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ISCR Case 18-01498 — CASE

ISCR Case 18-01498granted

Case Headnote

ISCR Case No. 18-01498

grantedApr 2, 2019· Hon. Edward W. Loughran· hearing

Summary

A 52-year-old U.S. citizen and defense contractor, originally from Iraq, was granted eligibility for access to classified information despite initial concerns under Guideline B (Foreign Influence). The Statement of Reasons alleged that the applicant had mitigated these foreign influence security concerns. Disqualifying conditions AG ¶ 7(a) and AG ¶ 7(b) were raised, but mitigating condition AG ¶ 8(b) was applied.

The administrative judge determined that the applicant demonstrated a strong sense of loyalty to the United States, evidenced by his service as a linguist for the U.S. military in Iraq. He provided credible testimony that his family members residing in Iraq could not be coerced into compromising his security responsibilities.

Furthermore, the applicant's history of working under dangerous conditions and receiving high praise from U.S. military personnel supported the mitigation of the security concerns. Ultimately, the judge emphasized the applicant's loyalty to the U.S. military and his credible testimony in the decision to grant his security clearance.

Why the Applicant Prevailed

The applicant demonstrated a strong sense of loyalty to the United States through his service as a linguist for the U.S. military in Iraq.
He provided credible testimony that his family in Iraq could not be used to coerce him into revealing classified information.
The applicant's history of working under dangerous conditions and receiving high praise from U.S. military personnel supported his case for mitigation.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedContact with Foreign Family Members
AG ¶ 7(b)raisedConnections to Foreign Persons

Mitigating

AG ¶ 8(b)appliedNo Conflict of Interest Due to Loyalty to the U.S.

Key Rule Quoted

“Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”

Procedural Posture

SOR issuedAug 24, 2018
Answer filedSep 19, 2018
Hearing heldMar 6, 2019
Decision dateApr 2, 2019

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Importance of Credible Testimony Regarding Coercion Risks
Consideration of Applicant's Service to U.S. Military in Security Clearance Decisions

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

Standardized Decision Profile

SEAD-4 Guideline B (Foreign Influence) · descriptive summary of a decided case

Posture: HearingDecided: granted

The judge found that the applicant mitigated foreign influence security concerns due to his extensive service with the U.S. military in Iraq and his strong ties to the United States. The applicant's family remains in Iraq, but he credibly testified that they could not be used to coerce him into revealing classified information, leading to a favorable decision for the applicant.

Country conditions:the decision took administrative notice of official facts about the foreign country (the Government’s country submission).

U.S. ties the decision noted: Naturalized U.S. Citizen

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant mitigated the foreign influence security concerns.	For Applicant	Parent in Foreign Country Immediate Family	Iraq HEIGHTENED RISK	Unknown	—	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Claimed Deep U.S. Ties
1.b–1.g	6 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant	Unspecified Foreign Relationship Other	—		—	—	—

Descriptive standardized rendering of a decided public case (Guideline B). The verbatim source decision is shown in full below.

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

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 18-01498 ) Applicant for Security Clearance ) Appearances For Government: Liam Apostol, Esq., Department Counsel Nichole A. Smith, Esq., Department Counsel For Applicant: Alan V. Edmunds, Esq. ______________

STATEMENT OF CASE

______________ LOUGHRAN, Edward W., Administrative Judge: Applicant mitigated the foreign influence security concerns. Eligibility for access to classified information is granted. Statement of the Case On August 24, 2018, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline B, foreign influence. Applicant responded to the SOR on September 19, 2018, and requested a hearing before an administrative judge. The case was assigned to me on January 11, 2019. The hearing was convened as scheduled on March 6, 2019. Evidence Government Exhibits (GE) 1 and 2 were admitted in evidence without objection. Applicant testified and submitted Applicant’s Exhibits (AE) A through P, which were admitted without objection. 04/02/2019

Department Counsel and Applicant both requested that I take administrative notice of certain facts about Iraq. Without objection, I have taken administrative notice of the facts contained in the requests. The facts are summarized in the written requests and will not be repeated verbatim in this decision. Of particular note is the significant threat of terrorism and ongoing human rights problems in Iraq.

FINDINGS OF FACT

Applicant is a 52-year-old employee of a defense contractor. He has worked for his current employer for about four months. He is married for the second time. He has a child from his first marriage. He and his current wife have four children.1

Applicant was born in Iraq. His family moved to Kuwait when he was young for greater opportunities. Applicant was educated, including attendance at law school, in Kuwait. He was unable to complete his education, and his father was imprisoned in 1990 after Iraq invaded Kuwait. His father was discriminated against because he was of Iraqi origins. The family moved back to Iraq in 1993. Applicant was unable to complete his education in Iraq because of the circumstances in that country.2

Applicant volunteered to work for the U.S. military in 2003. He worked under dangerous conditions in Iraq as a linguist for the U.S. military, coalition forces, and civilian government and reconstruction teams from 2003 to 2009. Because of that work, he was eligible for a special immigrant visa. He immigrated to the United States in 2009. His wife and children did not immigrate with him. He became a U.S. citizen in 2015.3

Applicant’s father is deceased. Applicant’s wife, five children, mother, seven siblings, in-laws, and extended family members are citizens and residents of Iraq. None of his family have visited him in the United States. With the exception of his siblings who are teachers, to his knowledge, none of his family members have any current connection to the Iraqi government or any terrorist organization.4

Applicant has been unable to bring his wife and their children to the United States because of financial reasons. He will work in Iraq as a linguist if he obtains a security clearance. He hopes to use the extra pay he will receive to finance their immigration to the United States. He credibly testified that his family in Iraq could not be used to coerce or intimidate him into revealing classified information.5

1 Tr. at 14, 19-20, 25-26; GE 1; AE H.

2 Tr. at 43; Applicant’s response to SOR; GE 1; AE B, E, F.

3 Tr. at 15, 20-21, 48-49; Applicant’s response to SOR; GE 1, 2; AE A-C, G.

4 Tr. at 18, 31-34, 40, 45-46; Applicant’s response to SOR; GE 1, 2.

5 Tr. at 18-21, 25, 34-36, 49-53; GE 1, 2; AE J, N.

Applicant submitted documents and letters from members of the U.S. military and civilian coalition personnel attesting to his outstanding service as a linguist. He also submitted letters from people who have known him since he immigrated to the United States. He is praised for his diligence, responsibility, honesty, intelligence, dependability, trustworthiness, loyalty, professionalism, work ethic, leadership, reliability, dedication, integrity, and loyalty to the U.S. forces he supported.6

POLICIES

This case is adjudicated under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG), which became effective on June 8, 2017.

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are to be used in evaluating an applicant’s eligibility for access to classified information.

These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, administrative judges apply the guidelines in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(c), the entire process is a conscientious scrutiny of a number of variables known as the “whole-person concept.” The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision.

The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel.” The applicant has the ultimate burden of persuasion to obtain a favorable security decision.

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of

6 Applicant’s response to SOR; AE A, M, P.

the possible risk the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information.

Section 7 of EO 10865 provides that adverse decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline B, Foreign Influence

The security concern for foreign influence is set out in AG ¶ 6:

Foreign contacts and interests, including, but not limited to, business, financial, and property interests, are a national security concern if they result in divided allegiance. They may also be a national security concern if they create circumstances in which the individual may be manipulated or induced to help a foreign person, group, organization, or government in a way inconsistent with U.S. interests or otherwise made vulnerable to pressure or coercion by any foreign interest. Assessment of foreign contacts and interests should consider the country in which the foreign contact or interest is located, including, but not limited to, considerations such as whether it is known to target U.S. citizens to obtain classified or sensitive information or is associated with a risk of terrorism.

The guideline notes several conditions that could raise security concerns under AG ¶ 7. The following are potentially applicable in this case:

(a) contact, regardless of method, with a foreign family member, business or professional associate, friend, 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; and

(b) connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual's obligation to protect classified or sensitive information or technology and the individual’s desire to help a foreign person, group, or country by providing that information or technology.

Applicant’s wife, five children, mother, seven siblings, in-laws, and extended family members are citizens and residents of Iraq. The potential for terrorist violence against U.S. interests and citizens remains high in Iraq, and it continues to have human rights problems. Applicant’s foreign contacts create a potential conflict of interest and a

heightened risk of foreign exploitation, inducement, manipulation, pressure, and coercion. The above disqualifying conditions have been raised by the evidence.

Conditions that could mitigate foreign influence security concerns are provided under AG ¶ 8. The following is potentially applicable: (b) there is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, or allegiance to the group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the United States, that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest.

I considered the totality of Applicant’s ties to Iraq. The nature of a nation’s government, its relationship with the United States, 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, the country is known to conduct intelligence operations against the United States, or the foreign country is associated with a risk of terrorism.

Applicant is a loyal U.S. citizen who has worked overseas under dangerous conditions in support of the national defense. He credibly testified that his family in Iraq could not be used to coerce or intimidate him into revealing classified information. The Appeal Board has stated that such a statement, standing alone, is of limited value, unless there is record evidence that the applicant has acted in a similar manner in the past in comparable circumstances, or that the applicant has a previous track record of complying with security regulations and procedures in the context of dangerous, high- risk circumstances in which he made a significant contribution to the national security.7 In ISCR Case No. 05-03846 at 6 (App. Bd. Nov. 14, 2006), the Appeal Board discussed this issue as follows:

As a general rule, Judges are not required to assign an applicant’s prior history of complying with security procedures and regulations significant probative value for the purposes of refuting, mitigating, or extenuating the security concerns raised by that applicant’s more immediate disqualifying conduct or circumstances. See, e.g., ISCR Case No. 01-03357 at 4 (App. Bd. Dec. 13, 2005); ISCR Case No. 02-10113 at 5 (App. Bd. Mar. 25, 2005); ISCR Case No. 03-10955 at 2-3 (App. Bd. May 30, 2006). However, the Board has recognized an exception to that general rule in Guideline B cases, where the applicant has established by credible, independent evidence that his compliance with security procedures and regulations occurred in the context of dangerous, high-risk circumstances in which the applicant had made a significant contribution to the national

7 ISCR Case 07-06030 at 3-4 (App. Bd. June 19, 2008).

security. See, e.g., ISCR Case No. 04-12363 at 2 (App. Bd. July 14, 2006). The presence of such circumstances can give credibility to an applicant’s assertion that he can be relied upon to recognize, resist, and report a foreign power’s attempts at coercion or exploitation. Applicant worked under dangerous conditions as a linguist for the U.S. military, coalition forces, and civilian government and reconstruction teams in Iraq from 2003 to 2009. He was heavily praised by members of the U.S. military and civilian personnel, which earned him a special immigrant visa. I find that Applicant can be expected to resolve any potential conflict of interest in favor of the United States. AG ¶ 8(b) is applicable.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all relevant circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d):

(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 extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent 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.

Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. I have incorporated my comments under Guideline B in my whole-person analysis.

Applicant’s work with the U.S. military in Iraq earned him high praise from U.S. military and civilian coalition personnel. The Appeal Board has held that “an applicant’s proven record of action in defense of the United States is very important and can lead to a favorable result for an applicant in a Guideline B case.”8 The complicated state of affairs in Iraq places a significant burden of persuasion on Applicant to demonstrate that his foreign family members do not pose an unacceptable security risk. He has met that burden.

Overall, the record evidence leaves me without questions or doubts about Applicant’s eligibility and suitability for a security clearance. I conclude Applicant mitigated the foreign influence security concerns.

8 ISCR Case 04-02511 at 4 (App. Bd. Mar. 20, 2007).

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline B:

For Applicant

Subparagraphs 1.a-1.g:

For Applicant

CONCLUSION

It is clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted.

________________________ Edward W. Loughran Administrative Judge