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ISCR Case 19-02163 — CASE

ISCR Case 19-02163granted

Case Headnote

ISCR Case No. 19-02163

grantedMar 20, 2020· Hon. Edward W. Loughran· hearing

Summary

A 46-year-old U.S. citizen and former Iraqi military linguist was granted eligibility for access to classified information despite initial concerns under Guideline B (Foreign Influence). The Statement of Reasons alleged that the applicant's foreign contacts, specifically family members in Iraq, could create a conflict of interest and a risk of foreign exploitation or coercion. It was also noted that the applicant's past service in the Iraqi military did not raise a current security concern.

Disqualifying conditions related to foreign contacts and potential coercion were raised. However, the administrative judge applied mitigating conditions based on the applicant's demonstrated loyalty and reliability.

The decision to grant was based on several factors. The applicant credibly testified that his family in Iraq could not be used to coerce him into revealing classified information. Furthermore, his military service in Iraq under dangerous conditions was seen as evidence of his loyalty to the U.S. This was supported by letters from U.S. military personnel praising his integrity and reliability.

Why the Applicant Prevailed

The applicant credibly testified that his family in Iraq could not be used to coerce him into revealing classified information.
The applicant's military service in Iraq under dangerous conditions demonstrated his loyalty to the U.S.
Letters from U.S. military personnel praised the applicant's integrity and reliability.

Conditions Referenced

Disqualifying

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

Mitigating

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

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedOct 4, 2019
Answer filedOct 29, 2019
Hearing heldFeb 20, 2020
Decision dateMar 20, 2020

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Importance of Military Service in Establishing Loyalty to the U.S.
Credibility of Applicant's Testimony Regarding Coercion Risks

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's foreign contacts, including family members in Iraq, did not create a current security concern. The applicant's past military service in Iraq was acknowledged, but it was determined that he could resolve any potential conflicts of interest in favor of the United States. Ultimately, the judge concluded that the applicant mitigated the foreign influence security concerns, resulting in a decision to grant the security clearance.

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 · U.S. Home or Property · U.S. Career or Business · Intent to Remain in U.S.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a	Applicant has foreign contacts that could create a potential conflict of interest and a heightened risk of foreign exploitation, inducement, manipulation, pressure, and coercion.	For Applicant	Parent in Foreign Country Immediate Family	Iraq HEIGHTENED RISK	Denied	—	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Claimed Deep U.S. Ties
1.b	Applicant's family members in Iraq could be used to coerce or intimidate him into revealing classified information.	For Applicant	Parent in Foreign Country Immediate Family	Iraq HEIGHTENED RISK	Denied	—	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Claimed Deep U.S. Ties
1.c	Applicant's past service in the Iraqi military does not raise a current security concern.	For Applicant	Unspecified Foreign Relationship Other	—	Denied	—	—	—
1.d	Applicant's connections to foreign persons create a potential conflict of interest.	For Applicant	Parent in Foreign Country Immediate Family	Iraq HEIGHTENED RISK	Denied	—	(b) deep/longstanding U.S. loyalties; conflict resolves in favor of the U.S.	Claimed Deep U.S. Ties

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. 19-02163

) Applicant for Security Clearance )

For Government: Eric Price, Esq., Department Counsel For Applicant: Pro se 03/20/2020

______________

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 October 4, 2019, 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 October 29, 2019, and requested a hearing before an administrative judge. The case was assigned to me on January 28, 2020. The hearing was convened as scheduled on February 20, 2020.

Procedural and Evidentiary Rulings Evidence Government Exhibits (GE) 1 and 2 were admitted in evidence over Applicant’s objection. Applicant testified, but he did not submit any documentary evidence. The record was held open for Applicant to submit additional information. He submitted

documents that I have marked Applicant’s Exhibits (AE) A and A(1) through A(7) and admitted without objection.

Department Counsel requested that I take administrative notice of certain facts about Iraq. 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 Iraq.

Motion to Amend SOR

Department Counsel’s motion to amend SOR ¶ 1.dby changing the year “2018” to “2008” was granted without objection.

FINDINGS OF FACT

Applicant is a 46-year-old employee of a defense contractor. He has worked for his current employer for about two years. He is applying for a security clearance for the first time. He is married without children. (Transcript (Tr.) at 43, 46, 77; GE 1, 2)

Applicant was born in Iraq to Iraqi parents. He performed mandatory military service from 1991 to 1996. He returned to serve in the U.S.-backed Iraqi National Guard from 2006 to 2008. He worked under dangerous conditions in Iraq as a linguist for the U.S. military from 2008 to 2010. Because of his work, he was eligible for a special immigrant visa. He immigrated to the United States in 2010. He became a U.S. citizen in 2015. (Tr. at 15-18, 34, 38-44, 68-73, 84-87; Applicant’s response to SOR; GE 1, 2)

Applicant is one of four children. His parents and one of his siblings are citizens and residents of Iraq. His father was a senior military officer, but he retired more than 30 years ago. His brother in Iraq is a retired technician. His two other siblings live in the United States. One is a U.S. citizen, and the other is a permanent resident. His mother came to the United States for about six months in 2013, but she got homesick and returned to Iraq. His father visited the United States in 2016. Applicant communicates with his mother about once a week, and with his father about every other month. His parents gave him about $20,000 in 2014. (Tr. at 52-68; Applicant’s response to SOR; GE 1, 2)

Applicant has not returned to Iraq since 2012. He has worked for a defense contractor in Kuwait since 2018. He does not own any property in Iraq. His wife is a citizen and resident of Thailand. He visits her from Kuwait. He bought a condominium in Thailand for the equivalent of about $90,000 as an investment. The condominium is in a resort area that is distant from where his wife lives. (Tr. at 45, 48-4975-77, 80, 88-90; GE 1, 2)

Applicant expressed his undivided loyalty 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, and that he would report any attempt to do so. (Tr. at 74-79, 90-92)

Applicant submitted documents and letters from U.S. military members and other individuals who knew him in Iraq or know him in Kuwait. He is praised for his outstanding service as a linguist in support of the U.S. mission, as well as his loyalty, work ethic, professionalism, honesty, reliability, and integrity. (AE A, A(1)-A(7))

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 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 parents and brother 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.

Applicant’s past service in the Iraqi military does not raise a current security concern. SOR ¶ 1.dis concluded for Applicant.

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. 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 Iraq from 2008 to 2010, which earned him a special immigrant visa. U.S. military personnel who worked with him praised his service. 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 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.” ISCR Case 04-02511 at 4 (App. Bd. Mar. 20, 2007). The complicated state of affairs in Iraq places a significant burden of persuasion on Applicant to demonstrate that his family members in Iraq 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.

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.d:

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