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ISCR Case 08-08621.h1 — CASE

ISCR Case 08-08621.h1granted

Case Headnote

ISCR Case No. 08-08621.h1

grantedJun 10, 2009· Hon. Mary E. Henry· hearing

Summary

A 37-year-old systems administrator for a Department of Defense contractor was granted a security clearance despite initial concerns under Guideline B (Foreign Influence). The applicant's familial ties in Saudi Arabia raised disqualifying conditions, specifically AG ¶ 7(a) and AG ¶ 7(b), related to potential foreign influence.

However, the judge applied mitigating conditions AG ¶ 8(a) and AG ¶ 8(b), finding that the applicant's circumstances sufficiently addressed these concerns. Key factors in the decision included the applicant's limited contact with family members in Saudi Arabia, which reduced the potential for foreign influence.

Furthermore, the applicant does not provide financial support to his family abroad, thereby mitigating risks of coercion or manipulation. The applicant's strong professional reputation and positive character references also supported the decision to grant the security clearance.

Why the Applicant Prevailed

The applicant maintained limited contact with family members in Saudi Arabia, mitigating potential foreign influence concerns.
The applicant does not provide financial support to his family in Saudi Arabia, reducing the risk of coercion or manipulation.
The applicant's strong professional reputation and positive character references supported his case for security clearance.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedContact with Foreign Family MembersThe applicant's family members in Saudi Arabia raised concerns about potential foreign exploitation.
AG ¶ 7(b)raisedConnections to Foreign PersonsThe applicant's familial ties to Saudi Arabia created a potential conflict of interest.

Mitigating

AG ¶ 8(a)appliedFamily Ties Are Not a Reason for DenialThe applicant's limited contact with family members and lack of financial support mitigated the risks.
AG ¶ 8(b)appliedCooperation with U.S. InterestsThe close relationship between the U.S. and Saudi Arabia and the lack of evidence of espionage activities mitigated concerns.

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedNov 20, 2008
Answer filedDec 11, 2008
Hearing heldApr 21, 2009Applicant waived 15 days notice.
Decision dateJun 10, 2009

Cite For

Mitigation of Foreign Influence Concerns Under Guideline B
Importance of Limited Family Contact in Security Clearance Cases
Consideration of U.S.-Saudi Relations in Adjudicating Security Clearances

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 granted the applicant's eligibility for access to classified information, finding that the applicant's family ties in Saudi Arabia did not create a heightened risk of foreign influence. The applicant maintained limited contact with his family and did not provide financial support, which mitigated the government's concerns regarding potential coercion or divided loyalties.

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: Naturalized U.S. Citizen · U.S. Spouse or Partner · U.S. Children · U.S. Home or Property · U.S. Career or Business

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
1.a–1.g	7 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant	Unspecified Foreign Relationship Immediate Family	— 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. 08-08621 SSN: ) ) Applicant for Security Clearance )

For Government: Allison O’Connell, Esquire, Department Counsel For Applicant: Pro Se

June 10, 2009 ______________

STATEMENT OF CASE

______________

HENRY, Mary E., Administrative Judge:

Based upon a review of the case file, pleadings, exhibits, and testimony, I conclude that Applicant’s eligibility for access to classified information is granted.

Applicant submitted his Security Clearance Application (SF 86), on October 25, 2007. On November 20, 2008, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing security concerns under Guideline B. 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 December 11, 2008. He answered the SOR in writing, and requested a hearing before an administrative judge. DOHA received the request. Department Counsel was prepared to proceed on March 13, 2009, and I received the case assignment on March 16, 2009. DOHA issued a notice of hearing on March 20, 2009, and I convened the hearing as scheduled on April 21, 2009. The government offered one exhibit (GE) 1, which was received and admitted into evidence without objection. Applicant testified on his own behalf. He submitted 17 exhibits (AE) A through Q, which were received and admitted into evidence without objection. The record closed on April 21, 2009. DOHA received the transcript of the hearing (Tr.) on April 29, 2009.

Procedural and Evidentiary Rulings

Notice

Applicant received the hearing notice on April 7, 2009. I advised Applicant of his right under ¶ E3.1.8 of the Directive to 15 days notice before the hearing. Applicant affirmatively waived his right to 15 days notice. (Tr. 9-10).

Request for Administrative Notice

Department Counsel submitted a formal request that I take administrative notice of certain facts relating to Saudi Arabia. The request and the attached documents were not admitted into evidence, but were included in the record as Hearing Exhibit 1, I-IX. The facts administratively noticed will be limited to matters of general knowledge and matters not subject to reasonable dispute, and are set out in the Findings of Fact below.

FINDINGS OF FACT

In his Answer to the SOR, Applicant admitted the factual allegations in ¶¶ 1.a through 1.gof the SOR, with explanations. He also provided additional information to support his request for eligibility for a security clearance.

Applicant, who is 37 years old, works as a systems administrator for a Department of Defense contractor. He started his employment with this contractor in December 2007 and is working overseas.1

Applicant was born in Saudi Arabia to African parents. At age 17, he emigrated from Saudi Arabia to the United States (U.S.) to attend college. Applicant graduated from a major U.S. university with a bachelor’s degree in information systems and quantitative analysis. Applicant speaks English and Arabic. Applicant married a U.S. citizen in 1991. They divorced in 2004 and remain good friends. He has two stepchildren - a daughter, age 22, and a son, age 20. They consider him their father. Applicant became a U.S. citizen in 2003.3

Applicant’s father owned a truck business in Saudi Arabia before he died in 1991. Applicant’s mother, three brothers and two of his sisters are citizens of and live in Saudi Arabia. Applicant’s mother is a housewife. Applicant talks with her on the telephone approximately once a month about general matters. She does not work and does not have contact with the Saudi government. She wants to come to the U.S. and does speak and understand some English. He hopes she will be able to come to the U.S. in 2010.4

Applicant’s oldest brother attended college in the U.S. When their father died, he returned to Saudi Arabia to work and provide support for the family members still living in Saudi Arabia, which he continues to do. He currently works as an information technology consultant for a military hospital which is funded by the Saudi government. He is not married and does not have children as far as Applicant knows.5

Applicant’s second brother is a pediatric physician in a Saudi government-funded hospital. He recently arrived in the U.S. to visit a sister. After the visit, he will travel to Canada where he will live for three years while completing a medical fellowship. His future residency plans are unknown. Applicant’s youngest brother does not work, and hopes to attend a U.S. university. With the help of family, he is applying for college and hopes to arrive in the U.S. by the end of this year. These brothers are not married and do not have children. Both live with his mother and older brother. If either of these brothers are home when Applicant calls his mother, he will talk with them. His conversations with his brothers are less frequent than his conversations with his mother.

Applicant’s 34-year-old sister is a physician by training. She does not practice medicine. His 30-year-old sister is a trained medical technician, but does not work. Both sisters live with his mother and brothers. His sisters are not married and do not have children. Like his brothers, if his sisters are home when he calls his mother, he will talk with them. Applicant’s third sister is a U.S. citizen, who lives and works in the U.S. She is working to bring the family members to the U.S. and has met with an immigration lawyer. Applicant does not own property in Saudi Arabia nor does he have any bank accounts in Saudi Arabia. His brothers and sisters do not own property in Saudi Arabia. He believes his mother owns the house where his family lives. He does not provide financial support to his family in Saudi Arabia. Applicant does not have extended family in Saudi Arabia. He has one college friend in Saudi Arabia. He has not spoken to his friend in at least eight months.8

In 2005, Applicant traveled to Saudi Arabia for the first time after coming to the U.S. in 1988. He had not seen his mother in 17 years. He remained in Saudi Arabia for five and one-half months. His current employer deployed him to an overseas destination, which allowed him to visit his family in Saudi Arabia. In 2008, he took weekend trips to visit his family. His current deployment has taken him further away from Saudi Arabia and he is unable to travel as easily to Saudi Arabia.9

Applicant’s former spouse, her mother and her uncle wrote very favorable letters of recommendation. All describe him as a caring, helpful and responsible individual. His stepson describes Applicant as his father and has a very good relationship with Applicant. He describes Applicant as honorable, hardworking and selfless. Applicant’s stepdaughter came to the hearing with him.10

Applicant obtained 12 letters of recommendation from co-workers, including his Army Commanding Officer. His Commanding Officer describes him as “an outstanding Systems Administrator who has earned his trust as a competent technician.” He describes Applicant as reliable, responsible, humorous, and a man of integrity. He would hire Applicant anytime to operate, maintain, and sustain the U.S. government’s IT systems. Co-workers portray him as an expert, with a strong work ethic. He uses proper care when working with classified materials. He is intelligent, reliable, and dependable.11

At the hearing, Department Counsel argued that the heightened risk in this case concerns the risk of terrorism in Saudi Arabia, making Applicant’s family contacts a security concern.12 Saudi Arabia

I take administrative notice of the following facts. The Kingdom of Saudi Arabia is a monarchy ruled by the Al Saud Family. The freedoms granted to U.S. citizens under the U.S. constitution are not known in Saudi Arabia. Reports of abusing and torturing prisoners, discrimination based on gender, religion, sect, and ethnicity, and other human rights violations continue. The Saudi government’s foreign policy objectives focus on maintaining its security and paramount position on the Arabian Peninsula. Saudi Arabia signed the United Nations (UN) charter in 1948 and is a member of OPEC. Because of its position, Saudi Arabia frequently helps mediate regional crises and supports peace with Israel. The U.S. and Saudi Arabia differ over the Israel and Palestine issues, based on political ideology, and certain other policy issues concerning the middle east. Friendship with Saudi Arabia is important to the U.S. Both countries share common concerns about regional security, oil, and sustainable development.13

A long standing security relationship exists between the U.S. and Saudi Arabia. The U.S. established formal diplomatic relations with Saudi Arabia in 1933, which continues. Because of this relationship, the U.S. sells military equipment to Saudi Arabia. Following the September 11, 2001 attacks in the U.S., strains in the relationship between the two countries developed. From May 2003 until June 2004, a terrorist organization directly affiliated with al-Qaida launched a series of violent attacks in Saudi Arabia, resulting in death and serious injury. The Saudi security services waged an active counterterrorism campaign, which largely neutralized this organization. Thereafter, Saudi Arabia became an important partner in the campaign against terrorism, providing military, diplomatic and financial cooperation. This cooperation continues.14

In June 2008, the U.S. Treasury Department designated Al Haramain Islamic Foundation (AHF), with headquarters in Saudi Arabia, for providing financial and material support to al Qaida, as well as a wide range of terrorist organizations. Subsequent to this designation, Saudi authorities took actions which have largely precluded AHF from operating in its own name. The U.S. Treasury Department also designated the Saudi-based International Islamic Relief Organization for facilitating fundraising for al Qaida and affiliated terrorist groups. The Saudi government continues in its efforts to disrupt terror-related financial flows and continues to cooperate with the U.S. This cooperation has led to the arrest of 16 Saudi-based terrorism financiers and the successful implementation of new Saudi Customs cash courier regulations. The Saudi government has seized assets of these individuals and is merging the assets of suspect Saudi-based charities into a new organization to: “ensure that the charity of [Saudi] citizens goes to those who need it.”15 The U.S. Department of State has issued a travel warning for Saudi Arabia because of concerns about possible terrorist activity directed at American citizens and U.S. interests.

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, these guidelines are applied 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

Guideline B, Foreign Influence

The security concern relating to the guideline for Foreign Influence is set out in AG ¶ 6:

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.

Under the potential disqualifying conditions described in AG ¶ 7, the following conditions could raise a security concern and may be disqualifying in this case:

(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; and

(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.

Applicant has a son and a daughter who are U.S. citizens by birth. He has one sister who is a U.S. resident and citizen. Thus, no security concern is raised by these family members. Applicant’s mother, two sisters and two brothers are citizens and residents of Saudi Arabia. A third brother is also a citizen of Saudi Arabia, currently living in Canada, while completing a medical fellowship. It is not know whether he will return to Saudi Arabia when he completes his fellowship. Applicant maintains a normal, but limited, familial relationship with his mother, sisters and brothers. He talks with his mother by telephone about once a month and his siblings when they are at home. He visited his family in 2005, his first visit after leaving Saudi Arabia 17 years earlier. Since being deployed overseas, he has visited his family in Saudi Arabia on the weekend. He does not provide financial support for his family in Saudi Arabia. His family relationships are not per se a reason to deny Applicant a security clearance, but his contacts with family members must be considered in deciding whether to grant Applicant a clearance. The government must establish that these family relationships create a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion or would create a potential conflict of interest between his obligations to protect sensitive information and his desire to help his family members.

In determining if a heightened risk exists, I must look at Applicant’s relationship and contacts with family members as well as the activities of the government of Saudi Arabia and terrorist organizations within these countries. See ISCR Case No. 07-05809 (App. Bd. May 27, 2008). The risk that an applicant could be targeted for manipulation or induced into compromising classified information is real, not theoretical. Applicant’s relationship and contacts with his mother, sisters and brothers in Saudi Arabia raises a heightened risk of security concerns because of the activities of terrorists organizations in Saudi Arabia. The information of record fails to show that the Saudi government engages in espionage activities in the U.S. or that it targets U.S. citizens in the U.S. or Saudi Arabia by exploiting, manipulating, pressuring, or coercing them to obtain protected information.

Under the new guidelines, the potentially conflicting loyalties may be weighed to determine if an applicant can be expected to resolve any conflict in favor of the U.S. interests. In determining if Applicant’s contacts in Saudi Arabia cause security concerns, I considered that Saudi Arabia and the U.S. have a close relationship and that Saudi Arabia is cooperating with the U.S. in the fight against terrorism, including taking action against financiers of terror in its country. There is no evidence that the Saudi government targets U.S. citizens for protected information. The human rights issues in Saudi Arabia continue to be a concern and the terrorist organizations, not the Saudi government, target U.S. citizens in Saudi Arabia. While none of these considerations by themselves dispose of the issue, they are all factors to be considered in determining Applicant’s vulnerability to pressure or coercion because of his family members in Saudi Arabia. Because of the activities of terrorist organizations in Saudi Arabia, Applicant’s recent trips to Saudi Arabia and contacts with his family in Saudi Arabia raise a heightened risk concern under AG ¶¶ 7(a) and (b).

In deciding if Applicant has established mitigation under AG ¶ 8 (a), I must consider:

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 under AG ¶ 8(b), I must consider whether Applicant has established:

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. interests.

Applicant’s normal relationship with his family members is not a basis to deny him a security clearance; however, his burden of proof on mitigation requires more than statements about the limited scope of his conversations with his mother, three brothers and two sisters. See ISCR Case No. 07-02485 (App. Bd. May 9, 2008). Because the Saudi government funds hospitals, two of Applicant’s brothers work, at least indirectly, for the Saudi government. However, his brothers, as well as his mother and sisters, have never held a political position. Applicant’s family has not been targeted by the Saudi government. His family members have never been imprisoned nor is there any evidence that his family members in Saudi Arabia have suffered any abuses from the Saudi government. His closest family members, his son and daughter, are residents of the U.S. He owns no property in Saudi Arabia and keeps no financial assets In Saudi Arabia. Balancing these factors as well as Saudi Arabia’s cooperation in counterterrorism, and the lack of evidence that the Saudi government targets U.S. citizens for protected information against Saudi Arabia’s poor human rights record, I find that Applicant would resolve any conflict in favor of the U.S. interests. Likewise, any threats by terrorists organizations against Applicant’s family in Saudi Arabia would be resolved in favor of U.S. interests. His loyalties are to the U.S., not Saudi Arabia. Applicant has mitigated the government’s security concerns as to his family contacts specified in the SOR under AG ¶¶ 8(a) and 8(b).

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. The decision to grant or deny a security clearance requires a careful weighing of all relevant factors, both favorable and unfavorable. In so doing, an administrative judge must review all the evidence of record, not a single item in isolation, to determine if a security concern is established and then whether it is mitigated. A determination of an applicant’s eligibility for a security clearance should not be made as punishment for specific past conduct, but on a reasonable and careful evaluation of all the evidence of record to decide if a nexus exists between established facts and a legitimate security concern.

In reaching a conclusion, I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. Applicant emigrated from Saudi Arabia 20 years ago while a teenager. He has lived his entire adult life in the U.S. His values and preferences have been guided by his experiences in the U.S., leading to his decision to become a U.S. citizen in 2003. Two brothers work for hospitals, which are funded by the Saudi government. Neither brother works directly for the Saudi government. Outside of these two indirect jobs, none of Applicant’s family members have any connection with the Saudi government and its day to day operations. His mother, sisters and brothers live quietly. They are not political activists nor do they have any connection with terrorists.

Applicant has regular contact with his mother, but less frequent contact with his siblings. Even his limited contact could, under certain circumstances, raise a serious security concern. Those circumstances are not present in this case because the Saudi government does not conduct espionage activities against the U.S. The record lacks any evidence that the Saudi government seeks to obtain classified documents from the U.S. and thus, it is highly unlikely that the Saudi government will attempt to coerce, pressure or exploit U.S. citizens to obtain classified information. While there remains a serious human rights issue in Saudi Arabia, there is little likelihood that Applicant will be placed in a position to provide classified information to the Saudi government or that his family members will be harmed by the Saudi government given its present relationship with the U.S. Because the Saudi government is actively and comprehensively confronting terrorism and its funding sources, threats of harm from these organizations has significantly decreased. After considering all the evidence of record, I find that overall, there is little risk that Applicant will violate the security procedures by providing classified information to the government of Saudi Arabia.

Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the security concerns arising from his financial considerations.

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 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

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted.

MARY E. HENRY Administrative Judge

FOOTNOTES

GE 1 (Applicant’s security clearance); Tr. 24-25, 40.

GE1, supra note 1, at 6; Tr. 26-28, 35, 38. GE 1, supra note 1, 2-3; AE M; Tr. 25-27, 34.

Tr. 29-31, 44, 48.

Tr. 31, 45-47.

Id. at 28-30, 49-53.

Id. at 28, 33, 53-57. Id. at 51, 57-60, 63.

Id. at 61-62.

AE M; AE N; AE O; AE P; Tr. 8.

AE A to AE L.

Tr. 12, 65. HE 1-I (U.S. Department of State, Country Reports on Human Rights Practices 2007: Saudi Arabia, March 11, 2008; HE 1-II (U.S. Department of State, Background Note: Saudi Arabia, January 2009): HE 1-IX (U.S. Department of State, Country Reports on Terrorism: Middle East and North Africa Overview, April 30, 2008) p. 12-14.

Id; HE 1- VII (CRS Report for Congress Saudi Arabia: Current Issues and U.S. Relations, updated April 13, 2007).

HE 1-IV (Press room U.S. Department of Treasury, June 19, 2008); HE 1-V (Press room U.S. Department of Treasury, October 10, 2007); HE 1-IX, supra note 13; HE 1-VII, supra note 14, at 8. HE 1-III (Travel Warning: Saudi Arabia, July 9, 2008).

After any decision, the losing party has a right to appeal the case to the Defense Office of Hearings and Appeals Appeal Board. The Appeal Board’s review authority is limited to determining whether three tests are met:

E3.1.32.1. The Administrative Judge’s findings of fact are supported by 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. In making this review, the Appeal Board shall give deference to the credibility determinations of the Administrative Judge:

E3.a.32.2. The Administrative Judge adhered to the procedures required by E.O. 10865 (enclosure 1) and this Directive: or E3.1.32.3. The Administrative Judge’s rulings or conclusions are arbitrary, capricious, or contrary to law.

The Appeal Board does not conduct a “de novo determination”, recognizing that its members have no opportunity to observe witnesses and make credibility determinations. The Supreme Court in United States v. Raddatz, 447 U.S. 667, 690 (1980) succinctly defined the phrase “de novo determination”:

[This legal term] has an accepted meaning in the law. It means an independent determination of a controversy that accords no deference to any prior resolution of the same controversy. Thus, in Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 23 [(1974)], the Court had occasion to define “de novo proceeding” as a review that was “unfettered by any prejudice from the [prior] agency proceeding and free from any claim that the [agency’s] determination is supported by substantial evidence.” In United States v. First City National Bank, 386 U.S. 361,368 [(1967)], this Court observed that “review de novo” means “that the court should make an independent determination of the issues” and should not give any special weight to the [prior] determination of the administrative agency.

(Internal footnotes omitted). See ISCR Case No. 07-10396 (App. Bd., Oct. 2, 2008) and ISCR Case No. 07- 07144 (App. Bd., Oct. 7, 2008). In ISCR Case No. 05-01820 (App. Bd. Dec 14, 2006), the Appeal Board criticized the administrative judge’s analysis, supporting grant of a clearance for a PRC-related Applicant, and then decided the case itself. Judge W hite’s dissenting opinion cogently explains why credibility determinations and ultimately the decision whether to grant or deny a clearance should be left to the judge who makes witness credibility determinations. Id. at 5-7. See also ISCR Case No. 04-06386 at 10-11 (App. Bd. Aug. 25, 2006)(Harvey, J., dissenting) (discussing limitations on Appeal Board’s authority to reverse hearing-level judicial decisions and recommending remand of cases to resolve material, prejudicial error) and ISCR Case No. 07-03307 (App. Bd. Sept. 29, 2008). Compliance with the Agency’s rules and regulations is required. See United States ex. rel. Acardi v. Shaughnessy, 347 U.S. 260, 268 (1954); Lopez v. FAA, 318 F.3d 242, 247- 248 (D.C. Cir 2003); Nickelson v. United States, 284 F. Supp.2d 387, 390 (E.D. Va. 2003)(explaining standard of review). Under the old adjudicative guidelines, a disqualifying condition based on foreign family members could not be mitigated unless an applicant could establish that the family members were not in a position to be exploited. The Appeal Board consistently applied this mitigating condition narrowly, holding that its underlying premise was that an applicant should not be placed in a position where he is forced to make a choice between the interest of the family member and the interest of the United States. (See ISCR Case No. 03-17620, (App. Bd, Apr. 17, 2006); ISCR Case No. 03-24933, (App. Bd. Jul. 28, 2005); ISCR Case No. 03-02382, (App. Bd. Feb. 15, 2005); and ISCR Case No. 03-15205, (App. Bd. Jan. 21. 2005)). Thus, an administrative judge was not permitted to apply a balancing test to assess the extent of the security risk.