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ISCR Case 03-10312.h1 — CASE

ISCR Case 03-10312.h1granted

Case Headnote

ISCR Case No. 03-10312.h1

grantedMay 31, 2006· Hon. Michael J. Breslin· hearing

Summary

A naturalized U.S. citizen, born in Romania, was granted a security clearance despite initial concerns under Guidelines B (Foreign Influence), C (Foreign Preference), and G (Alcohol Consumption). The applicant's parents reside in Romania, and his brother is a Romanian citizen living in Germany. He had previously exercised dual citizenship by obtaining and using a Romanian passport, which he stated was for economic reasons to avoid visa fees when visiting family. He used this passport to enter Romania only once, in 2002.

Upon learning that possessing a foreign passport created security issues, the applicant surrendered his Romanian passport and expressed a desire to renounce his Romanian citizenship, noting a $500 fee for the process. He has no property or financial interests in Romania, and his wife and son are naturalized U.S. citizens.

Regarding alcohol consumption, the applicant had a single alcohol-related incident in July 2001. He successfully completed an alcohol education and treatment program and has had no similar problems since. The administrative judge found that the applicant's actions, including surrendering his foreign passport and demonstrating rehabilitation from alcohol issues, were consistent with national security interests, leading to the clearance being granted.

Why the Applicant Prevailed

The applicant surrendered his Romanian passport upon learning it posed security issues.
He successfully completed an alcohol education and treatment program after a single DUI incident in 2001 and has had no further alcohol-related problems.
The applicant demonstrated strong ties to the U.S. through his naturalized family and employment with a defense contractor.

Conditions Referenced

Disqualifying

AG ¶ 6raisedForeign Preference
AG ¶ 7raisedForeign Influence
AG ¶ 21raisedAlcohol Consumption

Mitigating

AG ¶ 8appliedForeign Preference
AG ¶ 9appliedForeign Influence
AG ¶ 23appliedAlcohol Consumption

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.”
— Directive, ¶ E2.2.1.

Procedural Posture

SOR issuedAug 6, 2004
Answer filedAug 24, 2004
Hearing heldApr 18, 2006
Decision dateMay 31, 2006

Cite For

Mitigation of Foreign Influence Concerns Through Renunciation of Foreign Citizenship
Successful Rehabilitation From Alcohol-related Incidents
Consideration of Family Ties in Security Clearance Determinations

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Standardized Decision Profile

SEAD-4 Guideline B (Foreign Influence) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant mitigated security concerns related to foreign influence due to his family ties in Romania and Germany. The applicant's ties were not deemed to pose a risk, leading to a decision to grant the security clearance.

U.S. ties the decision noted: Naturalized U.S. Citizen · U.S. Spouse or Partner · U.S. Children · U.S. Home or Property · U.S. Career or Business

¶	Allegation	Finding	Relationship	Country	Response	Disqualifying (¶7)	Mitigating applied (¶8)	Mitigation
2.a	Applicant's parents are citizens and residents of Romania.	For Applicant	Parent in Foreign Country Immediate Family	Romania	Admitted	—	—	—
2.b	Applicant's brother is a Romanian residing in Germany.	For Applicant	Sibling in Foreign Country Immediate Family	Germany	Admitted	—	—	—
2.c	Applicant exercised dual citizenship by obtaining and using a Romanian passport.	For Applicant	Unspecified Foreign Relationship Other	Romania	Admitted	—	—	—
2.d	Applicant's wife and son are naturalized citizens of the U.S.	For Applicant	Unspecified Foreign Relationship Immediate Family	—	Admitted	—	—	—
2.e	Applicant has no property or financial interests in Romania.	For Applicant	Unspecified Foreign Relationship Other	Romania	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 applicant, a naturalized U.S. citizen originally from Romania, had previously exercised dual citizenship by obtaining and using a Romanian passport. However, he surrendered the passport upon learning it posed security concerns. The judge found that the applicant mitigated the security concerns related to foreign preference, leading to a granted security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
1.a	Applicant exercised dual citizenship by obtaining and using a Romanian passport, but surrendered the passport when he learned it created security issues.	For Applicant	Foreign Passport Possession or Use	Admitted	—	—	—
1.b	Applicant retained his Romanian citizenship and passport solely for economic reasons-to avoid paying additional fees for visas and other services when visiting his parents in Romania.	For Applicant	Failure to Renounce or Surrender Foreign Status	Admitted	—	—	—
1.c	Applicant used his Romanian passport to enter Romania only once-in 2002.	For Applicant	Foreign Passport Possession or Use	Admitted	—	—	—
1.d	When informed of the potential problems arising from the possession of a foreign passport, Applicant stated his desire to renounce his Romanian citizenship immediately, but noted Romania charged $500.00 to process the request.	For Applicant	Failure to Renounce or Surrender Foreign Status	Admitted	—	—	—

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

Standardized Decision Profile

SEAD-4 Guideline G (Alcohol Consumption) · descriptive summary of a decided case

Posture: Decision on RecordDecided: grantedTREATMENT COMPLETED · FAVORABLE

The applicant had a single alcohol-related incident in July 2001, which resulted in a DUI charge. He successfully completed an alcohol education and treatment program and has had no similar problems since then. The judge found all allegations under Guideline G to be for the applicant, leading to the granting of the security clearance.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
3.a	The applicant had a single alcohol-related incident in July 2001.	For Applicant	DUI or DWI Alcohol	Admitted	—	—	—
3.b	The applicant successfully completed an alcohol education and treatment program.	For Applicant	Treatment Non Compliance	Admitted	—	—	—
3.c	The applicant has had no similar problems since completing the program.	For Applicant	Unspecified Alcohol Incident	Admitted	—	—	—
3.d	specific text not stated in this decision	For Applicant	Unspecified Alcohol Incident	Unknown	—	—	—

Descriptive standardized rendering of a decided public case (Guideline G). 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

SYNOPSIS

KEYWORD: Foreign Influence; Foreign Preference; Alcohol

DIGEST: Applicant is an employee of a civilian contractor, serving aboard Navy ships. He was born in Romania, defected to the U.S. in 1987, and became a naturalized citizen in 1995. His wife and son are naturalized citizens of the U.S., his parents are citizens and residents of Romania, and his brother is a Romanian residing in Germany. Applicant exercised dual citizenship by obtaining and using a Romanian passport, but surrendered the passport when he learned it created security issues. Applicant had a single alcohol-related incident in July 2001, but successfully completed the education and treatment program and has had no similar problems since then. Applicant mitigated the security concerns arising from possible foreign influence, foreign preference, and alcohol consumption. Clearance is granted.

CASENO: 03-10312.h1

DATE: 05/31/2006

DATE: May 31, 2006

In re:

----------------------

SSN: -----------

Applicant for Security Clearance

ISCR Case No. 03-10312

DECISION OF ADMINISTRATIVE JUDGE

MICHAEL J. BRESLIN

APPEARANCES

SYNOPSIS

Applicant is an employee of a civilian contractor, serving aboard Navy ships. He was born in Romania, defected to the U.S. in 1987, and became a naturalized citizen in 1995. His wife and son are naturalized citizens of the U.S., his parents are citizens and residents of Romania, and his brother is a Romanian residing in Germany. Applicant exercised dual citizenship by obtaining and using a Romanian passport, but surrendered the passport when he learned it created security issues. Applicant had a single alcohol-related incident in July 2001, but successfully completed the education and treatment program and has had no similar problems since then. Applicant mitigated the security concerns arising from possible foreign influence, foreign preference, and alcohol consumption. Clearance is granted.

STATEMENT OF CASE

Applicant submitted an SF 86, Security Clearance Application, on April 3, 2002. The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a security clearance for Applicant under Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended (the "Directive"). On August 6, 2004, DOHA issued a Statement of Reasons (SOR) detailing the basis for its decision. The SOR alleges security concerns raised under the Directive, specifically, Guideline C, Foreign Preference, Guideline B, Foreign Influence, and Guideline G, Alcohol Consumption.

Applicant answered the SOR in writing on August 24, 2004. He elected to have a hearing before an administrative judge.

The case was assigned to me on January 19, 2006. With the concurrence of Applicant and Department Counsel, I convened the hearing on April 18, 2006. At the outset of the hearing, Department counsel moved to amend ¶ 2.dof the SOR by deleting the word "daughter" and replacing it with the word "son." There being no objection, I granted the motion. (Tr. at 10.) At the hearing, the government offered Exhibits 1 through 11, which I admitted without objection. Applicant submitted documents admitted as Exhibits A through C. At his request, I left the record open for Applicant to submit additional matters for consideration. On April 21, 2006, Applicant provided the documents admitted, without objection, as Exhibits D and E. DOHA received the final transcript of the hearing (Tr.) on April 26, 2006.

FINDINGS OF FACT

Applicant denied the allegations in ¶ 2.d, 3.a, and 3.cof the SOR, but admitted the remaining allegations. (Applicant's Answer to SOR, dated August 24, 2004.) Those admissions are incorporated herein as findings of fact. (Id.) After a complete and thorough review of the evidence in the record, I make the following additional findings of fact.

Applicant was born in May 1958 in Romania. (Ex. 1 at 1.) He attended a military college/maritime institute in Romania between 1978 and 1982, and obtained a degree as a marine engineer. (Id.)

He was married in Romania in July 1980. (Ex. 1 at 3.) One child was born of the marriage in April 1985. (Ex. 1 at 4.)

Applicant served aboard Romanian ships. In 1987, his ship docked in a major city in the U.S. (Ex. 2 at 2.) Applicant defected and was granted political asylum in the U.S. because Romania was a communist country at that time. (Id.) Romania tried to lure Applicant back through promises to his wife that no charges would be filed, but he declined. (Ex. 2 at 3.) The U.S. later assisted him in bringing his wife and son to the U.S. on a resident alien visa. (Id.)

Applicant began working aboard U.S. government ships in 1988. (Tr. at 15.) He began as a first assistant engineer and increased his ratings over time.

Applicant became a naturalized citizen of the U.S. in July 1995; his wife was granted U.S. citizenship in September 1996. (Ex. 2 at 3.) Applicant retained his Romanian citizenship and passport solely for economic reasons-to avoid paying additional fees for visas and other services when visiting his parents in Romania. (Ex. 2 at 3; Ex. 4 at 3; Tr. at 16.) He renewed his Romanian passport in April 2002. (Ex. 7 at 2.) Since becoming a U.S. citizen, he has returned to Romania to visit his family on several occasions, including August 1997 and the summer of 2002. (Ex. 2 at 3-4; Tr. at 27.) Applicant used his Romanian passport to enter Romania only once-in 2002. (Tr. at 31.) He also planned another trip to Romania shortly after the hearing. (Tr. at 6.) He has no property or financial interests in Romania. (Tr. at 42.) Applicant's duties included extended voyages aboard Navy vessels. Custom and regulations prohibit the consumption of alcohol while aboard ship. (Tr. at 18.) Like many sailors, Applicant abstained from alcohol while at sea, but drank heavily when he returned to port. (Ex. 2 at 2.)

In July 2001, Applicant was working as a contractor aboard a U.S. Navy ship. (Ex. 2 at 1.) While the ship was in port in a major U.S. city, Applicant went out with a friend and consumed several alcoholic beverages. (Id.) While driving back to the ship, he got lost and had a vehicle accident. He was taken to the hospital for treatment where it was determined that his blood-alcohol level was above the legal limit. (Id.) Authorities charged Applicant with driving under the influence of alcohol (DUI). The court placed Applicant on probation before judgment, requiring him to complete an alcohol education and treatment program, pay fines and court costs of $450.00, and not violate the law for 18 months, to get the charge dropped.

Applicant enrolled in an alcohol education/treatment program, which consisted of group counseling sessions once each week, mandatory attendance at Alcoholics Anonymous (AA) meetings twice weekly, and random sobriety checks. Applicant attended the course from January 2002 until April 2002. He was permitted to interrupt the course for job requirements and a vacation, and attended the rest of the course from September 2002 through November 2002. (Ex. 2 at 2; Ex. 3 at 3; Tr. at 35.) Applicant denied that he was ever diagnosed as alcohol dependent. (Tr. at 36.) He paid the necessary fines and had no other criminal violations. On February 7, 2002, the state formally declared it would not prosecute the DUI charge. (Ex. 5.)

Applicant is currently employed by a defense contractor, serving as a First Assistant Engineer aboard ship. (Ex. 2 at 1; Tr. at 17.) During the recent war in Iraq, Applicant served aboard a a U.S. Navy ship heavily involved in supporting U.S. forces, delivering supplies and equipment to the region. (Ex. A; Ex. E.) A performance evaluation from June 2003 gave him the highest rating and praised the excellence of his duty performance. (Ex. 6.) His ship's captain wants Applicant to serve in the higher position as chief engineer in the future. (Ex. B.)

At the hearing, Applicant learned for the first time that possession of a foreign passport was considered a bar to receiving a security clearance. (Tr. at 22; 29.) He indicated he always used his U.S. passport when traveling for his duties aboard ships, and only used his Romanian passport once when he visited that country in 2002. (Tr. at 26-27.) When informed of the potential problems arising from the possession of a foreign passport, Applicant stated his desire to renounce his Romanian citizenship immediately, but noted Romania charged $500.00 to process the request. (Tr. at 27-28.) He also surrendered his Romanian passport on the same day, by sending it back to the Romanian Embassy. (Tr. at 38; Ex. D.)

Applicant's wife and son are naturalized citizens and residents of the U.S. (Ex. 1 at 5.) His son recently joined the U.S. Air Force and is awaiting assignment. (Tr. at 18; Ex. C.) Applicant is currently pending divorce. (Tr. at 33.) Applicant's parents are citizens and residents of Romania. They are both in their 70sand are not in good health. (Tr. at 31.) His father is a retired railroad worker. (Ex. 2 at 3.) When Applicant's father was a young man, the Communists put him in school, and he grew up as a member of the Communist Party. (Tr. at 40.) Applicant is unaware of his status at this time. (Tr. at 40.) His mother is retired from an electric motor company. After Applicant first defected to the U.S., it was 10 years before he returned to visit his parents, and five years before the second trip. (Tr. at 39.) Now he calls them on the telephone about once each week when he is at home, and tries to visit them in Romania once each year. (Tr. at 39.)

His brother is a Romanian citizen who lives in Germany and works as a professional truck driver. (Ex. 2 at 3; Tr. at 32.) His sister lives in the United States. (Tr. at 32.) One of Applicant's cousins is an enlisted member of the U.S. Air Force and holds a high-level security clearance. (Ex. 3 at 3.)

His wife's mother is deceased. Her father is a citizen and resident of Romania. He is a retired construction worker. (Ex. 2 at 3.)

Romania is a constitutional democracy. (Ex. 9 at 1, 6; Ex. 11 at 1.) After World War II, Romania was dominated by the Soviet Union and controlled by a communist government. (Ex. 9 at 4.) After the collapse of communism in Europe in 1989, democratic parties assumed control of the Romanian government. A new, democratic constitution was adopted in 1991. (Ex. 9 at 5.) The U.S. State Department reports that since then, Romania has undergone profound political and economic changes. (Ex.10 at 1.) According to the U.S. State Department, Romania's record for respecting human rights is generally good, although there were problems in some areas. (Ex. 11.) Since September 11, 2001, Romania has been an ally in the global war on terror. (Ex. 9 at 13.) In 2002, Romania was invited to join the North Atlantic Treaty Organization (NATO), and became a member in 2004. (Id.)

POLICIES

The President has "the authority to . . . control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position … that will give that person access to such information." (Department of the Navy v. Egan, 484 U.S. 518, 527 (1988).) In Executive Order 10865, Safeguarding Classified Information Within Industry (Feb. 20, 1960), the President set out guidelines and procedures for safeguarding classified information within the executive branch.

To be eligible for a security clearance, an applicant must meet the security guidelines contained in the Directive. Enclosure 2 of the Directive sets forth personnel security guidelines, as well as the disqualifying conditions and mitigating conditions under each guideline. "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." (Directive, ¶ E2.2.1.) An administrative judge must apply the "whole person concept," and consider and carefully weigh the available, reliable information about the person. (Id.) An administrative judge should consider the following factors: (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 voluntariness of participation; (6) the presence or absence of rehabilitation and other pertinent 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. (Id.)

Initially, the Government must present evidence to establish controverted facts in the SOR that may disqualify the applicant from being eligible for access to classified information. (Directive, ¶ E3.1.14.) Thereafter, the applicant is responsible for presenting evidence to rebut, explain, extenuate, or mitigate the facts. (Directive, ¶ E3.1.15.) 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).) "Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security." (Directive, ¶ E2.2.2.)

A person granted access to classified information enters into a special relationship with the government. The government must be able to repose a high degree of trust and confidence in those individuals to whom it grants access to classified information. The decision to deny an individual a security clearance is not a determination as to the loyalty of the applicant. (Exec. Ord. 10865, § 7.) It is merely an indication that the applicant has not met the strict guidelines the President has established for issuing a clearance.

LEGAL PRECEDENT

It is helpful to review the legal precedents relevant to Guideline B cases established by the DOHA Appeal Board. As noted above, Guideline B of the Directive addresses potential security concerns arising when applicants may be subject to foreign influence.

Guideline B, Foreign Influence: A security risk may exist when an individual's immediate family, including cohabitants, or other persons to whom he may be bound by affection, influence, or obligation, are not citizens of the United States or may be subject to duress. These situations could create the potential for foreign influence that could result in the compromise of classified information. Contacts with citizens of other countries or financial interests in other countries are also relevant to security determinations if they make an individual potentially vulnerable to coercion, exploitation, or pressure.

(Directive, ¶ E2.A2.1.1, emphasis added.) It is important to note that the Directive does not establish a per se rule for the guideline; for example, the mere fact that family members or friends are citizens or residents of a foreign country is not automatically disqualifying. The Appeal Board has acknowledged many times that the:

mere possession of family ties with persons in a foreign country is not, as a matter of law, automatically disqualifying . . . . [It] does raise a prima facie security concern sufficient to require an applicant to present evidence of rebuttal, extenuation or mitigation sufficient to meet the applicant's burden of persuasion that it is clearly consistent with the national interest to grant or continue a security clearance for the applicant.

(ISCR Case No. 99-0424, 2001 DOHA LEXIS 59 at **33-34 (App. Bd. Feb. 8, 2001).)

In order for many diverse adjudicators, counsel, and administrative judges to apply this guideline uniformly and consistently, the Directive sets out various conditions illustrating the sort of matters that may raise security concerns and those that might alleviate such concerns. The Directive refers to these as potentially "disqualifying" or "mitigating" conditions. An administrative judge must consider these conditions as part of a "whole person" concept in determining whether a security concern exists and whether an applicant has mitigated or extenuated those concerns.

Mitigating Condition 1

Under Guideline B, Mitigating Condition 1 (Directive, ¶ E2.A2.1.3.1) provides that it is potentially mitigating where the "associate(s) in question are not agents of a foreign power or in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the person involved and the United States." Notwithstanding the facially disjunctive language, applicants must establish both: (1) that the individuals in question are not "agents of a foreign power," and (2) that they are not in a position to be exploited by a foreign power in a way that could force the applicant to chose between the person(s) involved and the United States. (ISCR Case No. 02-14995 at 5 (App. Bd. Jul. 26, 2004).)

"Agent of a Foreign Power"

The Appeal Board has greatly reduced the applicability of this potentially mitigating condition by adopting an expansive definition of the phrase "agent of a foreign power." The federal statute dealing with national security and access to classified information, 50 U.S.C. § 438(6), includes a definition for the term "agent of a foreign power." For the purposes of the statute, Congress adopted the definitions of the phrases "foreign power" and "agent of a foreign power" from 50 U.S.C. § 1801(a) and (b), respectively. 50 U.S.C. § 1801(b) defines "agent of a foreign power" to include anyone who acts as an officer or employee of a foreign power in the United States, engages in international terrorism, or engages in clandestine intelligence activities in the U.S. contrary to the interests of the U.S. or involving a violation of the criminal statutes of the United States. The definition was added to 50 U.S.C. § 438 by the Intelligence Authorization Act for Fiscal Year 1995, Public Law 103-359, October 14, 1994. The term was subsequently included in the Directive through Change 4, dated April 20, 1999.

The Appeal Board, however, does not apply the statutory definition of "agent of a foreign power." Instead, it adopted a much broader definition of its own invention. The Appeal Board seems to have taken the definition of "foreign power" from 50 U.S.C. § 1801(a), but then uses a general definition for the term "agent," so that the phrase has the widest possible scope, to include anyone who has any connection to any government within a foreign country.

Following this expansive construction, the Appeal Board has held that, "An employee of a foreign government need not be employed at a high level or in a position involving intelligence, military, or other national security duties to be an agent of a foreign power for purposes of Foreign Influence Mitigating Condition 1." (ISCR Case No. 02-24254, 2004 WL 2152747 (App. Bd. Jun. 29, 2004).) The Appeal Board applies its definition very broadly. (See ISCR Case No. 03- 10954 at 3 (App. Bd. Mar. 8, 2006) (attorney/consultant to an entity controlled by a foreign ministry is an "agent of a foreign power"); ISCR Case No. 03-19101 at 6 (App. Bd. Jan. 21, 2006) (part-time secretary for the Ministry of Religion is an "agent of a foreign power"); ISCR Case No. 02-2454 at 4-5 (App. Bd. June 29, 2004) (employee of a city government was an "agent of a foreign power"); ISCR Case No. 03-04090 at 5 (App. Bd. Mar. 3, 2005) (employee of the Israeli government is an "agent of a foreign power"); ISCR Case No.02-29143 at 3 (App. Bd. Jan. 12, 2005) (a member of a foreign military is an "agent of a foreign power").) The effect of the Appeal Board's broad application of this term is to greatly increase the numbers of applicants who are automatically excluded from the provisions of Mitigating Condition 1.

Very recently, the Appeal Board explained its refusal to use the statutory definition of the term. In ISCR Case No. 03- 10954 at 4 (App. Bd. Mar. 8, 2006), the Board opined that the definition of "agent of a foreign power" in 50 U.S.C. § 1801(b) did not apply because it is part of the Foreign Intelligence Surveillance Act (FISA) and that statute had a narrower scope than the security concerns in the Directive. However, the Appeal Board did not explain why the definition would not apply where it was specifically incorporated by reference in 50 U.S.C. § 438, the federal statute directly concerning the grant of access to classified information.

The Appeal Board's position is inconsistent with a reasonable interpretation of the Directive. Had the drafters intended to exclude all relatives and associates who were "connected to a foreign government," they would have employed such terminology; indeed, that very language was used in Disqualifying Condition 3 of Guideline B. Moreover, for the drafters to use that language as the basis for Disqualifying Condition 3 and then repeat it as an exception to Mitigating Condition 1 is not logical. The only reasonable and rational interpretation is that the phrase "agent of a foreign power" is a term of art defined by 50 U.S.C. § 438(6), the statute dealing with access to classified information. The Appeal Board's decision not to use the statutory definition of the term greatly restricts the applicability of Mitigating Condition 1 for applicants.

"In Position to be Exploited" As noted above, the second prong of Mitigating Condition 1 (Directive, ¶ E2.A2.1.3.1) provides that it is potentially mitigating where the "associate(s) in question are not . . . in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the person involved and the United States." The language "in a position to be exploited" is subject to interpretation. As discussed below, the reasonable and rational interpretation consistent with the intent of the Directive is that the language requires a judge to consider all the circumstances, assess the likelihood of improper exploitation, and determine whether it presents an unreasonable security concern.

The Appeal Board applies Mitigating Condition 1 very narrowly, however. The Appeal Board interprets the language as establishing an absolute standard; i.e., an applicant must affirmatively prove that there is no possibility that anyone might attempt to exploit or influence a foreign relative or acquaintance in the future. (See ISCR Case No. 03-17620 at 4 (App. Bd. Apr. 17, 2006) ("MC1 does not apply because, as is well settled, it requires that Applicant demonstrate that his relatives are not in a position which could force Applicant to choose between his loyalty to them and his loyalty to the United States.").) The Appeal Board does not permit an administrative judge to engage in a balancing test to assess the extent of any security risk in a case. Rather, the Appeal Board requires an applicant to prove that the presence of family members in a foreign country does not create even the possibility of pressure or coercion in the future. (ISCR Case No. 03-02382 at 5 (App. Bd. Feb 15, 2005).) In determining the applicability of this potentially mitigating condition, the Appeal Board does not consider whether an applicant is likely to be improperly influenced by a foreign relative, holding that "Foreign Influence Mitigating Condition 1 hinges not on what choice Applicant might make if he is forced to choose between his loyalty to his family and the United States, but rather hinges on the concept that Applicant should not be placed in a position where he is forced to make such a choice." (ISCR Case No. 03-15205 at 3- 4 (App. Bd. Jan. 21, 2005); see also ISCR Case No. 03-24933 at 8 (App. Bd. Jul. 28, 2005).)

Because the Appeal Board has set an absolute standard, it refuses to allow an administrative judge to consider any evidence that does not conclusively establish the impossibility of a future attempt at influence. Even though ¶¶ E2.2.1, E2.2.2, and E2.2.3 of the Directive specifically require an administrative judge to consider all the facts and circumstances when evaluating each individual case, the Appeal Board nonetheless holds it is error for a judge to do so when considering the applicability of Mitigating Condition 1. For example, the Appeal Board finds it legal error to consider any of the following facts because they are not "dispositive": a foreign relative's fragile health (ISCR Case No. 02-29403 at 4 (App. Bd. Dec. 14, 2004)); a foreign relative's advanced age (ISCR Case No. 02-00305 at 7 (App. Bd. Feb. 12, 2003)); a foreign relative's financial independence (ISCR Case No. 02-31154 at 6 (App. Bd. Sep. 22, 2005)); the number of family members in a foreign country (ISCR Case No. 03-02382 at 5 (App. Bd. Feb. 15, 2005)); the fact that foreign relatives spend part of each year in the U.S. (ISCR Case No. 02-31154 at 6 (App. Bd. Sep. 22, 2005)); the lack of any connection between the foreign relative and the foreign government in question (ISCR Case No. 02-31154 at 6 (App. Bd. Sep. 22, 2005)); the absence of any attempt at exploitation in the past (ISCR Case No. 03-15205 at 4 (App. Bd. Jan. 21, 2005)); the lack of a relative's financial dependency upon an applicant (ISCR Case No. 03-15205 at 4 (App. Bd. Jan 21, 2005)); a foreign country's friendly relationship with the U.S., its stable, democratic government, or its extensive foreign military agreements with the U.S. (ISCR Case No. 02-22461 at 5-6 (App. Bd. Oct. 27, 2005)).

While the Appeal Board refuses to consider any facts tending to mitigate security concerns under Mitigating Condition 1, it absolutely requires judges to consider factors that might increase security concerns. For example, while the Appeal Board holds it is error for an administrative judge to consider a foreign country's friendly relationship with the U.S., it also holds that it is error for a judge to fail to consider a hostile relationship between the U.S. and a foreign country. (ISCR Case No. 02-13595 at 4 (App. Bd. May 10, 2005).) Similarly, the Appeal Board holds that a foreign state's favorable human rights record is irrelevant, but that "a country's poor human rights record and its differences with the United States on important security issues such as terrorism are factors" that a judge must consider. (ISCR Case No. 04- 05317 at 5 (App. Bd. June 3, 2005).)

The general rules of statutory construction apply to administrative regulations. (M. Kraus & Bros. v. U.S., 327 U.S. 614, 621 (1946); 2 Am. Jur. 2d Administrative Law § 245 (2006).) However, ordinary rules of regulatory construction do not support the Appeal Board's interpretation of the language in question.

The primary rule of regulatory construction is to determine the intent of the drafters and to give it effect. To that end, judges must interpret a regulation consistent with the purpose and policy within the overall regulatory plan. (Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 454-55 (1989); Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.), aff'd, 326 U.S. 404 (1945).) The Directive does not establish per se rules prohibiting the issuance of security clearances in specific situations. To the contrary, it requires administrative judges to balance various factors-some potentially disqualifying, and some potentially mitigating-to determine whether an individual is a security concern. To that end, ¶ 6.3 of the Directive provides general guidance:

6.3. Each clearance decision must be a fair and impartial common sense determination based upon consideration of all the relevant and material information and the pertinent criteria and adjudication policy in enclosure 2, including as appropriate:

6.3.1. Nature a seriousness of the conduct and surrounding circumstances.

6.3.2. Frequency and recency of the conduct.

6.3.3. Age of the applicant.

6.3.4. Motivation of the applicant, and the extent to which the conduct was negligent, willful, voluntary, or undertaken with knowledge of the consequences involved.

6.3.5. Absence or presence of rehabilitation.

6.3.6. Probability that the circumstances or conduct will continue or recur in the future.

The Appeal Board's narrow interpretation creates a requirement of proof impossible to achieve and effectively eliminates the possibility that Mitigating Condition 1 could ever apply. Also, the Appeal Board's rulings exclude from consideration all evidence that could tend to mitigate or extenuate the potential security concern. Clearly, the Appeal Board's inflexible interpretation of the language would "compel an odd result." (Green v. Bock Laundry Machine Co., 490 U.S. 504, 509 (1989).) This is inconsistent with the regulatory policy established in the Directive, and effectively denies due process to applicants. Another rule of regulatory construction is that judges should not interpret language in such a way that renders it meaningless or leads to an absurd result. (United States v. Turkette, 452 U.S. 576, 580 (1981).) Of course, the issue of the applicability of Mitigating Condition 1 only arises when an applicant has immediate family members or close acquaintances who are citizens or residents of a foreign country. The Appeal Board presumes that the fact of such foreign citizenship or residency creates a vulnerability to possible influence. Under such circumstances, it is impossible for an applicant to affirmatively prove that no attempt at exploitation or influence could ever occur in the future. It is not logical that the drafters of the Directive would implement a mitigating condition that could never apply.

It is helpful to consider the historical antecedents for this provision to shed light on the drafter's intent. The version of Mitigating Condition 1 set out in DoD Directive 5220.6 promulgated in January 1992, couched this mitigating condition in these terms. "Conditions that could mitigate security concerns include: (1) a determination that the immediate family member(s) , cohabitant, or associate(s) in question would not constitute an unacceptable security risk." Clearly, the earlier version of MC1 did not establish a per se rule-rather it required the administrative judge to weigh all factors and determine whether the risk was "unacceptable."

Significantly, this earlier version of Mitigating Condition 1 is still in effect for security clearance cases for military members and civilian employees of DoD that are processed under DoD Regulation 5200.2-R. It is anomalous to apply a per se rule in some cases and a rule of reasonableness in others, where the implementing regulations require a uniform process.

It is also helpful to review a later-enacted version of the same guideline to determine the drafter's original intent. (Branch v. Smith, 538 U.S. 254, 281 (2003) (citing United States v. Freeman, 44 U.S. 556 (1845).) On December 29, 2005, the President approved the following new language to replace Mitigating Condition 1:

8. Conditions that could mitigate security concerns include: (a) the nature of the relationships with foreign persons, the country in which the 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.

Notably, the new language requires an administrative judge to weigh numerous factors and assess the likelihood that an individual will be placed in a position of conflict. Unlike the Appeal Board's present interpretation, the new language does not require an applicant to affirmatively prove that an attempt at influence is impossible, nor does it bar consideration of evidence that might mitigate or extenuate security concerns. Most importantly, when one consider's the previous version of this rule, the general policy of the Directive, and this recent language, it is apparent that the drafters did not intend the present language to be interpreted as a per se rule as the Appeal Board now applies it. Terrorism

The Appeal Board also construes Mitigating Condition 1 to make it inapplicable any time there is a history of terrorist acts within the foreign country in question. Obviously, this greatly decreases the chance that any applicant could obtain the benefit of Mitigating Condition 1.

As noted above, Mitigating Condition 1 applies where a judge determines the applicant's relatives and associates in a foreign country are not "in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the person(s) involved and the United States." While the definition of "foreign power" from 50 U.S.C. § 438(6) (incorporating the definition from 50 U.S.C. § 1801(a)) includes terrorist groups, it also includes foreign governments, foreign-based political organizations, and foreign non-governmental organizations.

Mitigating Condition 1 does not, by its express terms, exclude from consideration applicants with relatives or associates in countries where terrorism has occurred, any more than it excludes person from countries where there are foreign governments, foreign political organizations, or foreign non-governmental organizations. Rather, it focuses on a very specific type of threat-the risk of a foreign power exploiting an applicant's foreign relatives in such a way as to cause an applicant to act adversely to the interests of the United States.

The Appeal Board holds Mitigating Condition 1 does not apply where there is a history of terrorist activity-of any kind- in the foreign country in question. (ISCR Case No. 03-22643, 2005 DOHA Lexis 159 (App. Bd. Jun. 24, 2005); ISCR Case No. 02-22461 at 5 (App. Bd. Oct. 22, 2005).) The Appeal Board justifies this as "a matter of common sense" arising from "the war on terrorism." (ISCR Case No. 01-26893, 2002 DOHA LEXIS 505, 22-23 n.2 (App. Bd. Oct. 16, 2002).) To appreciate the extent to which the Appeal Board will consider the risk of terrorist acts, it is helpful to review the opinion in ISCR Case No. 02-29403 at 5 (App. Bd. Dec. 14, 2004). There the Appeal Board declared "it is possible to envision several ways in which terrorists could pose a threat to classified information," and then went on to theorize extensively about what unspecified terrorists might do in hypothetical situations. While such things are possible, they do not fall within the limited language contained in Mitigating Condition 1 of the Directive. The fact that the U.S. is presently engaged in a war on terrorism is a matter to be considered along with all relevant facts; however, it does not amend Mitigating Condition 1 in the Directive.

"Heavy Reliance"

Under the Directive, ¶ E3.1.32.3, the Appeal Board's authority is limited to issues of law-it does not have the authority to conduct a de novo review of the case. To reverse the decision of an administrative judge, the Appeal Board must find a "legal" error. Frequently in cases under Guideline B, the Appeal Board finds legal error by concluding an administrative judge relied too heavily on a particular factor.

As noted above, the Appeal Board decided that evidence that a foreign country is hostile to the U.S. is so significant that it is legal error for an administrative judge to fail to consider it. At the same time, however, the Appeal Board holds that the fact that a foreign country has friendly relations with the U.S., or that it has long been a U.S. ally, is irrelevant. Moreover, when an administrative judge notes the history of friendly relations as part of the required discussion of all the facts, the Appeal Board infers "heavy reliance" by the administrative judge upon that fact and holds it was legal error.

For example, in ISCR Case No. 02-22461, 2005 WL 1381919 (Jan. 2, 2005), the administrative judge considered the security risk arising from an applicant's relatives in Taiwan. The judge wrote that "The following information about Taiwan . . . is significant," and discussed the evidence the government counsel submitted for administrative notice. Later, while discussing the applicability of potentially mitigating conditions, the judge noted Taiwan's friendly relationship with the U.S. The judge went on to discuss at length specific facts unique to Applicant's situation making him a good candidate for a clearance, and eventually found in his favor. On appeal, the Appeal Board reasoned that the judge erred in relying too heavily on the finding that Taiwan was friendly. (ISCR Case No. 02-22461 at 6 (App. Bd. Oct. 27, 2005).)

The Appeal Board often employs this analysis to reverse decisions granting clearances under Guideline B. In ISCR Case No. 02-21927 at 7 (Jan. 18, 2005), the administrative judge noted it was "helpful to consider several factors, including the character of the foreign country," and discussed various aspects of Saudi Arabia's government. The Appeal Board concluded this demonstrated inappropriate "heavy reliance" on the fact that Saudi Arabia is an ally of the U.S. (ISCR Case No. 02-21927 at 5 (App. Bd. Dec. 30, 2005).) (See also ISCR Case No. 02-31154 at 6 (App. Bd. Sep. 22, 2005); ISCR Case No. 02-23860, 2005 DOHA LEXIS 43 (App. Bd. Jun. 30, 2005); ISCR Case No. 03-23806, 2005 DOHA LEXIS 162 (App. Bd. Apr. 28, 2005); ISCR Case No. 02-02892, 2004 DOHA LEXIS 621 (App. Bd. Jun. 28, 2004); ISCR Case No. 02-11570, 2004 DOHA LEXIS 653 (App. Bd. May 19, 2004); ISCR Case No. 00-0317, 2002 DOHA LEXIS 83 (App. Bd. Mar. 29, 2002).)

Shifting Burden of Proof/Persuasion

The Appeal Board frequently finds "legal error" by deciding that an administrative judge improperly shifted the burden of proof/persuasion to the government to disprove the application of Mitigating Condition 1. (The Appeal Board uses the terms "burden of proof" and "burden of persuasion" interchangeably; a discussion of the merits of that practice is beyond the scope of this discussion.) A careful examination of the cases in question reveals the Appeal Board's rationale for finding error is insufficient to justify reversing the decision of an administrative judge.

According to the Directive, ¶ E3.1.14, the department counsel is responsible for presenting evidence to establish controverted facts alleged in the Statement of Reasons. The Appeal Board interprets this as imposing on department counsel the burden of proving by substantial evidence that a disqualifying condition applies. (ISCR Case No. 02-30587, 2005 DOHA LEXIS 73 (App. Bd. Jun. 15, 2005).) Thereafter, an Applicant has the burden of persuasion as to obtaining a favorable security clearance. (Directive, ¶ E3.1.15.)

In cases arising under Guideline B, Foreign Influence, the Appeal Board holds an applicant must affirmatively prove that no one would in the future attempt to exploit them through their foreign relatives or associates. (As discussed above, this imposes the impossible burden of affirmatively proving that an event will not occur in the future.) In order for an applicant to persuade an administrative judge that he or she is not "in a position to be exploited by a foreign power," he or she often must rely on evidence that a foreign country has not engaged in exploitive behavior in the past, including the absence of any evidence of improper conduct. However, any time an administrative judge comments on the absence of evidence, the Appeal Board concludes the administrative judge improperly shifted the burden of proof to the government to disprove a mitigating condition. (ISCR Case No. 03-15485 (App. Bd. Jun. 2, 2005); ISCR Case No. 03-02382 (App. Bd. Feb. 15, 2005); ISCR Case No. 01-20908 (App. Bd. Nov. 26, 2003).)

The Appeal Board's rulings appear to be based upon the premise that "when a party has the burden of proof on a particular point, the absence of any evidence on that point requires a Judge to find or conclude that point against the party that has the burden of proof." (ISCR Case No. 99-0597, 2000 DOHA LEXIS 229 (App. Bd. Dec. 13, 2000).) However, the concept that the "absence of evidence" must always be deemed a failure of proof by the proponent is contrary to prevailing federal practice. Indeed, the concept that the absence of evidence can be used to prove a negative proposition is so well ingrained in the law that it is included among the statutory exceptions to the hearsay rule in Federal Rule of Evidence 803(7) (absence of entry in records of a regularly conducted activity) and Rule 803(10) (absence of public record or entry).

An applicant attempting to prove the applicability of Mitigating Condition 1 has the burden of proving a negative, i.e., that a foreign power is not likely to engage in exploitive conduct in the future, or has not done so in the past. Proving a negative can be difficult, of course. The law recognizes that the burden of proving a negative can be satisfied by proof which renders probable the existence of the negative fact. (See Majestic Sec. Corp. v. Commissioner, 120 F.2d 12, 14 (8th Cir. 1941) ("A negative proposition may appropriately be established by proof of an affirmative opposite."); CareFirst of Md., Inc. v. First Care, P.C., 434 F.3d 263, 269 (4th Cir. 2006) ("the absence of any evidence of actual confusion over a substantial period of time - here, approximately nine years - creates a strong inference that there is no likelihood of confusion."); Aetna Casualty & Surety Co. v. General Electric Co., 758 F.2d 319, 325 (8th Cir. 1985) (citing 22 C. J. Evidence § 15 (1940) "Whenever the establishment of an affirmative case requires proof of a material negative allegation, the party who makes such allegation has the burden of proving it, especially where the most appropriate mode of proof is by establishing the affirmative opposite of the allegation."); Leonard v. St. Joseph Lead Co., 75 F.2d 390, 397 (8th Cir. 1935) ("A negative in its very nature usually is susceptible of no more than approximate proof, and generally is sufficiently proved by proving some affirmative fact or state of facts inconsistent with the affirmative of the proposition to be negatived."); Ake v. GMC, 942 F. Supp. 869, 874 (D.N.Y. 1996) ("A lack of evidence of prior accidents is never conclusive proof that the defendant exercised due care, but it is a factor that the fact- finder could consider.").)

Normally in cases presented under Guideline B, numerous documents are introduced as evidence of the nature of any security risk posed by the foreign country. Typically these discuss in some detail any history of a friendly or hostile relationship between the foreign power and the United States, the foreign country's human rights practices, and any reports of the history of intelligence-gathering activities by the foreign power. These documents constitute evidence of an "affirmative opposite" tending to establish the negative proposition. For example, evidence that the U.S. and a foreign government have security alliances is some evidence suggesting the foreign government would not act adversely to U.S. security interests Similarly, where a document reflects the extent of any intelligence collecting activity, but does not include any indication that the foreign power has engaged in the kind of exploitive behavior which forms the basis for concern in Mitigating Condition 1, the absence of evidence is some proof, though not conclusive, that such exploitive behavior has not occurred.

Of course, the important point is that this "absence of evidence" is competent evidence upon which an applicant may rely in attempting to prove his or her case, and which an administrative judge is required to consider when weighing all the evidence. The simple fact that an administrative judge does so does not constitute an improper "shifting of the burden of proof."

A close examination of the cases where the Appeal Board has found "burden shifting" is revealing. For example, in ISCR Case No. 02-22461 (Jan. 5, 2005), the administrative judge carefully set out the proper burdens of proof for the government and the applicant, and found the government had presented evidence raising security concerns under the applicable guideline. The administrative judge then specifically reiterated that, "Once the government meets its burden of proving controverted facts, the burden shifts to an applicant . . . ." (Id. at 6.) While discussing all the evidence bearing on the relationship between the foreign country in question and the United States, the administrative judge noted, "further, there is no indication that Taiwan has ever attempted to exploit any resident of Taiwan for the purpose of compromising a security clearance holder within the United States." (Id. at 7.) The administrative judge issued a favorable clearance decision and the government appealed. The Appeal Board concluded the administrative judge improperly shifted the burden of proof to the government to disprove the existence of a mitigating condition. (ISCR Case No. 02-22461 at 4 (App. Bd. Oct. 27, 2005).) However, a review of the original opinion reveals the administrative judge did not improperly shift the burden of proof; rather, he was commenting on the state of all the evidence, and making a permissible comment on what the evidence did or did not show. (Compare ISCR Case No. 02-31154 at 5-6) (Jan. 27, 2005) with ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005) (finding "burden shifting"); and ISCR Case No. 03-16848 at 3-5 (Jan. 24, 2005) with ISCR Case No. 03-16848 at 8 (Aug. 30, 2005) (finding burden shifting).) The Appeal Board's rulings on this issue effectively deny applicants the opportunity to present favorable evidence under Mitigating Condition 1, thereby denying the due process afforded under Executive Order 10865 and Department of Defense Directive 5220.6.

Rebuttable Presumption

The Appeal Board has also made it more difficult for an applicant to obtain a favorable decision in cases brought under Guideline B through its application of a "rebuttable presumption," long recognized by the courts as a "troublesome evidentiary device." (Ulster County Court v. Allen, 442 U.S. 140, 157 (1979).) The Appeal Board created "a rebuttable presumption that an applicant has ties of affection for, or obligation to, his spouse's immediate family members." (ISCR Case No. 01-03120 at 4 (App. Bd. Feb. 20, 2002).) As applied to these administrative cases, the Appeal Board's presumption is not rationally based and exceeds the scope of its authority. A rebuttable presumption requires the fact-finder to find the presumed element unless the applicant persuades him or her that such a finding is unwarranted. (Francis v. Franklin, 471 U.S. 307, 314 (1985).) Under Rule 301 of the Federal Rules of Evidence (which serve as a guide for administrative hearings under the Directive, ¶ E3.1.19) "a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption." In other words, a presumption places upon the opposing party the burden of establishing the non- existence of the presumed fact.

In order for a presumption to meet basic requirements of due process, there must be a "rational connection between the fact proved and the ultimate fact presumed." (Tot v. United States, 319 U.S. 463, 467 (1943).) A presumption is "'irrational' or 'arbitrary,' and hence, unconstitutional, unless it can be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." (Leary v. United States, 395 U.S. 6, 36 (1969); Barnes v. United States, 412 U.S. 837, 841-43 (1973).)

It is important to keep in mind that the presumption only arises in the narrow circumstance where an Applicant, a U.S. citizen, is married and his or her spouse has immediate family members who are citizens or residents of a foreign country. In such cases, the immediate family members normally reside in a foreign country; often the applicant has never met them or has only met them a few times, and cannot speak their language. Comparing the proved fact (the applicant's spouse's immediate family members are citizens or residents of a foreign country) and the presumed fact (the applicant has close ties of affection or obligation to them), it is readily apparent they do not coincide. Considering the normal circumstances for cases under Guideline B, there is no rational basis for the presumption that an applicant has ties of affection or obligation to his spouse's immediate family members.

The presumption fashioned by the Appeal Board also has the effect of re-writing and expanding the scope of Disqualifying Condition 1 under Guideline B. As currently written, the Directive, ¶ E2.A2.1.2.1, lists as a condition that could raise a security concern: "An immediate family member, or a person to whom the individual has close ties of affection or obligation, is a citizen of, or resident or present in, a foreign country." Paragraph E2.A2.1.3.1 of the Directive defines immediate family members" as "spouse, father, mother, sons, daughters, brothers, sisters." As written, Disqualifying Condition 1 is raised-essentially automatically-where there is evidence that immediate family members are citizens or residents of a foreign country. For Disqualifying Condition 1 to apply to anyone else, it must be also shown that the applicant has close ties of affection or obligation to them. By applying the presumption, the Appeal Board has effectively re-written Disqualifying Condition 1, expanding it to automatically apply where an applicant's spouse has immediate family members who are foreign citizens or residents. Of course, had the drafters of the Directive intended that application, they could have written DC 1 that way. However, the drafters did not do so, and it is beyond the authority of the Appeal Board to expand the scope of DC 1 through a rebuttable presumption.

Result

Comparing the balanced provisions of the Executive Order and the Directive against the absolute standards applied by the Appeal Board in Guideline B cases, it appears the Appeal Board's rulings are not consistent with the Directive. Where the Appeal Board's rulings are inconsistent with the policy and terms of the Directive, it creates enormous difficulties for administrative judges, who are torn between their responsibility to properly apply the Directive and the requirement in remand cases to correct the errors identified by the Appeal Board. (Directive, ¶ E3.1.35.) In such circumstances, the recommended practice is to follow the decision of the higher body, leaving to superior courts the prerogative of overruling incorrect decisions. (Rodriguez de Quijas v. Shearson/American Express Inc., 490 U.S. 477, 484 (1989).) Of course, federal courts have the authority to compel agencies to follow their own regulations. (Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 892-93 (1960); Hill v. Department of the Air Force, 844 F.2d 1407, 1412 (10th Cir. 1988).) Until a higher court intervenes, we are bound by the Appeal Board's holdings.

CONCLUSION

The adjudicative guidelines at issue in this case are Guideline C, Foreign Preference, Guideline B, Foreign Influence, and Guideline G, Alcohol Consumption. Conditions that could raise a security concern and may be disqualifying, as well as those which could mitigate security concerns pertaining to this adjudicative guideline, are set forth and discussed in the conclusions below.

Guideline C, Foreign Preference

Under Guideline C, Foreign Preference, the security concern is that "[w]hen 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." (Directive, ¶ E2.A3.1.1.)

Paragraph E2.A3.1.2.1 of the Directive indicates it is potentially disqualifying where an Applicant exercises dual citizenship. Similarly, the "[p]ossession and/or use of a foreign passport" may raise a security concern under ¶ E2.A3.1.2.2 of the Directive. Here, Applicant continued to possess his Romanian passport after becoming a U.S. citizen. Thereafter, he renewed it in 2002 to make it easier to visit his parents in Romania. Obtaining and using a foreign passport constitutes the exercise of foreign citizenship. While it is completely lawful for U.S. citizens to retain and exercise dual citizenship (see Afroyim v. Rusk, 387 U.S. 253 (1967)), it can create concerns for those seeking a security clearance. The available evidence raises security concerns under these potentially disqualifying conditions.

The Directive sets out conditions that could mitigate these security concerns. Under ¶ E2.A3.1.3.1 of the Directive, it is potentially mitigating where "[d]ual citizenship is based solely on parent's citizenship or birth in a foreign country." Although Applicant's Romanian citizenship arose from his birth in that country, he also formally exercised that citizenship by obtaining and using a Romanian passport. This potentially mitigating condition does not apply. Paragraph E2.A3.1.3.4 of the Directive provides that it may be mitigating where the applicant "has expressed a willingness to renounce dual citizenship." When first questioned by the security investigator, Applicant expressed his willingness to renounce his foreign citizenship. (Ex. 2 at 3.) At the hearing he again indicated his willingness to do so. (Tr. at 27.) I find this potentially mitigating condition applies.

Guideline B, Foreign Influence

Under Guideline B, Foreign Influence, the concern is: "A security risk may exist when an individual's immediate family, including cohabitants, or other persons to whom he may be bound by affection, influence, or obligation, are not citizens of the United States or may be subject to duress. These situations could create the potential for foreign influence that could result in the compromise of classified information. Contacts with citizens of other countries or financial interests in other countries are also relevant to security determinations if they make an individual potentially vulnerable to coercion, exploitation, or pressure." (Directive, ¶ E2.A2.1.1.)

Paragraph E2.A2.1.2.1 of the Directive provides that it may be a disqualifying condition if "an immediate family member, or a person to whom the individual has close ties of affection or obligation, is a citizen of, or resident or present in, a foreign country." Paragraph E2.A2.1.3.1 defines "immediate family members" to include a spouse, father, mother, sons, daughters, brothers, and sisters. Applicant's parents and his father-in-law are citizens and residents of Romania; his brother is a Romanian citizen living in Germany. These circumstances are sufficient to raise possible security concerns.

Under ¶ E2.A2.1.2.2 of the Directive, it may be disqualifying where an applicant is "[s]haring living quarters with a person or persons, regardless of their citizenship status, if the potential for adverse foreign influence or duress exists." Applicant is married, and his wife's father is a citizen and resident of Romania. However, Applicant is presently pending a divorce. I find the evidence does not raise this potential security concern.

Under the Directive, potentially disqualifying conditions may be mitigated through the application of the "whole person" concept and specific mitigating conditions. When the Government produces evidence raising potentially disqualifying conditions, an Applicant has the burden to produce evidence to rebut, explain, extenuate, or mitigate the conditions. (Directive, ¶ E3.1.15.) The government never has the burden of disproving a mitigating condition. (ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005).)

Paragraph E2.A2.1.3.1 of the Directive provides that it is potentially mitigating where the "associate(s) in question are not agents of a foreign power or in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the person involved and the United States." As noted above, applicants must establish: (1) that the individuals in question are not "agents of a foreign power," and (2) that they are not in a position to be exploited by a foreign power in a way that could force the applicant to chose between the person(s) involved and the United States. (ISCR Case No. 02-14995 at 5 (App. Bd. Jul. 26, 2004).)

None of Applicant's in-laws meet the definition of "agent of a foreign power" under 50 U.S.C. § 438(6) and 50 U.S.C. § 1801(b). However, as government pensioners, they might be considered as "agents of a foreign power" under the more expansive definition adopted by the Appeal Board.

The second prong of the test is whether the relatives in question are "in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the person(s) involved and the United States." (Directive, ¶ E2. A2. 1.3.1.) The federal statute, 50 U.S.C. § 1801(a), defines "foreign power" to include: a foreign government; a faction of a foreign nation; an entity openly acknowledged by a foreign government to be controlled by that foreign government; a group engaged in international terrorism; a foreign-based political organization; or an entity directed and controlled by a foreign government.

To determine whether Applicant was "in a position to be exploited by a foreign power," I would ordinarily weigh Applicant's connection to his family against his strong ties to the United States. I would note that Applicant's wife and child are citizens and residents of the United States, and therefore entitled to the liberties and protection afforded U.S. citizens. His son is a member of the United States Air Force. His parents, while citizens and residents of Romania, are retirees. Romania is a constitutional democracy; it is not a government with a history of hostile relations with the U.S. Finally, I would weigh Applicant's years of service to the U.S. Navy. Considering all these factors I would conclude that it was very unlikely that he would be vulnerable to improper influence through his relatives in Romania.

However, as discussed above, in order to apply the second prong of Mitigating Condition 1, the Appeal Board requires that applicants affirmatively prove that there is no possibility that anyone would attempt to exploit a foreign relative in the future. Also, the Appeal Board prohibits any consideration of evidence that is not dispositive of the issue. Finally, the Appeal Board finds it irrelevant to this issue whether an applicant is likely to be improperly influenced by a foreign relative or associate. Applying that standard, Mitigating Condition 1 does not apply.

Under the Directive, ¶ E2.A2.1.3.3, it may be mitigating where "[c]ontact and correspondence with foreign citizens are casual and infrequent." Applicant's contact with his parents is not casual or infrequent. This potentially mitigating condition is not raised.

Paragraph E2.A2.1.3.5 of the Directive applies where "[f]oreign financial interests are minimal and not sufficient to affect the individual's security responsibilities." Applicant has no property or financial interests in Romania; this potentially mitigating condition applies.

Guideline G, Alcohol Consumption The security concern under Guideline G is that "[e]xcessive alcohol consumption often leads to the exercise of questionable judgment, unreliability, failure to control impulses, and increases the risk of unauthorized disclosure of classified information due to carelessness." (Directive, ¶ E2.A7.1.1.)

The Directive, ¶ E2.A7.1.2.1, provides that it may be disqualifying where there is evidence of "[a]lcohol-related incidents away from work, such as driving under the influence . . . or other criminal incidents related to alcohol use." Applicant drove a vehicle while under the influence of alcohol in July 2001. He was arrested, charged and placed on probation before judgment. This conduct constitutes an alcohol-related incident away from work and raises this potentially disqualifying condition.

Under the Directive, a diagnosis of alcohol abuse or alcohol dependence by a credentialed medical professional (¶ E2.A7.1.2.3) or a licensed clinical social worker who is staff member of a recognized alcohol treatment program (¶ E2.A7.1.2.4) is potentially disqualifying. The SOR, ¶ 3.cand 3.d, alleges Applicant was diagnosed as Alcohol Dependent. However, he denied the allegation and there is no evidence establishing that such a diagnosis was made by a qualified individual. The available evidence is insufficient to raise this potential disqualifying condition.

Paragraph E2.A7.1.2.5 of the Directive states that "[h]abitual or binge consumption of alcohol to the point of impaired judgment" may raise security concerns. The evidence does not reveal a history of "habitual" consumption of alcohol to the point of impaired judgment. To the contrary, Applicant spends long periods deployed aboard U.S. Navy ships where consumption of alcohol is strictly forbidden. Although Applicant admitted drinking heavily on occasion when in port, that does not necessarily rise to a level creating a security concern. More importantly, the available evidence indicates Applicant has not engage in heavy drinking since his DUI offense in July 2001. I find the evidence does not raise this potentially disqualifying condition.

Under the Directive, ¶ E2.A7.1.2.6, it may be disqualifying where there is evidence of "[c]onsumption of alcohol, subsequent to a diagnosis of alcoholism by a credentialed medical professional and following completion of an alcohol rehabilitation program." Paragraph 3.dof the SOR alleges Applicant continued to consume alcohol "notwithstanding his treatment for alcohol dependence." However, there is no evidence that Applicant was properly diagnosed as suffering from alcoholism or alcohol dependence, as alleged. The available evidence is insufficient to raise this potentially disqualifying condition.

The Directive sets out various conditions that could mitigate security concerns arising from alcohol consumption. Paragraph E2.A7.1.3.1 may arise where the "alcohol-related incidents do not indicate a pattern." The available evidence reveals only one alcohol-related incident-the DUI in July 2001. This single incident does not indicate a pattern; therefore, this mitigating condition applies. Paragraph E2.A7.1.3.2 of the Directive provides that it may be mitigating where "[t]he problem occurred a number of years ago and there is no indication of a recent problem." Applicant's alcohol-related incident happened in July 2001-a number of years ago-and there is no evidence of a recent problem. This potentially mitigating condition applies.

It is also mitigating where there is evidence of "[p]ositive changes in behavior supportive of sobriety." (Directive, ¶ E2.A7.1.3.3.) Applicant completed the alcohol education/treatment class, as shown by his testimony and the document reflecting the state's attorney's decision to dismiss the charges. He asserted he was a social drinker, and that, other than the single incident in July 2001, his alcohol intake has never been severe nor has it resulted in a problem on or off duty. This potentially mitigating condition applies.

The "Whole Person" Concept.

The "whole person" concept-not the potentially disqualifying or mitigating conditions-is the heart of the analysis of whether an applicant is eligible for a security clearance. (Directive, ¶ E2.2.3.) Indeed, the Appeal Board has repeatedly held that an administrative judge may find in favor of an applicant where no specific mitigating conditions apply. (ISCR Case No. 03-11448 at 3-4 (App. Bd. Aug. 10, 2004); ISCR Case No. 02-09389 at 4 (App. Bd. Dec. 29, 2004).)

In assessing whether an applicant is a security risk because of his or her relatives or associates in a foreign country, it is necessary to consider all relevant factors. As noted above, ¶¶ E2.2.1, E2.2.2, and E2.2.3 of the Directive specifically require each administrative judge to consider all the facts and circumstances, including the "whole person" concept, when evaluating each individual case. To ignore such evidence would establish a virtual per se rule against granting clearances to any person with ties to persons in a foreign country, contrary to the clear terms of the Directive. "Although the position of an applicant's foreign family members is significant and may preclude the favorable application of Foreign Influence Mitigating Condition 1, the totality of an applicant's conduct and circumstances (including the realistic potential for exploitation) may still warrant a favorable application of the relevant general factors." (ISCR Case No. 03-17620 at 4 (App. Bd. Apr. 17, 2006) (footnotes omitted); accord ISCR Case No. 03-23259 at 3 (App. Bd. May 10, 2006).)

One of the "whole person" factors which must be considered is "the potential for pressure, coercion, exploitation, or duress." (Directive, ¶ E2.2.1.8.) In that regard, an important factor for consideration is the character of any foreign power in question, including the government and entities controlled by the government, within the relevant foreign country. This factor is not determinative; it is merely one of many factors which must be considered. Of course, nothing in Guideline B suggests it is limited to countries that are hostile to the United States. (See ISCR Case No. 00-0317 at 6 (App. Bd. Mar. 29, 2002); ISCR Case No. 00-0489 at 12 (App. Bd. Jan. 10, 2002).) The Appeal Board repeatedly warns against "reliance on overly simplistic distinctions between 'friendly' nations and 'hostile' nations when adjudicating cases under Guideline B." (ISCR Case No. 00-0317 at 6 (App. Bd. Mar. 29, 2002)). It is well understood that "[t]he 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).) Distinctions between friendly and unfriendly governments must be made with extreme caution. Relations between nations can shift, sometimes dramatically and unexpectedly. Moreover, even friendly nations can have profound disagreements with the United States over matters they view as important to their vital interests or national security. Finally, friendly nations have engaged in espionage against the United States, especially in economic, scientific, military, and technical fields. (ISCR Case No. 00-0317, 2002 DOHA LEXIS 83 at **15-16 (App. Bd. Mar. 29, 2002).) Nevertheless, the relationship between a foreign government and the U.S. may be relevant in determining whether a foreign government or an entity it controls is likely to attempt to exploit a resident or citizen to against the U.S. through the applicant. The nature of the foreign government might also relate to the question of whether the foreign government or an entity it controls would risk jeopardizing its relationship with the U.S. by exploiting or threatening its private citizens in order to force a U.S. citizen to betray this country. A friendly relationship is not determinative, but it may make it less likely that a foreign government would attempt to exploit a U.S. citizen through relatives or associates in that foreign country.

The government of Romania was once controlled by the Communist Party, but became democratic in 1989. Since then, it has become pro-western and has enjoyed favorable relations with the U.S. Romania is a member of NATO, and has supported the U.S. in the global war on terror. While not determinative, these favorable relations make it less likely that Romania would attempt to exploit its residents or citizens to act adversely to the interests of the United States in the future.

It is also helpful to consider Applicant's relatives' vulnerability to exploitation by foreign powers in Romania. As retirees, living on a pension and in ill health, they may be more susceptible to exploitation. At the same time, there is no history of improper action, and his relatives are not prominent citizens or highly placed.Most importantly, it is necessary to consider Applicant's vulnerability to exploitation through his relatives. (Directive, ¶ E2.2.1.6.) Applicant is a mature individual with a unique history of devotion and service to this country. He is chose to defect in order to become a resident-and later a citizen-of the U.S. He proved his commitment through many years of exceptional service to the U.S. Navy, as a civilian employee aboard Navy ships. Applicant has strong ties to the United States, including his son who is presently an enlisted member of the U.S. Air Force. Because of Applicant's deep and long-standing relationships and loyalties in the U.S., he can be expected to resolve any conflict of interest in favor of the United States. I find the potential for pressure, coercion, exploitation, or duress does not constitute a security risk. (Directive, ¶ E2.2.1.8.)

Applicant obtained and used a foreign passport after becoming a U.S. citizen. Of course, that is completely lawful for any U.S. citizen-it only raises concerns when considering the individual for a security clearance. It is important to consider Applicant's motivation for the conduct. (Directive, ¶ E2.2.1.7.) In this case, Applicant was not prompted by a preference for Romania, but by a desire to save money on fees for visas and travel-related expenses. Moreover, he has surrendered his passport.

I carefully considered Applicant's history of alcohol consumption. The available evidence reveals only one alcohol- related incident away from work a number of years ago. Applicant successfully completed the probation before judgment and has had no alcohol-related incidents since then.

I considered carefully the "whole person" concept, keeping in mind that any doubt as to whether access to classified information is clearly consistent with national security must be resolved in favor of the national security. I conclude Applicant has mitigated any potential security concerns arising from Applicant's ties to Romania or his alcohol consumption.

FORMAL FINDINGS

My conclusions as to each allegation in the SOR are:

Paragraph 1, Guideline C: FOR APPLICANT

Subparagraph 1.a: For Applicant

Subparagraph 1.b: For Applicant

Subparagraph 1.c: For Applicant

Subparagraph 1.d: For Applicant

Paragraph 2, Guideline B: FOR APPLICANT

Subparagraph 2.a: For Applicant

Subparagraph 2.b: For Applicant

Subparagraph 2.c: For Applicant

Subparagraph 2.d: For Applicant

Subparagraph 2.e: For Applicant

Paragraph 3, Guideline G: FOR APPLICANT

Subparagraph 3.a: For Applicant Subparagraph 3.b: For Applicant

Subparagraph 3.c: For Applicant

Subparagraph 3.d: For Applicant

DECISION

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

Michael J. Breslin

Administrative Judge

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