Legal Insider: Security Clearance Cases Focus on Foreign Connections

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

A common concern for security clearance holders and applicants involves foreign influence.

A significant portion of security clearance appeals typically focuses on this very issue. With respect to foreign influence, the Government is chiefly concerned with an individual’s loyalty or ties to another country over those to the United States.

The rules regarding foreign influence and security clearance cases are set forth in Security Executive Agent Directive 4 (SEAD 4), Guideline B, which discusses the foreign influence concerns that could lead an individual not obtaining or in losing a security clearance.

Examples of Foreign Influence Issues

Some brief examples of issues that might come up to cause the Government concern in potentially denying a security clearance follow:

Example 1 — U.S. citizen was born in India. She has recently inherited a home worth $75,000 and other assets of $50,000 in India. The individual’s parents and family also still live in India.

Example 2 — U.S. citizen born in Taiwan has family that still lives in Taiwan and extended family in China. The individual also has received health benefits from Taiwan in the past.

Example 3 — U.S. citizen’s brother is a general in the Iraqi forces. The risk of having a close relative in such a high foreign position causes a significant security concern for the U.S. Government. See DOHA Case.

Example 4 — U.S. Citizen had 6 relatives in the Philippines. The large number of relatives in the Philippines caused security concerns for the individual in their security clearance matter. See DOHA Case.

Specific Security Concerns Involving Foreign Influence

There are numerous examples of foreign influence issues that can arise when seeking a security clearance. According to SEAD 4, Paragraph 7 the guidelines define serious foreign influence issues as involving the following types of issues:

7(a) contact, regardless of method, with a foreign family member, business or professional associate, friend, or other person who is a citizen of or 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

(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 Security Concerns

Even when security concerns relating to foreign influence arise, there are often ways of mitigating them and enabling the clearance holder or applicant to still obtain/retain a security clearance. According to Paragraph 8 of SEAD 4, an individual may be able to still hold a security clearance if they can prove mitigating details, as defined below:

8(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

(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

Having counsel to assist a clearance holder in establishing proof of mitigation in foreign influence cases under Guideline B is critical. These are not cases that should be handled without a lawyer.

Conclusion

If you are in need of security clearance representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.