By John V. Berry, Esq., www.berrylegal.com
Foreign Influence issues under Guideline B of the Adjudicative Guidelines for security clearance matters are a commonly used basis for the Government in delaying or denying a security clearance application or reinvestigation. Guideline B applies to both federal employees and contractors.
BACKGROUND FOR GUIDELINE B, FOREIGN INFLUENCE CASES
Guideline B, Foreign Influence, covers a number of issues involving potential risks to classified information based on foreign influence. A number of individual issues come up with respect to foreign influence where the Government has reason to believe that an individual could have divided loyalties or foreign financial interests / foreign property abroad that might place classified information at risk. The rationale behind foreign influence concerns for the Government is that foreign interests and contacts can become potential security issues where a person with a clearance could be subject to foreign manipulation or somehow be induced to help a foreign government by providing classified information.
In evaluating Guideline B issues, the Government considers the nature of scope of the foreign contacts and/or foreign interests for the security clearance applicant. They also consider the particular foreign government involved, i.e. whether they tend to be allied with the United States or whether the country has taken an adversarial approach to the United States. For instance, it is often easier to mitigate security concerns where a security clearance applicant has ties to a country like the United Kingdom, versus ties to a country such as North Korea. This is because the Government considers the nature of the foreign government involved in each case. In particular, they consider the intelligence gathering history of a foreign government as important evidence that provides context for all the other evidence of record and must be brought to bear on the ultimate conclusions in the case. See ISCR Case No. 06-18400 (App. Bd. Aug. 2, 2007); ISCR Case No 04-07766 (App. Bd. Sept. 26, 2006).
When issues of foreign influence arise, in the scope of a security clearance examination or review, it is critical to take them seriously and to retain legal counsel familiar with these types of security clearance issues in order to minimize the potential damage to a security clearance. Many of the issues are explained in the language of Guideline B, listed below:
Guideline B: Personal Conduct. 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 also include: (1) 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; (2) Sharing living quarters with a person or persons, regardless of their citizenship status, if the potential for adverse foreign influence or duress exists; (3) Relatives, cohabitants, or associates who are connected with any foreign government; (4) Failing to report, where required, associations with foreign nationals; (5) Unauthorized association with a suspected or known collaborator or employee of a foreign intelligence service; (6) Conduct which may make the individual vulnerable to coercion, exploitation, or pressure by a foreign government; (7) 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; (8) 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 under foreign influence include: (1) 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; (2) Contacts with foreign citizens are the result of official United States Government business; (3) Contact and correspondence with foreign citizens are casual and infrequent; (4) 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; (5) Foreign financial interests are minimal and not sufficient to affect the individual's security responsibilities.
TIPS IN HANDLING SECURITY CLEARANCE CASES INVOLVING FOREIGN INFLUENCE ISSUES
In security clearance cases involving Guideline B, Foreign Influence, it is important to thoroughly review all of the facts listed in the Statement of Reasons (SOR) and make a checklist of the allegations that are at issue. This is important because it will be crucial to rebut each and every allegation of foreign influence, no matter how minor they seem. In our law practice, we advise individuals that have security clearance issues falling under Guideline B to obtain as much information regarding the allegations in order to effectively rebut them in your response before your agency, Central Adjudication Facility (CAF), Central Clearance Facility (CCF), the Department of Hearings and Appeals (DOHA), Personal Security Appeals Board (PSAB) or other oversight authority for your security clearance.
Providing a general response, without substantial supporting evidence, often does not result in effectively rebutting the security concerns raised under Guideline B. When Guideline B allegations are raised, an applicant needs to aggressively respond to each of the factual allegations made, providing a full explanation/rebuttal of each issue raised by the Government, in addition to providing documents to support your response.
One of the most helpful types of information that can be provided by an individual seeking a clearance are written (and preferably sworn) statements from other individuals that support a person’s loyalty to the United States. For example, if you are alleged to have had a number of foreign contacts, the best type of response would include written statements from others (co-workers, supervisors, community leaders) supporting your loyalty to the United States.
It is also helpful for security clearance applicants with foreign influence concerns to provide documents and statements that demonstrate the minor nature of foreign contacts, financial interests, property and/or influence that have been cited in the SOR as potential security issues. While obtaining these types of supporting documents and witness statements can be time consuming, often times it is these very types of documents which make the difference in obtaining a positive outcome as to one's security clearance application in cases involving alleged foreign influence.
Foreign influence cases under Guideline B of the Adjudicative Guidelines involve individual sets of facts and mitigating factors specific to each case so it is important for an attorney to be consulted as soon as possible in the process to assist applicants. Our Firm represents individuals in security clearance cases and can be contacted at www.berrylegal.com.