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ISCR 07-04496.a1: Guideline B security clearance appeal (2008) · CASE

ISCR Case 07-04496.a1unknown

Case headnote

ISCR Case No. 07-04496.a1

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

Summary

This security clearance case involves a naturalized U.S. citizen, originally from Russia, whose application raised concerns under Guideline B (Foreign Influence), Guideline C (Foreign Preference), and Guideline E (Personal Conduct). The initial ruling found no security concerns under Guideline B, despite the applicant's foreign connections and travel history.

However, the Appeal Board determined that the Judge erred in this conclusion. The Board highlighted the significantly changed geopolitical situation in Russia following its military actions, which necessitated a reevaluation of the applicant's security risks. The Board found that the initial ruling did not adequately address the security implications of the applicant's ties to Russia.

Consequently, the Appeal Board remanded the case for a current geopolitical assessment of Russia. This remand requires a thorough review of the current geopolitical context and its impact on the security concerns related to the applicant's foreign connections. The outcome of the security clearance application is currently none, pending this reevaluation.

Conditions referenced

Disqualifying

AG ¶ 7raisedForeign Influence

Mitigating

AG ¶ 8appliedForeign Influence
AG ¶ 9appliedPersonal Conduct
AG ¶ 10appliedForeign Preference

Key rule quoted

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

Procedural posture

SOR issuedSep 14, 2007
Answer filed—
Hearing heldJun 30, 2008
Decision dateOct 22, 2008Remanded by Appeal Board.

Cite for

Need for Current Geopolitical Assessments in Security Clearance Cases
Impact of Foreign Relations on Security Concerns Under Guideline B
Remand Procedures for Reevaluation of 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.

Appeal at a glance· Full written decision

Remanded

The appeal involved a favorable security clearance decision granted by the Administrative Judge under Guidelines C and E, which was not contested. Department Counsel appealed, arguing that the Judge erred in assessing the evidence related to Guideline B security concerns. The Board found merit in the appeal and remanded the case for further evaluation of the geopolitical situation regarding Russia.

Appealed bythe Government (Department Counsel)

Applicant representationAttorney

Judge belowJohn Grattan Metz, Jr. granted the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline CGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence, raised by the Government (Department Counsel)Error sustained
The Judge erred in concluding that the government had failed to present substantial evidence of a security concern under Guideline B.
Decision arbitrary, capricious, or contrary to law, raised by the Government (Department Counsel)Error sustained
The Judge's decision lacked a rational connection between the facts found and the choice made regarding Guideline B.

Why the Board ruled this way

The Board found that the Judge erred in his assessment of the evidence regarding security concerns under Guideline B and failed to provide a current geopolitical assessment of Russia, necessitating a remand for further proceedings.

Ignored material evidenceNo rational connection between facts and conclusion

On remand, the judge must

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

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural compliance

Appeal Board panel

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

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

Full decision

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

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

SYNOPSIS

KEYWORD: Guideline B DIGEST: Department Counsel persuasively argues that the Judge erred in concluding that the government had failed to present substantial evidence of a security concern under Guideline B. In the meantime Russia has attacked Georgia. The Judge’s remand decision must have a current and accurate geopolitical assessment and security/intelligence profile of Russia. Favorable decision remanded. CASENO: 07-04496.a1 DATE: 10/22/2008 DATE: October 22, 2008 In Re: --------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-04496

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT Emilio Jaksetic, Esq., Department Counsel FOR APPLICANT Kathleen E. Voelker, Esq. The Judge’s favorable decision under Guidelines C and E is not at issue in this appeal. The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On September 14, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline C (Foreign Preference), Guideline B (Foreign Influence), and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On June 30, 2008, after the hearing, Administrative Judge John Grattan Metz, Jr. granted Applicant’s request for a security clearance. Department Counsel filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Department Counsel raised the following issues on appeal: whether the Judge improperly shifted the burden of persuasion to the Government; whether the Judge erred by concluding that the government had presented no evidence of heightened risk; and whether the Judge erred in concluding that Applicant’s case did not raise Guideline B security concerns. Finding error, we remand the case to the Judge. Whether the Record Supports the Judge’s Factual Findings A. Facts The Judge made the following pertinent findings of fact: Applicant was born in Russia, then part of the U.S.S.R. She received a Master’s degree in computer science there. She married, and she and her husband had a son together. Her husband subsequently died. In the 1990sshe came to the U.S. with her son and married a U.S. citizen, whom she later divorced. She married a third husband, who adopted her son. Her son became a U.S. citizen by virtue of the adoption. Applicant herself became a U.S. citizen in the 2000s. Her parents came to the U.S. in the late 1990sand live near Applicant and her husband. Applicant’s father is a naturalized U.S. citizen, and her mother is a permanent resident of the U.S. who has applied for citizenship. Applicant has an aunt who lives in Ukraine, which used to be a member of the U.S.S.R. Applicant traveled to Russia in the early 2000sto attend her brother’s wedding. She also traveled to Ukraine to visit her aunt. Applicant holds a Russian passport, because that it a requirement for renouncing Russian citizenship. Russia is a “nominal democracy with a mixed human rights record.” Decision at 4. It has been a target of terrorist activity in recent years, and Russian forces pursuing terrorists have engaged in torture, summary executions, and arbitrary detentions. “Russia has an active, significant, recent, and ongoing collecting program focusing on the U.S. As of 2005, Russia was one of the two most aggressive collectors of sensitive and protected U.S. technology and accounted for much of such targeting. However, Russia is not known to target U.S. citizens to obtain protected information.” Id. at 4. B. Discussion The Appeal Board’s review of the Judge’s findings of facts is limited to determining if they are supported by substantial evidence–“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” Directive ¶ E3.1.32.1. “This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966). In evaluating the Judge’s findings, we are required to give deference to the Judge’s credibility determinations. Directive ¶ E3.1.32.1. Department Counsel’s assignment of error includes mixed questions of law and fact. Consideration of the assigned errors requires the Board to address the sufficiency of the Judge’s findings about the geopolitical situation in Russia and Russia’s targeting of Americans and American information. Whether the Record Supports the Judge’s Ultimate Conclusions A Judge is required to “examine the relevant data and articulate a satisfactory explanation for” the decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). The Appeal Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary, capricious, or contrary to law. Directive ¶¶ E3.1.32.3 and E3.1.33.3. Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents th evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. “The application of disqualifying and mitigating conditions and whole person factors does not turn simply on a finding that one or more of them apply to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole.” See, e.g., ISCR Case No. 05-03635 at 3 (App. Bd. Dec. 20, 2006). The Judge concluded that Applicant’s case did not raise security concerns under Guideline B. “In this case, the government failed to establish a case under Guideline B. Considering first the country involved, Russian and the U.S. enjoy competitive foreign relations, although they cooperate on a wide variety of issues. While Russia is actively engaged in the collection of U.S. information . . . there is no evidence suggesting that it targets its expatriate citizens such that would make Applicant or her family members likely targets for coercion, duress, or influence.” Decision at 7. Department Counsel argues that the Judge erred. He states that, viewed in light of the whole record, See Directive ¶ E2.7(a): “contact with a foreign family member . . . or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion[.]” Directive ¶ E2.7(b): “connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual’s obligation to protect sensitive information or technology and the individual’s desire to help a foreign person, group, or country by providing that information[.]” For a discussion of official notice in DOHA proceedings, see ISCR Case No. 05-11292 at 2-4 (App. Bd. Apr. 12, 2007). Directive ¶ E2.6: “The Concern. Foreign contacts and interests may be a security concern if the individual has divided loyalties . . . may be manipulated or induced to help a foreign person, group, organization, or government in a way that is not in the U.S. interests, or is vulnerable to pressure or coercion by any foreign interest. Adjudication under this Guideline can and should consider the identity of the foreign country in which the foreign contact . . . is located.” Applicant’s foreign relatives, her foreign travel, Russia’s problematic human rights record, and its status as a collector of U.S. technological information are sufficient to raise Guideline B security concerns. The Board finds Department Counsel’s argument persuasive. The Board notes certain events which have occurred since the close of the record and which have a bearing on this case. In August 2008 Russia attacked Georgia. See President’s “Remarks on the Situation in Georgia,” August 18, 2008: “It now appears that an effort may be underway to depose Georgia’s duly elected Government. Russia has invaded a sovereign neighboring state and threatens a democratic government elected by its people.” See also Joint Statement on Georgia by Foreign Ministers of Canada, France, Germany, Italy, Japan, the United States and the United Kingdom, Department of State Media Note, August 27, 2008: “Russia’s recognition of the independence of South Ossetia and Abkhazai violates the territorial integrity and sovereignty of Georgia and is contrary to U.N. Security Council Resolutions supported by Russia. Russia’s decision has called into question its commitment to peace and security in the Caucasus.” The Board also notes that the Judge made no findings about Ukraine, which is an error. See ISCR Case No. 06- 18400 at 3 (App. Bd. Aug. 2, 2007). A current and accurate assessment of the “geopolitical situation” and the “security/intelligence profile of the country vis-a-vis the United states” is crucial in Guideline B cases. See ADP Case No. 06-14978 at 3 (App. Bd. Oct. 11, 2007); ISCR Case No. 04-02630 at 2-3 (App. Bd. May 23, 2007). In this case, Applicant has close relatives who are citizens of a country that has engaged in armed conflict with a democracy friendly with the U.S. See U.S. Department of State Background Note: Georgia, February 2008. This is a matter bearing directly on the Guideline B security concern, which requires consideration of the nature of the foreign country. The Board concludes that the best course of action is to remand the case to the Judge with instructions that he reopen the record, allow the parties an opportunity to proffer appropriate documents for official notice pertinent to the geopolitical situation in Russia, or other relevant and material evidence, and allow the parties to reargue the case. The other issues in the case are not ripe for consideration at this time.

ORDER

The Judge’s favorable security clearance decision is REMANDED. Signed; Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board