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ISCR Case 10-01593.h1 — CASE

ISCR Case 10-01593.h1denied

Case Headnote

ISCR Case No. 10-01593.h1

deniedMar 22, 2011· Hon. Rita C. O'Brien· hearing

Summary

A 70-year-old U.S. citizen, originally from Libya, was denied a security clearance due to concerns under Guideline B (Foreign Influence) and Guideline C (Foreign Preference). The applicant possessed a valid Libyan passport, which he renewed multiple times after becoming a U.S. citizen in 1994, and used it for several trips to Libya.

Further concerns arose from the applicant's family ties in Libya, including a dual-citizen wife, and his ownership of a condominium there with an expressed intent to retire in Libya. The applicant also made conflicting statements regarding his willingness to renounce his Libyan citizenship, which undermined his credibility.

The judge found that the applicant's actions, such as exercising the rights of a Libyan citizen by maintaining and using a Libyan passport, demonstrated a continued connection to Libya. Despite the application of some mitigating conditions, these issues were not sufficiently resolved, leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant exercised the rights of a Libyan citizen by possessing a valid Libyan passport after becoming a U.S. citizen.
He used his Libyan passport to enter and exit Libya multiple times after obtaining U.S. citizenship.
The applicant's conflicting statements regarding his willingness to renounce his foreign citizenship undermined his credibility.

Conditions Referenced

Disqualifying

AG ¶ 10(a)raisedExercise of Foreign Citizenship Rights
AG ¶ 10(b)raisedAction to Acquire Foreign Citizenship Recognition

Mitigating

AG ¶ 11(b)rejectedWillingness to Renounce Dual CitizenshipThe applicant's testimony about renouncing citizenship was inconsistent.
AG ¶ 11(c)rejectedExercise of Foreign Citizenship Rights Before U.S. CitizenshipThe applicant used his foreign passport after becoming a U.S. citizen.
AG ¶ 11(e)appliedSurrender of Foreign PassportThe applicant surrendered his passport but had unrestricted access to it.

Key Rule Quoted

“A security clearance decision is intended only to resolve whether it is clearly consistent with the national interest for an applicant to either receive or continue to have access to classified information.”
— Department of the Navy v. Egan, 484 U.S. 518 (1988)

Procedural Posture

SOR issuedJun 23, 2010
Answer filedJul 14, 2010Signed and notarized.
Hearing heldNov 10, 2010
Decision dateMar 22, 2011

Cite For

Disqualifying Conditions Under Guideline B and C Due to Dual Citizenship
Inconsistencies in Applicant's Statements Regarding Foreign Citizenship
Impact of Foreign Passport Use on Security Clearance Eligibility

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: denied

The judge found that the applicant did not mitigate the security concerns related to foreign influence, specifically regarding his ties to Libya. The applicant's use of a Libyan passport after becoming a U.S. citizen and his connections to family in Libya were significant factors in the denial of his security clearance.

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. Home or Property · Intent to Remain in U.S.

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
2.a	Applicant possesses a valid Libyan passport, which he renewed after becoming a U.S. citizen in 1994.	Against Applicant	Spouse Dual or Foreign Citizen Immediate Family	Libya HEIGHTENED RISK	Admitted	(a) contact with a foreign family member/associate/friend creating a heightened risk of exploitation	—	—
2.b	Applicant has traveled to Libya multiple times using his Libyan passport after becoming a U.S. citizen.	Against Applicant	Unspecified Foreign Relationship Other	Libya HEIGHTENED RISK	Admitted	(b) connections creating a potential conflict of interest	—	—
2.c	Applicant has family members who reside in Libya, including a wife who is a dual citizen.	Against Applicant	Spouse Dual or Foreign Citizen Immediate Family	Libya HEIGHTENED RISK	Admitted	(c) failure to report or disclose association with a foreign person/group/government	—	—
2.d	Applicant has expressed a willingness to renounce his Libyan citizenship, but later stated he would not do so.	Against Applicant	Unspecified Foreign Relationship Other	Libya HEIGHTENED RISK	Admitted	(d) counterintelligence information indicating unacceptable risk	—	—
2.e	Applicant has not severed ties with Libya, as he maintains a valid Libyan passport and has family there.	Against Applicant	Unspecified Foreign Relationship Other	Libya HEIGHTENED RISK	Admitted	(e) shared living quarters creating a heightened risk	—	—
2.f	Applicant has a condominium in Libya and intends to retire there, which indicates a continued connection to Libya.	Against Applicant	Foreign Real Estate Financial or Property Interest	Libya HEIGHTENED RISK	Admitted	(f) substantial foreign business, financial, or property interests	—	—

Descriptive standardized rendering of a decided public case (Guideline B). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline C (Foreign Preference) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant exercised foreign preference by possessing and using a Libyan passport after becoming a U.S. citizen. The applicant's willingness to renounce his foreign citizenship was deemed insufficient to mitigate the security concerns. Consequently, the request for a security clearance was denied.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
1.a	Applicant exercised the rights of a Libyan citizen by possessing a valid Libyan passport after becoming a U.S. citizen in 1994.	Against Applicant	Foreign Passport Possession or Use	Admitted	(a) applying for and/or acquiring citizenship in any other country	—	—
1.b	Applicant exercised his rights as a Libyan citizen by renewing his Libyan passport approximately every two years, even though he had become a U.S. citizen in 1994.	Against Applicant	Foreign Passport Possession or Use	Admitted	(b) failure to report, or fully disclose when required, possession of a passport or identity card issued by any country other than the U.S.	—	—

Descriptive standardized rendering of a decided public case (Guideline C). 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. 10-01593 ) Applicant for Security Clearance )

For Government: James Duffy, Esquire, Department Counsel

For Applicant: Pro se

March 22, 2011 ______________

STATEMENT OF CASE

______________

O’BRIEN, Rita C., Administrative Judge:

Based on a review of the case file, pleadings, and exhibits, I conclude that Applicant has not mitigated the security concerns related to foreign preference and foreign influence. Accordingly, his request for a security clearance is denied.

Statement of the Case

Applicant requested a security clearance by submitting an Electronic Questionnaire for Investigations Processing (e-QIP) signed on April 9, 2009. After reviewing the results of the ensuing background investigation, adjudicators for the Defense Office of Hearings and Appeals (DOHA) were unable to make a preliminary affirmative finding1 that it is clearly consistent with the national interest to grant Applicant’s request.

On June 23, 2010, DOHA issued to Applicant a Statement of Reasons (SOR) that specified the basis for its decision: security concerns addressed in the Directive under Guideline B (Foreign Influence) and Guideline C (Foreign Preference) of the Adjudicative Guidelines (AG).2 In his Answer to the SOR, signed and notarized on July 14, 2010, Applicant denied that there is a security concern under Guidelines B and C, but admitted all the factual allegations under both guidelines. Department Counsel was prepared to proceed on October 4, 2010, and the case was assigned to me on October 7, 2010. DOHA issued a Notice of Hearing on October 19, 2010, and I convened the hearing as scheduled on November 10, 2010. The Government offered three exhibits, marked as Government Exhibits (GE) 1 through 3, which were admitted without objection. Applicant offered three exhibits, admitted without objection as Applicant's Exhibits (AE) A through C. DOHA received the transcript (Tr.) on November 19, 2010.

PROCEDURAL RULINGS

At the hearing, the Government requested I take administrative notice of certain facts relating to Libya. The facts are summarized at pages 1 through 4 of the request, and supported by three documents pertaining to Libya (Hearing Exhibit 1). The documents provide elaboration and context for the summary. I take administrative notice of the facts included in the U.S. Government reports in Hearing Exhibit 1. They are limited to matters of general knowledge, not subject to reasonable dispute. They are set out in the Findings of Fact.

FINDINGS OF FACT

Applicant’s admissions in response to the SOR are incorporated as findings of fact. After a thorough review of the pleadings, Applicant’s response to the SOR, and the record evidence, I make the following additional findings of fact.

Applicant, 70 years old, was born in Libya. He earned a bachelor’s degree in business at a Libyan university in 1963. He did not serve in the Libyan military. (Tr. 43- 44) He came to the United States in 1965 at the age of 25. He married in Libya in 1971. He has four adult children: one son and daughter living with him, and one son and daughter currently living in Libya. (Tr. 74-79) Applicant earned a master’s degree and a doctorate in political science at a U.S. university in 1975. His doctoral thesis was critical of the Libyan policies. (Tr. 36) He became a U.S. citizen in 1994. He worked part time for a county school system as a school bus attendant from 1994 to 2010. (Tr. 59-60) He was also employed by a defense contractor from 1995 to 2006 as a security officer. He received his first security clearance in 1997. He has held it continuously with no security violations. (Tr. 105-106) He began working for his current employer, a defense contractor, as a security officer in 2006. Applicant submitted character reference letters regarding his current performance. The security shift supervisor, who has known Applicant for 13 years, described him as trustworthy and dedicated. Applicant has not been involved in negative behavior, but has provided exceptionally professional and honorable service. Another employee, who has known Applicant for five years, stated that Applicant performs his job “to the letter of the law, making sure the security practices and policies are enforced at all times …” (GE 1, 2; AE A, B; Tr. 19-22)

In the early 1960s, Applicant was an undergraduate in Libya. Two of his classmates at university later held high-level government positions. Most are now retired or deceased. Applicant has not been in touch with these friends since the 1980s. (Tr. 32- 33, 57, 100-104)

In 1975, after completing his doctorate in the United States, Applicant returned to Libya and worked for a Libyan government agency. After three years, he sought other opportunities and accepted a position with the United Nations. He remained in that position until 1981. While in this post, Applicant spoke freely about his political opinions. When he was leaving, a friend with political connections warned him that, because of his opinions, he was a target of the Libyan regime. (Tr. 22-31, 35-36)

In 1981, Applicant and his wife returned to the United States on a visa. He spent a year on sabbatical, bringing his knowledge up-to-date. He was not employed, and lived on his savings. His wife returned to Libya because of deaths in the family in about 1982, and Applicant planned to return as well. Libya had stepped up its actions against critics of the regime, and Libyan citizens living abroad were targeted. Applicant testified, “The regime was at its height in terms of terrorism and killing and tracking the Libyans abroad.” Applicant testified that his wife “got stuck in there. And she couldn't get back.” He also stated that, “I was afraid for my wife too that they might harass and this type of thing.” She applied for a student visa, which was granted. (Tr. 39) After her return, in about 1984, Applicant and his wife requested political asylum in the United States. They feared for their lives if they returned to Libya. The Department of State granted Applicant and his wife political asylum in about 1987. (Tr. 34-40)

Applicant has a Libyan passport. It expires every two years, and Applicant has renewed it regularly, including after he obtained U.S. citizenship in 1994. He testified that, as a Libyan citizen, he cannot get a visa to Libya on his U.S. passport, and can only use a Libyan passport to enter and exit Libya.3 In his interrogatory response, he said that obtaining a Libyan visa on his U.S. passport is “time consuming and a hussle [sic] that you have no time for in a family emergency.” He retains his foreign passport to visit family and to attend family funerals. He surrendered his Libyan passport to his Facility Security Officer (FSO) in about April 2009. He requested it be returned to him so he could travel to Libya in 2009, and he used it to enter and exit Libya. Following the trip, he returned it to his FSO. He requested it again in April 2010, so that he could renew it. The FSO complied, and the passport is now valid until April 2012. Applicant returned the passport to the FSO, who currently has possession of it.4 During his security interview in 2009, Applicant stated that he would be willing to renounce his Libyan citizenship, if absolutely necessary for employment. At the hearing, however, he said he had stated in his interview that he would not renounce his Libyan citizenship. He testified that he keeps it as a convenience, and he would not renounce it because, “Basically it would cut me off from my loved ones.” (GE 2, 3; Tr. 44-55)

Applicant testified that in the early 1990s, several countries imposed sanctions on Libya and it became isolated. But the political climate changed in the mid-1990s. Applicant felt it was safer, and he wanted to visit his family whom he had not seen in years. He traveled to Libya nine times between 19945 and 2009, using his Libyan passport to enter and exit Libya. He “kept a low profile,” did not express his opinions, and “nobody bothered me.” Applicant traveled to Egypt for his sons’ weddings in 2002 and 2006, and used his U.S. passport. (GE 1, 2; Tr. 56-57, 91, 96-97)

Applicant's father passed away in 1968. He owned a gas station and a few commercial rental properties. Applicant's mother, also deceased, was a homemaker. His wife was born in Libya. She maintains her Libyan citizenship and is also a naturalized U.S. citizen. When Applicant lived in Libya, his wife taught Arabic in a private school. She resides in the United States, but spends several months per year in Libya. (GE 2; Tr. 67-70)

Applicant has four children. His twin sons and youngest daughter were born in Libya, and are naturalized U.S. citizens. His oldest daughter, who is 38 years old, was born and grew up in the United States. In the 1990s, she worked for the United Nations. She now lives in Libya with her husband and their three children. She works for a private school. Her husband works in real estate and has never worked for the Libyan government. Applicant talks with his daughter almost daily by telephone. One of Applicant's twin sons also lives in Libya. He is a 36-year-old naturalized U.S. citizen. He was a contractor in the information technology field in the United States. He moved to Libya for business opportunities in 2007. He then moved to Egypt, his wife’s native country. He returned to Libya in 2010. Applicant talks with his son about three to four times per year. His youngest daughter, who lives in the United States, submitted a letter noting that Applicant “is strongly connected to his family roots back home.” None of Applicant's children has ever worked for the Libyan government or served in the Libyan military. (GE 2; AE C; Tr. 70-82)

Applicant has one brother and four sisters who live in Libya. His 60-year-old brother owns a chain of bakeries with his wife. In the 1970s, he worked for a bank, which was nationalized by the Libyan government. Applicant talks with his brother once every two months. Two of Applicant's brothers-in-law worked for the Libyan government, one in a city job, and one in customs; they are both deceased. Another brother-in-law was a low- to mid-level officer in the Libyan military for approximately ten to twelve years. He is now 90 years old and is ill. The fourth brother-in-law owns a print shop. Applicant rarely talks with his brothers-in-law. None of his four sisters have worked for the government. He talks to one of his sisters every week or two, and to his other sisters approximately once every two to three months. (GE 2; Tr. 83-91)

Applicant does not receive financial, educational, medical, or retirement benefits from Libya. He does not have bank accounts there. He purchased a condominium in Libya in about 1992, now valued at approximately $110,000. His sister lived in the condo until June 2010 and paid him about $360 per month. As of the hearing date, it was vacant. He intends to retire in Libya and live in the condo because his modest pension income will be insufficient to live comfortably in the United States, but it will provide a comfortable standard of living in Libya. (Tr. 58-65) Applicant owns a home in the United States, valued at approximately $330,000. He intends to keep the home. He expects to retire in three to four years. (GE 2; Tr. 65-67, 93, 105)

During his 2009 security interview, Applicant said he has an emotional attachment to Libya. He reiterated at the hearing that, because his grandparents and parents come from Libya, his roots are there. He still sees it as his country. However, when discussing the United States, he stated, “My allegiance is to this country. No doubt about it.” (GE 2; Tr. 98-100)

Administrative Notice

The Great Socialist People’s Libyan Arab Jamahiriya (Libya) 6

Libya is an authoritarian regime that has been headed by Colonel Mu’ammar Qadhafi since he led a military coup in 1969. According to documents created by the U.S. Department of State, Libya does not have a constitution, and its governance stems from Colonel Qadhafi’s Green Book, which combines Islamic ideals, pan-Arabism, and socialism. After the coup, relations between the United States and Libya deteriorated because of its policy of supporting international terrorism and subverting moderate African and Arab governments. In 1979, the United States designated Libya a “state sponsor of terrorism.” It ended diplomatic relations, closed the Libyan embassy in Washington in 1981, and imposed numerous sanctions. Some sanctions were later lifted, but certain export controls remain in place. Libya’s history of confrontational policies and terrorism led the United Nations to impose sanctions as well, which remained in place until Libya curtailed its support for international terrorism in 2003. Libya has taken steps to cooperate in the global war on terrorism. The United States rescinded its designation of “state sponsor of terrorism” in 2006.

The Libyan government has a poor human rights record. According to the Department of State’s report on human rights practices, violations include arbitrary arrests, reported killings, denial of fair trial, and infringements on freedom of speech, assembly, and association. Political detainees are held incommunicado for unlimited periods. Prisoners are routinely tortured during interrogation.

Although arbitrary interference with privacy, family, home, or correspondence is prohibited, the law is not respected. Security agencies routinely monitor telephone calls, internet use, and email communication with foreign countries. The Department of State warns U.S. citizens traveling in Libya to maintain a strong security posture. Security personnel may place foreign visitors under observation; monitor hotel rooms, telephones, and fax machines; and inspect personal possessions in hotel rooms.

The Libyan government has an extensive security system that includes police, military units, and intelligence services. Security forces commit human rights abuses, intimidate and detain individuals without formal charges, and act with impunity. An extensive network of agents conducts surveillance for the government. According to the Department of State, the government threatened to seize and destroy property belonging to enemies of the people or those who cooperated with foreign powers, and exiled government opponents reported that authorities harassed their family members and threatened them with detention.

POLICIES

Each security clearance decision must be a fair, impartial, and commonsense determination based on examination of all available relevant and material information, and consideration of the pertinent criteria and adjudication policy in the AG.7 Decisions must also reflect consideration of the factors listed in ¶ 2(a) of the Guidelines, commonly referred to as the “whole-person” concept. The presence or absence of a disqualifying or mitigating condition does not determine a conclusion for or against an applicant. However, specific applicable guidelines are followed whenever a case can be measured against them as they represent policy guidance governing the grant or denial of access to classified information. In this case, the pleadings and the information presented by the parties require consideration of the security concerns and adjudicative factors addressed under Guidelines B and C. A security clearance decision is intended only to resolve whether it is clearly consistent with the national interest8 for an applicant to either receive or continue to have access to classified information. The Government bears the initial burden of producing admissible information on which it based the preliminary decision to deny or revoke a security clearance for an applicant. Additionally, the Government must be able to prove controverted facts alleged in the SOR. If the Government meets its burden, it then falls to the applicant to refute, extenuate or mitigate the Government’s case.

Because no one has a “right” to a security clearance, an applicant bears a heavy burden of persuasion.9 A person who has access to classified information enters into a fiduciary relationship with the Government based on trust and confidence. Therefore, the government has a compelling interest in ensuring that each applicant possesses the requisite judgment, reliability and trustworthiness of one who will protect the national interests as his or his 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.10

ANALYSIS

Guideline C, Foreign Preference

The security concern involving foreign preference arises 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. (AG ¶ 9)

Under AG ¶ 10, the following disqualifying conditions are relevant:

(a) exercise of any right, privilege or obligation of foreign citizenship after becoming a U.S. citizen or through the foreign citizenship of a family member. This includes but is not limited to: (1) possession of a current foreign passport;…; and

(b) action to acquire or obtain recognition of a foreign citizenship by an American citizen.

Applicant is a dual citizen of Libya and the United States. Dual citizenship, in and of itself, is not disqualifying; nor is Applicant’s use of a Libyan passport before he became a U.S. citizen. However, conduct that constitutes an exercise of foreign citizenship, after becoming a U.S. citizen, is disqualifying. Applicant exercised the rights of a Libyan citizen by possessing a valid Libyan passport after becoming a U.S. citizen in 1994. AG ¶ 10(a)(1) applies.

Applicant also exercised his rights as a Libyan citizen by renewing his Libyan passport approximately every two years, even though he had become a U.S. citizen in 1994. He again exercised his Libyan citizenship when he entered and exited Libya using his Libyan passport. Applicant used his foreign passport to travel in 1998, 2000, 2002, 2004, 2006, 2007, 2008, and 2009. Applicant's numerous trips on a foreign passport occurred after he became a U.S. citizen. AG ¶ 10(b) applies.

AG ¶ 11 contains factors that can mitigate disqualifying conditions. I have considered the six mitigating conditions, especially the following:

(b) The individual has expressed a willingness to renounce dual citizenship;

(c) exercise of the rights, privileges, or obligations of foreign citizenship occurred before the individual became a U.S. citizen or when the individual was a minor; and

(e) the passport has been destroyed, surrendered to the cognizant security authority, or otherwise invalidated.

The record contains conflicting testimony about Applicant's willingness to renounce his foreign citizenship. In his 2009 security interview, Applicant said he would renounce it if it was absolutely necessary to keep his employment. However, at the hearing, he testified that he had told the security investigator at the interview that he would not renounce it. He also testified that he would not renounce it because if he did, he would no longer be able to see his foreign family. AG ¶ 11(b) does not apply.

One reason Applicant used his foreign passport to enter and exit Libya after becoming a U.S. citizen was because it was more convenient, given that it would be difficult and time-consuming to obtain a visa for travel to Libya on his U.S. passport. However, personal convenience does not constitute a mitigating factor when evaluating the negative security significance of use of a foreign passport. Applicant’s exercise of his Libyan citizenship by using his foreign passport occurred at least eight times since he attained U.S. citizenship in 1994. AG ¶ 11(c) cannot be applied.

The object of AG ¶ 11(e) is to prevent use of a foreign passport while an applicant holds a security clearance. The listed methods to prevent use include destruction or surrender to the appropriate security authority. Here, Applicant appears to have complied with this requirement because he surrendered his Libyan passport to his FSO. However, the goal of the condition was not met, as the FSO allowed Applicant access to the foreign passport whenever he requested it. He allowed Applicant to have the passport in 2009 so that he could travel to Libya. He again gave the passport to Applicant in 2010, so that Applicant could renew it. The record does not indicate that the FSO notified the appropriate authorities that Applicant had requested return of the foreign passport. Although Applicant surrendered his foreign passport, he could retrieve it whenever he wished, and thus had unrestricted use of the passport. His surrender did not accomplish the goal of the mitigating condition. Applicant receives only partial mitigation under AG ¶ 11(e).

Guideline B, Foreign Influence

AG ¶ 6 expresses the security concern under Guideline B:

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.

AG ¶ 7 describes conditions that could raise a security concern and may be disqualifying. I have considered all the disqualifying conditions, and find that the following are relevant to the 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;

(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;

(d) sharing living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure, or coercion; and

(e) a substantial business, financial, or property interest in a foreign country, or in any foreign-owned or foreign-operated business, which could subject the individual to heightened risk of foreign influence or exploitation. The possession of family ties with a resident or citizen of a foreign country is not disqualifying under Guideline B, unless those ties create a conflict of interest or a heightened risk of foreign exploitation. The country in question must be considered. Libyan security agencies routinely monitor telephone calls, internet use, and email communication with foreign countries; Applicant talks with his daughter in Libya by telephone almost daily. He has frequent contact with other family members, talking to his brother in Libya about once every two months, and to one of his sisters every week or two, and to his other sisters approximately once every two to three months.

His two older sisters are gravely ill, and he considers it important to be able to visit them or attend their funerals in Libya in the future. Moreover, Applicant testified that he has spoken against the regime in the past. According to the Department of State, government opponents have reported that authorities harassed their family members and threatened them with detention. Clearly, Applicant's ties and contacts with his foreign family, and the fact that they are in Libya, represent a heightened risk of foreign coercion, and a potential conflict of interest. AG ¶ 7(a) and (b) apply.

Applicant currently shares living quarters with his wife and two children, who are all dual U.S.-Libyan citizens. His wife stays in Libya a few months per year. Applicant’s testimony and the record evidence indicate that he has ties of affection and obligation to his Libyan family. Such ties represent a heightened risk of exploitation. Applicant also owns a condominium in Libya, valued at approximately $110,000. It is part of his future financial plan, as he intends to live there in retirement. It is a substantial foreign interest, representing one-third of the value of his U.S. home. AG ¶ 7(d) and (e) apply.

I have also considered the mitigating conditions under Guideline B, AG ¶ 8, especially the following:

(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.;

(b) 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. interest; and

(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. Applicant could be placed in a position that could force him to choose between U.S. and foreign interests. He is bound by strong ties of affection to his son, daughter, and siblings who are citizens and residents of Libya, a country where human rights are violated, and the government intercepts telephone, electronic and email correspondence. Applicant's foreign relatives could be subject to coercion because the Libyan government has threatened to destroy property of those who cooperated with foreign powers, and authorities have harassed and threatened with detention the family members of exiled government opponents. AG ¶ 8(a) cannot be applied.

In evaluating mitigation under AG ¶ 8(b), I considered the extent of Applicant's U.S. ties, including his more than 40 years in the United States, his U.S. graduate education, the fact that one daughter was born in the United States, his years of working for U.S. defense contractors, and his home ownership. However, these facts must be weighed against Applicant’s close relationships with foreign nationals. He has been married to a Libyan citizen, who is now a dual citizen, since 1971. His four children remain Libyan citizens as well. He admits an emotional attachment to Libya, and has a substantial investment in a home there where he plans to retire. His frequent contacts and trips to visit his foreign family, and his decision not to do anything that would cut off his ties to them, all demonstrate that his contacts are not casual, and that he has strong ties of affection and obligation to them. His youngest daughter described him as “strongly connected to his family roots back home.” Given Applicant's ongoing and strong ties to Libyan citizens, I cannot confidently conclude he would resolve a conflict of interest in favor of the United States. AG ¶ 8(b) and (c) do not apply.

WHOLE PERSON CONCEPT

Under the whole-person concept, an administrative judge must evaluate an applicant’s security eligibility by considering the totality of the applicant’s conduct and all the relevant circumstances. I have evaluated the facts presented and have applied the appropriate adjudicative factors under the cited guidelines. I have also reviewed the record before me in the context of the whole-person factors listed in 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.

AG ¶ 2(c) requires that the ultimate determination of whether to grant a security clearance be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. Under the cited guidelines, I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case.

Applicant's foreign contacts raise security concerns. He maintains ongoing relationships with foreign citizens and dual nationals, including his wife, children, sisters, and brother. His attachment to his daughter in Libya is evident in their daily contact. His strong family ties are also obvious in his statements that he maintains a valid Libyan passport so that he can visit his family, and his travel to visit them at least eight times since becoming a U.S. citizen. His testimony that he would not renounce his citizenship because it would cut him off from his family indicates his strong ties to his foreign family. Applicant has an emotional attachment to Libya, where he was born and raised and where many of his close family members live. He maintains a property to live in when he retires there. Moreover, Applicant's son, daughter, and siblings live in a country that poses a heightened risk of exploitation.

For all these reasons, I conclude Applicant has not mitigated the cited security concerns. A fair and commonsense assessment of the available information bearing on Applicant’s suitability for a security clearance shows he has not satisfied the doubts raised under the guidelines for foreign influence and foreign preference. Such doubts must be resolved in favor of the Government.

FORMAL FINDINGS

Formal findings on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are as follows:

Paragraph 1, Guideline C: AGAINST APPLICANT

Subparagraph 1.a.(1) – 1.a.(2) Against Applicant

Paragraph 2, Guideline B AGAINST APPLICANT

Subparagraphs 2.a. – 2.f. Against Applicant

CONCLUSION

In light of all of the foregoing, it is not clearly consistent with the national interest to allow Applicant access to classified information. Applicant’s request for a security clearance is denied.

_ RITA C. O’BRIEN Administrative Judge

FOOTNOTES

1 Required by Executive Order 10865, as amended, and by DoD Directive 5220.6 (Directive), as amended. 2 Adjudication of this case is controlled by the Adjudicative Guidelines implemented by the Department of Defense on September 1, 2006. 3 The Department of State’s report, “Libya: Country Specific Information” notes that the Libyan government requires dual nationals to enter and exit Libya on Libyan documents. (HE I) 4 The record does not indicate whether the FSO notified the appropriate authorities that he had returned the passport to Applicant’s possession in 2009 and 2010. 5 The record is unclear about whether Applicant's 1994 trip to Libya occurred before or after he became a U.S. citizen in March 1994. 6 The documents and summary related to Libya that Department Counsel submitted for Administrative Notice were created before the current political unrest in that country. However, these recent events would not have effected my decision in this case. 7 Directive. 6.3. 8 See Department of the Navy v. Egan, 484 U.S. 518 (1988).

9 See Egan, 484 U.S. at 528, 531.

10 See Egan; Adjudicative Guidelines, ¶ 2(b).