On December 10, 2016 the Director of National Intelligence approved Security Executive Agent Directive (SEAD) 4, “National Security Adjudicative Guidelines.” 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.” The effective date of SEAD 4 is June 8, 2017. Surprisingly after eight years of review and staffing, there was only one major change to the AG.
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, the 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. The differences in two versions of Guideline C contained in the 2005 AG and in ICPG 704.2 were explained in a 2010 article on “Dual Citizenship and Security Clearances.”
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 will now be permissible 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.
When there is a “conflicting interest,” dual citizenship may be mitigated, if the applicant is willing to renounce foreign citizenship and there is no evidence of foreign preference.
The following disqualifying conditions under paragraph 10 of SEAD 4 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 examples of 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.
A new mitigating condition in Guideline C reads: “the foreign preference, if detected, involves a foreign country, entity, or association that poses a low national security risk.” 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 hard to believe that a person, who preferred another country over the United States, would be granted access to U.S. classified national security information, regardless of the identity of the other country. A person, 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 well being of the other country. The problem here seems to be the use of the words “foreign preference” to mean a sense of loyalty, allegiance, or attachment to another country, rather than a true preference. 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.
Other changes to the 2005 AG are reviewed in a companion article titled, “SEAD 4 – National Security Adjudicative Guidelines.”
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