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ISCR 07-14508.h2: Guideline B security clearance hearing, granted (2009) · CASE

ISCR Case 07-14508.h2granted

Case headnote

ISCR Case No. 07-14508.h2

grantedSep 30, 2009· Hon. John Grattan Metz, Jr.· hearing

Summary

This security clearance decision involved an applicant, a former Russian citizen, under Guideline B (Foreign Influence). Disqualifying conditions were initially raised regarding the applicant's foreign contacts.

However, the judge applied several mitigating conditions. It was established that the applicant had not traveled to Russia since November 2007 and expressed no intention to do so again. Her interactions with family and friends remaining in Russia were found to be minimal and infrequent. Furthermore, the applicant demonstrated clear loyalty to the United States and a strong disdain for Russia, which further alleviated security concerns.

Ultimately, the judge concluded that these factors sufficiently mitigated the initial foreign influence concerns. The security clearance was GRANTED, consistent with the national interest.

Why the applicant prevailed

The applicant has not traveled to Russia since November 2007 and has no intention to do so in the future.
Her contacts with family and friends in Russia are minimal and infrequent, reducing the risk of foreign influence.
The applicant's loyalty to the U.S. and disdain for Russia were evident, mitigating any potential security concerns.

Conditions referenced

Disqualifying

AG ¶ 7(a)raisedForeign Influence
AG ¶ 7(b)raisedForeign Influence

Mitigating

AG ¶ 8(a)appliedForeign Influence
AG ¶ 8(b)appliedForeign Influence
AG ¶ 8(c)appliedForeign Influence

Key rule quoted

“The government must prove, by something less than a preponderance of the evidence, controverted facts alleged in the SOR.”
Department of the Navy v. Egan, 484 U.S. 518 (1988).

Procedural posture

SOR issuedNot specified
Answer filedNot specified
Hearing heldNot specifiedReopened in June 2009 for additional evidence.
Decision dateSep 30, 2009

Cite for

Mitigating Factors Under Guideline B Regarding Foreign Influence
Assessment of Foreign Contacts and Their Potential for Coercion
The Importance of an Applicant's Loyalty to the U.S. in Security Clearance Determinations.

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 and interests did not raise security concerns under Guideline B. Despite the geopolitical risks associated with Russia, the applicant's limited and infrequent contacts with family and friends in Russia were not deemed significant enough to create a heightened risk of foreign influence. The judge concluded that the applicant's loyalty to the U.S. and her history of renouncing her Russian citizenship mitigated any potential concerns, resulting in a decision to grant the security clearance.

U.S. ties the decision noted: Renounced or Surrendered Foreign Citizenship or Passport

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation

Descriptive standardized rendering of a decided public case. 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: ) ) XXXXXXX, Xxxx ) ISCR Case No. 07-14508 SSN: XXX-XX-XXXX ) ) Applicant for Security Clearance )

For Government: Candace Le’i, Esquire, Department Counsel For Applicant: Pro se

September 30, 2009 ______________

Remand Decision ______________

METZ, John Grattan, Jr., Administrative Judge:

On 22 October 2008, the Appeal Board remanded this case to me for further proceedings in accordance with its decision and the Directive. In June 2009, I reopened the record to permit the parties to augment the record consistent with the board’s ruling. I gave the parties until 26 June 2009 to submit additional relevant and material evidence consistent with the Appeal Board’s ruling. Each side made a timely submission, to which the opposing side made no objection.

FINDINGS OF FACT

Except as noted below or modified by the Appeal Board, I incorporate by reference my previous findings of fact from my 30 June 2008 decision [attached]. I note that Department Counsel did not dispute my findings of fact on appeal. The Appeal Board remand goes only to the sufficiency of my findings about the geopolitical situation in Russia. Applicant’s post-hearing submissions establish that she has not traveled to Russia since November 2007, and has no intention to do so in the future. She also established that relations between Russia and Georgia were much more stable than in August 2008.1

Russia—a former Soviet Republic—is a nominal democracy with a mixed human rights record. It has been the target of terrorist activity in recent years. Russian federal forces pursuing terrorists act with impunity while engaging in torture, summary executions, disappearances, and arbitrary detentions. Additional problems include corruption, media suppression, life-threatening prison conditions, and corruption in law enforcement.

Russia imposes rigid visa requirements on foreign travelers entering, and traveling within, Russia. U.S. citizens who have at one time held Russian citizenship may be required to renounce Russian citizenship before applying for a Russian visa in their U.S. passport. Unless a Russian citizen has formally renounced his or her Russian citizenship, he or she risks being considered a Russian citizen and not allowed to depart except on a Russian passport.

Russia has an active, significant, recent, and ongoing collection 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. Much of Russia’s targeting occurs through direct visits to U.S. facilities. However, the record does not indicate if Russia targets U.S. citizens through family members residing in Russia to obtain protected information. Furthermore, the U.S. and Russia cooperate over a broad spectrum of foreign-policy issues, particularly counter-terrorism efforts.

POLICIES

The Revised Adjudicative Guidelines (RAG) list factors to be considered in evaluating an applicant’s suitability for access to classified information. Administrative judges must assess both disqualifying and mitigating conditions under each issue fairly raised by the facts and circumstances presented. Each decision must also reflect a fair and impartial common sense consideration of the factors listed in RAG ¶ 2(a). The presence or absence of a disqualifying or mitigating condition is not determinative for or against Applicant. However, specific adjudicative guidelines should be followed where a case can be measured against them, as they represent policy guidance governing the grant or denial of access to classified information. Considering the SOR allegations and the evidence as a whole, the relevant, applicable, adjudicative guideline is Guideline B.

Security clearance decisions resolve whether it is clearly consistent with the national interest to grant or continue an applicant’s security clearance. The government must prove, by something less than a preponderance of the evidence, controverted facts alleged in the SOR. If it does so, it establishes a prima facie case against access to classified information. Applicant must then refute, extenuate, or mitigate the government’s case. Because no one has a right to a security clearance, the applicant bears a heavy burden of persuasion.

Persons with access to classified information enter into a fiduciary relationship with the government based on trust and confidence. Therefore, the government has a compelling interest in ensuring each applicant possesses the requisite judgement, reliability, and trustworthiness to protect national interests as their own. The “clearly consistent with the national interest” standard compels resolution of any reasonable doubt about an applicant’s suitability for access in favor of the government.2

ANALYSIS

Under Guideline B (Foreign Influence), an applicant’s foreign contacts and interests may raise security concerns if the individual 1) has divided loyalties or foreign financial interests, 2) may be manipulated or induced to help a foreign person, group, organization, or government in a way contrary to U.S. interests, or 3) is vulnerable to pressure or coercion by any foreign interest. Foreign influence adjudications 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, whether the country is known to target U.S. citizens to obtain protected information and/or is associated with a risk of terrorism. Evaluation of an individual’s qualifications for access to protected information requires careful assessment of both the foreign entity’s willingness and ability to target protected information, and to target expatriates who are U.S. citizens to obtain that information, and the individual’s susceptibility to influence, whether negative or positive. More specifically, an individual’s contacts with foreign family members (or other foreign entities or persons) raise security concerns only if those contacts create a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion.4

In this case, the Appeal Board has directed me to find that the government established a case for disqualification under Guideline B, and I so find. However, the Appeal Board did so in part by considering events (the Russian incursion into the former Soviet Republic of Georgia in August 2008) that not only occurred after the record in this case closed, but after the decision was issued. Nevertheless, considering the country involved, Russia 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 still 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. However, for the sake of this analysis, I will assume that it does.

The Appeal Board also directed me to engage in a current and accurate assessment of the “geopolitical situation” and the “security/intelligence profile” of Russia vis-a-vis the U.S. It is axiomatic that such assessments are essential in a Guideline B case, but as the Appeal Board infers, such assessments are necessarily fluid. Yet, if I take the Appeal Board decision to its logical conclusion, I should be scanning today’s headlines for evidence of dramatic shifts in the international political landscape. Fortunately, this case can be resolved without such speculation.

Despite a softening of relations with Russia after the 1991 collapse of the Soviet Union, and greater collaboration on some issues in the wake of 9/11, Russian geopolitical imperatives remain largely unchanged from those of the Soviet Union, possibly even from those of Czarist Russia. Two of the most important geopolitical goals have been obtaining and maintaining access to a warm-water port on the Black Sea and—because of the absence of natural defensive barriers on the Russian plain—maintenance of a sphere of influence in neighboring states, whether through allied Soviet Republics or buffer states sympathetic to Russian interests.

The Russian incursion into Georgia establishes that which is not seriously in contention: That Russia will act with armed force when it perceives that such force is necessary to protect its geopolitical interests. Russia did so in Hungary and then- Czechoslovakia when Russia was part of the Soviet Union. It is no great surprise that it did so in Georgia. It would not be a great surprise if it did so in any of the other former Soviet Republics that have tried to establish closer ties with the West. The only real difference, is that in the immediate aftermath of the collapse of the Soviet Union, Russia lacked both the political cohesiveness and the military power to pursue those geopolitical goals. Russia lacks them no more. Thus, Russia may be expected to move to pull its former republics back into its orbit, whether by peaceful means (supporting pro-Russia candidates in Ukraine), aggressive economic actions (cutting natural gas transmission to Ukraine), or military force (Georgia).

Considering Applicant’s circumstances, I find—in accord with the Appeal Board’s ruling—that the government established that there was a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion because of her contacts in Russia. However, Applicant’s foreign travel to Russia has no independent security significance, particularly the two most recent trips to bury her mother and visit her father’s grave. That travel, unlikely to be repeated, serves only to demonstrate her ties to two people who are beyond the reach of Russia as focal points for influencing Applicant.

Her contacts with her ex-husband, former mother-in-law, and two friends—none of whom is connected to the Russian government—are minimal. Her contacts with her brother—now still tenuously connected to the government through his retirement—are virtually non-existent. Department Counsel has articulated no reasonable argument why I should consider any of these contacts as potential sources of influence on Applicant. Even with Russia’s active information gathering, not every contact born of civility (ex- husband), friendship (her two friends), or family connection (ex-mother-in-law, brother) rises to the level of security concerns, particularly given the infrequency of contact. Applicant’s 10-year work history in the U.S.S.R.—nearly 30 years removed—was with the Soviet government only in the broadest possible sense, and insignificant as a source for security concerns. There is no possible reason to think Applicant could be influenced by a government she renounced nearly 30 years ago.

Even finding a case for disqualification under ¶¶ 7.(a) and (b), I find the security concerns mitigated. Applicant fled Russia for a better life with her daughter. In so doing, she renounced her Russian citizenship, became a stateless person, and immigrated to the U.S. for political asylum. Her family and friends are not so situated as to be a likely source of pressure. Her loyalty to the U.S. is so great, and her disdain for Russia so palpable, that there is no conflict of interest that can be exploited. Finally, there is no reasonable characterization of her contacts with family and friends in Russia as other than casual and infrequent. In addition, the U.S. Government has already significantly vouched for her character, having authorized her to be issued an official passport with which to carry out her contract work for the government. I conclude that it is unlikely she can be pressured based on her limited contacts with her family and friends in Russia. Accordingly, I resolve Guideline B for Applicant. Consideration of the nine “whole person” factors lead to the same result.

FORMAL FINDINGS

Paragraph 1. Guideline B: FOR APPLICANT

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

CONCLUSION

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

JOHN GRATTAN METZ, JR Administrative Judge

FOOTNOTES

In so doing, she provided updated documents for official notice, and objected to my consideration of the documents submitted by Department Counsel as being outdated. I overrule the objection because the issue raised goes only to the weight to be given the government’s documents. See, Department of the Navy v. Egan, 484 U.S. 518 (1988).

Revised Adjudicative Guidelines, ¶ 6.

Revised Adjudicative Guidelines, ¶ 7.(a). Revised Adjudicative Guidelines, ¶ 7.(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; (b) connections to a foreign person, group, government, or country that create a potential conflict of interest between the individuals’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.

Revised Adjudicative Guidelines, ¶ 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.;

Revised Adjudicative Guidelines, ¶ 8.(b) there is no conflict of interest, either because the individuals sense of obligation to the foreign group 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;

Revised Adjudicative Guidelines, ¶ 8.(c) contact or communication with foreign citizens is so casual or infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation;