A Special Contribution By Leon J. Schachter, Esq.

Mr. Schachter was progressively a trial counsel, Hearing Examiner, and then Chief Hearing Examiner at the Defense Office of Hearings and Appeals (DOHA) before being appointed as its Director in 1990.  He was responsible for changing the title Hearing Examiner to Administrative Judge to better reflect their quasi-judicial duties, and for the supervision of DOHA Administrative Judges, trial attorneys, security specialists, and support staff.   Mr. Schachter was most recently a consultant to the current Director of DOHA. The opinions expressed in this Article by Mr. Schachter reflect his personal views, and are not those of the Department of Defense or DOHA.

“Foreign Preference” is one of thirteen criteria listed in the National Adjudication Guidelines (Guidelines) for use by the entire Federal Government in determining whether a person should be eligible for a security clearance (Confidential, Secret, or Top Secret) or to perform sensitive duties that impact national security.

“Foreign preference” is a security concern according to the basis articulated in the Guidelines:

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 be prone to provide information or make decisions that are harmful to the interests of the United States.

This basis for concern is further explained in the Adjudicative Desk Reference developed by the Defense Department to assist those who must make common sense decisions as to who should or should not be eligible for a security clearance. It explains in pertinent part that:

Foreign Preference is an issue whenever a person acts in a way that indicates a possible preference for a foreign country over the United States. Such actions raise questions about a person’s loyalty and allegiance, and how the person would behave if faced with a conflict between the interests of the United States and the interests of a foreign person, organization, or country. A preference for a foreign entity may cause a person to make decisions that are contrary to the interests of the United States. Foreign Preference is similar to Foreign Influence in that both deal with potential conflicting foreign interests. Foreign Preference differs from the Foreign Influence guideline in that Foreign Preferences focuses on the legal obligations associated with foreign citizenship and expressions of foreign preference, as distinct from circumstances that indicate potential vulnerability to foreign influence. (Emphasis added).

Possession of a current foreign passport is specifically listed in the Adjudication Guidelines as a potentially disqualifying condition, but it is left to the Adjudicative Desk Reference to discern how such possession raises the specter that the holder therefore has a legal obligation to, or preference for, the foreign country that could impact his loyalty to the United States.  Presumably, anyone who holds a passport of a foreign nation was able to obtain it because he or she is a citizen of that country.  Citizens surely have legal obligations such as payment of taxes and military service but what additional obligation arises from mere possession of a passport?

Foreign Passport, Foreign Travel

The ability to enter and travel within a country with its passport instead of one issued by the United State has security significance.  The United States has the authority and capability to keep a database of travel into and out of the United States with use of any passport and it presumably can trace overseas travel between foreign nations using a United States passport at least after the fact. But it does not seem reasonable, in light of current information technology, to presume that the task of tracking travel between foreign countries would be more difficult if that were being accomplished by using a foreign passport.

It is therefore no surprise that the Adjudicative Desk Reference describes the risk of foreign travel as follows:

Americans who voluntarily sell classified or other protected information to a foreign entity sometimes travel abroad to make the initial contact.  Some Americans who are already spying for a foreign organization travel periodically to a foreign country to meet with their foreign handler, as this is often safer than meeting in the United States. Americans supportive of terrorist movements sometimes travel abroad for terrorist training.  In all such cases, the purpose of the travel, and sometimes even the fact that one has traveled abroad, would need to be concealed. Travel abroad for ulterior purposes is sometimes explained as a visit to foreign family, a business trip, or vacation.  Id. pp 172-173.

Seeing foreign travel as posing a risk that it is for the nefarious purpose of selling classified information, possession of a foreign passport becomes a concern in itself if clandestine foreign travel can be accomplished with a foreign passport undisclosed to the United States Government.

The National Adjudication Guidelines provide a way to mitigate the disqualifying nature of possessing a foreign passport:

The passport may be destroyed, surrendered to the cognizant security authority, or otherwise invalidated.  Id, p. 195

Yet, if possession of a foreign passport is thought to symbolize devotion to the foreign country that issued it, this corresponding mitigating factor does nothing to dispel the concern.  If you are devoted to a foreign country while holding its passport on any given day, it defies common sense to believe that affinity has vanished the very next day just because the holder gave up the passport to his or her security officer.

While the mitigating factor makes more sense if clandestine foreign travel is the concern, there is an untoward consequence of surrendering a foreign passport so it cannot be used that seems to create risk of foreign influence when there was none before, assuming possession of the foreign passport is known by the United States Government.  Some foreign countries require their citizens to exclusively use that country’s passport for entry regardless of whether the person also has a United Sates passport because he or she also is a citizen of the United States.  According to the Adjudicative Desk Reference, Israel, the United States’ closest ally in the Middle East, enforces this requirement. Id. p 195.

Discarding a Foreign Passport – More Harm Than Good?

Imagine a United States citizen who is a dual citizen of Israel because he was born in Israel and became a naturalized United States citizen after moving to the United States at age four.  He is now a prominent scientist with an international reputation for discovery of an antidote for fatal chemicals that might be used by Israel’s enemies against it.  Assume the scientist is known by Israeli security officials to have a passport issued by Israel when he comes to Israel to attend an important professional symposium on the drug he is studying. The scientist seeks to enter Israel using his United States passport because his Israeli passport now resides with his security office back in the United States.  It resides there because he holds a United States TOP SECRET Security clearance and appropriately complied with the mitigation requirement discussed above by surrendering his Israeli (foreign) passport to his cognizant security officer.

Does he now have a target on his back that Israel can seek to exploit? At the very least our scientist can be threatened with denial of entry and missing the conference because he is not using his Israeli passport to enter Israel as required by Israeli law. He will also likely be questioned more extensively about his work than would have happened if he had a routine entry using his Israeli passport.

Fortunately, one does not have to look very far for an alternative approach that recognizes the foreign travel risk posed by possession of a foreign passport without creating the countervailing risk faced by our hypothetical scientist. This approach is found in the adjudicative guideline for Foreign Preference adopted by Intelligence Community Policy Guidance (ICPG) 704.2 issued on October 2, 2008 for adjudicating whether a person poses a security risk that precludes eligibility for access to Sensitive Compartmented Information (SCI). The Disqualifying Condition in ICPG 704.2 only requires disclosure of possession of a foreign passport to an appropriate security official. The Disqualifying Condition simply reads: “[f]ailure to report to an appropriate security official the possession of a passport issued by any other country.” The common sense behind this approach is simple.  Once the Government knows about the possession of a foreign passport, the Government can tailor an appropriate risk-management strategy to the individual’s situation. Once the Government knows that a cleared individual has a foreign passport, there is no more risk of undocumented travel because the stamps will be there to be seen by an authorized security official on demand.

The simplicity and apparent sufficiency of the test used by the Intelligence Community demands its application to all persons seeking eligibility for access to any classified information, not just those who will have access to classified information that pertains to intelligence sources and methods.  Nearly eight years have passed since the adoption of ICPG 704.2.  It is past time to adopt its approach for mitigating the possession of a foreign passport for all.

Related News

Sean M. Bigley retired from the practice of law in 2023, after a decade representing clients in the security clearance process. He was previously an investigator for the Defense Counterintelligence and Security Agency (then-U.S. Office of Personnel Management) and served from 2020-2024 as a presidentially-appointed member of the National Security Education Board. For security clearance assistance, readers may wish to consider Attorney John Berry, who is available to advise and represent clients in all phases of the security clearance process, including pre-application counseling, denials, revocations, and appeals. Mr. Berry can be found at https://www.berrylegal.com/practice-areas/security-clearance/.