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ISCR Case 10-03423.h1 — CASE

ISCR Case 10-03423.h1granted

Case Headnote

ISCR Case No. 10-03423.h1

grantedAug 23, 2011· Hon. LeRoy F. Foreman· hearing

Summary

A 56-year-old U.S. citizen, employed as a vice-president for product development at a federal contractor, was granted a security clearance despite initial concerns under Guidelines B (Foreign Influence) and C (Foreign Preference). The Statement of Reasons cited his Israeli citizenship, possession of an Israeli passport, and family ties in Israel, including his mother, daughter, and brother, all of whom are citizens and residents of Israel. Additionally, the applicant held a retirement account in Israel valued at approximately $45,000 and had traveled to Israel in 2002, and annually from 2005 through 2009, using his Israeli passport for these trips.

The judge found that the applicant took proactive steps to mitigate these concerns. Upon notification of the security review, he canceled his Israeli passport. He also demonstrated strong loyalty to the U.S. through consistent civic engagement and voting in U.S. elections.

Ultimately, the judge determined that the applicant's family ties in Israel did not pose a heightened risk of foreign influence. Based on these mitigating actions and demonstrated loyalty, the security clearance was granted.

Why the Applicant Prevailed

The applicant canceled his Israeli passport upon notification of security concerns.
He demonstrated strong ties to the U.S. through civic engagement and voting in U.S. elections.
The applicant's family ties in Israel did not create a heightened risk of foreign influence.

Conditions Referenced

Disqualifying

AG ¶ 7(a)raisedContact with Foreign Family Members
AG ¶ 7(b)raisedConnections to Foreign Persons or Governments
AG ¶ 7(e)raisedSubstantial Financial Interest in a Foreign Country
AG ¶ 10(a)(1)raisedPossession of a Current Foreign Passport

Mitigating

AG ¶ 11(e)appliedPassport Has Been Destroyed or Invalidated
AG ¶ 11(a)rejectedDual Citizenship Based Solely on Parents' Citizenship or BirthThe applicant actively exercised Israeli citizenship for many years.
AG ¶ 11(b)rejectedWillingness to Renounce Dual CitizenshipThe applicant's willingness to renounce was equivocal and conditional.

Key Rule Quoted

“"Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the AG."”

Procedural Posture

SOR issuedAug 13, 2010
Answer filedSep 7, 2010
Hearing heldJun 15, 2011
Decision dateAug 23, 2011

Cite For

Mitigation of Foreign Preference Concerns Through Cancellation of Foreign Passport
Consideration of Family Ties in Foreign Influence Determinations
Demonstrating Loyalty to the U.S. Through Civic Engagement and Voting

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 ties, including family members residing in Israel and a retirement account, did not pose a security risk. The applicant's admissions and actions demonstrated a commitment to the United States, leading to a decision to grant 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: U.S. Spouse or Partner · 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’s mother is a citizen and resident of Israel.	For Applicant	Parent in Foreign Country Immediate Family	Israel	Admitted	—	—	—
2.b	Applicant’s daughter is a citizen and resident of Israel.	For Applicant	Parent in Foreign Country Immediate Family	Israel	Admitted	—	—	—
2.c	Applicant’s brother is a citizen and resident of Israel.	For Applicant	Sibling in Foreign Country Immediate Family	Israel	Admitted	—	—	—
2.d	Applicant has a retirement account in Israel worth about $45,000.	For Applicant	Foreign Bank Account or Investment Financial or Property Interest	Israel	Admitted	—	—	—
2.e	Applicant traveled to Israel in 2002, and annually from 2005 through 2009.	For Applicant	Failure to Disclose Foreign Association Other	Israel	Admitted	—	—	—

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: granted

The judge found that the applicant's actions did not indicate a preference for a foreign country over the United States, leading to a favorable ruling under Guideline C. The applicant's use of an Israeli passport was acknowledged, but the judge credited the applicant's efforts to cancel it and use a U.S. passport for travel. Overall, the applicant's ties to Israel were not deemed disqualifying, resulting in a decision to grant the security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
1.a.(1)	The applicant exercised dual citizenship with Israel by obtaining an Israeli passport in May 2002.	For Applicant	Foreign Passport Possession or Use	Admitted	(a) applying for and/or acquiring citizenship in any other country	—	—
1.a.(2)	The applicant used his Israeli passport for travel to Israel.	For Applicant	Foreign Passport Possession or Use	Admitted	(a) applying for and/or acquiring citizenship in any other country	—	—
1.a.(3)	The applicant has a retirement account in Israel worth about $45,000.	For Applicant	Foreign Benefits or Education	Admitted	—	—	—

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: ) ) [Redacted] ) ISCR Case No. 10-03423 ) Applicant for Security Clearance )

For Government: Julie R. Mendez, Esq., Department Counsel For Applicant: Dennis J. Sysko, Esq.

August 23, 2011 ______________

STATEMENT OF CASE

______________

FOREMAN, LeRoy F., Administrative Judge:

This case involves security concerns raised under Guidelines C (Foreign Preference) and B (Foreign Influence). Eligibility for access to classified information is granted.

Statement of the Case

Applicant submitted a security clearance application on August 20, 2009. On August 13, 2010, the Defense Office of Hearings and Appeals (DOHA) sent him a Statement of Reasons (SOR) detailing the basis for its preliminary decision to deny his application, citing security concerns under Guidelines C and B. DOHA acted 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 adjudicative guidelines (AG) implemented by the Department of Defense on September 1, 2006. Applicant received the SOR on August 17, 2010; answered it on September 7, 2010; and requested determination on the record, without a hearing before an administrative judge. DOHA received the request on September 10, 2010.

On October 19, 2010, Department Counsel amended the SOR to add SOR ¶ 1.a.(3) under Guideline C. Applicant responded to the additional allegation on November 2, 2010. On May 10, 2011, Applicant’s attorney entered his appearance and requested a hearing. Department Counsel was ready to proceed on May 11, 2011, and the case was assigned to me on May 20, 2011.

DOHA issued a notice of hearing on May 24, 2011, scheduling the hearing for June 15, 2011. I convened the hearing as scheduled. Government Exhibits (GX) 1 and 2 were admitted in evidence without objection. Applicant testified, presented the testimony of one witness, and submitted Applicant’s Exhibits (AX) A through K, which were admitted without objection. DOHA received the transcript (Tr.) on June 22, 2011.

Administrative Notice

Department Counsel requested that I take administrative notice of relevant facts about Israel. The request and the documents attached as enclosures were not admitted in evidence but are attached to the record as Hearing Exhibit (HX) I. Applicant’s attorney did not object to taking administrative notice, but he objected to the tone of Department Counsel’s request, which recited only the facts unfavorable to Applicant. I informed the parties that I would treat the memorandum requesting administrative notice as argument and would not limit my administrative notice to the facts recited in Department Counsel’s request. Applicant’s attorney then withdrew his objection. I have taken administrative notice of the relevant facts about Israel that are recited in the memorandum requesting administrative notice, as well as those contained in the documents attached to the request. (Tr. 10, 18.) I have also considered the information about Israel contained in the documents presented by Applicant. (AX F, H, I, and J.) The facts administratively noticed are set out below in my findings of fact.

FINDINGS OF FACT

In his answer to the SOR, Applicant admitted all the allegations in the SOR. His admissions in his answer and at the hearing are incorporated in my findings of fact.

Applicant is a 56-year-old employee of a federal contractor, employed as the vice-president for product development. He has worked for his current employer since April 2003. (Tr. 40-41.) His company develops and supports Internet-based information management systems for government, military, and private agencies. (Tr. 41-45.) He has never held a security clearance.

Applicant was born and educated in Israel. He performed his mandatory military service in the Israeli Defense Forces (IDF) from July 1973 to October 1976 and held an Israeli security clearance while in the IDF. Because his brother was wounded and paralyzed from the waist down while in the IDF, Applicant was transferred from a combat unit and served as a photographer for intelligence units. After he was discharged from the IDF, he served in the Israeli Police for two years as a photographer for the criminal identification department in Jerusalem. (Tr. 32-34.)

Applicant obtained a bachelor’s degree in earth sciences from an Israeli university in June 1982. After graduation, he worked a short time as a cameraman for a television station and as a geologist. He then joined a high-technology graphic arts company owned by a U.S. company. He married an Israeli citizen in March 1983, and they had a daughter in January 1984. They divorced in June 1988. Their daughter is a citizen and resident of Israel, attending an Israeli university and pursuing a degree in occupational psychology. (Tr. 62.) Applicant talks to his daughter once or twice a week. (Tr. 66.)

Applicant’s employment required frequent trips to the United States, and he met his current wife, a native-born U.S. citizen, while traveling in the United States. They married in October 1990. His wife moved to Israel and lived there with Applicant for about two years. Applicant and his wife moved to the United States in 1992, where he became a product line manager for his company. (Tr. 34-38.) He and his current wife have a daughter, born in March 1996.

Applicant became a U.S. citizen in August 1996 and obtained a U.S. passport in September 1996. He obtained an Israeli passport in May 2002, extended it in June 2007, and used it to visit family members in Israel in 2002, 2005, 2006, 2007, 2008, and 2009. (GX 2 at 18; AX B.) He used his U.S. passport for all other foreign travel. (GX 2 at 4; AX A.) He asked the Israeli consulate to cancel his Israeli passport after he was notified by his facility security officer in April 2010 that it raised security concerns. The word “cancelled” is stamped on several pages of the passport and the corners are clipped off. (AX C; Tr. 50-51.) When he travels to Israel, he obtains a special permit to enter and leave Israel using a U.S. passport. (Tr. 49-50.) He used his U.S. passport to travel to Israel in March 2011, but he encountered considerable delay and confusion among Israeli security officials when he entered and exited the country. (Tr. 88.)

In 1984, while Applicant was living and working in Israel, he established a retirement account, which is now worth about $45,000. The account is managed by a private, nongovernmental insurance company. (AX E; AX G.) He testified he cannot close or transfer the account without significant financial penalties until he is 65 years old. A component of the retirement account is an insurance policy, which Applicant is reluctant to surrender, because he suffers from an illness that probably would preclude him from obtaining replacement insurance. He has no other significant assets in Israel.

Applicant owns a home in the United States that he estimates to be worth between $450,000 and $550,000. His mortgage balance is only about $83,000, and he expects to pay off the mortgage in six or seven years. He and his wife have various retirement accounts totaling about $400,000, and they have an education account for their daughter worth about $12,000. He estimates that his net worth is about $700,000 to $750,000, not counting the Israeli retirement account. (Tr. 70-72.)

Applicant’s mother is a citizen and resident of Israel. He has weekly telephonic contact with her. (Tr. 63.) She worked for most of her life in the cosmetic industry, but she stopped working after Applicant’s father passed away about eight years ago. (Tr. 56.) During World War II, Applicant’s father was held in a Nazi concentration camp in Dachau and was freed by U.S. military forces when they occupied Germany. (Tr. 51- 54.) His father owned and operated an elevator company in Israel until he retired. Applicant became visibly emotional and tearful as he described his father’s gratitude to the United States.

Applicant’s only sibling, his disabled brother, is a citizen and resident of Israel. In 1979 or 1980, his brother married a native-born U.S. citizen, and they have two children, one of whom was born in the United States. Applicant talks to his brother every two weeks. Applicant’s brother attended a U.S. university and received a bachelor’s degree in speech communication. (Tr. 58-59.) He receives a disability pension from the IDF for his combat-related disability. He is not currently employed, but he is engaged in world-wide charitable activities for disabled and physically challenged persons. (Tr. 64- 65.)

Applicant’s mother and brother live in Jerusalem. His daughter lives in Beersheba. Both locations are near the West Bank, a volatile area where terrorists threaten Israeli citizens, American interests in Israel, and tourists. The U. S. State Department warns against any travel to the West Bank area.

Applicant has considered renouncing his Israeli citizenship. He filled out the necessary documentation but has not submitted it, because he has not fully explored its financial and legal ramifications. He testified that he would have no reservation about renouncing his Israeli citizenship if he could determine that there are alternative means of proving his identity in legal and financial transactions in Israel. (Tr. 104.)

Applicant testified that he is proud of his Israeli heritage, but his loyalty is to the United States. He has voted in every election since becoming a U.S. citizen, and he is actively involved in community and civic activities. (Tr. 78-79.) He voted in Israeli elections until he became a U.S. citizen.

The president and chief executive officer of Applicant’s company has known him since 1992, and they have become close friends. He describes Applicant as courteous, technically competent, a good communicator, calm under pressure, dedicated, reliable, and loyal. He testified that Applicant carefully protects proprietary information, and he would trust him with classified information without any reservation. (Tr. 110-26.)

Applicant submitted numerous letters from neighbors, colleagues, and superiors, attesting to his trustworthiness, strict adherence to rules protecting sensitive information, and loyalty to the United States. Many of the letters were submitted by retired officers of the U.S armed forces, former U.S. law enforcement officers, and holders of high-level security clearances. (AX K.)

Israel is a parliamentary democracy. The United States and Israel have a close relationship based on common democratic values and security interests. In 1948, the United States was the first country to officially recognize Israel.

Despite the instability and armed conflict that have marked Israel’s relations within the region, Israel has developed a diversified, technologically advanced market economy. In 1985, Israel and the United States concluded a free trade agreement designed to strengthen economic ties by eliminating tariffs. The United States is Israel’s largest trading partner. In 2009, Israel imported $9.5 billion in goods from the United States and exported $18.7 billion in goods to the United States. From 1976-2004, Israel was the largest annual recipient of U.S. foreign assistance. Since 1985, the United States has provided nearly $3 billion in annual grants to Israel.

Almost all U.S. aid to Israel is in military assistance. Israel and the United States have concluded numerous treaties and agreements aimed at strengthening military ties. They have established joint groups to further military cooperation, participate in joint military exercises, and collaborate on military research and weapons development. The United States has pledged to ensure that Israel maintains a qualitative military edge over its neighbors.

Israel and the United States have serious disagreements on several issues involving national security. The United States is concerned about Israel’s military sales to China, Israel’s inadequate protection of U.S. intellectual property, and espionage- related incidents implicating Israeli officials. There have been several cases of U.S. citizens convicted of selling or attempting to sell classified documents to Israeli embassy officials, and Israeli nationals indicted for espionage against the United States. There also have been instances of illegal export or attempted export of U.S. restricted, dual- use technology to Israel.

Israel strictly enforces security measures. U.S. visitors have experienced prolonged questioning and thorough searches upon entry or departure. Israel considers U.S. citizens who also hold Israeli citizenship to be Israeli citizens for immigration and other legal purposes. Israel generally respects the human rights of its citizens, but there have been allegations of mistreatment of Palestinian detainees and discrimination against Arab citizens.

POLICIES

“[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to “control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended.

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the AG. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies these guidelines in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable.

The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information.

Clearance decisions must be made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 92-1106 at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. See ISCR Case No. 02- 31154 at 5 (App. Bd. Sep. 22, 2005).

An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).

ANALYSIS

Guideline C, Foreign Preference

The SOR, as amended, alleges that Applicant exercised dual citizenship with Israel by obtaining an Israeli passport in May 2002 and extending it in June 2007 (¶ 1.a.(1)); using his Israeli passport for travel to Israel (¶ 1.a.(2)); and having a retirement account in Israel worth about $45,000 (¶ 1.a.(3)). The concern under this guideline is: “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. A disqualifying condition may arise from “exercise of any right, privilege or obligation of foreign citizenship after becoming a U.S. citizen,” including but not limited to “possession of a current foreign passport” or “accepting educational, medical, retirement, social welfare, or other such benefits from a foreign country.” AG ¶¶ 10(a)(1) and (3).

Dual citizenship standing alone is not sufficient to warrant an adverse security clearance decision. ISCR Case No. 99-0454 at 5, 2000 WL 1805219 (App. Bd. Oct. 17, 2000). Under Guideline C, “the issue is not whether an applicant is a dual national, but rather whether an applicant shows a preference for a foreign country through actions.” ISCR Case No. 98-0252 at 5 (App. Bd. Sep. 15, 1999).

The security concern under this guideline is not limited to countries hostile to the United States. “Under the facts of a given case, an applicant’s preference, explicit or implied, even for a nation with which the U.S. has enjoyed long and peaceful relations, might pose a challenge to U.S. interests.” ADP Case No. 07-14939 at 4 (App. Bd. Mar. 11, 2009).

Applicant’s admissions that he possessed and used of an Israeli passport after becoming a U.S. citizen establish AG ¶ 10(a)(1). However, his retirement benefits are from a private source and not from a foreign government. Thus, AG ¶ 10(a)(3) is not established.

Security concerns under this guideline may be mitigated by evidence that “dual citizenship is based solely on parents’ citizenship or birth in a foreign country.” AG ¶ 11(a). This mitigating condition is not established because Applicant actively exercised Israeli citizenship for many years. He served in the IDF, was educated in Israel, and voted in Israeli elections.

Security concerns under this guideline also may be mitigated if “the individual has expressed a willingness to renounce dual citizenship.” AG ¶ 11(b). This mitigating condition is not established because, as of the date of the hearing, Applicant’s willingness to renounce his Israeli citizenship was equivocal and conditional.

Finally, security concerns based on possession or use of a foreign passport may be mitigated if “the passport has been destroyed, surrendered to the cognizant security authority, or otherwise invalidated.” AG ¶ 11(e). This mitigating condition is established. As soon as Applicant was notified that his active Israeli passport raised security concerns, he took steps to cancel it, and he used his U.S. passport on his most recent travel to Israel.

Guideline B, Foreign Influence

The SOR alleges that Applicant’s mother, daughter, and brother are citizens and residents of Israel (¶ 2.a-2.c); that he has a retirement account in Israel worth about $45,000 (¶ 2.d); and that he traveled to Israel in 2002, and annually from 2005 through 2009 (¶ 2.e). The security concern under this guideline 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.

Three disqualifying conditions under this guideline are relevant to this case: AG ¶ 7(a) (“contact with a foreign family member . . . if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion”); AG ¶ 7(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”); and AG ¶ 7(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”). When foreign family ties are involved, the totality of an applicant’s family ties to a foreign country as well as each individual family tie must be considered. ISCR Case No. 01-22693 at 7 (App. Bd. Sep. 22, 2003).

AG ¶¶ 7(a) and (e) require substantial evidence of a “heightened risk.” The “heightened risk” required to raise one of these disqualifying conditions is a relatively low standard. “Heightened risk” denotes a risk greater than the normal risk inherent in having a family member living under a foreign government.

Applicant’s foreign travel alleged in SOR ¶ 2.e was solely to visit the family members alleged in SOR ¶¶ 2.a-2.c. As such, it has no independent security significance. See ISCR Case No. 02-26978 (App. Bd. Sep 21, 2005). Guideline B is not limited to countries hostile to the United States. “The United States has a compelling interest in protecting and safeguarding classified information from any person, organization, or country that is not authorized to have access to it, regardless of whether that person, organization, or country has interests inimical to those of the United States.” ISCR Case No. 02-11570 at 5 (App. Bd. May 19, 2004).

Furthermore, “even friendly nations can have profound disagreements with the United States over matters they view as important to their vital interests or national security.” ISCR Case No. 00-0317, 2002 DOHA LEXIS 83 at **15-16 (App. Bd. Mar. 29, 2002). Finally, we know friendly nations have engaged in espionage against the United States, especially in the economic, scientific, and technical fields. Nevertheless, the nature of a nation’s government, its relationship with the United States, and its human rights record are relevant in assessing the likelihood that an applicant’s family members are vulnerable to government coercion. The risk of coercion, persuasion, or duress is significantly greater if the foreign country has an authoritarian government, a family member is associated with or dependent upon the government, or the country is known to conduct intelligence operations against the United States. In considering the nature of the government, an administrative judge must also consider any terrorist activity in the country at issue. See generally ISCR Case No. 02-26130 at 3 (App. Bd. Dec. 7, 2006) (reversing decision to grant clearance where administrative judge did not consider terrorist activity in area where family members resided).

Applicant admitted the allegations in SOR ¶¶ 2.a-2.c, and at the hearing he testified about his regular contacts with his mother, daughter, and brother. None of his family members are connected to the Israeli government, intelligence agencies, and the IDF, and none of them are involved in high-technology enterprises that would make them likely conduits for economic or military espionage. The Israeli government does not have a record of abusing its citizens or confiscating their property as a means of economic or military espionage against the United States. However, Applicant’s family members live near areas of terrorist activity directed toward Israeli and U.S. interests. The continuing threat of terrorism is sufficient to meet the low standard of a “heightened risk” involved in AG ¶ 7(a). The threat of terrorism also is sufficient to raise the potential conflict of interest in AG ¶ 7(b). Thus, I conclude that these two disqualifying conditions are established.

The value of Applicant’s retirement account is relatively small in relation to his total net worth, but it is not insignificant. Furthermore, the insurance coverage included in his retirement plan is significant because his current medical problems would preclude him from obtaining replacement coverage. However, his retirement account and insurance coverage are privately owned, funded, and controlled. There is no evidence that Israel seizes or manipulates private retirement funds or insurance policies as a means of economic or military espionage. I conclude that the Department Counsel failed to present substantial evidence of the “heightened risk” required to raise AG ¶ 7(e). Accordingly, I conclude that AG ¶ 7(e) is not established. Security concerns under this guideline can be mitigated by showing that “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.” AG ¶ 8(a). This mitigating condition is not established because the risk of terrorism against Israeli citizens, Israeli interests, and U.S. interests could place Applicant in a position of having to choose between the interests of his family and the interests of a terrorist group.

Security concerns under this guideline also can be mitigated by showing “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.” AG ¶ 8(b). Applicant is proud of his Israeli heritage, and his loyalty to his family is not “minimal.” On the other hand, he has made it clear by his actions that his loyalty is to the United States. He willingly invalidated his Israeli passport even though it significantly complicated his ability to visit his family members in Israel. He is married to a U.S. citizen. His younger daughter is a U.S. citizen. He has lived in the United States for 19 years, and he has been a U.S. citizen for 15 years. His professional future and most of his economic wealth is in the United States. His Israeli brother has one foot in the United States by virtue of his marriage to a U.S. citizen, his education in the United States, and the U.S. citizenship of one of his daughters. Applicant comes from a family that feels strong affection for the United States. He became emotional and tearful when he testified about his father’s gratitude to the United States for freeing him from a Nazi concentration camp. I am satisfied that he would resolve any conflict of interest in favor of the United States. Thus, I conclude that AG ¶ 8(b) is established.

Security concerns under this guideline also may be mitigated by showing that “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.” AG ¶ 8(c). There is a rebuttable presumption that contacts with an immediate family member in a foreign country are not casual. ISCR Case No. 00-0484 at 5 (App. Bd. Feb. 1, 2002). Applicant has not rebutted this presumption, and his family contacts are frequent and regular. Thus, I conclude that this mitigating condition is not established.

WHOLE PERSON CONCEPT

Under the whole-person concept, an administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all relevant circumstances. An 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 commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. I have incorporated my comments under Guidelines C and B in my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under those guidelines, but some warrant additional comment.

Applicant is a mature, well-educated adult. He is respected and trusted by neighbors, colleagues, and supervisors. He was candid, sincere, and credible at the hearing. His calm, deliberate, and thoughtful personality was obvious during his testimony. After weighing the disqualifying and mitigating conditions under Guidelines C and B, and evaluating all the evidence in the context of the whole person, I conclude Applicant has mitigated the security concerns based on foreign preference and foreign influence. Accordingly, I conclude he has carried his burden of showing that it is clearly consistent with the national interest to grant him eligibility for access to classified information.

FORMAL FINDINGS

I make the following formal findings on the allegations in the SOR:

Paragraph 1, Guideline C (Foreign Preference): FOR APPLICANT

Subparagraphs 1.a.(1)-1.a.(3): For Applicant

Paragraph 2, Guideline B (Foreign Influence): FOR APPLICANT

Subparagraphs 2.a-2.e: For Applicant

CONCLUSION

I conclude that it is clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted.

LeRoy F. Foreman Administrative Judge