By John V. Berry, Esq., www.berrylegal.com
We often represent individuals who have issues with respect to foreign influence issues under Guideline B. This article examines how the Adjudicative Guidelines for Foreign Influence apply to security clearance cases. Foreign Influence has always been a major concern because security risks can exist when an individual’s family or close friends are subject to potential duress and influence. Along those lines, foreign Influence issues have long been considerations in determining whether to grant or renew a security clearance.
Security concerns regarding foreign influence are addressed by the federal government under Guideline B of the Adjudicative Guidelines in the recently updated Security Executive Agent Directive 4 (June 8, 2017). The security concerns are listed as follows in SEAD 4:
The Concern: Foreign contacts and interests, including, but not limited to, business, financial, and property interests, are a national security concern if they result in divided alliance 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. Assessment of foreign contacts and interests should consider the country in which the foreign contact or interest is located, including, but not limited to, considerations such as whether it is known to target U.S. citizens to obtain classified or sensitive information or is associated with a risk of terrorism.
The specific conditions that may raise security concerns include the following 9 security issues:
a. contact, regardless of method, with a foreign family member, business or professional associate, friend, or other person who is a citizen of or a resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion;
b. connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual's obligation to protect classified or sensitive information or technology and the individual' s desire to help a foreign person, group, or country by providing that information or technology;
c. failure to report or fully disclose, when required, association with a foreign person, group, government, or country;
d. counterintelligence information, whether classified or unclassified, that indicates the individual's access to classified information or eligibility for a sensitive position may involve unacceptable risk to national security;
e. shared living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure, or coercion;
f. substantial business, financial, or property interests in a foreign country, or in any foreign owned or foreign-operated business that could subject the individual to a heightened risk of foreign influence or exploitation or personal conflict of interest;
g. unauthorized association with a suspected or known agent, associate, or employee of a foreign intelligence entity;
h. indications that representatives or nationals from a foreign country are acting to increase the vulnerability of the individual to possible future exploitation, inducement, manipulation, pressure, or coercion; and
i. conduct, especially while traveling or residing outside the U.S., that may make the individual vulnerable to exploitation, pressure, or coercion by a foreign person, group, government, or country.
Mitigating Factors for Foreign Influence Concerns
In terms of potential mitigation regarding the above factors, the following mitigations considerations are potentially available:
a. the nature of the relationships with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the United States;
b. there is no conflict of interest, either because the individual's sense of loyalty or obligation to the foreign person, or allegiance to the group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the United States, that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest;
c. contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation;
d. the foreign contacts and activities are on U.S. Government business or are approved by the agency head or designee;
e. the individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons, groups, or organizations from a foreign country; and
f. the value or routine nature of the foreign business, financial, or property interests is such that they are unlikely to result in a conflict and could not be used effectively to influence, manipulate, or pressure the individual.
Strategies for Dealing with Foreign Influence Concerns
There are a number of strategies for attempting to mitigate cases involving potential security concerns. Typically, it is important to understand the nature of potential security concerns involving foreign involvement. It is important to first evaluate the closeness of any potential foreign relatives and friends in the context of whether or not they are actually close in nature or not. Additionally, it is important, where appropriate, to argue that the contacts are not close in nature or are not connected to the foreign government at issue. Closeness can be illustrated by a minimum of contact with individuals in foreign countries. Often, it is helpful to explain, in full, how a foreign contact is not as close as they may appear on the application.
Also, it can be often critical to show how the individual applicant or clearance holder is more tied to the United States, in assets, family and friends and organizations than their country of birth or origin. For this type of showing it is very important to obtain documentation to rebut such ties. In short, there are many methods available to attempt to mitigate foreign influence concerns, but it is important to focus first on the nature of the relationships at issue first. It is not uncommon for us to determine that foreign relatives are not aware of the type of duties that an individual performs, which can also help to mitigate security concerns.
When an individual is facing foreign influence security clearance concerns it is important to obtain legal advice and legal representation. Our law firm advises individuals in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Please visit our Facebook page.