One of the aspects of security clearance law that I most enjoy is the opportunity for creativity. Security clearance law touches many other aspects of the legal world – tax, divorce, family, criminal, etc. – and although we don’t provide legal advice in those areas, the exposure to other fields sometimes proves helpful in finding unique solutions to difficult problems.
One such problem arose recently in a case involving purported foreign preference. The security clearance applicant was alleged by the government to have exhibited disqualifying foreign preference as a result of, among other things, voting in a foreign election and using a foreign passport (the latter of which is no longer a stand-alone security clearance concern effective June 8, 2017).
The problem for this particular applicant was that he didn’t have some of the traditional “counter-weights” we use to fight foreign preference allegations: U.S. military service, a U.S. voting record, or extensive involvement in his local community.
What he did have was a passionate and articulate explanation of why he originally immigrated to America, what he loves about this country, and why the identified ties to his birth country were indicative of circumstances rather than preference. The question was whether this would be enough to overcome the presumption of national security risk established by the government. We had our work cut out for us.
Do you love America enough to be buried here?
After some discussion, we began to inquire into the client’s finances; a strong financial picture and home ownership in the United States can sometimes help negate security risk (particularly in foreign influence cases, of which this case also contained separate allegations) because they expose the applicant to U.S. banking laws that would allow his or her assets to be frozen in the event of flight to avoid espionage charges.
In doing so, we realized that the client was making payments on a burial plot for himself and his wife in the United States. That’s when the moment of creativity struck. What better indicator of an individual’s fundamental allegiance than where he or she wishes to be buried for eternity?
We submitted to the government evidence of the client’s burial plot, along with the other evidence of his finances, U.S.-based family, and favorable character. Although the other aspects of the case were undoubtedly important from a whole-person perspective, we were later told by our government counterparts that it was the burial plot evidence that really stood out and overcame the adverse presumption on foreign preference.
This is not to suggest that any security clearance applicant facing a denial on foreign preference grounds should run out and obtain a U.S. burial plot; indeed, doing so after an initial denial may appear disingenuous. What it does suggest, however, is that even the most seemingly challenging cases can be won using a bit of creativity and good legal work. Talk with an experienced attorney before letting a preliminary security clearance denial dissuade you from pursuing your dream career.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
