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ISCR Case 06-26489 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date3/31/2009
Statusdenied
LevelHEARING
TypeSTANDARD ISCR
Related decisionSee the appeal decision (Case 06-26489.a1) →
Participants
Judge: Joan Caton Anthony
Government Counsel: Francisco Mendez
Guidelines Evaluated
- Guideline BForeign Influence · Against Applicant
- Guideline EPersonal Conduct · Against Applicant
- Guideline KHandling Protected Information · Against Applicant

Similar decisions
Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
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ISCR Case 06-26489denied

Case Headnote

ISCR Case No. 06-26489

deniedMar 31, 2009· Hon. Joan Caton Anthony· hearing

Summary

A 39-year-old Ph.D. electrical engineer was denied a security clearance due to concerns under Guideline B (Foreign Influence), Guideline E (Personal Conduct), and Guideline K (Handling Protected Information). The denial stemmed from the applicant's undisclosed relationships with foreign nationals and a failure to report these contacts as required by security protocols.

Specifically, the applicant maintained contact with foreign family members, business associates, and friends, including sharing living quarters with individuals whose relationships were deemed to create a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion. The applicant's close familial relationships with his wife and her family members, all citizens of Russia, were identified as raising significant security concerns.

The judge found that the applicant admitted to a romantic relationship with a foreign national and failed to report it. Claims of confusion regarding reporting requirements were not found credible. Ultimately, these undisclosed relationships with foreign nationals were determined to pose a heightened risk of exploitation and coercion, undermining the applicant's trustworthiness and reliability, leading to the denial of the security clearance.

Why the Applicant Was Denied

The applicant admitted to having a romantic relationship with a foreign national and failed to report it as required by security protocols.
The applicant's claims of confusion regarding reporting requirements were deemed not credible by the judge.
The applicant's relationships with foreign nationals created a heightened risk of exploitation and coercion.

Conditions Referenced

Disqualifying

AG KraisedHandling Protected Information
AG EraisedPersonal Conduct
AG BraisedForeign Influence

Key Rule Quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.”

Procedural Posture

SOR issuedMay 22, 2008
Answer filed—
Hearing heldFeb 20, 2009continued due to inclement weather and unavailability of a witness
Hearing reconvenedMar 4, 2009
Decision dateMar 31, 2009

Cite For

Failure to Mitigate Security Concerns Under Guideline B Due to Foreign Relationships
Disqualifying Conduct Under Guideline E for Lack of Candor
Disqualifying Conduct Under Guideline K for Failure to Protect Sensitive Information

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: denied

The judge found that the applicant's relationships with his wife and her family members, who are citizens of Russia, create a heightened risk of foreign exploitation and manipulation. The applicant's failure to disclose his relationship with a foreign national to his employer also raised concerns about his reliability and trustworthiness. Ultimately, the judge ruled against the applicant on all allegations under Guideline B, leading to a denial of his security clearance.

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

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
3.a	Contact 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.	Against Applicant	Parent in Foreign Country Immediate Family	Russia HEIGHTENED RISK	Admitted	—	—	—
3.b	Sharing 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.	Against Applicant	Cohabitation with Foreign National Cohabitant	Russia HEIGHTENED RISK	Admitted	—	—	—
3.c	The applicant's relationships with his wife and her family members who are citizens of Russia create a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion.	Against Applicant	Spouse Dual or Foreign Citizen Immediate Family	Russia HEIGHTENED RISK	Admitted	—	—	—
3.d	The applicant's close familial relationships with individuals who have ties to Russia raise security concerns.	Against Applicant	Extended Family in Foreign Country Extended Family	Russia HEIGHTENED RISK	Admitted	—	—	—
3.e	The applicant's failure to disclose his relationship with a foreign national to his employer raises questions about his reliability and trustworthiness.	Against Applicant	Failure to Disclose Foreign Association Other	—	Admitted	—	—	—

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

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: HearingDecided: denied

The judge found against the applicant on the personal conduct allegations under Guideline E, specifically regarding questionable judgment and lack of candor. However, the judge ruled in favor of the applicant on the second allegation, determining it was not disqualifying under the guidelines.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	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 information.	Against Applicant	Questionable Judgment General	—	Denied	—	—	—
2.b	Applicant's conduct was not disqualifying under the guidelines.	For Applicant	Unspecified Personal Conduct	—	Denied	—	—	—

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

Standardized Decision Profile

SEAD-4 Guideline K (Handling Protected Information) · descriptive summary of a decided case

Posture: HearingDecided: denied

The judge found that the applicant's deliberate or negligent failure to comply with rules and regulations for protecting classified information raised significant concerns regarding his trustworthiness and reliability. The applicant admitted to the allegations but argued they were not disqualifying. Ultimately, the judge ruled against the applicant on the sole allegation under Guideline K.

¶	Allegation	Finding	Type	Response	Disqualifying (¶34)	Mitigating applied (¶35)	Mitigation
1.a	Deliberate or negligent failure to comply with rules and regulations for protecting classified or other sensitive information raises doubt about an individual’s trustworthiness, judgment, reliability, or willingness and ability to safeguard such information.	Against Applicant	Failure to Safeguard or Secure	Admitted	(g) any failure to comply with rules for the protection of classified or sensitive information	—	—

Descriptive standardized rendering of a decided public case (Guideline K). 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. 06-26489

)

) Applicant for Security Clearance )

For Government: Francisco Mendez, Esquire, Department Counsel

For Applicant: John F. Fusco, Personal Representative

______________

STATEMENT OF CASE

______________

ANTHONY, Joan Caton, Administrative Judge:

After a thorough review of the case file, pleadings, testimony, and exhibits, I conclude that Applicant failed to mitigate the Government’s security concerns under the Handling Protected Information, Personal Conduct, and Foreign Influence adjudicative guidelines. His eligibility for a security clearance is denied.

On December 1, 2005, Applicant signed and certified an Electronic Questionnaire for Investigations Processing (e-Qip). On May 22, 2008, the Defense Office of Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline K, Handling Protected Information, Guideline E, Personal Conduct, and Guideline B, Foreign Influence. The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as March 31, 2009

amended (Directive), and the revised adjudicative guidelines (AG) promulgated by the President on December 29, 2005, and effective within the Department of Defense for SORs issued after September 1, 2006.

Applicant’s answer to the SOR was not dated. He requested a hearing before a DOHA administrative judge. The case was assigned to me on December 16, 2008. With the consent of the parties, I scheduled hearings for January 28, 2009 and February 6, 2009. The hearing was continued on those dates for inclement weather and the unavailability of a government witness. I reconvened the hearing on February 20, 2009. At that time, Applicant introduced five exhibits (Ex.), which were marked as Applicant’s Ex. A through E and admitted to the record without objection. At the February 20, 2009, hearing, the parties agreed to another continuance to enable a witness, previously ill and unavailable, to testify for the government.

On March 4, 2009, I reconvened the hearing to consider whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. The Government called one witness, introduced twelve exhibits (Ex. 1 through 12), and offered facts found in eight official documents of the U.S. Government for administrative notice. (Hearing Exhibit (HE) I.) The Government’s exhibits were admitted without objection. I took notice of HE 1. Applicant testified on this own behalf and called two witnesses. He introduced two additional exhibits, which were marked as Ex. F and G and admitted to the record without objection. DOHA received the transcript (Tr. 1) of the February 20, 2009 hearing on March 2, 2009. DOHA received the transcript (Tr. 2) of the March 4, 2009 hearing on March 13, 2009.

FINDINGS OF FACT

The SOR contains one allegation of disqualifying conduct under AG K, Handling Protected Information (SOR ¶ 1.a.), two allegations of disqualifying information under AG E, Personal Conduct (SOR ¶¶ 2.a. and 2.b.), and five AG allegations under AG B, Foreign Influence (SOR ¶¶ 3.a. through 3.e.). In his Answer to the SOR, Applicant admitted the Guideline K and E allegations but denied they were disqualifying conduct under the guidelines. He admitted the five Guideline B allegations. In response to all allegations, he provided additional information. Applicant’s admissions are admitted as findings of fact.

After a thorough review of the record in the case, including witness testimony, exhibits, relevant policies, and the applicable adjudicative guidelines, I make the following findings of fact:

Applicant is 39 years old and a Ph.D. electrical engineer. He is employed as a principal investigator, researcher, and program manager by a government contractor. He holds several patents. Applicant’s employer considers his contribution to his field to be unique and of high importance internationally. (Ex. 1; Tr. 2, 99-102, 115.)

Applicant was born in the United States and received his undergraduate and graduate degrees from U.S. institutions. He earned his Ph.D. in 1997. He has been employed by his current employer or its predecessor since 1997. (Ex. 1.)

Applicant was first granted special access security clearance eligibility by his employer in about 2000. During the time he held the special access eligibility, between 2000 and 2004, he complied with the foreign contact reporting requirement and reported his relationship with some of his foreign contacts from Asia. Applicant maintained special access eligibility until he transferred to another sector of the company in 2004. He was read-out of the special access program before he transferred to the new sector. When he assumed his duties at the new sector in November 2004, he was awarded a secret level security clearance. In about February 2005, he prepared the forms necessary to be inducted into the new sector’s special access program. In April of 2005, after a security indoctrination briefing, he was again granted eligibility for special access. (Tr. 2 at 38-41, 115-118, 137-140.)

In the briefing he received in April 2005 at the time he was awarded eligibility for special access, Applicant’s employer provided him with a document entitled “Security Education and Awareness Training.” In that document, employees holding special access eligibility were advised to report changes in marital status, to inform the employer of cohabitation, particularly if the partner was a foreign national, and to request clearance for travel to hazardous countries. The training document stated: “SCI/SAP [Special Access Program] cleared individuals must report all close and continuing relationships with foreign nationals.” Applicant raised no questions or concerns at the briefing. (Ex. 2; Tr. 2 at 37-41 .)

In 1995, while he was a graduate student, Applicant married a U.S. citizen, who earned a Ph.D. in Physics. Two daughters were born to the marriage. The children are now ages nine and six. Applicant’s wife worked in the same area of specialization as he did. She was employed by the same employer as Applicant, and she and Applicant worked in the same building. She also holds a security clearance. (Ex. 1; Tr. 2, 177- 179.)

In 1996, while still in graduate school, Applicant met a woman, a citizen of Russia, who was also pursuing graduate studies in his area of specialty. Later, he saw the woman at work sessions at his company and at professional meetings. The Russian woman, hereafter identified as “Z,” was employed as a professor at a university in Sweden. She was married to a Russian citizen, and she resided in Sweden with her husband and their two children. (Ex. 3; Ex. 4; Ex. 7; Ex. 9.)

In February 2005, Applicant and Z attended a professional conference and began a romantic relationship. He traveled to Sweden to visit Z in March, October, and November 2005. He did not tell his wife of the affair until sometime in September 2005. He did not inform his security officer of the relationship or of his three personal trips to visit Z in Sweden until November 2005. Applicant’s employer suspended his security clearance in November 2005. When he completed his e-QIP in December 2005,

Applicant listed Z as his associate and stated he planned to begin living with her in a spouse-like relationship in early 2006. He claimed he did not comply with security requirements for reporting the relationship or his foreign travel to visit Z because he was confused about special access program reporting requirements. Applicant’s claims of confusion were not credible. (Ex. 1; Ex. 3; Ex. 4; Ex. 6; Tr. 2 at 41-44.)

At some time during their relationship, Applicant told Z that he had access to classified information. In January or February 2006, Applicant moved out of the home he shared with his wife and began cohabiting with Z, who had left her husband and moved to the United States with her two children. Z and her husband divorced. Applicant and his wife were divorced on March 20, 2007. Applicant and Z were married on March 26, 2007. (Ex. 8; Ex. 9; Tr. 2 at 127.)

In response to DOHA interrogatories, Applicant denied he could be coerced or blackmailed because of his relationship with Z. He reported, however, that the relationship upset his parents, and they “tried to organize a family-wide boycott of me and mine.” He also reported that two colleagues had commented on the relationship, advised him to end it, and suggested that it could have social consequences for him at his work. Applicant stated: “These efforts, while memorable, have left me totally unconvinced.” (Ex. 10 at 3-4.)

Z, Applicant’s second wife, is a citizen of Russia and Sweden and resides with him in the United States. She received her academic training at a university in Russia and remains in contact with at least one of her former professors there. Her former husband, a dual citizen of Russia and Sweden, is also a graduate of a Russian university and holds a Ph.D. in Physics. He lives and works in Russia. (Ex. 3; Ex. 4; Ex. 7; Ex. 11; Tr. 2 at 133.)

Applicant and his wife share their home with his wife’s two daughters, aged 11 and 19, who are citizens of Russia and Sweden. Applicant’s step-daughters visit their father in Russia during the summer and during Christmas holidays. The younger step- daughter spends approximately eight weeks with her father in Russia each summer, and she has weekly telephone contact with her father. The older step-daughter, who is a college student in the United States, visits her father but spends less time in Russia. (Tr. 2 at 132-133.)

Applicant’s father-in-law and mother-in-law are residents and citizens of Russia. Applicant’s father-in-law and mother-in-law retired in the mid-1990s. Both were employed by the Russian government and receive government pensions. Applicant’s father-in-law was the head of a government department that imported electronics. Applicant’s wife is close to her parents: she speaks with them by telephone once a week, and she sends them $300 a month for their support. (Ex. 11; Tr. 2 at 133-134.)

Applicant’s sister-in-law is his wife’s half-sister. She is also a citizen and resident of Russia. Applicant’s wife has contact with her sister approximately every six months.

Applicant thinks his sister-in-law lost her job. He thinks she might be unemployed. He does not know his sister-in-law’s occupation. (Answer to SOR; Tr. 2 at 135-136.)

I take administrative notice of the following facts about Russia which appear in official U.S. government publications:

Since at least 1997, Russia has targeted U.S. technologies and has sought to obtain protected information through industrial espionage. Russia’s Directorate of the General Staff (GRU) provides intelligence to Russia’s military. The GRU carries out specialized technical collection activities that threaten U.S. interests. Additionally, a KGB-successor organization, the Federal Security Service (FSB), operates outside Russia by targeting national security and environmental researchers. Russia also operates a signal intelligence facility in Cuba that targets the United States. (HE 1: Summary at 1-3.)

In addition to its technology collection and espionage activities against the U.S., Russia supports missile programs and nuclear and biotechnology projects in other countries. These technologies can be used in the construction of weapons of mass destruction. Despite U.S. concerns, Russia has refused to cease constructing nuclear reactors in Iran. (HE 1: Summary at 3-4.)

Russia’s internal problems include terrorism and a poor human rights record. The U.S. Department of State has warned U.S. citizens of safety concerns related to travel in Russia. (HE 1: Summary at 4.)

The U.S. Department of State reports allegations that Russian government officials and others conduct electronic surveillance without judicial permission. This surveillance includes FSB monitoring of internet and e-mail traffic. Additionally, Russian law enforcement agencies have legal access to the personal information of users of telephone and cell phone services. (HE 1: Summary at 6-7.)

The U.S. Department of State advises U.S. citizens who are former Russian citizens that, when they travel to Russia, they may be considered to be Russian citizens and not allowed to leave Russia unless they present a Russian passport. (HE 1: Summary at 7.)

POLICIES

When evaluating an Applicant’s suitability for a security clearance, the administrative judge must consider the revised adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful 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, the administrative judge applies these guidelines in

conjunction with the factors listed in the adjudicative process. The administrative judge’s over-arching adjudicative goal is a fair, impartial and common sense 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 access to classified information will be resolved in favor of national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical and based on the evidence contained in the record. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture.

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 applicant or proven by Department Counsel. . . .” The Applicant has the ultimate burden of persuasion as to obtaining 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 protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.

Section 7 of Executive Order 10865 provides that 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

Handling Protected Information

AG ¶ 33 describes the Guideline K security concern as follows: “Deliberate or negligent failure to comply with rules and regulations for protecting classified or other sensitive information raises doubt about an individual’s trustworthiness, judgment, reliability, or willingness and ability to safeguard such information. . . .”

In 2005, when he transferred sectors in his company, Applicant was granted a security clearance and eligibility for a special access program. He was indoctrinated into the special access program and provided with training and information on the rules he was to follow in protecting classified or other sensitive information. He was specifically instructed that as an individual cleared for a Special Access Program, he must report “all close and continuing relationships with foreign nationals.” At the time he received his training, Applicant was involved in an affair with a citizen of Russia. He chose not to follow the rules for protecting classified information and did not report the affair. This action raises security concerns under AG ¶ 34(g), which reads: “any failure to comply with rules for the protection of classified or other sensitive information.”

Several Guideline K mitigating conditions might be applicable to the facts of Applicant’s case. If “so much time has elapsed since the behavior, or it happened so infrequently or under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment,” then AG ¶ 35(a) might apply. If “the individual responded favorably to counseling or remedial security training and now demonstrates a positive attitude toward the discharge of security responsibilities,” then AG ¶ 35(b) might apply. If “the security violations were due to improper or inadequate training,” then AG ¶ 25(c) might apply.

Applicant’s failure to comply with rules and regulations for protecting classified and other sensitive information occurred in April 2005, and is not therefore recent. However, at his hearing, Applicant maintained that he was confused by the reporting requirement and, therefore, his failure to follow the instructions given to him should be excused. Applicant’s continuing refusal to acknowledge his responsibility to comply with a reporting requirement was intentional and has not been mitigated by the passage of time. He knew that he should report the relationship and deliberately chose not to do so. He failed to demonstrate a positive attitude toward the discharge of his security responsibilities. Nothing in the record suggests that his failure to protect classified or other sensitive information was caused by improper or inadequate training. Accordingly, I conclude that AG ¶¶ 35(a), 35(b), and 35(c) do not apply in mitigation to the facts of Applicant’s case.

Personal Conduct

Applicant deliberately misled his employer and risked potential compromise of classified information when he did not report his close and continuing relationship with a foreign national, despite clear instructions from his security officer to do so. Under AG ¶15 of the Personal Conduct guideline, “[c]onduct 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 information.” Applicant’s poor judgment and unwillingness to comply with the rules raise security concerns under AG ¶¶ 16(c), 16(e)(1), and 16(f) of the Personal Conduct guideline.

AG ¶ 16(c) reads: “credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, but which, when considered as a whole, supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the person might not properly safeguard protected information.” AG ¶16(e)(1) reads, in pertinent part: “personal conduct, or concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress, such as (1) engaging in activities which, if known, may affect the person’s personal, professional, or community standing.” AG ¶ 16(f) reads: “violation of a written or recorded commitment made by the individual to the employer as a condition of employment.”

Appellant’s disqualifying personal conduct might be mitigated if he “has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur.” AG ¶17(d). Additionally, Appellant’s disqualifying conduct might be mitigated if he “has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress.” AG ¶ 17(e).

Appellant failed to follow his employer’s rules for the protection of classified information. He was involved in an affair with a Russian citizen who knew he had access to classified information. He failed to disclose this information to his employer and to his wife, who also held a security clearance and was a co-worker. At his hearing he continued to excuse his lack of candor by stating that he was confused by the employer’s reporting requirements and therefore did not report the close and continuing relationship with a foreign national. Applicant’s defense of his failure to inform his employer lacked credibility. He is a well-educated, intelligent man, who was not confused by the security-reporting requirement. He failed to demonstrate that the disqualifying behavior was unlikely to recur. He also failed to demonstrate that he had reduced or eliminated his vulnerability to exploitation, manipulation, or duress. Accordingly, I conclude that neither AG ¶ 17(d) nor AG ¶ 17(e) applies to the facts of Applicant’s case.

Foreign Influence

Under Guideline B, Foreign Influence, “[f]oreign contacts and interests may be a security concern if the individual has divided loyalties or foreign financial interests, may be manipulated or induced to help a foreign person, group, organization, or government in a way that is not in U.S. interests, or is vulnerable to pressure or coercion by any foreign interest.” AG ¶ 6.

Additionally, adjudications under Guideline B “can and should consider the identity of the foreign country in which the foreign contact or financial interest is located, including, but not limited to, such considerations as whether the foreign country is

known to target U.S. citizens to obtain protected information and/or is associated with the risk of terrorism.” AG ¶ 6.

I have considered all of the disqualifying conditions under the Foreign Influence guideline. The facts of Applicant’s case raise security concerns under disqualifying conditions AG ¶ 7(a) and AG ¶ 7(d). AG ¶ 7(a) reads: “contact 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.” AG ¶ 7(d) reads: “sharing 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.”

The United States is a primary intelligence target of Russia. American citizens with immediate family members who are citizens or residents of Russia could be vulnerable to coercion, exploitation, or pressure.

Applicant’s wife is a dual citizen of Russia and Sweden. His step-daughters are dual citizens of citizens of Russia and Sweden; they visit their Russian father in Russia regularly, and they have a close relationship with him. Applicant’s father-in-law, mother- in-law, and sister-in-law are citizens and residents of Russia. Now retired, Applicant’s father-in-law and mother-in-law worked for the Russian government and now receive pensions from that government. Applicant shares his home with his wife, who has close familial relationships with her parents, her two children, and her sister. Applicant’s wife speaks with her parents on the telephone frequently, and she sends her parents $300 each month for their support. These facts raise security concerns under AG ¶¶ 7(a) and 7(d).

Several mitigating conditions under AG ¶ 8 might be applicable to Applicant’s case. If “the nature of the relationships with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the U.S.,” then AG ¶ 8(a) might apply. If “there is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the U.S., that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest,” then AG ¶ 8(b) might apply. If “contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation,” then AG ¶ 8(c) might apply.

Applicant’s relationships with his wife and his wife’s relationships with her children, her parents, and her sister are neither casual nor infrequent. Instead, these relationships are based on long-standing family ties of affection and obligation. Applicant has an emotional bond of affection with his wife, a dual citizen of Russia and

Sweden, has strong familial obligations to her parents, her children, and her sister, all of whom are citizens of Russia. These close relationships raise a heightened risk that Applicant, who is recognized internationally for his work, could be targeted for exploitation, pressure, or coercion by the government of Russia in ways that might also threaten U.S. security interests.

Applicant is a native-born U.S. citizen who was educated in the United States. He has an international reputation as a researcher in his area of specialty, which has national security implications. However, in 2005 he set aside his existing U.S. familial loyalties and chose a close personal relationship with a citizen of Russia, a country that aggressively targets U.S. national security and environmental researchers in order to collect U.S. intelligence and sensitive economic information. For several months, he did not reveal his relationship with the Russian citizen to his first wife or to his employer because he did not deem it in his interest to do so. It is not clear from the record that he has such long-standing relationships and loyalties in the U.S. that he could be expected to resolve any conflict of interest in favor of the United States.

Applicant failed to rebut the Government’s assertion that his contacts with his wife, a dual citizen of Russia and Sweden, his in-laws, who are citizens and residents of Russia, and his step-daughters, who are dual citizens of Russia and Sweden, created a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion. Applicant’s relationships with his family members who are citizens of Russia could force him to choose between loyalty to his relatives and the security interests of the United States. (See ISCR Case No. 03-15485, at 4-6 (App. Bd. June 2, 2005).) I conclude that the mitigating conditions under AG ¶¶ 8(a), 8(b), and 8(c) do not apply to the facts of Applicant’s case.

Nothing in Applicant’s answers to the Guideline B allegations in the SOR suggested he was not a loyal U.S. citizen. Section 7 of Executive Order 10865 specifically provides that industrial security clearance 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.”

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 the circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a):

(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 common sense judgment based upon careful consideration of the guidelines and the whole person concept.

I considered the potentially disqualifying and mitigating conditions in light of the whole person concept and all the facts and circumstances surrounding this case. Applicant is a mature adult of 39 years of age. While assigned by his employer to follow rules to protect classified information as a government contractor, Applicant became romantically involved with a Russian woman. He did not report this relationship to his employer, as he was required to do. He attempted to excuse his failure to report the relationship by stating that he was confused by the reporting rules, a statement that lacked credibility. At his hearing, Applicant continued to evade his responsibility for his failure to report the relationship, thereby continuing to raise security concerns and suggesting that he remained vulnerable to the possibility of coercion or duress.

Applicant, a U.S. citizen, is a highly competent research scientist and an international leader in his field. By failing to disclose his affair with a Russian citizen, as required by his employer’s security rules, he exposed himself and his employer to the risk of possible exploitation and duress. He did not use good judgment in the choices he made. His conduct had the potential to seriously compromise the work he was assigned to carry out on behalf of the United States. He put his relationship with a Russian foreign national before U.S. security interests.

Overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For these reasons, I conclude Applicant failed to mitigate the security concerns arising under Guidelines K, E, and B.

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 K:

AGAINST APPLICANT

Subparagraph 1.a:

Against Applicant

Paragraph 2, Guideline E:

AGAINST APPLICANT

Subparagraph 2.a:

Against Applicant

Subparagraph 2.b:

For Applicant

Paragraph 3, Guideline B:

AGAINST APPLICANT

Subparagraph 3.a:

Against Applicant

Subparagraph 3.b:

Against Applicant

Subparagraph 3.c:

Against Applicant

Subparagraph 3.d:

Against Applicant

Subparagraph 3.e:

Against Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with national security to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied.

_____________________________ Joan Caton Anthony Administrative Judge