Friday, February 26, 2016

Bearing Arms For A Foreign Country

Bearing arms for a foreign country is an effective method to be denied a security clearance under Guideline C Foreign Preference. The Adjudicative Guidelines for Determining Access to Classified Information are used to determine eligibility for a security clearance. The government has identified thirteen categories of concerns that argue against granting a clearance and provided, as well, suggestions of mitigating factors relevant to a weighing of the concerns. Guideline C Foreign Preference addresses concerns that are raised when an applicant for a security clearance has a record suggestive of a deeper loyalty to a foreign power than to the United States.

A DOHA appeal panel explained the concern raised by foreign military service this way:

A person who is willing to bear arms for a country demonstrates a willingness to risk life and limb for that country. Such a willingness is strong evidence of a profound, deeply personal commitment to the interests and welfare of that country. A person who is willing to bear arms for a country may be willing to perform other acts (which do not entail risk to life and limb) to advance the interests and welfare of that country and its armed forces. Accordingly, a willingness to bear arms for a foreign country raises serious security concerns about an applicant seeking to be granted access to U.S. classified information.

ISCR Case No. 00-0317 (App. Bd.  3-29-2002). Under Adjudicative Guideline C Foreign Preference, a concern is raised by the “exercise of any right, privilege or obligation of foreign citizenship after becoming a U.S. citizen or through the foreign citizenship of a family member. This includes, but is not limited to (2) military service or a willingness to bear arms for a foreign country.” ISCR Case No. 11-06577 at 6 quoting Adjudicative Guidelines ¶ 10(a). The only factor that might mitigate service in a foreign military is if this service occurred when the person was a child or before he or she  became a U.S. citizen. See Adjudicative Guidelines ¶ 11(c). Thus U.S. citizens who choose to serve in the military of a foreign power are unlikely later to be able to obtain a clearance because of concerns raised under Guideline C. Those who have foreign citizenship and fulfill a mandatory military obligation in that country before coming to the United States have a better chance of arguing that their bearing arms for a foreign power does not indicate a present preference for the foreign power against the interests of the United States.

Because he had served in the Australian Army, a U.S. citizen and former U.S. Army officer was denied a clearance. ISCR Case No. 08-05869 (April 24, 2009) (App. Bd. July 25, 2009). The AJ below had found significant the fact that the US citizen had moved to Australia only to be with his Australian wife and children, and he had joined the Australian military only when he could find no other employment. He became an Australian citizen only because he was required to do so in order to take the job with the Australian military. Returning to the US some years later, he renounced his Australian citizenship and surrendered its passport in order to apply for a clearance. The actions were sufficient to mitigate, in the eyes of the AJ below, concerns raised by his military service for a foreign government under Guideline C. The Appeal panel, however, reversed and denied the clearance, determining that taking up arms for a foreign government outweighed the later renunciation of the applicant’s connections with the foreign country. The basis of their decision was the “voluntary decision by a U.S. citizen to serve in another country’s military.”  Id. at p. 5.

In a case with a similar result, a young man was denied a clearance under Guideline C because he had previously voluntarily served in the Israeli Defense Force (IDF). ISCR Case No. 10-02902 (App. Bd. May 16, 2011). A citizen of the United States (and not of Israel), he studied in Israel for part of high school and college, taking steps to enlist in the IDF while still in college. He served for fourteen and one-half months, carrying a weapon, charged with protecting the people of Israel. Id. at p. 2. Although the young man declined the opportunity to apply for Israeli citizenship and returned to the United States soon after completing his term of service for the IDF, describing himself as “tired of Israel” and not liking the culture, nevertheless, the AJ concluded that his conduct serving in the Israeli military outweighed his assertions that “he did not like it there [in Israel].” Id. at p. 6. Of particular note to the AJ was the fact that the applicant “did not volunteer to serve in the United States military, he volunteered to protect the people of Israel.” Id. The Appeals panel, although rejecting the lower decision’s conclusions that the young man had shown a preference for Israel based upon schooling and residency abroad, nevertheless affirmed the AJ’s denial of a clearance based upon the applicant’s willing service in the foreign military. “From a security standpoint, voluntarily serving in the military of a foreign country is a serious matter.” ISCR Case No. 10-02902, appeal, p. 3.

Bearing arms for a foreign country is not, however, an absolute bar to being granted a clearance. Speaking of another  U. S. citizen, a young man who was raised in Israel and decided on his parents’ urging to serve in the IDF rather than the U.S. Navy, the administrative judge explained, “Applicant’s IDF service is not a permanent bar from being granted a security clearance; it only fortifies the burdens he has to face in mitigating security concerns related to foreign preference.” ISCR Case No. 11-06577 at p. 7. The court did not find that the young man had sufficiently mitigated the concerns and denied the clearance, but it offered this encouragement: “Applicant is in the process of defining himself both as an adult and as an American with a demonstrably undivided preference for only the United States.  However . . . his . . . time in the United States as a full-time resident has been too brief for him to develop a demonstrably notable commitment to the United States that can overcome the preference shown in enlisting in the IDF.” Id.

American citizens who serve in a foreign military have a sizeable burden to overcome foreign preference concerns under Guideline C. Dual citizens, who simply comply with a foreign country’s laws to perform military service may find it easier to mitigate this concern, but their bearing arms for a foreign government will, nevertheless, present a heavy burden they must overcome under Guideline C. “Dual citizenship concerns necessarily entail allegiance assessments and invite critical considerations over acts indicating a preference or not for the interests of the foreign country over the interests of the US.” ISCR Case No. 00-0317, p. 5.

In the case of a dual citizen of Israel and the U.S., the Appeal Panel reversed a lower court’s grant of a clearance, persuaded that the applicant’s mandatory service in the IDF should be compared to the U.S. citizen who chose to serve in the Australian Army for family reasons. ISCR Case No. 10-04641 (App. Bd. September. 24, 2013) (relying on ISCR Case No. 08-05869 (App. Bd. July 24, 2009) supra). The applicant who had served in the military of Israel “had a ‘heavy burden’ to mitigate the Guideline C concerns.” Id. This he failed to do. Particularly harmful to his argument was his refusal, in response to an interrogatory promulgated by Department Counsel, to “unequivocally abjure a continued willingness to bear arms for Israel.” Id.

Hypotheticals asking a dual citizen, variously, whether he would bear arms for the United States against the foreign country of birth, or whether he would bear arms for that country against the United States, are regularly sent by Department Counsel in interrogatories and entered in evidence considered in making a security clearance decision.  In one case, an applicant’s response to the hypotheticals, that he would neither bear arms for the United States against his country of birth, nor for his country of birth against the United States, but would remain neutral, was found to be particularly troubling to the Appeal Board.  When coupled with the applicant’s earlier mandatory service in a foreign military, the Board concluded that, “[e]quivocal preferences with respect to the United States or a foreign country raise serious security concerns under the ‘clearly consistent with the national interest’ standard.”  Id at p. 4.  Clearance was denied. But see ISCR Case No. 08-02864, p. 13 (App. Bd. December 29, 2009) (denying clearance on other grounds). Foreign military service, when coupled with equivocation as to a willingness to bear arms for the US, creates a substantial burden for security clearance applicants to overcome under Guideline C.

Written by Mary Kuntz

 

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