By John V. Berry, Esq., www.berrylegal.com
Foreign Influence concerns can become a major issue in security clearance cases for government contractors, military members and federal employees. Unresolved issues involving Foreign Influence is one of the most common grounds for denial of a security clearance. When a foreign influence security concern arises in the context of applying for or attempting to retain a security clearance it is very important for the individual to seek legal advice and potential legal representation in order to enable the person the best chance to maintain or obtain their security clearance. The individual should hire a security clearance lawyer for advice or representation in this type of case.
What is a Foreign Influence Security Concern?
A foreign influence security concern, as explained below is simply some type of pressure from a foreign country that could potentially result in the loss or disclosure of classified information. Security clearance adjudicators work to attempt to limit the U.S. Government’s potential exposure to potential foreign influence concerns.
Having foreign connections does not mean that one cannot hold a security clearance. Many thousands of federal employees and government contractors retain their security clearances even if they have immigrated to the United States and have relatives that still live in other countries. The key, when the issues involve a security clearance, is to attempt to demonstrate that a security clearance holder’s ties to the United States are far stronger than those to the foreign country at issue. There are a number of security concerns relating to foreign influence that can be potentially mitigated if significant evidence is presented.
Adjudicative Guideline B– Foreign Influence
Guideline B of the Adjudicative Guidelines (contained within Security Executive Agent Directive 4) (SEAD 4) governs security clearance issues involving foreign influence. Guideline B establishes the following security concerns about individuals with foreign influence concerns in Paragraph 6:
6. 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 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. 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.
While too many different types of foreign influence issues exist to list them all here, they can include:
a. Contacts with foreign family members, friends, colleagues or others that create the potential for potential coercion;
b. Connection to foreign groups or governments that create potential conflicts of interest between protecting classified information and the desire to help the foreign group or government;
c. Not reporting required foreign contacts;
d. Counterintelligence information indicating that an individual poses a risk to national security interests;
e. Sharing a residence with individuals that could cause a risk of foreign pressure to reveal classified information;
f. Substantial business, financial or property interests in a foreign country;
g. Unauthorized association with a suspected or known foreign intelligence agent;
h. information showing that foreign individuals are attempting to place pressure on a security clearance holder or applicant; and
i. engaging in conduct outside the United States that may subject one to foreign manipulation.
When we advise clients on these issues we do so with compassion and understanding. Simply because one has been born in another country or have relatives abroad does not mean that they cannot hold a security clearance.
How to Potentially Mitigate Foreign Influence Security Concerns
In our security clearance practice, we often represent and advise individuals regarding their foreign influence concerns which arise in the course and scope of holding or seeking to obtain a security clearance. Usually, if foreign influence concerns arise, it is very important to demonstrate that the ties are not as bad as they might seem, and that the individuals investments in the United States are far more numerous or valuable than those abroad. Each case is different, so it is important to have counsel for this matters.
Under SEAD 4, there are a number of potential mitigating factors for psychological conditions. There are listed in Paragraph 8:
8. Conditions that could mitigate security concerns include:
(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.
Countries of Concern to the United States
While ties to any foreign country can be of concern in an Applicant’s security clearance review, there are tiers based on how aligned or adverse the foreign country is to the United States that are part of the Government’s consideration in security clearance cases. For instance, foreign ties to countries such as Russia, China, Iran, Afghanistan, and Taiwan are viewed as far more serious than foreign ties to the United Kingdom, France, Germany, Australia or Canada. There are also countries that fall in between, such as Thailand, Pakistan or India. We rarely see security clearance cases involving countries like the United Kingdom or those with close ties to the United States.
Case Examples of Foreign Influence Issues Affecting Security Clearances
The following are summaries of sample cases involving Guideline B cases before the Defense Office of Hearings and Appeals (DOHA) involving foreign influence concerns. Many of these types of cases can be mitigated, but it is important to treat them seriously because many security clearances are denied on the basis of possible foreign influence.
1. ISCR Case Number 20-00307 (Oct. 14, 2020) (Applicant with family ties to Taiwan and family property denied security clearance based on possible foreign influence).
2. ISCR Case Number 19-01883 (Sept. 30, 2020) (Applicant with relatives in Iraq granted security clearance).
3. ISCR Case Number 19-02305 (App. Bd. Sept. 9, 2020) (Applicant with ties to Israel denied security clearance).
4. ISCR Case Number 19-02375 (Aug. 6, 2019) (Applicant mitigated the security concerns related to his brother living in Pakistan and security clearance was granted. In addition, he has resolved any concerns over financial assets in Pakistan).
5. ISCR Case Number 19-01510 (Mar. 3, 2020) (Applicant has mitigated the security concerns raised by his family connections to Iraq and his delinquent debts)
Each case involving Guideline B is different, but we have found that many cases can be mitigated with the preparation and effort to show that a security clearance holder or applicant is strongly tied to the United States over foreign countries.
Some Tips in Foreign Influence Cases
In our foreign influence cases, some common tips are as follows, depending on the type of foreign influence case:
- For some cases, it is important to demonstrate that the individual has more assets (or that their combined family does) in the United States than in another country;
- In other cases, it is important to explain, in full detail, the nature of relationships to relatives or other contacts in foreign countries;
- In some cases, it is important to note that the foreign contacts at issue have no knowledge of what a security clearance holder does for a living or that they have a security clearance; and
- Additionally, in some cases it can be important to explain that the foreign contacts are not frequent and that they have no ties to a foreign government.
These are just a few examples of foreign influence security concerns. As I mentioned, each case is different, and strategy for each can vary.
When a government contractor, federal employee or military member is in need of a security clearance lawyer for issues involving foreign influence concerns it is important to do so early in the process. 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. Our Facebook page is located here and our Twitter account here.