ISCR Case No. 02-24638.h1

KEYWORD: Foreign Influence; Foreign Preference; Criminal Conduct; Personal Conduct

DIGEST: Applicant is a 43-year-old armed security officer employed by a federal government contractor. His father and three brothers are citizens and residents of Morocco. His mother lives in the U.S., as do two brothers who are U.S. citizens. He renounced his Moroccan citizenship and surrendered his Moroccan passport. A criminal arrest charge was expunged because he was erroneously charged. He falsely answered several questions on a security clearance application. Using the “whole person concept” he successfully mitigated the security concerns about foreign influence, foreign preference, criminal conduct, and personal conduct. Clearance is granted.

CASENO: 02-24638.h1

DATE: 07/20/2007

DATE: July 20, 2007

) ) In re: ) ) ISCR Case No. 02-24638 ---------------- ) SSN: ----------- ) ) Applicant for Security Clearance )

DECISION OF ADMINISTRATIVE JUDGE CHRISTOPHER GRAHAM

SYNOPSIS Applicant is a 43-year-old armed security officer employed by a federal government contractor. His father and three brothers are citizens and residents of Morocco. His mother lives in the U.S., as do two brothers who are U.S. citizens. He renounced his Moroccan citizenship and surrendered his Moroccan passport. A criminal arrest charge was expunged because he was erroneously charged. He falsely answered several questions on a security clearance application. Using the “whole person concept” he successfully mitigated the security concerns about foreign influence, foreign preference, criminal conduct, and personal conduct. Clearance is granted.

On April 30, 2001, Applicant submitted a Security Clearance Application (SF 86). The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a security clearance for Applicant. As required by Executive Order 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, as amended, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended, DOHA issued a Statement of Reasons (SOR) on March 10, 2004, detailing the basis for its decision – security concerns raised under Guideline B (Foreign Influence), Guideline C (Foreign Preference), Guideline J (Criminal Conduct), and Guideline E (Personal Conduct) of the Directive. After submitting his security clearance application, it was two years before the SOR was issued. It took another three years before the case was assigned to me for a hearing. Department Counsel advised that the file was returned to the DOHA office in Columbus, Ohio for further investigation, and it was over two years before the file was returned to DOHA. Since receiving that information, counsel was trying to determine whether or not Applicant was represented by counsel, and it took a bit of time to determine his representation status with his former attorney.

The President issued revised adjudicative guidelines (AG) on December 30, 2005. DoD implemented them on September 1, 2006. Pending official amendment/reissue of DoD Directive 5220.6, the AG are to be used in all cases when the SOR is dated on or after September 1, 2006. Because the SOR was dated before September 1, 2006, DoD policy requires that this case proceed under the former guidelines. Applicant answered the SOR in writing on April 21, 2004, and elected to have a hearing before an administrative judge. The case was assigned to me on March 1, 2007, and a Notice of Hearing was dated on March 20, 2007. I convened a hearing on April 25, 2007, to consider whether it is clearly consistent with the national interest to grant or continue Applicant's security clearance. The government offered thirteen exhibits, marked as Exhibits 1-13. Applicant offered five exhibits, marked as Exhibits A-E. All exhibits were admitted without objection. After the hearing, Applicant submitted two documents that were marked as Applicant’s Exhibits F and G. The government had no objection and the exhibits were admitted. DOHA received the transcript (Tr.) on May 4, 2007.

Applicant admitted the allegations contained in SOR subparagraphs 1.a., 1.i., and 1.j. He denied all other allegations in the SOR. The admissions are incorporated herein as findings of fact. After a complete and thorough review of the evidence in the record, and upon due consideration of same, I make the following additional findings of fact: Applicant is a 43-year-old armed security officer employed by a federal government contractor. He is married and has five children. He is a high school graduate and has one year of college credit, and is actively pursuing an associate degree. He served in the United States Army from 1995 to 2001. He served in the Army National Guard in 1995 and 1996, and rejoined the Guard from 2001 until 2004. He received an honorable discharge from the Army and attained the rank of sergeant (E-5). He served in Korea, Kosovo, and Operation Noble Eagle, and has held a clearance since 1995. He has a 30% veteran’s disability. He has provided armed security protection for several cabinet secretaries, several government buildings, and worked a security detail at the United Nations. He is also a translator. He never served in the Moroccan military.9

He owns a home and rental property in the U.S. He has a checking, savings and money market accounts. He votes in elections, and is a member of the American Legion. He has coached his son’s soccer team, and is active with the Boy Scouts.10

Foreign Influence

Applicant’s parents are citizens of Morocco, currently residing in Morocco three months a year and nine months in the United States. Three brothers are citizens and residents of Morocco. One of them is in the U.S. attempting to get his green card. The other two anticipate trying to get green cards. A fourth brother is a citizen of Morocco, currently residing in the United States. A fifth brother is a citizen of and living in the U.S. There is no evidence to indicate they are involved in any "intelligence work" for the Moroccan Government, and they have no "official ties" to the Moroccan Government. He has rare contact with his father or brothers in Morocco. His mother is in the U.S. His son is a citizen of the United States currently residing in the U.S. He pays child support to the boy’s mother. He traveled to Morocco in March 1999 and December 2000, and has not returned since. His father was in the construction business with one of his brothers, but is retired and in poor health, having suffered a stroke. He returned to Morocco because he could not obtain health insurance in the U.S. The other is a welder-fabricator.

Foreign Preference

Applicant exercised a dual citizenship with Morocco and the United States. He was interviewed by an investigator from the Defense Security Service (DSS) on January 25, 2002. At that time he possessed a Moroccan passport that was issued January 9, 1992. The passport expired January 9, 1997, but only needed to be stamped to be renewed. He also possessed a Moroccan government identification card, which expired in February 2001. On March 22, 2007, he delivered a letter to the Embassy of Morocco in which he renounced his citizenship and surrendered his passport and Moroccan ID card.18

Criminal Conduct

SOR subparagraph 3.a. alleged his arrest on May 14, 1995, for a charge of embezzlement, a felony. The charge was nolle prosequi. Subsequently, it was determined that the charge was made in error, and all police and court records filed were ordered expunged on February 14, 2005. The government alleged criminal conduct under 18 U.S.C. § 1001 for making false answers on his security clearance application.

Personal Conduct

On a questionnaire for national security positions, executed by Applicant on March 30, 2001, he was required to answer the following questions:

6. Your Employment Activities List your employment activities, beginning with the present and working back 10 years. You should list full time work, part time work, military service, temporary military duty locations over 90 days, self- employment, other paid work, and all periods of unemployment.

He failed to list that he had been employed in a retail store from 1994 to 1995. He was mistakenly charged with embezzlement by his employer. His recruiter told him that since the case was still pending dismissal, he didn’t have to list it.20

9. Your Relatives and Associates Entry List Options: 1. Mother 2. Father 3. Stepmother 4. Stepfather 5. Foster parent 6. Child (adopted also). 7. Stepchild. 8. Brother 9. Sister 10. Step brother 11. Step-sister 12. Half- brother 13. Half- sister. 14. Father in law, 15. Mother in law. 16. The Guardian 17. Other relative 1. 18. Associate 2 19. Adult Currently Living With You 1) Include only foreign national relatives not listed in 1-16 with whom you or your spouse are bound by affection, obligation or close and continuing contact. 2) Include only foreign national associates with whom you or your spouse are bound by affection, obligation or close and continuing contact.

He only listed his parents, failing to list his four brothers, one child residing in Morocco, and one child living in the United States. He believes it was a misunderstanding, as he and the investigator argued about his entry into the U.S. He took and passed a polygraph test. He said he did not understand the forms.22

16. Foreign Countries You Have Visited and he traveled outside the United States on other than unofficial U.S. Government orders in the last 7 years? (Travel as a dependent or contractor must be listed.) Do not repeat travel covered in modules 4, 5, and 6.

He failed to list his travel to Morocco in 1999 and 2000.

23. Your Police Record For this item, report information regardless of whether the record in your case has been “sealed” or otherwise stricken from the court record. The single exception to this requirement is for certain convictions under the Federal Controlled Substances Act for which the court issued an expungement order under the authority of U.S.C. § 844 or 18 U.S.C. § 3607. a. Have you ever been charged with or convicted of any felony offense (include those under Uniform Code of Military Justice).

He responded “No”, failing to list the felony charge in May 1995, as set forth in SOR subparagraph. 3.a. His recruiter told him he did not have to list it.

Morocco is a country with a developing economy and agriculturally-based employment. It is a constitutional monarchy with a parliament. The king has the power to terminate any minister, dissolve the Parliament, call for new elections, or rule by decree. Arabic is the official language and 99% of the population is Muslim. Morocco is a moderate stable, democratizing Arab nation with whom the United States enjoys strong ties and good relations.26

However, terrorism has been a problem in Morocco. A series of terrorist bombings occurred in Casablanca in May 2003. Suicide bombers affiliated with the Salafiya Jihadiya movement committed several attacks, killing 45 people. Other persons from Salafiya Jihadiya were arrested in March 2005, for planning terrorist attacks in Morocco. The Moroccan government also discovered that some of its citizens have traveled to Algeria and trained with the Algerian terrorist group GSPC. Moroccan terrorists have also committed a tax outside of Morocco. The al-Qaida- affiliated Moroccan Islamic Combatant Group (GICM) has been implicated in the March 2004 Madrid, Spain train bombings. Based upon terrorism concerns the U.S. Government warns that there is a high potential for violence against American interests and citizens in Morocco.30

The human rights record of Morocco is poor in many areas. Human rights problems include use of excessive force against demonstrators, unresolved cases of disappearance, allegations of torture, poor prison conditions, arbitrary arrest and detention, police and security force impunity, and corruption and lack of transparency in the government.31

All persons born to Moroccan fathers are considered Moroccan citizens. Such persons are subject to all Moroccan laws. U.S. citizens who are dual-nationals, therefore, are subject to all Moroccan laws, and also may be subject to other laws that impose special obligations. Finally, Morocco sometimes places foreign citizens under surveillance.32

A former co-worker described Applicant as very -

loyal, dependable, he always comes to work, and he works. Some people come to work just to get paid. But he actually came to work to work. You asked him to hold over, he holds over without any complaints. We trust him to join the military. We train him and stuff that average civilians don’t know about, and we trusted him with that. We trusted him working for a government Department, because anybody can’t do that. He worked for the Reagan funeral, and he has worked at Blair House and the United Nations. He’s definitely trustworthy. I put a job in his hands several times, and he never let me down.33

In an evaluation of an applicant’s security suitability, an administrative judge must consider Enclosure 2 of the Directive, which sets forth adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines are divided into Disqualifying Conditions (DC) and Mitigating Conditions (MC), which are used to determine an applicant’s eligibility for access to classified information.

These adjudicative guidelines are not inflexible ironclad rules of law. Instead, recognizing the complexities of human behavior, an administrative judge should apply these guidelines in conjunction with the factors listed below. An administrative judge’s overarching adjudicative goal is a fair, impartial and common sense decision.

Because the entire process is a conscientious scrutiny of a number of variables known as the “whole person concept,” an administrative judge should consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a meaningful decision.

Specifically, an administrative judge should consider the nine adjudicative process factors listed at Directive ¶ E2.2.1: (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 voluntariness of participation; (6) the presence or absence of rehabilitation and other pertinent 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.

Since the protection of the national security is the paramount consideration, the final decision in each case is arrived at by applying the standard that the issuance of the clearance is “clearly consistent with the interests 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.

In the decision-making process, facts must be established by “substantial evidence.” The government initially has the burden of producing evidence to establish a potentially disqualifying condition under the Directive. Once the government has produced substantial evidence of a disqualifying condition, the burden shifts to the applicant to produce evidence and prove a mitigating condition. Directive ¶ E3.1.15 provides, “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, and [applicant] has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” The burden of disproving a mitigating condition never shifts to the government.

A person who seeks access to classified information enters into a fiduciary relationship with the government predicated upon trust and confidence. It is a relationship that transcends normal duty hours and endures throughout off-duty hours as well. It is because of this special relationship the government must be able to repose a high degree of trust and confidence in those individuals to whom it grants access to classified information. Decisions under this Directive include, by necessity, consideration of the possible risk an 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.

The scope of an administrative judge’s decision is limited. Applicant’s allegiance, loyalty, and patriotism are not at issue in these proceedings. Section 7 of Executive Order 10865 specifically provides 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.” Security clearance decisions cover many characteristics of an applicant other than allegiance, loyalty, and patriotism. Nothing in this Decision should be construed to suggest that I have based this decision, in whole or in part, on any express or implied determination as to Applicant’s allegiance, loyalty, or patriotism.36

Guideline B—Foreign Influence

With respect to Guideline B, the Government has established its case. Applicant has been portrayed as a person who is a potential security risk because members of his immediate family or persons to whom he is bound by affection, influence, or obligation--in this instance, Applicant's parents, and his three brothers --are not citizens of the United States or may be subject to duress. This situation raises the potential for vulnerability to coercion, exploitation, or pressure, and the exercise of foreign influence that could result in the compromise of classified information. In support of its contentions, the Government has cited the fact Applicant's parents and siblings are citizens and residents of Morocco. Based on my review of the evidence, I conclude the security concerns manifested by the Government, in this instance, are largely unfounded. It is uncontroverted that Applicant's parents and siblings--persons to whom he has close ties of affection--are citizens and residents of Morocco. That simple fact, standing alone, is sufficient to raise security concerns over the possibility of Applicant's vulnerability to coercion, exploitation, or pressure. However, the mere possession of family ties with a person in a foreign country is not, as a matter of law, disqualifying under Guideline B.

The language of [Guideline] B (Foreign Influence) in the Adjudicative Guidelines makes clear that the possession of such family ties may pose a security risk. Whether an applicant's family ties in a foreign country pose a security risk depends on a common sense evaluation of the overall facts and circumstances of those family ties. See ISCR Case No. 98-0419 (April 30, 1999) at p. 5.

Applicant's father and three of his five siblings live in Morocco. The other two siblings are U.S. citizens. There is no evidence to indicate they are involved in any "intelligence work" for the Moroccan Government, and they have no "official ties" to the Moroccan Government. These facts, when considered in light of the nature of the government in Morocco--a friendly Kingdom which is not hostile to the United States, and whose interests are not inimical to the United States-- facilitates an analysis involving the adjudicative guidelines and the various applicable conditions set forth therein.

The residence and citizenship of Applicant's family members are clearly of security concern under foreign influence disqualifying condition (DC) E2.A2.1.2.1., but the significance of that ruling is mitigated by the "protection" afforded by foreign influence mitigating condition (MC) E2.A2.1.3.1. It must also be noted Applicant's mother lives in and intends to become a citizen of the United States. In this instance, after an examination of the evidence, I determine that Applicant's parents and siblings, considering their citizenship and residency status, do not constitute an unacceptable security risk. Furthermore, their continuing personal relationship is viewed in positive terms, having no security significance. He has no contact with his family in Morocco.

Guideline C—Foreign Preference

E2.A3.1.1. The Concern: When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may be prone to provide information or make decisions that are harmful to the interests of the United States. The government failed to make its case because Applicant had renounced his Moroccan citizenship, and turned over to the Moroccan Embassy his passport and his Moroccan government ID card, prior to the hearing. And his dual citizenship was based solely on his parents' citizenship and birth in a foreign country. I conclude Guideline C for Applicant.

Guideline J—Criminal Conduct

Even though the government established its case under Criminal Conduct Disqualifying Condition (CC DC) E2.A10.1.2.1. (Allegations or admission of criminal conduct, regardless of whether the person was formally charged), the fact that the charge was based on mistake and both the arrest and court records have been expunged by court order acts to mitigate the concern. The charge is not only void, but it is void ab initio. As I have found for Applicant under Guideline E, this negates the allegations of criminal conduct pursuant to 18 U.S.C. § 1001. Guideline E—Personal Conduct Whole Person Analysis

I had the opportunity to evaluate the demeanor of Applicant, observe his manner and deportment, appraise the way in which he responded to questions, assess his candor or evasiveness, read his statements, listen to his testimony, and watch the interplay between himself and those around him. It is my impression Applicant's explanations are both consistent and sincere, and have the solid resonance of truth. Thus, I conclude Applicant has, through evidence of extenuation and explanation, successfully mitigated and refuted the Government's case in this regard.

In assessing whether an applicant is a security risk because of his or her relatives or associates in a foreign country, it is necessary to consider all relevant factors. As noted above, ¶¶ E2.2.1, E2.2.2, and E2.2.3 of the Directive specifically require each administrative judge to consider all the facts and circumstances, including the “whole person” concept, when evaluating each individual case. To ignore such evidence would establish a virtual per se rule against granting clearances to any person with ties to persons in a foreign country, contrary to the clear terms of the Directive. “Although the position of an applicant’s foreign family members is significant and may preclude the favorable application of FI MC E2.A2.1.3.1., the totality of an applicant’s conduct and circumstances (including the realistic potential for exploitation) may still warrant a favorable application of the relevant general factors.”37

Most importantly, it is necessary to consider Applicant’s vulnerability to exploitation through his relatives. Applicant is a mature individual with almost ten years of successful military service to this country. He is a U.S. citizen and was educated in this country. Applicant has strong ties to the United States. He votes, he has financial ties including rental property, he has coached a soccer team, and is active with the Boy Scouts. In his civilian employment, he has provided close security for major government officials. More and more of his family are immigrating to the U.S. Because of Applicant’s deep and long-standing relationships and loyalties in the U.S., he can be expected to resolve any conflict of interest in favor of the United States. I find the potential for pressure, coercion, exploitation, or duress does not constitute a security risk. I conclude it is clearly consistent with the national interest to grant or continue Applicant’s security clearance.

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

Paragraph 1. Guideline B: FOR APPLICANT Subparagraph 1.a: For Applicant Subparagraph 1.b: For Applicant Subparagraph 1.c: For Applicant Subparagraph 1.d: For Applicant Subparagraph 1.e: For Applicant Subparagraph 1.f: For Applicant Subparagraph 1.g: For Applicant Subparagraph 1.h: For Applicant

Paragraph 2. Guideline C: FOR APPLICANT

Subparagraph 2.a: For Applicant Subparagraph 2.b: For Applicant

Paragraph 3. Guideline J: FOR APPLICANT

Subparagraph 3.a: For Applicant Subparagraph 3.b: For Applicant

Paragraph 4. Guideline E: FOR APPLICANT

Subparagraph 4.a: For Applicant Subparagraph 4.b: For Applicant Subparagraph 4.c: For Applicant Subparagraph 4.d: For Applicant

In light of all of the circumstances in this case, it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance is granted.

Christopher Graham Administrative Judge

FOR GOVERNMENT Nichole Noel, Esq., Department Counsel FOR APPLICANT Pro Se Government Exhibit 1 (Security Clearance Application (SF 86), dated April 30, 2001). Tr. at 12. Id. at 13. Id. at 16. Id. at 12-15. Id. at 12. Id. at 115-16. Id. at 42-43. Id. at 39. Id. at 68-69. Id. at 22-23. Id. at 54-55. Id. at 26. Id. at 54. Id. at 27. Id. at 49-53. Id. at 40-41. Applicant’s Exhibit A (Letter of Renunciation, dated March 22, 2007) at 1; Tr. at 27. Applicant’s Exhibit B (Expungement Order, dated February 14, 2005) at 2-3. Tr. at 31. Id. at 33. Id. at 38. Government Exhibit 11 (U.S. Department of State, Bureau of Consular Affairs, Consular Information Sheet on Morocco, February 20 1, 2007) at 1; Government Exhibit 10 (U.S. Department of State, Bureau of Near Eastern Affairs, Background Note: Morocco, dated February 2007) at 3; and Government Exhibit 13 (U.S. Department of State, Bureau of Democracy, Human Rights, and Labor, Country Reports on Human Rights Practices-2006-Morocco, dated March 6, 2007) at 1. Government Exhibit 10, supra, note 8, at 3. Id. at 1. Id. at 5-8. Government Exhibit 11, supra, note 8, at 1-2. Government Exhibit 12(U.S. Department of State, Office of the Coordinator of Counterterrorism, Country Reports on Terrorism, dated April 2006) at 141-142. Id. at 142. Government Exhibit 11, supra, note 8, at 1-2. Government Exhibit 13, supra, note 8, at 1. Government Exhibit 11, supra, note 8, at 4-5. Id. at 81-82. “Substantial evidence [is] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the record.” ISCR Case No. 04-11463 at 2 (App. Bd. Aug. 4, 2006) (citing 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 [a Judge’s] finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966). “Substantial evidence” is “more than a th scintilla but less than a preponderance.” See v.Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4 Cir. 1994). See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). ?The Administrative Judge [considers] the record evidence as a whole, both favorable and unfavorable, [evaluates] Applicant’s past and current circumstances in light of pertinent provisions of the Directive, and [decides] whether Applicant [has] met his burden of persuasion under Directive ¶ E3.1.15.” ISCR Case No. 04-10340 at 2 (App. Bd. July 6, 2006). See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). The Administrative Judge [considers] the record evidence as a whole, both favorable and unfavorable, evaluate[s] Applicant’s past and current circumstances in light of pertinent provisions of the Directive, and decide[s] whether Applicant ha[s] met his burden of persuasion under Directive ¶ E3.1.15.” ISCR Case No. 04-10340 at 2 (App. Bd. July 6, 2006). ISCR Case No. 03-17620 at 4 (App. Bd. Apr. 17, 2006) (footnotes omitted); accord ISCR Case No. 03-23259 at 3 (App. Bd. May 10, 2006). Directive, ¶ E2.2.1.8.