By: Dan Meyer, Esq.
As official Washington begins to pull in the reigns with respect to security clearance in the post 9/11 world, agencies are making it clear about how they will approach situations dealing with issues of Foreign Influence and Preference in their security circles of trust. While the biggest Guideline triggers in proceedings prompted by Statement of Reasons and Notices of Intent to Revoke or Deny Eligibility for Access to Classified information are Guidelines H, G, and E—which revolve around drug, alcohol, and other substance use and misuse—Guideline B, Foreign Influence and Guideline C, Foreign Preference sit solidly as the second rank of guideline triggers. Even though the second rank may seem like a small focus for security adjudicators, over the past thirty-two months, around a tenth of all security clearance matters I have dealt with involved Guidelines B and C.
In regards to Issues of Foreign Influence and Preference, one of the biggest areas the Department of Homeland Security has a particular focus on is the credibility, reliability, and trustworthiness of its employees and contractors with ties south of the border in places such as Mexico and Central America. The Intelligence Community, and to a lesser extent, the non-Intel Defense Department agencies, offices, and field activities, accordingly focus on employees and contractors with ties to southwest Asia, Eastern Europe and Russia, and the Far East. While ideally employees and contractors would not have any ties to these places when being granted security clearance, if these agencies are to execute the national and homeland security mission of the Republic, their leadership, supervisors, and managers need the insight and contributions of a globalized and diverse workforce of warfighters and their supporters.
Consequently, this means you can have ties to Enemies of the State and still hold a security clearance. While it is better if those ties are historic rather than current, even current ties that present security concerns can be mitigated. Here are some rules to follow that will help you keep your security clearance:
o Report close and continuous contact with Foreign Nationals from the outset of your affiliation with the security community, and do so going forward through the self-reporting systems established under SEAD-3.
o Do not maintain a Dual Citizenship, and that includes participating in programs and activities that constitute the benefits of foreign denizenship (ID Cards, Healthcare services, etc.)
o Do not hold foreign assets, in real property or in bank accounts; this includes renouncing inheritance of the same.
o If you work in the Intelligence Community, at the State Department, or the Department of Homeland Security, be ready to move off social media and greatly reduce if not end general contacts that could connect you across borders.
The more problematic matter to address is the status of parents, in-laws, or any other familial connection. If they are under a foreign jurisdiction (and therefore within leverage-able reach of a foreign intelligence service) it is best that they be moved under the jurisdiction of the United States, preferably through citizenship. If this cannot be done, begin to adopt practices which alienate you from these relations as best you can. Families in which other siblings are the primary care givers to these relatives provide some distance. Be prepared to tell an adjudicator what you would do if your relatives were placed under duress in order to force you to give up classified information. Evidence of that commitment will also be important.
Though the non-Intel Defense Department adjudicators tend to be more cosmopolitan than, say, Homeland Security, patriotic Americans seeking to serve the Republic and requiring eligibility for access to classified information need to take warning after recent decisions by Chief Judge Michael Y. Ra’anan just last year. In Case No. 19-00831 (July 20, 2020), for instance, the Appeals Board decided “[t]here is a rational connection between an applicant’s family ties in a hostile country and the risk that the applicant might fail to protect and safeguard classified information.” Whether or not actively hostile actions, such as military conflict, have broken out or are imminent, any country whose policies consistently threaten U.S. national security may be viewed as hostile for purpose of DOHA adjudications.
“In Foreign Influence cases, the nature of the foreign government involved, the presence of terrorist activity, and the intelligence gathering history of that government are important considerations that provide context for the other record evidence and must be brought to bear on the Judge’s ultimate conclusions in the case. The country’s human rights record is also an important consideration.” See, e.g., ISCR Case No. 17-04208 at 4 (App. Bd. Aug. 7, 2019); ISCR Case No. 15- 00528 at 3 (App. Bd. Mar. 13, 2017).
The Board went on to find foreign contacts who were family members in Russia could be the basis for denying eligibility, regardless of self-reporting, “A Guideline B adjudication is not a judgment on an applicant’s character or loyalty to the U.S. Rather, it is a determination as to whether an applicant’s circumstances foreseeably pose a risk of compromise. Of course, no one’s future conduct can be predicted with certitude. Even a person of the highest character can experience circumstances under which he or she could be tempted to place the well-being of foreign relatives over the interests of the U.S.” See, e.g., ISCR Case No. 17- 04208 at 5.
So when it comes to your security clearance, it is important to keep in mind the foreign ties you choose to have and your relationship with them. If not, you risk losing or being denied a clearance.
Dan Meyer is the Managing Partner for Tully Rinckey PLLC’s Washington D.C. office. He began his security career as Communications Security Manager for the Flagship, Commander Middle East Force and continued the interest as a graduate intern with the Office of Communications Research at the White House during the first Clinton Administration. After 14 years with the Defense and Intelligence inspectors generals, he returned to the practice of law defending Federal service members, employees and contractors. Dan can be reached at (202) 787-1900 or at firstname.lastname@example.org.
*The views and opinions expressed in this article are those of the authors and do not necessarily reflect the views, policy or position of this publication.