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ISCR 10-05491.h1: Guideline C security clearance hearing, denied (2010) · CASE

ISCR Case 10-05491.h1denied

Case headnote

ISCR Case No. 10-05491.h1

deniedJul 1, 2010· Hon. Darlene Lokey Anders· hearing

Summary

An experienced engineer with strong ties to Israel was denied a U.S. security clearance due to concerns under Guideline C (Foreign Preference) and Guideline E (Personal Conduct). The Statement of Reasons specifically cited the applicant's strong foreign ties to Israel and its people, along with statements and actions demonstrating a close attachment and warm feelings for the Israeli people.

Disqualifying conditions 10(c) and 10(d) were raised, indicating that the applicant's foreign preference could pose a national security risk. Despite credible testimony and positive recommendations, the applicant's demonstrated preference for Israel over the United States was a primary factor in the denial.

Ultimately, the applicant's strong foreign ties and actions were determined to indicate a preference for Israel, leading to the denial of the security clearance.

Why the applicant was denied

The applicant demonstrated strong foreign ties to Israel, indicating a preference for a foreign country over the United States.
The applicant's actions and statements suggested an allegiance to Israel, raising national security concerns.

Conditions referenced

Disqualifying

10(c)raisedPerforming or Attempting to Perform Duties, or Otherwise Acting, so as to Serve the Interest of a Foreign Person, Group, Organization, or Government in Conflict with the National Security Interest
10(d)raisedAny Statement or Action That Shows Allegiance to a Country Other Than the United States

Key rule quoted

“The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is eligible for a security clearance.”

Procedural posture

SOR issued—
Answer filed—
Hearing held—
Decision dateNot specified

Cite for

Foreign Preference Concerns Under Guideline C
Impact of Foreign Ties on Security Clearance Eligibility
Whole Person Assessment in Security Clearance Decisions

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 C (Foreign Preference) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant under Guideline C due to strong foreign ties to Israel, indicating a preference for a foreign country over the United States. The applicant's actions and statements suggested an attachment to Israel, raising concerns about potential conflicts with U.S. national security interests. No mitigating conditions were found applicable.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on allegations of personal conduct under Guideline E. The applicant's credibility was noted, but the overall assessment of conduct indicated poor judgment and untrustworthiness, leading to a denial of the security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation

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

Full decision

The complete, official text, footnotes and signatures included, is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

The Applicant testified credibly at the hearing and did not appear deceptive on any issues of concern. Accordingly, I find for the Applicant under this guideline.

A letter of recommendation from the Applicant's supervisor indicates that the Applicant is an experienced, qualified, responsible engineer capable of resolving technical issues and problems. He brings new ideas and has received commendations for his work. (Applicant's Post-Hearing Exhibit 1.)

A letter from the Applicant's nephew, who served in the United States Marine Corps until he was honorably discharged as a corporal in 2009, indicates that his uncle is an honorable person who shares his same commitment to the country and its values. (Applicant's Post-Hearing Exhibit 2.)

The Applicant has received a number of awards, certificates of achievement and commendations and patents for his work product. (Applicant's Post-Hearing Exhibits 3, 4,5,6,7,8,9,10 and 11.)

I have taken official notice of the following facts concerning the country of Israel. Israel is a parliamentary democracy whose prime minister is head the government and exercises executive power. The United States and Israel have a close friendship based on common democratic values, religious affinities, and security interests. However, inter alia, with there are differences on some issues. The United States is concerned, Israeli military sales, inadequate Israeli protection of U.S. intellectual property, and espionage-related cases. The United States and Israel have regularly discussed Israel's sale of sensitive security equipment and technology to various countries, especially China. Israel reportedly is China's second major arms supplier, after Russia. The National Counterintelligence Center's 2000 Report to Congress on Foreign Economic Collection and Industrial Espionage lists Israel as an active collector of proprietary information. The 2005 Report to Congress from the National Counterintelligence Executive, released in 2006, states that the major collectors have been repeatedly identified as targeting multiple U.S. Government organizations since at least 1997. And, over the last several years this threat has not abated as economic espionage cases went up. Furthermore, Israeli military officers have been implicated in this type of technology collection in the United States. The Pollard case in 1985, and other subsequent cases involving the illegal export or attempted illegal export of U.S. restricted dual use technology to Israel, continues to be a threat to the national security.

POLICIES

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

Foreign Preference

9. The Concern. 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.

Conditions that could raise a security ~oncern:

10. (c) performing or attempting to perform duties, or otherwise acting, so as to serve the interest of a foreign person, group, organization, or government in conflict with the national security interest; -

10. (d) any statement or action that shows allegiance to a country other than the United States: for example, declaration of intent to renounce United States citizenship; renunciation of United States citizenship.

Conditions that could mitigate security concerns:

None.

Guideline E (Personal Conduct)

15. The Concern. Conduct - involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions - about an individual's reliability, trustworthiness and ability to protect classified information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process. .

Conditions that could raise a security concern:

16. (a) The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities;

16. (b) Deliberately providing false or misleading information concerning relevant facts to an employer, investigator, security official, competent medical authority, or other official government representative. Conditions that could mitigate security concerns:

None.

In addition, as set forth in Enclosure 2 of the Directive at pages 18-19, in evaluating the relevance of an individual's conduct, the Administrative Judge should consider the following general factors: ,.

a. The nature, extent, and seriousnes~ of the conduct;

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

c. The frequency and recency of the conduct;

d. The individual's ag~ and maturity at the time of the conduct;

e. The extent to which participation is voluntary;

f. The presence or absence of rehabilitation and other permanent behavior changes;

g. The motivation for the conduct;

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

i. The likelihood of continuation or recurrence.

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

The 000 Directive states, "The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is eligible for a security clearance. Eligibility for access to classified information is predicated upon the individual meeting these personnel security guidelines. The adjudicative process is the careful weighing of a number of variables known as the whole-person concept. Available, reliable information about the person, past and present, favorable and unfavorable should be considered in reaching a determination." The Administrative Judge can draw only those inferences or conclusions that have reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature. Finally, as emphasized by President Eisenhower in Executive Order 10865, "Any determination under this order ... shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the Applicant concerned."

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

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

An individual who demonstrates a foreign preference and has made false statements may be prone to provide information or make decisions that are harmful to the interests of the United States. The Government must be able to place a high degree of confidence in a security clearance holder to abide by all security rules and regulations, at all times and in all places.

CONCLUSION

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

The evidence shows that the Applicant has strong foreign ties to the country of Israel and its people. His statements and actions show his attachment to Israel, that he relates closely with Israel, and that he has warm feelings for the Israeli people. Posed with a hypothetical, he is unable to unequivocally state that he could bear arms for the United States against Israel if it were necessary. In that situation, he would be torn between the two. Other indications of his strong preference for Israel are apparent by his efforts to volunteer to help the country as well as his financial donations. He has volunteered in Israel to support their military and has supported charitable organizations that assist their people and their country. Given these facts, there is cause for concern in this case.

Under Foreign Preference, Disqualifying Conditions 1O(c) performing or attempting to perform duties, or otherwise acting, so as to serve the interest of a foreign person, group, organization, orgovernment in conflict with the national security interest, and 10.(d) any statement or action that shows allegiance to a country other than the United States: for example, declaration of intent to renounce United States citizenship; renunciation of United States citizenship applies. None of the mitigating conditions are applicable. Therefore, there is an indication of foreign preference that exists that could create the potential for conduct resulting in the compromise of classified information. Thus, I find that the Applicant is vulnerable to foreign preference. Accordingly, I find against the Applicant under Guideline C (Foreign Preference).

Under Personal Conduct, none of the disqualifying conditions apply since it cannot be determined with any real certainty whether the Applicant was simply naive and did not know the true extent of his involvement with "Volunteers for Israel", or whether he in fact knew and simply concealed the information from the Government. The Applicant testified credibly at the hearing that he did not know that the organization was associated with the Israeli government or the military, and I will give him the benefit of the doubt. Accordingly, I find for the Applicant under Guideline E (Personal Conduct).

Furthermore, there is insufficient evidence in support of mitigation under the whole person analysis. I have considered the "whole person concept" in evaluating the Applicant's eligibility for access to classified information. Under the particular facts of this case, the totality of the conduct set forth under all of the guidelines viewed as a whole, support a whole person assessment of poor judgement, untrustworthiness, unreliability, a lack a candor, an unwillingness to comply with rules and regulations, and/or other characteristics indicating that the person may not properly safeguard classified information.

Considering all the evidence, the Applicant has not met the mitigating conditions of Guideline C of the adjudicative guidelines set forth in Enclosure 2 of the Directive. Accordingly, he has failed to meet his ultimate burden of persuasion under Guideline C.

FORMAL FINDINGS

Formal Findings For or Against the Applicant on the allegations in the SOR, as required by Paragraph 25 of Enclosure 3 of the Directive are:

Paragraph 1: Against the Applicant. Subpara. 1.a.: Against the Applicant Subpara. 1.b.: Against the Applicant

Paragraph 2: For the Applicant. Subpara. 2.a.: For the Applicant Subpara. 2.b.: For the Applicant Subpara. 2.c.: For the Applicant Subpara. 2.d.: For the Applicant " DECISION

In light of the circumstances presented by the record in this case, it is not clearly consistent with the national interests to grant or continue. a security clearance for the Applicant. .

Darlene Lokey Anders()J:J Administrative Judge