. Facts The Judge made the following pertinent findings of fact: Applicant was raised and educated in the U.S.S.R., receiving a degree in computer science. She married a U.S.S.R. citizen, with whom she had a daughter, and divorced him four years later. While living in the U.S.S.R. she worked for government-controlled companies. She immigrated to the U.S. in the early 1990s, along with her daughter. She renounced her U.S.S.R. citizenship, surrendered her property interests to the government, and paid the government six months salary. In the mid-1990sshe became a U.S. citizen. Applicant married a retired officer of the U.S. Army. Her new husband adopted her daughter. She subsequently divorced this second husband. Applicant has obtained a Master’s Degree from a U.S. university and works for a federal contractor. Her job requires her to travel extensively. Applicant’s brother is a citizen and resident of Russia. He is retired from the military. She contacts him once a year. Both of Applicant’s parents are dead. Her first ex-husband is a citizen and resident of Russia. She contacts him as often as six times a year to keep him apprised of his daughter, with whom he has no contact. Applicant contacts her former mother-in-law, a citizen and resident of Russia, about four times a year, and she contacts two friends, both of whom are citizens and residents of Russia, about four times a year. She has traveled several times to Russia, most recently to pay respects to her father’s grave. Russia has been a target of terrorist activity in recent years. Russian federal forces, in pursing terrorists, engage in torture, summary executions, disappearances, and arbitrary detentions. Russia has an active, significant, recent, and ongoing intelligence collection program. As of 2005 Russia was one of the two most aggressive collectors of sensitive and protected U.S. technology and accounted for much of such targeting. Russia is not known to target U.S. citizens to obtain protected information. B. Discussion The Appeal Board’s review of the Judge’s findings of facts is limited to determining if they are supported by substantial evidence–“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966). In evaluating the Judge’s findings, we are required to give deference to the Judge’s credibility determinations. Directive ¶ E3.1.32.1. Department Counsel has not challenged the Judges findings. However, consideration of the assigned errors requires the Board to address the sufficiency of the Judge’s findings about the geopolitical situation in Russia. Whether the Record Supports the Judge’s Ultimate Conclusions A Judge is required to “examine the relevant data and articulate a satisfactory explanation for” the decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). The Appeal Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary, capricious, or contrary to law. Directive ¶¶ E3.1.32.3 and E3.1.33.3. Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents th evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. “The application of disqualifying and mitigating conditions and whole person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole.” See, e.g., ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20, 2006). The Judge concluded that the government had failed to present substantial evidence of a security concern under Guideline B. “Applicant’s foreign travel to Russia has no independent security significance. Her contacts with her ex-husband, former mother-in-law, and two friends–none of whom is connected to the Russian government–are minimal. Her contacts with her brother–now still tenuously connected to the government through his retirement–is virtually non- See Directive ¶ E2.7(a): “contact with a foreign family member . . . or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion[.]” Directive ¶ E2.7(b): “connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual’s obligation to protect sensitive information or technology and the individual’s desire to help a foreign person, group, or country by providing that information[.]” existent. Department Counsel has articulated no sensible reason I should consider either as a potential source of influence on Applicant.” Decision at 5. Department Counsel argues that the Judge erred in his analysis, in that he examined the government’s evidence in a piecemeal fashion rather than as a whole. Department Counsel contends that the presence in Russia of a close relative such as a brother; regular and frequent contact with her former in-laws and her friends; her regular visits to Russia; and Russia’s status a nation with a problematic human rights record that actively seeks U.S. intelligence, viewed as a whole, are sufficient to raise a Foreign Influence security concern. The Board finds Department Counsel’s argument persuasive. The Board also notes certain events which have occurred since the close of the record and which have a bearing on this case. In August 2008 Russia attacked Georgia. See President’s “Remarks on the Situation in Georgia,” August 18, 2008: “It now appears that an effort may be underway to depose Georgia’s duly elected Government. Russia has invaded a sovereign neighboring state and threatens a democratic government elected by its people.” See also Joint Statement on Georgia by Foreign Ministers of Canada, France, Germany, Italy, Japan, the United States and the United Kingdom, Department of State Media Note, August 27, 2008: “Russia’s recognition of the independence of South Ossetia and Abkhazai violates the territorial integrity and sovereignty of Georgia and is contrary to U.N. Security Council Resolutions supported by Russia. Russia’s decision has called into question its commitment to peace and security in the Caucasus.” For a discussion of official notice in DOHA proceedings, see ISCR Case No. 05-11292 at 2-4 (App. Bd. Apr. 12, 2007). A current and accurate assessment of the “geopolitical situation” and the “security/intelligence profile of the country vis-a-vis the United states” is crucial in Guideline B cases. See ADP Case No. 06-14978 at 3 (App. Bd. Oct. 11, 2007); ISCR Case No. 04-02630 at 2-3 (App. Bd. May 23, 2007). In this case, Applicant has regular contact with citizens of a country that has engaged in armed conflict with a democracy friendly with the U.S. See U.S. Department of State Background Note: Georgia, February 2008. This is a matter bearing on the Guideline B security concern, which requires consideration of the nature of the foreign country. The Board concludes that the best course of action is to remand the case to the Judge with instruction that he reopen the record, allow the parties an opportunity to proffer appropriate documents for official notice pertinent to the current geopolitical situation in Russia, or other relevant and material evidence, and allow the parties to reargue the case. The other issues in the case are not ripe for consideration at this time.

ORDER

The Judge’s favorable security clearance decision is REMANDED. Signed: Michael Y. Ra’anan

Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board