Fedweek Legal

The government is concerned that relationships with foreign nationals may leave an individual vulnerable to coercion, exploitation or pressure. Image: Rob Wilson/Shutterstock.com

By: Dan Meyer, Esq. and Lachlan McKinion, TR Law Clerk

Many employees and contractors of the United States federal government, military personnel, government officials, and other individuals charged with upholding public safety and the public good who require access to classified information in the course of performing their duties are required to obtain and maintain a security clearance. However, many who apply are denied a security clearance because of a variety of concerns, including what is known as “foreign influence.” In this article, we will discuss one of the common reasons for the rejection of a security clearance application, and the facts you need to understand Guideline B: Foreign Influence of the Director of National Intelligence’s Adjudicative Guidelines. The DNI serves in the executive role for the entire Executive branch’s personnel security program.

What is Guideline B?
When discussing adjudicative guidelines for evaluating security clearances, Security Executive Agent Directive (SEAD) 4 outlines the concerns around Guideline B as follows:

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“Foreign contacts and interests, including, but not limited to, business, financial, and property interests, are a national security concern if they result in divided allegiance. They may also be a national security concern if they create circumstances in which the individual may be manipulated or induced to help a foreign person, group, organization, or government in a way inconsistent with U.S. interests or otherwise made vulnerable to pressure or coercion by any foreign interest.”

Put simply, when evaluating someone for security clearance, the government is concerned that any relationship with foreign nationals, whether personal or business-related, regardless of if the contact is with an individual, group organization, or government, is grounds for concern that may leave the individual vulnerable to coercion exploitation or pressure, and their ability to be manipulated or induced to divulge sensitive national security information.

Security Concerns to Be Aware of Under Guideline B
There is good reason for the government’s need to protect classified information when it comes to a U.S. citizen’s access if that citizen has regular or prolonged contact with foreign nationals or even a foreign government. Due to its political and economic position in the world, the U.S. is a large and ongoing target for attacks of all kinds, ranging from industrial espionage to violent attacks against its citizens and interests at home and abroad.

There are many different situations that could flag a clearance application for security concerns, and may even disqualify the applicant. According to the SEAD-4, these conditions include:

● An immediate family member, or a person to whom the individual has close ties of affection or obligation, is a citizen of, or a resident of or present in, a foreign country;

● Sharing living quarters with a person or persons, regardless of their citizenship status, if the potential for adverse foreign influence or duress exists;● Relatives, cohabitants, or associates who are connected with any foreign government;

● Failing to report, where required, associations with foreign nationals;

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

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

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

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

How to Potentially Mitigate Foreign Influence Security Concerns
Although you are required to disclose any and all close or continuing contacts with foreign nationals, groups, organizations, or governments on Standard Form 86 (SF86), the Questionnaire for National Security Positions, there are a variety of mitigating factors that may be considered, even if you do have regular or prolonged contact with foreign nationals. Per SEAD-4, conditions that could mitigate security concerns include:

● 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;

● Contacts with foreign citizens are the result of official United States Government business;

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● Contact and correspondence with foreign citizens are casual and infrequent;

● 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;

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

Recent cases underscore that for all the growth in global contacts across the United States over the past two generations, the expectation within the Defense and National Security communities is that cleared workers will have decidedly left their past behind them, especially with countries that are considered enemies of the state.

In a recent Defense Office of Hearings and Appeals case, Administrative Judge Darlene Lokey Anderson found against an applicant under Guideline B, although the applicant disclosed all foreign contacts. The applicant was born in Turkey and maintained contact with family members and friends who remained in Turkey, including friends who worked for the Turkish military. The applicant also married a Turkish national. Judge Lokey Anderson found that although the applicant is a U.S. citizen, she still exercises Turkish residency. In finding that the applicant did not mitigate the concerns raised under Guideline B, Judge Lokey Anderson held that the most concerning foreign contact the applicant had was her friends working in the aerospace industry on behalf of the Turkish military. These contacts raised concerns about negative influence on the applicant’s decision-making and posed a threat to the interests and security of the United States.

In a similar case, Administrative Judge Matthew Malone considered the applicant’s foreign contacts in Iraq. In this case, the applicant’s mother and three sisters are citizens and residents of Iraq, and the applicant’s four brothers serve in the Kurdish military forces in Iraq. Apart from these contacts, Judge Malone considered U.S.-Iraqi relations, stating that “U.S. citizens and interests in Iraq remain at high risk for kidnapping and terrorist violence.” Considering this relationship, as well as the continued communications with the applicant’s family and friends in Iraq, Judge Malone held that these conditions “reasonably raise the security concern expressed under this adjudicative guideline” and that “conditions in Iraq present a heightened risk that the applicant’s relatives and associates in Iraq may be vulnerable to pressure or coercion as a means of compromising the applicant’s willingness and ability to protect sensitive U.S. information.”

This last case considers the applicant’s foreign contacts in China. The applicant is a U.S. citizen and was born in Hong Kong. In 2013, the applicant received an unsolicited email from a woman code-named “Ms. M.” The applicant admitted to government investigators that he was in a romantic relationship with Ms. M from 2013 to 2014, but their only contact was via video chats and photographs. Ms. M disclosed to the applicant that her father had been killed and her uncle was trying to kill her to get an inheritance. Ms. M stated that she was hiding in a refugee camp under the local ministry’s protection in Togo. Ms. M told the applicant she needed money to get out of Togo, and the applicant agreed to give her money. After sending her money, the applicant did not hear from Ms. M for several months until she contacted him from Dubai, United Arab Emirates, in 2017. In 2018, the applicant received another unsolicited email from a woman code-named “Ms. H.” The applicant was also romantically involved with her. Ms. H also requested money from the applicant, to which he obliged in the amount of $10,000. However, the transaction was blocked as it was suspected of being fraudulent. The government used these two incidents in an attempt to show that the applicant could be leveraged by foreign contacts. Of particular concern to the government was the applicant’s brother, a Chinese national who is a technical officer for the Chinese government. Judge Carol Ricciardello found that based on the applicant’s ties to China and his questionable communications with Ms. M and Ms. H, there is an increased risk of coercion, persuasion, and duress. Judge Ricciardello further found that the applicant presented no mitigating circumstances, and therefore, the applicant should not have access to sensitive and classified information.

The takeaway? Do not hold foreign assets; do not become intimately involved with foreign contacts; work to get your closest relatives into the United States; do not vote in foreign elections; and do not exercise benefits provided by a foreign prince. Be active in your local community in the United States, have proof of community building, and express your ethnic, as opposed to past national, pride culturally here in the United States.

What Do I Do If My Clearance Is Denied or Revoked?
If you are issued notification of intent to deny or revoke your clearance under Guideline B, Foreign Influence, or Guideline C, Foreign Preference, it is still possible to obtain or keep your clearance with the help of an experienced, knowledgeable security clearance lawyer. Applicants should not attempt to resolve these concerns without the assistance of an experienced security clearance attorney. The security clearance adjudication process is heavily empirical, and you bear the burden of proof in clearing the security concern.


Dan Meyer, Managing Partner of Tully Rinckey PLLC’s Washington, D.C. office, has dedicated more than 25 years of service to the field of federal employment and national security law as both a practicing attorney and federal investigator and senior executive. Dan Meyer is a member and Vice -Chair of the National Security Lawyers Association. He is a leader in advocating for service members, federal civilian employees, and contractors as they fight to retain their credentialing, suitability, and security clearances. Mr. Meyer can be reached at info@tullylegal.com or at (888) 529-4543.

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Lachlan McKinion is a law clerk in Tully Rinckey’s Washington, D.C., office, where he focuses on national security and security clearance law and supports the needs of TR’s corporate national security clientele.

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