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Ethics Corner 

Foreign Influence Can Create Security Clearance Pitfalls 

2,010 

By Richard L. Moorhouse 

Many companies are hugely dependent on classified work. Key employees holding security clearances must therefore take actions and avoid situations that would put their clearances at risk.

The Defense Department has extensive guidelines on conditions that could disqualify an employee from obtaining or keeping a clearance, as well as those positive factors that may mitigate disqualifying conditions. See DoD Directive 5220.6 (Jan. 2, 1992).

Once a background investigation reveals potential disqualifying conditions, the department through the defense personnel security division issues a “statement of reason” to the applicant identifying these conditions and requesting a response as to why the conditions should not preclude the Defense Department from granting or continuing the clearance. The applicant can also present his or her case before a defense office of hearings and appeals administrative judge.

Under well-settled law, an applicant has no protected “right” to a security clearance. Once the department makes a basic showing that disqualifying conditions exist, the applicant is burdened to rebut alleged facts or otherwise establish mitigating conditions. The governing standard is whether granting the clearance or continuing the clearance is “clearly consistent with the national interest.”

Many disqualifying conditions exist under the guidelines such as financial difficulties, drug and alcohol misuse, deviant behavior, untruthfulness and deceitful conduct.

 “Foreign preference” conditions frequently arise when an applicant has dual citizenship and possesses a passport from the foreign country of origin. This disqualifying condition is further aggravated by renewing the passport after becoming a U.S. citizen, and particularly so if the applicant used the foreign passport to enter or leave the country in question although he or she also held a U.S. passport.

Foreign preference concerns also arise if the applicant takes actions that are “red flags” confirming the applicant’s regard for that country over the United States. Voting in that country’s elections, holding political office, or serving in, or allowing children to serve in that country’s armed forces, are some examples.

While dual citizenship due to birth by itself is not a disqualifying condition, it may become so if an applicant takes affirmative steps to secure or maintain that dual citizenship, or obtains dual citizenship for U.S. born children.

Closely associated with foreign preference is “foreign influence.” This arises when applicants have close relatives in a foreign country with whom they frequently communicate with, send money to, or visit. If the applicant has property, business, or financial interests in the foreign country, especially if they were secured after becoming a U.S. citizen, then this may fall under foreign influence as well.

Applicants with foreign influence concerns may have no love or affection for the country of their birth, however, the need to travel to the foreign country to visit family members, manage a business, or see to property and other investments — expose one to foreign government manipulation or coercion.

Americans cherish their freedom of unrestricted travel to most countries, but security clearance holders must be mindful that protecting classified information, not their freedoms, is paramount. Security clearance holders or applicants should take the steps to mitigate disqualifying conditions.

First, immediately surrender any foreign passport even if expired to that country’s local consulate and obtain written verification of same.

Do not invest in the country of origin and start liquidating existing interests, including inherited property, and encourage close family members living in the foreign country to immigrate to the United States and obtain at least permanent resident alien status. Otherwise, minimize travel and communications, or meet relatives in a neutral third country. Avoid contact with persons, even friends of family members, absent certainty as to their true identities, positions and intentions.

Provide advance travel itineraries to the company if already cleared and provide a report upon return. For business conducted in the foreign country, avoid non-essential after hours socializing especially in more remote locations. Except for close family gatherings, have at least one company person along on any trip or meeting as witness to what was said and what transpired. Understand the ramifications of dual citizenship in visiting the foreign country, which may not recognize or disregard the U.S. citizenship and may impose its own laws such as those requiring military service.

In short, dual citizenship or other foreign country ties mean that actions suggesting foreign country preference, and situations that expose one to potential coercion should be avoided, as those scenarios compromise the safekeeping of classified information.

Richard L. Moorhouse is a shareholder in the Greenberg Traurig, LLP government contracts practice group and frequently handles security clearance appeals. The views expressed are solely those of the author.


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