Security Clearance Guideline B – Foreign Influence

Security Clearance Guideline B: Foreign Influence

 The Security Adjudicative Guidelines (often referred to collectively as “The Guidelines”) are outlined in Security Executive Agent Directive 4 (SEAD 4). They have been adopted within the U.S. Government as the primary source for determining security clearance eligibility. Guideline B of the security clearance Guidelines specifically addresses concerns surrounding Foreign Influence. These concerns generally arise from three circumstances:

• An individual has divided loyalties or foreign financial interests;
• An individual may be manipulated or induced to help a foreign person, group; organization, or government in a way that is not in U.S. interests; and
• An individual is vulnerable to pressure or coercion by any foreign interest.

If it appears that these Foreign Influence considerations tend to overlap, it is because they do. Correspondingly, adjudication under this Guideline is “an inexact science at best.”[1] This imprecise guidance, combined with an ever more diverse and globally connected workforce, makes Foreign Influence the third most common concern resulting in security clearance denial for both 2019 and 2020.

 If you have received a security clearance Statements of Reasons that includes a Guideline B Foreign Influence concern, you should seek the assistance of a security clearance lawyer to help you challenge or mitigate the Foreign Influence concern.

 What kind of foreign contacts create a concern?

 The real crux of any concern surrounding foreign contacts, and what makes a concern potentially disqualifying, is when it causes “a heightened risk of foreign influence, exploitation, inducement, manipulation, pressure, or coercion.”[2] When they are determining whether an applicant should receive his or her security clearance, the adjudicators (those that initially decide whether a clearance is granted or a Statement of Reasons should be issued) attempt to determine which of an applicant’s foreign contacts have the strongest connections and are the most frequent.  From there, adjudicators examine individual relationships to determine if they pose a potential security risk. Some noted indicators in Foreign Influence cases include:

• Immediate family members living abroad, especially if there is regular and frequent contact or if the applicant provides significant material support for the family member;
• Regular travel to foreign countries to visit family members, friends, or associates;
• Engaging in foreign business ventures, or reliance on foreign friends and family for assistance in developing a business in the United States;
• Having a foreign citizen as a spouse, romantic relationship, or cohabitant;
• Holding stock in foreign-owned companies, especially in the defense sector and shell companies for government control of foreign industry;
• Regular or unexplainable sudden travel to foreign countries, especially for religious training or to visit tax havens; or
• Prolonged contact to arrange marriages or adoptions.

The case below highlights how some of these factors are considered in the adjudication process and the significant role played by the foreign state itself.

 ISCR Case No. 19-00831

July 29, 2020

 Applicant and his family fled Soviet Russia in the early-1990s and lived in the U.S. thereafter. Applicant was issued a Statement of Reasons for concerns resulting from foreign influence to include the following list of close family ties:

• Applicant’s oldest child retained dual U.S. and Russian citizenship to allow for easier travel to and from Russia when visiting Applicant’s family;
• Applicant’s mother was a citizen and resident of Russia, received a pension from the Russian government, and to whom Applicant spoke approximately once per week;
• Applicant’s half-sibling was a citizen and resident of Russia who wired Applicant hundreds of thousands of dollars for a failed business venture and to whom Applicant spoke on the phone approximately two-to-three times per year;
• Applicant’s mother- and father-in-law both sought asylum in the United States after fleeing the Soviet Union due to religious persecution and were naturalized citizens;

Applicant attempted to mitigate these concerns with evidence of his cultural integration within his community, such as coaching soccer and actively participating in his homeowners’ association. The Administrative Judge found this evidence persuasive. The judge gave additional weight to Applicant’s reasons for leaving the Soviet Union, the length of time that Applicant had lived in the U.S., and the long-term, significant relationships that Applicant had developed as a U.S. citizen.  The Judge granted the Applicant’s security clearance, but the Department of Defense lawyers appealed the Judge’s decision.

The Appeals Board sided with the Department of Defense lawyers. It emphasized the “strong presumption against the grant or maintenance of a security clearance”[3] and stressed that the Administrative Judge failed to adequately consider the nature and history of the government of the implicated foreign state. Russia had (and maintains) a well-documented history of international interference, human rights abuses, and a robust cyberespionage program that includes surveillance of domestic and international communications. Russia had been repeatedly cited for its use of illegal electronic and telephonic surveillance, rampant corruption, and violently coercive political tactics to achieve its broader geopolitical and domestic security goals. The likelihood that the Russian government might try to exploit Applicant’s numerous familial bonds placed him at a significant risk of coercion and manipulation.

The Appeals Board acknowledged that Applicant put forth detailed evidence demonstrating his loyalty to the U.S. and his participation in civic life.  However, the evidence Applicant provided was not sufficient to overcome the very heavy burden of persuasion that exists in cases involving foreign influence and contacts from a known hostile state.  Applicant’s security clearance was denied.

 How can I mitigate these concerns?

 If avoiding foreign influence and security clearance Guideline B altogether is not an option–after all, you do not get to pick your family or where you were born–the Guidelines note a few ways in which someone can attempt to mitigate potential security concerns, but other evidentiary support can be useful as well. Some of the following can be useful evidence but may not apply in all cases:

• Immediately applying for U.S. citizenship as soon as possible;
• Formally surrendering or destroying foreign passports;
• Renunciation of foreign citizenship if a dual citizen;
• Formal severance of ties with potentially concerning foreign individuals;
• Divestment or withdrawal from holdings and positions in foreign companies, organizations, banks or monetary institutions;
• Expressing an intention to live permanently in the U.S. beyond the length of the particular job opportunity they are applying under;
• Participating in U.S. civic, political, and cultural events and holidays;
• Developing and embracing relationships outside an exclusive religious or ethnic group.

Conclusion

 In Guideline Foreign Influence security clearance cases, the determination of an applicant’s security clearance eligibility is not a judgment of character or loyalty to the United States. Even the most law-abiding and loyal patriot can be subject to coercion or compromise given the appropriate circumstances. The determination in these cases is based on the reasonable foreseeability of an applicant’s foreign contacts creating a risk of conflicting interests.  Therefore, it is extremely important that any relationships and foreign interests be properly presented to the security clearance adjudicators or Judges.

 Need Help?

 If you have received a Statement of Reasons, a Letter of Intent, a Notification of Revocation, or are simply lost in the middle of the security clearance eligibility determination and appeal process, Korody Law, P.A. is standing by to assist.  We will provide you with an honest and accurate evaluation of your case, help you decide on next steps, and provide you with the best representation in the business should you decide to retain our services.  Contact Korody Law at (904) 383-7261.

This post was written by Korody Law extern Cade Spivey.  Mr. Spivey is a graduate of the United States Naval Academy and spent 7 years as a Surface Warfare Officer.  He will graduate from Wake Forest Law School in May 2021.  He has focused his studies on National Security Law including Security Clearance Law.

[1] Dep’t of the Navy v. Egan, 484 U.S. 518, 529 (1988).

[2] U.S. Dep’t of Defense, Adjudicative Desk Reference: Assisting Security Clearance Adjudicators, Investigators, and Security Managers in Implementing the U.S. Government Personnel Security Program (2014)  at 164.

[3] ISCR Case No. 19-00831 (App. Bd. Jul. 29, 2020) (citing Dorfmont v. Brown, 913 F.2d 1399, 1401 (9th Cir. 1990).