In a major and largely unnoticed policy shift, the Office of the Director of National Intelligence (ODNI) released Security Executive Agent Directive (SEAD) 4. The new Directive, which became effective for all Executive Branch agencies on June 8, unifies and updates the substantive adjudicative guidelines for all security clearance cases – collateral and SCI; military, civilian, and contractor. The most immediate impact of this change is that the passport policy for all federal agencies will now mirror that which was formerly applicable only to SCI-level adjudications under Intelligence Community Policy Guidance (ICPG) 704.2. Translation: effective June 8, security clearance holders government-wide are authorized to possess (and use with some limitation) foreign passports.
Although the intelligence community (IC) long had a nuanced approach to foreign passport cases, until now employees and contractors of the Department of Defense and many other Executive Branch agencies were held to a strict and uncompromising interpretation of the former adjudicative guidelines: surrender or destroy the foreign passport or lose the security clearance.
This was the situation even where the clearance applicant’s birth country either did not recognize dual citizenship (e.g. Iran) or required him or her to enter and exit their country on that country’s passport regardless of dual citizenship (e.g. Colombia, Brazil, Israel). On occasion, unduly harsh outcomes resulted – for example, preventing a security clearance holder from visiting an aging or ailing parent, attending a family reunion, or tending to probate or other legal matters after the passing of a relative.
Many observers, including my colleague (and former Defense Office of Hearings and Appeals Director) Lee Schachter, questioned the fairness, efficacy, and rationale behind this approach. It remains unclear whether the new changes were implemented as a result of public pressure or simply because they are good policy; after all, the IC has long argued that actions like dual citizenship renunciation and foreign passport cancellation draw needless attention to clearance holders and risk making them foreign intelligence targets.
Yet whatever the reason for the policy shift, the results of this seemingly minor change have the potential to be life-altering for collateral (Top Secret or Secret) clearance holders with dual citizenship. Now, instead of being forced to surrender or destroy a foreign passport, the adjudicative guidelines merely require that the Applicant report the existence of the passport on the SF-86 form and/or to cognizant security officials – and not use the foreign passport to enter or exit the United States.
One word of caution: just because collateral clearance holders now can possess and use foreign passports while abroad doesn’t necessarily mean doing so is a good idea. Extensive use of a foreign passport could still, under the right circumstances, raise an inference of foreign preference, particularly if done in conjunction with other actions like voting in foreign elections or using the foreign citizenship to protect property abroad – or, if the passport issuing country is viewed as “high risk” to the United States.
Clearance holders are advised to proceed with caution until we begin to see how federal agencies actually apply the new Guidelines in practice. But for now, at least, dual citizens can chalk this one up as a major victory.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
