ISCR Case No. 18-01992

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: )

)

)

ISCR Case No. 18-01992

) Applicant for Security Clearance )

For Government: Mary Margaret Foreman, Esq., Department Counsel For Applicant: Pro se

07/18/2019 ______________

______________

LOUGHRAN, Edward W., Administrative Judge:

Applicant refuted the personal conduct security concerns, and he mitigated the foreign influence security concerns. Eligibility for access to classified information is granted.

Statement of the Case

On August 22, 2018, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guidelines B (foreign influence) and E (personal conduct). Applicant responded to the SOR on October 13, 2018, and elected to have the case decided on the written record in lieu of a hearing. On January 21, 2019, Applicant changed his request to a hearing before an administrative judge. The case was assigned to another administrative judge on February 25, 2019, and reassigned to me on June 3, 2019. The hearing was convened as scheduled on June 26, 2019.

Evidence

Government Exhibits (GE) 1 through 6 were admitted in evidence without objection. Applicant testified and submitted Applicant’s Exhibit (AE) A, which was admitted without objection.

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

Applicant is a 52-year-old employee of a defense contractor. He has worked for his current employer as a linguist in Afghanistan since 2015. He previously worked for the same employer or another defense contractor in Afghanistan from 2010 to 2011, 2012 to 2013, and 2013 to 2014. He attended college for a period, but he has not earned a degree. He is married with five children.

Applicant was born in Afghanistan to Afghan parents. He worked under dangerous conditions in Afghanistan as a linguist for a defense contractor in support of the U.S. military from 2006 through 2009. Because of his work, he was eligible for a special immigrant visa. He immigrated to the United States with his family in 2009. He became a U.S. citizen in 2015. His work as a linguist in support of the U.S. military since 2010 has also been under dangerous conditions.

Four of Applicant’s children were born in Afghanistan; one was born in the United States. His wife and all of his children are U.S. citizens.

Applicant’s father is deceased. He was a farmer. His mother, two siblings, parents-in-law, and four siblings-in-law are citizens and residents of Afghanistan. He has another brother-in-law who immigrated to the United States on a special immigrant visa. Applicant’s mother does not work outside the farm. Applicant has provided her financial support on an as-needed basis, predominantly for her cancer treatment.

Applicant’s brother is a former judge. He is currently a farmer on the family’s farm. Applicant’s sister and her husband are also farmers. Two of Applicant’s brothers- in-law used to work as clerks at the Afghan agency involved in intelligence. Applicant believes his brothers-in-law left the agency before 2013, and that they are now shopkeepers. His father-in-law used to work as a clerk in the executive branch of the Afghanistan government. Applicant believes his father-in-law retired about ten years ago.

Applicant’s wife has not returned to Afghanistan since she immigrated to the United States. She maintains telephonic contact with her family. Applicant will sometimes also speak with them. Applicant is prohibited from visiting his family in

Afghanistan when he is there working. He has not seen his family in Afghanistan since he immigrated to the United States in 2009. Applicant credibly testified that his family in Afghanistan could not be used to coerce or intimidate him into revealing classified information.

Applicant completed Counterintelligence-Focused Security Screening Questionnaires in 2010, 2013, 2015, and 2017. He reported the information discussed above about his relatives in Afghanistan, including specifically discussing his brother’s and brothers-in-law’s positions with the Afghanistan government.

Applicant submitted a Questionnaire for National Security Positions (SF 86) in April 2015. Under the relatives section (Section 18), he listed his foreign relatives, including his brother and father-in-law. He reported that his brother was a judge and that his father-in-law worked in the executive branch of the Afghanistan government. The section did not require him to report siblings-in-law. He answered “No” to the foreign government contact question under Section 20B. He thought that was the correct answer as none of his relatives worked for the Afghanistan government when the SF 86 was submitted. I find that he did not intentionally provide false information on the SF 86.

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 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).

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;

(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; and

(e) shared living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure, or coercion.

There is a significant threat of terrorism and ongoing human rights problems in Afghanistan. Applicant’s foreign contacts create a potential conflict of interest and a heightened risk of foreign exploitation, inducement, manipulation, pressure, and coercion, both directly and through his wife. 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 Afghanistan. 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 Afghanistan 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. See, e.g., ISCR Case 07-06030 at 3-4 (App. Bd. June 19, 2008). 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 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 in Afghanistan from 2006 to 2009, which earned him a special immigrant visa. He returned to work in Afghanistan as a linguist in 2010, and has spent much of the last nine years there. 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. Guideline E, Personal Conduct

The security concern for personal conduct is set out in AG ¶ 15, as follows:

Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness, and ability to protect classified or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security investigative or adjudicative processes.

AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying. The following disqualifying condition is potentially applicable: (a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine national security eligibility or trustworthiness, or award fiduciary responsibilities. The SOR alleged that Applicant did not list his family members who worked for the Afghanistan government under Section 20B of the SF 86. He reported that his brother was a judge and that his father-in-law worked in the executive branch of the Afghanistan government under a different section (Section 18) of the SF 86. He

reported all his foreign relatives who worked for the Afghanistan government on previous questionnaires. He thought that he answered Section 20B correctly because none of his relatives worked for the Afghanistan government when the SF 86 was submitted. Applicant did not intentionally provide false information on his 2015 SF 86. AG ¶ 16(a) has not been established. SOR ¶ 2.a is concluded for Applicant.

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 Afghanistan earned him a special immigrant visa. He returned to Afghanistan as a linguist in 2010, and he has spent much of the last nine years there. 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.” ISCR Case 04-02511 at 4 (App. Bd. Mar. 20, 2007). The complicated state of affairs in Afghanistan 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 refuted the personal conduct security concerns, and he mitigated the foreign influence security concerns.

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.i:

For Applicant

Paragraph 2, Guideline E:

For Applicant

Subparagraph 2.a:

For Applicant

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