Introduction

This article examines how the National Security Guidelines for Foreign Influence and Foreign Preference are currently being applied in security clearance determinations by the Department of Defense, Defense Office of Hearings and Appeals (DOHA).  Foreign Influence is a concern that a security risk may exist when an individual’s family may be subject to duress; Foreign Preference, is a concern that an individual may have a preference for a foreign country over the United States.  While Foreign Influence and Foreign Preference factors have long been considerations in determining whether to grant a security clearance, recent changes in government policy have caused a heightened concern over unauthorized travel by security clearance holders.  This concern requires a reexamination of how these factors are being applied.  These changes, along with the current climate of threat to our national security, have resulted in the DOHA judges acting more conservatively than in the past. 

Until March 21, 2000, holding a dual citizenship with the United States and a foreign country, and holding and using passports from both countries, did not automatically bar a person from having a security clearance.  On March 22, 2000, that changed; thereafter, holding a dual passport became an automatic bar to having a security clearance.  While dual citizenship is still not an automatic bar, it is looked at much more closely than before and with considerable skepticism.  This change in policy has created a particularly acute problem for many individuals who presently have, or in the past have held security clearances.  Previously it was possible to have dual passports and hold a clearance.  Now people coming up for a five-year update, or who have left jobs where they held a clearance and are applying for new jobs, suddenly find themselves losing or being unable to renew their clearance.

Historical Background

During the cold war years of the 1950's through the 1970's, the nation's industrial community expanded to meet the government's need for military intelligence and nuclear products.  Each government agency at that time developed its own requirements and standards for protecting its national security information.  In order to standardize the industrial security program, uniform adjudicative standards were developed, applicable throughout the government to all government agencies.^[2]  These Uniform Standards were approved by the White House on March 24, 1997.^[3]

The Uniform Standards codified, with little change, existing standards for access to classified information which had been in use in various forms since 1953.^[4]  Among these are Guideline B, Foreign Influence, and Guideline C, Foreign Preference which are the focus of this article.^[5]  The earliest version of these Guidelines was formulated by Executive Order 10450 in 1953.  The Executive Order stated that among the information relevant to a security clearance was whether a person was "performing or attempting to perform his duties, or otherwise acting, so as to serve the interests of another government in preference to the interests of the United States."^[6]

The Security Guidelines

The latest version of Guidelines B and C state:

The Concern.  A security risk may exist when an individual's immediate family including cohabitants, and other persons to whom he or she 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.

Conditions that could raise a security concern and may be disqualifying include:

a.  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;

b.  Sharing living quarters with a person or persons, regardless of their citizenship status, if the potential for adverse foreign influence or duress exists;

c.  Relatives, cohabitants, or associates who are connected with any foreign government;

d.  Failing to report, where required, associations with foreign nationals;

e.  Unauthorized association with a suspected or known collaborator or employee of a foreign intelligence service;

f.  Conduct which may make the individual vulnerable to coercion, exploitation, or pressure by a foreign government;

g.  Indications that representatives or nationals from a foreign country are acting to increase the vulnerability of the individual to possible future exploitation, coercion or pressure;

h.  A substantial financial interest in a country, or in any foreign owned or operated business that could make the individual vulnerable to foreign influence.

Conditions that could mitigate security concerns include:

a.         A determination that the immediate family member(s) (spouse, father, mother, sons, daughters, brothers, sisters), cohabitant, or 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(s) involved and the United States;

b.         Contacts with foreign citizens are the result of official U.S. Government business;

c.         Contact and correspondence with foreign citizens are casual and infrequent;

d.         The individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons or organizations from a foreign country;

e.         Foreign financial interests are minimal and not sufficient to affect the individual's security responsibilities.

Guideline C - Foreign Preference^[8],

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 concern and may be disqualifying include:

a.         The exercise of dual citizenship;

b.         Possession and/or use of a foreign passport;

c.         Military service or a willingness to bear arms for a foreign country;

d.         Accepting educational, medical, or other benefits, such as retirement and social welfare, from a foreign country;

e.         Residence in a foreign country to meet citizenship requirements;

f.          Using foreign citizenship to protect financial or business interests in another country;

g.         Seeking or holding political office in the foreign country;

h.         Voting in foreign elections; and

I.          Performing or attempting to perform duties, or otherwise acting, so as to serve the interests of another government in preference to the interests of the United States.
 

Conditions that could mitigate security concerns include:

a.  Dual citizenship is based solely on parents' citizenship or birth in a foreign country;

b. Indicators of possible foreign preference (e.g., foreign military service) occurred before obtaining United States citizenship;

c.         Activity is sanctioned by the United States;

d.         Individual has expressed a willingness to renounce dual citizenship.

Change in Administrative Enforcement Policy

On March 21, 2000, the DOHA Appeal Board affirmed an initial decision granting a clearance to a person holding both dual citizenship and dual U.S. and foreign passports.  The basis for the decision was that the applicant’s strong preference for, and loyalty and allegiance to the United States, and the applicant’s unequivocal willingness to renounce foreign citizenship were sufficient to overcome the holding a foreign passport.^[9]  The reaction of the Department of Defense was immediate.

The following day, the Director of DOHA issued a directive stating “Effective immediately and until further notice there is an across the board moratorium on the issuance of any decisions in cases involving dual citizenship issues.”^[10]  On April 11, 2000, DOHA’s Director issued a further directive limiting the moratorium only to “cases involving an applicant’s use and/or possession of a foreign passport.”^[11]  This was followed on August 16, 2002, by a directive from the Assistant Secretary of Defense known as the “ASDC³I Memorandum,” or “Money Memorandum” prohibiting the granting of a clearance to anyone holding a foreign passport unless approved by a U.S. Government Agency.^[12]  The moratorium on hearing cases dealing with passport issues was lifted on September 1, 2000, and since that time no clearances have been granted to anyone holding a foreign passport.^[13]  The "surrender" of a foreign passport under the ASDC³I Memorandum is construed to mean that surrender is achieved by returning it to the issuing authority, not by giving it to any third party or entity.  An offer to turn it in to DOHA or another department of the United States government, or to place it with the security department of a defense contractor in escrow is not sufficient to satisfy the terms of the ASDC³I Memo.^[14]  Merely keeping a foreign passport until it expires also does not satisfy either of the two mitigating conditions of the ASDC³I memorandum.^[15]  Neither an offer to destroy the foreign passport^[16], nor a failure to attempt to locate a missing foreign passport satisfies the requirement of the ASDC³I Memorandum to surrender the passport.^[17] 

No ban was ever placed on the granting of clearances to holders of dual citizenship, by either the DOHA Director’s moratorium or the ASDC³I Memorandum, and to this day there is no ban.^[18]

Decisions of the Defense Office of Hearings and Appeals Administrative Judges

A review of 182 decisions of DOHA administration judges issued from January 1, 2000 to December 4, 2002 concerning Foreign Influence (Guideline B) and Foreign Preference (Guideline C) show the following; since August 16, 2000, when an applicant with dual citizenship failed to give up a foreign passport, the applicant was always denied a clearance.  The holding of dual citizenship alone without a foreign passport, however, has never been a bar to a security clearance either before or after that date.^[19]  Dual citizenship is recognized and permitted both by State Department directives and in the Adjudicator's Desktop Reference issued by the Defense Security Service.^[20]  Clearances have been granted where there has been prior foreign military service^[21], and where there are family ties in foreign countries such as Argentina^[22], Australia^[23], Bangladesh^[24], Canada^[25], China^[26], Columbia^[27], Czechoslovakia^[28], Egypt^[29], Eritrea^[30], France^[31], Germany^[32], Greece^[33], Hong Kong^[34], Hungary^[35], India^[36], Iran^[37], Israel^[38], Italy^[39], Jamaica^[40], Lebanon^[41], Morocco^[42], New Zealand^[43], Pakistan^[44], Peru^[45], Philippines^[46] Poland^[47], Portugal^[48], South Korea^[49], Sudan^[50], Taiwan^[51], Turkey^[52], United Kingdom^[53], and Yugoslavia^[54].

Clearances have been granted where there has been activity in a foreign country such as working^[55], having bank accounts and financial assets^[56], receiving government benefits^[57], receiving a foreign military pension^[58], voting^[59], owning property^[60], attending school^[61], running a business^[62] and paying taxes^[63].  In many cases where two or more of the disqualifying factors have been present, they have been deemed sufficiently mitigated to allow a clearance to be granted.^[64]

Perhaps more informative than the cases granting security clearances are those cases in which clearances have been denied.  Obviously, where a foreign passport is not surrendered, a clearance will not be granted.  However, in many cases where it has been surrendered, a clearance has nevertheless been denied.  In those cases, among the reasons for denying a clearance have been:

·          applicant’s failure to demonstrate willingness to renounce dual citizenship;^[65]
·          moving back to a foreign country;^[66]
·          serving in a foreign military after becoming a United States citizen;^[67]
·          voting in two foreign elections after becoming a United States citizen;^[68]
·          unwillingness to bear arms against the applicant’s foreign country of origin;^[69]
·          emotional ties to a foreign country of origin because of religion, family ties and because the country was a refuge for the applicant’s family after it had been deported;^[70]
·          problems unrelated to foreign connections such as alcohol abuse,^[71] submitting false statements during the investigation,^[72] financial irresponsibility,^[73] personal misconduct,^[74] and conviction of a felony;^[75]
·          obtaining, renewing or using a foreign passport after becoming a U.S. citizen;^[76]
·          having substantial financial interests in a foreign country;^[77]
·          uncertainty as to the foreign family members’ connections to the foreign government;^[78]
·          foreign relatives who have official ties to the foreign government;^[79]
·          foreign family members being subject to possible coercion by the foreign government;^[80]
·          foreign family members in countries which are hostile to the United States;^[81]
·          stated intention to reapply for dual foreign citizenship;^[82]
·          having close ties to family members living in a foreign country;^[83]
·          having substantial business contacts with businesses in foreign countries;^[84]
·          applicant's spouse having foreign family members subject to foreign influence;^[85]
·          applicant's spouse having not renounced dual citizenship;^[86]
·          acting as an advocate for a foreign country’s interests;^[87]
·          accepting benefits from a foreign government;^[88]
·          having intent to renew foreign passport.^[89]

DOHA Appeal Board Decisions

All of that is not to say that DOHA will readily grant a clearance, or that relinquishment of a foreign passport will automatically guarantee a clearance.  In the thirty-two decisions of the DOHA Appeal Board between September 15, 1999, and July 15, 2002, dealing with Foreign Influence or Foreign Preference, the Appeal Board reversed decisions of the Administrative Judges granting clearances eleven times^[90] and affirmed decisions denying clearances twenty times.^[91]  It remanded one case because the government failed to include a complete copy of a trial exhibit on appeal.^[92]  The Appeal Board's only affirmance of a decision granting a clearance led to an immediate change in government policy allowing dual passports.^[93]

Certain generalities can be gleaned from the Appeal Board’s decisions.  Guideline B and Guideline C are not limited to unfriendly foreign countries or to those that are hostile to the United States. ^[94]  Assumptions that a friendly foreign country does not possess a serious security risk in the context of Guideline B ignores historical reality.  Relations between nations can shift sometimes dramatically and unexpectedly; even friendly nations can have profound disagreements with the United States over matters that they view as important to their vital interests or national security, and not all cases of espionage against the United States have involved nations hostile to the United States.^[95]  Even countries friendly to the United States can attempt to gain access to classified information.^[96]  The fact that the United States approves or sanctions a project in a foreign country through military aid is not evidence that it sanctions a U.S. citizen’s working that foreign project without specific approval.^[97]  

FOREIGN PASSPORT

Obtaining a foreign passport is an act of exercising  the rights and privileges of a citizen of foreign country even if the applicant never uses it.^[98]  The motivation for obtaining the foreign passport is relevant.^[99]  Obtaining it to protect or claim rights or privileges afforded a citizen of a foreign county demonstrates a tangible interest in that foreign country.^[100] 

The use of a foreign passport, even if simply for personal convenience, is a declaration to others that the person is a foreign national and shows a preference for a foreign country and indicate ties to a foreign country.^[101]  Retention and use of a foreign passport because a foreign country refuses to recognize renunciation of foreign citizenship when an applicant becomes a naturalized U.S. citizen, and because it will not permit travel to the foreign country without that country’s passport, is not a mitigating reason to a finding of foreign preference.^[102]  It is irrelevant that applicant lacked knowledge of how seriously the government views the use and possession of a foreign passport with relation to the applicant’s security eligibility.  The security significance of getting and using a foreign passport to travel to a foreign country is not diminished merely because it occurred before the applicant got a security clearance.^[103]

DUAL CITIZENSHIP

The Appeal Board recognized that although dual citizenship is legal under this country’s laws and is recognized by the U.S. Department of State, it does not necessarily follow that the U.S. government has approved or sanctioned dual citizenship.  It remains a factor in determining foreign preference.^[104]  State Department guidance that the use of a foreign passport by dual nationals does not endanger U.S. citizenship does not address or influence how the use of that passport will affect a person’s eligibility for a security clearance.^[105] 

The Appeal Board has held that dual citizenship, standing alone, is not sufficient to warrant an adverse security clearance decision.^[106]  However, an administrative judge must still consider the security significance of the other conduct engaged in by the applicant, even if an applicant has returned the foreign passport.^[107]  An applicant’s recent renunciation of foreign citizenship and return of the foreign passport does not automatically guarantee the issuance of a security clearance.  Those actions must be weighed with any other evidence of foreign preference.^[108]  The Appeal Board however declined to reverse the denial of a clearance where the only factor was a conditional willingness to renounce foreign citizenship even through the applicant never had a foreign passport.^[109] 

Although an applicant’s actions are for personal reasons which do not suggest a sinister motive, that does not mean those actions lack negative security significance.^[110]  That an applicant does not act out of sinister motives does not preclude the government from considering other facts and circumstances which may indicate a foreign preference.^[111]  An applicant’s voluntary travel to an unfriendly foreign country, knowing the risks taken each time traveled, raises serious questions of whether the applicant is suitable to be granted a security clearance.^[112]  

A conditional willingness to renounce foreign citizenship or to give up a passport is entitled to less weight than an unconditional offer to do so,^[113] however, the Appeal Board declined to hold that it had no weight.^[114]  An applicant may be allowed to relinquish the foreign passport immediately after the hearing.^[115]   Reluctance to formally renounce foreign citizenship by an applicant is relevant and sheds light on the applicant’s motivations.^[116]   

An expression of antipathy by an applicant to a foreign government rather than its people or culture is not entitled to any weight in considering the applicant’s reluctance to give up foreign citizenship.^[117]  What matters is whether a person is vulnerable to foreign influence by a desire to avoid harm to or gain benefit for relatives in a foreign nation.^[118]   An applicant’s compliance with the directions of the foreign country’s officials concerning the use of a foreign passport because he was afraid of confronting them over the issue is relevant in considering how the applicant might act if the foreign government were to exert influence or pressure on applicant’s relative living in the foreign country.^[119]

Taking an oath of allegiance upon obtaining U. S. citizenship is not conclusive or dispositive evidence of U.S. preference.^[120]  Post-naturalization conduct may be considered in evaluating suitability to hold a clearance.^[121]  However, an administrative judge may take into account the significance of an applicant's taking the oath of allegiance as part of the process of becoming a United States citizen.^[122]  Applicant’s “loyalty” to the United States may not be considered in support of either a favorable or an unfavorable determination.^[123]

FOREIGN PREFERENCE

Seeking to protect the ability to claim rights and privileges under foreign citizenship, is a demonstration that the applicant’s interest in foreign citizenship goes beyond mere sentiment, respect for the applicant’s foreign heritage, or symbolism.  Once an applicant has expressed a preference for a foreign country, his or her other ties to the foreign country are subject to greater scrutiny.^[124]  Applicant’s denial of any preference for a foreign country is relevant but not dispositive and must be considered in light of the record as a whole.^[125] 

A willingness to bear arms for a foreign country demonstrates a willingness to risk life and limb and is strong evidence of a profound personal commitment.  A person who is willing to bear arms may be willing to perform other acts which do not entail risk of life and limb to advance the interest and welfare of that country and its armed forces.  This raises serious security concerns about an applicant seeking to be granted access to classified information.  The U.S. government does not need to risk waiting to see how a person with access to classified information would act if faced with such a quandary in the future.  An applicant's statement that he is willing to bear arms for a foreign country, coupled with an expressed desire to remain neutral with the United States if it were ever to find itself in conflict with the foreign country, raises serious questions about applicant's preferences between the United States and the foreign country.  Equivocal preferences with respect to the United States or a foreign country raise serious security concerns under the “clearly consistent with the national interest” standard.^[126] 

An applicant’s representation of a foreign country in international sports activities shows a commitment to act on behalf of that country and demonstrates a foreign preference within the meaning of Guideline C.  The personal motivation for such actions does not immunize these actions from scrutiny for possible security significance.^[127] A foreign preference can be shown if an applicant engages in conduct that shows the applicant has an ad hoc situational preference for a foreign country over the United States whenever it suits him.^[128]  Use of a foreign passport to remove children from the United States during a custody dispute demonstrates an effort to avoid the lawful jurisdiction of a U.S. court of competent jurisdiction and to seek the protection of a foreign country.  Even if it is not likely to be repeated, it demonstrates foreign preference.^[129]

FOREIGN INFLUENCE

Mere possession of family ties with persons in a foreign country is not, as a matter of law, automatically disqualifying under Guideline B.  However, it does raise a prima facie security concern sufficient to require evidence in rebuttal, extenuation or mitigation sufficient to meet applicant's burden of persuasion.^[130]  Not only coercive, but also non-coercive influences due to foreign family ties must be considered, such as the possibility of reducing the probability of threats to family members who might be serving in a foreign country's military.^[131]  

A differentiation must be made between immediate family members and relatives who are not immediate family members such as aunts, uncles, cousins and extended family.^[132]  Unless ties of affection and obligation can be shown to more distant relatives they cannot be considered as a “foreign influence.”^[133]  The immediate family members of applicant's spouse raise security concerns similar to those of applicant's own immediate family members.^[134]  The fact that applicant's family members are not members of a foreign government is not dispositive.^[135]  The security significance of an applicant’s family ties in a foreign country does not turn on the simple question of whether the applicant’s relatives have official ties with a foreign government^[136].  Even though there is no evidence that applicant’s relatives are agents of a foreign power, the administrative judge must still consider whether they are in a position to be exploited by a foreign power.^[137]

Of concern is an applicant’s spouse not becoming a naturalized U.S. citizen^[138], however the expressed intent of an applicant’s wife to become a naturalized U.S. citizen in the future does not render her current status as a foreign citizen irrelevant.^[139] 

Applicant has the burden of demonstrating that family ties in a foreign country do not place him in a position of vulnerability through possible foreign influence.^[140]  But there must be evidence in the record that there are close ties to foreign family members before the burden shifts to the applicant to show he is not vulnerable.^[141]  Although an applicant’s visits to family members in a foreign country may be infrequent, that does not mean that they are casual.^[142]  Contact with immediate family members in a foreign country raises a rebuttable presumption that they are not casual.^[143]

BURDEN OF PROOF AND INFERENCES

All conduct must be considered together rather than by a piecemeal approach to get a totality of its security significance.^[144]  A judge must make findings and draw inferences and conclusions that reflect a reasonable interpretation of the evidence that takes into account the record evidence as a whole.^[145]  An applicant’s motivation is relevant to a security clearance decision, and the applicant’s opinions and reaction to the facts can be relevant to the extent they are probative of the applicant’s  motivation.^[146]   However, an applicant’s opinion of the security significance of his or her conduct or circumstances is not dispositive of whether the mitigating conditions should apply.^[147] 

Security clearance decisions are not limited to consideration of an applicant’s conduct and circumstances while he holds a security clearance; prior conduct may be considered.^[148]  Honesty and candor by the applicant with the government weigh in an applicant’s favor but do not preclude the government from evaluating the security significance of applicant’s answers.^[149] 

Where a party has the burden of proof on a particular point, the absence of any evidence on that point requires the administrative judge to find against that party on that point.^[150]  The government does not have to offer evidence disproving a mitigating condition.^[151]  An applicant has the burden of presenting evidence to rebut, explain, extenuate or mitigate facts admitted by the applicant or proven by the government, and has the ultimate burden of persuasion that a favorable security clearance decision is warranted.^[152]  The fact that more serious conduct is not alleged or found is not extenuating or mitigating of the conduct proven or admitted to.^[153]  A favorable security clearance is not mandated merely because an applicant’s conduct is not as serious as it possibly could have been.^[154]  Favorable character evidence also does not compel a favorable clearance decision.^[155] 

An applicant’s stated intention about what he or she might do under some hypothetical set of circumstances is not entitled to much weight unless the applicant has acted in the past under identical or similar circumstances.^[156]  Statements by an applicant of his or her intent or state of mind are not binding or conclusive, but must be considered in light of the evidence as a whole.^[157]  The adverse affect an unfavorable security decision might have on an applicant or the applicant’s family is not relevant.^[158]

DOHA has no jurisdiction or authority to adjudicate claims under the civil rights statute and claims of discrimination against a foreign born applicant will not be considered.^[159] 

Other Factors Affecting the Outcome of a Case

Whether a person had counsel or acted pro se does not seem to make a significant difference.  Of the 182 decisions reviewed, in  122 cases applicants represented themselves without counsel (pro se).  Of these, 56 were granted clearances, resulting in a 46 percent success rate.  Of the 60 cases where applicants were represented by counsel, 24 were granted clearances for a 40 percent success rate, not a significant difference.  Also noteworthy, where applicants had two counsels of record, the applicants were invariably high-level executives.  In four of five such cases, the applicant was granted a clearance.^[163]  Multiple counsel seemed to improve the likelihood of success. 

Conclusions 

Although the DOHA Appeal Board has given numerous reasons for denying a clearance under the Foreign Influence and Foreign Preference Guidelines, the fact remains that between 60 and 74 percent of applicants who have engaged in conduct raising concern under these Guidelines have been granted clearances.  In those cases where clearances have been denied, or where the Appeal Board has overturned favorable decisions, there were multiple factors or egregious conduct present.

The Uniform Standards for Protecting National Security Information require an examination of the “whole person” -- those factors, both favorable and unfavorable, in a person’s life which demonstrate whether the applicant is to be believed and trusted.^[164]  This “whole person concept” requires an examination of the totality of an applicant’s conduct.^[165]   The Uniform Standards require the Administrative Judge to make a “common sense determination”^[166] based on a review of all of the evidence, and, as the Appeal Board has noted, the totality of the evidence must be weighed as a whole in reaching a decision.^[167] 

For almost any single consideration one can find cases both for and against the applicant, and for any combination of factors one can find cases going either way depending on the Administrative Judge who has heard the case.  Credibility is important, as is the need for an applicant to provide rebuttal or mitigating evidence on each of the reasons cited to deny a clearance. 

Not all Administrative Judge decisions are appealed and those which are appealed by the government generally are cases where there have been multiple negative factors present.  To date, in those cases, the Appeal Board has consistently ruled against the applicant, holding that the Administrative Judge ignored the totality of the evidence.  One thing is clear however, under the current climate of threat to our national security, DOHA judges are acting more conservatively in these cases than in the past.

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