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ISCR Case 07-13106.h1 — CASE

ISCR Case 07-13106.h1granted

Case Headnote

ISCR Case No. 07-13106.h1

grantedJun 3, 2008· Hon. Darlene Lokey Anderson· hearing

Summary

This case involved a defense contractor seeking a security clearance under Guideline B, Foreign Influence, due to contacts in Taiwan. Disqualifying conditions were raised under Guideline B, specifically 7(a), concerning foreign contacts that could create a potential for foreign influence or exploitation.

However, the judge found that mitigating conditions applied, specifically 8(a) and 8(c). The applicant's relationships with foreign contacts were determined to be infrequent and casual, significantly reducing the risk of foreign influence. Furthermore, the applicant demonstrated strong ties to the United States, including family, employment, and assets, which further mitigated concerns.

Ultimately, the judge found no evidence of a close bond with foreign contacts that could lead to exploitation. Based on these mitigating factors and the lack of vulnerability to foreign influence, the security clearance was GRANTED.

Why the Applicant Prevailed

The applicant's foreign contacts were infrequent and casual, reducing the risk of foreign influence.
The applicant demonstrated strong ties to the United States, including family, employment, and assets.
The judge found no evidence of a close bond with foreign contacts that could lead to exploitation.

Conditions Referenced

Disqualifying

7(a)raisedContact with a Foreign Family Member, Business or Professional Associate, Friend, or Other Person Who Is a Citizen of or Resident of a Foreign Country

Mitigating

8(a)appliedThe 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.
8(c)appliedContact 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.

Key Rule Quoted

“The Government must make out a case under Guideline B (foreign influence) that establishes doubt about a person's judgment, reliability and trustworthiness.”

Procedural Posture

SOR issued2007-XX-XX
Answer filed2007-XX-XX
Hearing held2007-XX-XXApplicant requested a delay for counsel availability.
Decision dateJun 3, 2008

Cite For

Mitigating Conditions Under Guideline B Regarding Foreign Influence
Evaluation of Foreign Contacts and Their Impact on Security Clearance
Importance of Establishing Strong Ties to the U.S. in Foreign Influence Cases

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: Decision on RecordDecided: granted

The judge found that the applicant's foreign contacts did not pose a risk of foreign influence that could compromise classified information. Despite having foreign relatives, the applicant's infrequent contact and strong ties to the United States mitigated any potential concerns. The decision ultimately favored the applicant under Guideline B.

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: 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–1.e	5 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant	Unspecified Foreign Relationship Other	— HEIGHTENED RISK		—	—	—

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. 07-13106 SSN: -------------------- ) ) Applicant for Security Clearance )

For Government: Jennifer I. Goldstein, Esquire, Department Counsel For Applicant: B. Daniel Lynch, Esquire

June 3, 2008

______________

STATEMENT OF CASE

______________

LOKEY ANDERSON, Darlene D., Administrative Judge:

Applicant submitted his Security Clearance Application (SF 86), on -------------, 2007. On -----------, 2007, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the security concerns under Guideline F for Applicant. 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 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 acknowledged receipt of the SOR on -------------, 2007. He answered the SOR in writing through counsel on ----------, 2007, and requested a hearing before an Administrative Judge. DOHA received the request on -------------, 2007. Department Counsel was prepared to proceed on ----------------, 2007, and I received the case assignment on --------------, 2007. I granted Applicant’s request for a delay until ------------ , 2007, in order for his counsel to be available. DOHA issued a notice of hearing on ------ ------------, 2007, and I convened the hearing as scheduled on -------------, 2007. The government offered Exhibits (Ex.) 1 through ---, which were received without objection. Applicant testified on his own behalf and submitted Exhibits A through ----, without objection. DOHA received the transcript of the hearing (Tr.) on ----------------, 2007. I granted Applicant’s request to keep the record open until ---------------, 2007, to submit additional matters. On -----------------, 2007, he submitted Exhibit ---, without objection. The record closed on ----------------, 2007. Based upon a review of the case file, pleadings, exhibits, and testimony, eligibility for access to classified information is (granted) (denied).

Request for Administrative Notice

Department Counsel submitted a formal request that I take administrative notice of certain facts concerning the current political conditions in ------------. Applicant had no objection. (Tr. p. 27). The request and the attached documents were not admitted into evidence but were included in the record. The facts administratively noticed are set out in the Findings of Fact, below.

FINDINGS OF FACT

The following Findings of Fact are based on Applicant's Answer to the SOR, the testimony and the exhibits. The Applicant is --- years of age and has a ------------------. He is employed as a ---------------------- for a defense contractor. He seeks a security clearance in connection with his employment in the defense industry.

Paragraph 1 (Guideline B - Foreign Influence). The Government alleges in this paragraph that the Applicant is ineligible for clearance because he has foreign contacts that could create the potential for foreign influence that could result in the compromise of classified information.

I have taken official notice of the following facts concerning the Taiwan. Taiwan is a multi-party democracy with a population of about 23 million. It is one of the most active collectors of sensitive United States information and technology. Numerous individuals and companies have been subjected to civil penalties and or prosecuted for illegally exporting, or attempting to illegally export, sensitive United States technology to Taiwan. One United States official was recently convicted of crimes relating to his improper relationship with a Taiwanese intelligence official.

POLICIES

Security clearance decisions are not made in a vacuum. Accordingly, the Department of Defense, in Enclosure 2 of the 1992 Directive sets forth policy factors and conditions that could raise or mitigate a security concern; which must be given binding consideration in making security clearance determinations. These factors should be followed in every case according to the pertinent criterion. However, the conditions are neither automatically determinative of the decision in any case, nor can they supersede the Administrative Judge’s reliance on her own common sense. Because each security clearance case presents its own unique facts and circumstances, it cannot be assumed that these factors exhaust the realm of human experience, or apply equally in every case. Based on the Findings of Fact set forth above, the factors most applicable to the evaluation of this case are:

Foreign Influence

6. The Concern. Foreign 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. Adjudication under this Guideline 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 United States citizens to obtain protected information and/or is associated with a risk of terrorism.

Condition that could raise a security concern:

7. (a) contact with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident of a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion.

Conditions that could mitigate security concerns:

8. (a) 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.;

8. (c) 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.

In addition, as set forth in Enclosure 2 of the Directive at pages 16-17, in evaluating the relevance of an individual’s conduct, the Administrative Judge should consider the following general factors:

a. The nature and seriousness of the conduct and surrounding circumstances

b. The circumstances surrounding the conduct, to include knowledgeable participation

c. The frequency and recency of the conduct

d. The individual’s age and maturity at the time of the conduct

e. The voluntariness of participation f. The presence or absence of rehabilitation and other pertinent behavior changes

g. The motivation for the conduct

h. The potential for pressure, coercion, exploitation or duress

i. The likelihood of continuation or recurrence.

The eligibility criteria established in the DoD Directive identify personal characteristics and conduct which are reasonably related to the ultimate question, posed in Section 2 of Executive Order 10865, of whether it is “clearly consistent with the national interest” to grant an Applicant’s request for access to classified information.

The DoD Directive states, “The adjudicative process is an examination of a sufficient period of a person’s life to make an affirmative determination that the person is eligible for a security clearance. Eligibility for access to classified information is predicted upon the individual meeting these personnel security guidelines. The adjudicative process is the careful weighing of a number of variables known as the whole person concept. Available, reliable information about the person, past and present, favorable and unfavorable should be considered in reaching a determination. The Administrative Judge can draw only those inferences or conclusions that have reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature. Finally, as emphasized by President Eisenhower in Executive Order 10865, “Any determination under this order . . . shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the Applicant concerned.”

The Government must make out a case under Guideline B (foreign influence) that establishes doubt about a person's judgment, reliability and trustworthiness. While a rational connection, or nexus, must be shown between Applicant's adverse conduct and his ability to effectively safeguard classified information, with respect to sufficiency of proof of a rational connection, objective or direct evidence is not required.

Then, the Applicant must remove that doubt with substantial evidence in refutation, explanation, mitigation or extenuation, which demonstrates that the past adverse conduct, is unlikely to be repeated, and that the Applicant presently qualifies for a security clearance.

An individual who demonstrates a foreign influence ad has foreign connections may be prone to provide information or make decisions that are harmful to the interests of the United States. The mere possession of a foreign passport raises legitimate questions as to whether the Applicant can be counted upon to place the interests of the United States paramount to that of another nation. The Government must be able to place a high degree of confidence in a security clearance holder to abide by all security rules and regulations, at all times and in all places.

CONCLUSION

Having considered the evidence of record in light of the appropriate legal standards and factors, and having assessed the Applicant's credibility based on the record, this Administrative Judge concludes that the Government has established its case as to all allegations in the SOR.

Under Foreign Influence, Disqualifying Condition 7(a) contact with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident of a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion applies. However, Mitigating Conditions 8(a) 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, and 8(c) 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 also apply.

Although the Applicant’s has ----------------- who are residents and citizens of ------ ----------------------, the Applicant is not close to them and except for holidays, rarely has contact with them. There is no evidence of a close bond or strong evidence of affection. The Applicant’s deep and abiding ties are here in the United States. For the past -------- ------years he has worked hard to establish himself as a responsible, educated, American citizen. His ----------------, are all citizens and residents of the United States. His advanced education, employment with the DOD, assets, that include his home, many investments and retirement benefits are all in the United States. The Applicant essentially cut all ties from ----------- when he moved to the United States and made it his permanent home for the past ------------------.

It is noted that the current political situation in -------------- elevates the cause for concern in this case. However, the evidence shows that the Applicant has no bond and affection with his foreign ----------- or to any foreign individual or to Taiwan in any way that could potentially cause the Applicant to become subject to foreign exploitation, inducement, manipulation, pressure, or coercion. Therefore, there is no possibility of foreign influence that exists that could create the potential for conduct resulting in the compromise of classified information. I find that the Applicant is not vulnerable to foreign influence. Accordingly, I find for the Applicant under Guideline B (Foreign Influence).

Considering all the evidence, the Applicant has met the mitigating conditions of Guideline B of the adjudicative guidelines set forth in Enclosure 2 of the Directive. Accordingly, he has met his ultimate burden of persuasion under Guideline B.

FORMAL FINDINGS

Formal Findings For or Against the Applicant on the allegations in the SOR, as required by Paragraph 25 of Enclosure 3 of the Directive are: Paragraph 1: For the Applicant. Subparas. 1.a.: For the Applicant Subparas. 1.b.: For the Applicant Subparas. 1.c.: For the Applicant Subparas. 1.d.: For the Applicant Subparas. 1.e.: For the Applicant

DECISION

In light of the circumstances presented by the record in this case, it is clearly consistent with the national interests to grant or continue a security clearance for the Applicant.

Darlene Lokey Anderson Administrative Judge