Under current U.S. government policy, security clearance-granting agencies are required to judge each security clearance applicant on the relative merits of his or her case. That includes a “whole person” assessment, as well as a particularized analysis of the security concerns and any mitigating information. Neither generalized concerns nor a ‘blacklist’ of hostile countries is supposed to be used.
Nonetheless, adjudicators are entitled to take into consideration the identity of the country with which the security clearance applicant has ties. Per the National Adjudicative Guidelines for Security Clearances:
Adjudication under this Guideline can and should consider the identity of the foreign country in which the foreign contact or financial interest is located, including, but not limited to, such considerations as whether the foreign country is known to target United States citizens to obtain protected information and/or is associated with a risk of terrorism. (Guideline B)
To make such an assessment, federal agencies generally look to the President, the Secretary of State, and other senior U.S. policymakers to set the tone. Some agencies do this loosely, while others, such as the Defense Office of Hearings and Appeals (DOHA) have set out the requirement in their administrative case law. For example, DOHA notes that:
[DOHA] does not have the authority to make its own pronouncements about the nature of relations between the United States and foreign countries. Pronouncements about the relationship between the United States and any given foreign country are committed to the President of the United States and other duly authorized Executive Branch officials. ISCR Case No. 02-00318 (February 25, 2004)
The result is that how certain countries are viewed under Guideline B can change depending upon a particular Administration’s policies and relationships abroad. Obviously, no one can predict with certainty what the next four years of U.S. foreign policy will look like. Yet, if the campaign season serves as a preview, here are my predictions for changes in the application of security clearance foreign influence concerns:
ISRAEL
The Obama Administration’s relationship with the Israeli government was, in a word, tense. I anticipate that this will change under the new Administration, especially in light of President Trump’s nomination of a staunch proponent of Israel as U.S. Ambassador to that country. What remains to be seen is whether the Israelis respond in kind by dismantling what is known to be an extremely active espionage apparatus in the United States. Either way, I anticipate that the number and difficulty of Israel foreign influence cases will both decrease.
CHINA
With the Chinese government pushing the boundaries of international norms in the South China Sea, with currency manipulation, and with aggressive trade policies, China foreign influence cases have long been difficult endeavors to win. Given President Trump’s clear focus on these matters, I anticipate that China foreign influence cases will remain difficult for the foreseeable future.
RUSSIA
Finally, although Russia foreign influence cases were also challenging under the Obama Administration, appearances are that U.S.-Russian ties will be repaired and strengthened under the new Administration. The extent of those repairs remains to be seen in light of bi-partisan congressional resistance toward Russian President Vladimir Putin. Nonetheless, I anticipate a friendlier Executive Branch posture toward that country which should translate into a loosening, even if a barely perceptible one, in suspicions toward that country.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
