Foreign Preference

The Director of National Intelligence Security Executive Agent Directive 4 (SEAD 4), “National Security Adjudicative Guidelines,” became effective on June 8, 2017. These new Adjudicative Guidelines (AG) supersede the AG approved by the President in December 2005 and the AG contained in the October 2008 Intelligence Community Policy Guidance (ICPG) 704.2.  SEAD 4 “establishes the single, common adjudicative criteria for all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position.”  Surprisingly, after eight years of review, only Guideline C (Foreign Preference) of the AG had  major changes made to it.

GUIDELINE C: FOREIGN PREFERENCE

Under the 2005 AG it was disqualifying to exercise “any right, privilege or obligation of foreign citizenship after becoming a U.S. citizen.” Unlike Guideline B (Foreign Influence), the identity of the country didn’t matter.  There was no mitigating condition available to clearance applicants, who were unwilling to renounce foreign citizenship and surrender or invalidate their foreign passport, even when their dual citizenship was with a country like Canada, United Kingdom, Australia, or New Zealand.

The ICPG 704.2 version of the AG made it possible for individuals with dual citizenship applying for access to Sensitive Compartmented Information (SCI) to exercise some rights, privileges and obligations of foreign citizenship after becoming a U.S. citizen, if the foreign country did not present a heightened risk to the national security of the United States. ICPG 704.2 made it less difficult for a dual citizen to obtain an SCI clearance than a non-SCI clearance, and it raised the hypothetical problem of an SCI cleared dual citizen not being eligible for a non-SCI clearance.

SEAD 4 kept the wording of the basic “Foreign Preference” concern as stated in the 2005 AG and added the following:

Foreign involvement raises concerns about an individual’s judgment, reliability and trustworthiness when it is in conflict with U.S. national interests or when the individual acts to conceal it. By itself, the fact that a U.S. citizen is also a citizen of another country is not disqualifying without an objective showing of such conflict or attempt at concealment.  The same is true for a U.S. citizen’s exercise of any right or privilege of foreign citizenship and any action to acquire or obtain recognition of a foreign citizenship.

This wording is very similar to the wording contained in ICPG 704.2. Absent any conflict with U.S. national security interests (conflicting interest) or concealment of foreign involvement, it is now possible for a cleared person or clearance applicant to:

• apply for and/or acquire foreign citizenship, and
• possess and use a foreign passport, except to exit and enter the United States, provided the existence of the foreign passport has been reported to the appropriate U.S. security official.

The following disqualifying conditions under paragraph 10 of the new AG can only be mitigated if authorized by U.S. law or approved by the agency head or designee of the appropriate federal agency:

(d) participation in foreign activities, including but not limited to:

(1) assuming or attempting to assume any type of employment, position, or political office in a foreign government or military organization; and

(2) otherwise acting to serve the interests of a foreign person, group, organization, or government in any way that conflicts with U.S. national security interests;

There are only two completely unmitigable disqualifying conditions in the new Guideline C:

(e) using foreign citizenship to protect financial or business interests in another country in violation of U.S. law.”

(f) an act of expatriation from the United States such as a declaration of intent to renounce U.S. citizenship, whether through words or actions;”

Using foreign citizenship to protect foreign interest without violating U.S. law is mitigable, provided there is no “conflicting interest” or concealment.

DUAL CITIZENSHIP

Some people who are U.S. citizens at birth believe they are dual citizens simply because they were born in a foreign country. Some naturalized U.S. citizens believe that when they took the oath of allegiance to the U.S., it effectively renounced their former citizenship. Either situation may or may not be true, depending on the foreign country involved. Foreign citizenship laws are varied and complicated. Security clearance applicants who are uncertain about dual citizenship should research the matter before answering the citizenship question on the Questionnaire for National Security Positions (Standard Form 86–SF86).

RELEVANCE TO SECURITY

The “Foreign Preference” criterion of the 2017 AG states:

When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may provide information or make decisions that are harmful to the interests of the United States. Foreign involvement raises concerns about an individual’s judgment, reliability, and trustworthiness when it is in conflict with U.S. national interests or when the individual acts to conceal it. By itself, the fact that a U.S. citizen is also a citizen of another country is not disqualifying without an objective showing of such conflict or attempt at concealment.  The same is true for a U.S. citizen’s exercise of any right or privilege of foreign citizenship and any action to acquire or obtain recognition of a foreign citizenship.

In 1998 only 11 Defense Office of Hearings and Appeals (DOHA) cases involved dual citizenship. In 2008 it increased to 272 cases. This occurred primarily because of a DoD policy change (the “Money Memorandum”) in August 2000, which required that any DoD clearance be denied or revoked unless the applicant surrendered their foreign passport or obtained official approval for its use from the U.S. Government. This policy change was later incorporated into the 2005 AG. The issuance of the 2017 AG negated the effect of the Money Memorandum and by 2018 the number of Foreign Preference cases at DOHA dropped to 41.

Merely having dual citizenship and foreign passport will not automatically result in a security clearance denial, nor will simply renouncing foreign citizenship and surrendering a foreign passport necessarily result in a security clearance approval. Generally people who acquired dual citizenship at birth and have done nothing to obtain recognition of the foreign citizenship will encounter little or no problem in obtaining a clearance unless there are other security issues in their case.

RENOUNCING DUAL CITIZENSHIP

When immigrants become naturalized U.S. citizens and take the oath of allegiance in which they “absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen,” they rarely take the additional step of formally renouncing their former citizenship. Some even apply to have their foreign passport renewed and use it to travel to their native country. This can sometimes create problems when applying for a security clearance. The foreign country where citizenship is held is relevant.  Formally renouncing foreign citizenship will help improve a person’s security clearance eligibility, if the person is also citizen of China, Russia, Iran, or any other country that present a heightened risk to U.S. national security.  But doing so immediately before applying for a security clearance is unwise—it draws the unwanted attention of a foreign government to you and your reason for renouncing citizenship.  It’s better to simply express your willing to renounce foreign citizenship on the SF86, but not actually do so with specific guidance from a U.S. Government security official.

MITIGATING SECURITY CONCERNS

The following mitigating conditions for Foreign Preference concerns were extracted from Adjudicative Guidelines:

(a) the foreign citizenship is not in conflict with U.S. national security interests;

(b) dual citizenship is based solely on parental citizenship or birth in a foreign country, and there is no evidence of foreign preference;

(c) the individual has expressed a willingness to renounce the foreign citizenship that is in conflict with U.S. national security interests;

(d) the exercise of the rights, privileges, or obligations of foreign citizenship occurred before the individual became a U.S. citizen;

(e) the exercise of the entitlements or benefits of foreign citizenship do not present a national security concern;

(f) the foreign preference, if detected, involves a foreign country, entity, or association that poses a low national security risk:

(g) civil employment or military service was authorized under U.S. law, or the employment or service was otherwise consented to as required by U.S. law; and

(h) any potentially disqualifying activity took place after receiving the approval by the agency head or designee.

Mitigating condition (f) above is new. The wording of this mitigating condition suggests that it’s permissible to feel greater allegiance, loyalty, and attachment to a foreign country than to the United States.  It’s doubtful that a person, who prefers another country over the United States, will be granted access to U.S. classified national security information, regardless of the identity of the other country.  Anyone, who prefers a foreign country over the United States, would be inclined to disclose U.S. classified information to the other country, especially if the information was critical to the wellbeing of the other country.  The problem here is the use of the words “foreign preference” to mean a sense of loyalty, allegiance, or attachment to another country, rather than a true preference for that country.  The words used in laws and regulations should be based on a common understanding of what they mean.  For this mitigating condition the words “foreign involvement” would make more sense.

Guideline C does not contain any specific mitigating conditions similar to those in other Guidelines where potentially disqualifying conduct can be mitigated based on voluntariness, motivation, frequency, recency, and unusual circumstances. However, the “General Criteria” described in “The Adjudicative Process” at paragraph 2(d) of the Adjudicative Guidelines applies to the adjudication of all cases and requires that these factors be considered.

INTERIM CLEARANCES

Without proper mitigation dual citizenship involving certain countries can create a presumption that a disqualifying conditions exists and result in having an interim clearance declined. Stating in the SF86 a willingness to renounce foreign citizenship can somewhat mitigate security concerns. Explaining in the SF86 the reason dual citizenship exists and the reasons any potentially disqualifying conduct may have occurred and offering mitigating factors will also improve an individual’s chance of obtaining an interim clearance.

By William H. Henderson

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