Legal Insider: Foreign influence issues can affect security clearances

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Our law firm represents federal employees, military personnel and government contractors who have issues concerning foreign influence concerns and their security clearance. Foreign influence concerns have always been a major security concern to the government because there are potential risks when a clearance holder or applicant’s family or close friends are subject to potential duress or influence by a foreign power.

Foreign Influence Concerns Under Guideline B of SEAD 4

Security concerns involving foreign influence are reviewed by federal agencies under Guideline B of the Adjudicative Guidelines in Security Executive Agent Directive 4 (SEAD 4). The specific conditions that may raise security concerns include the following 9 security issues listed in Paragraph 7 of SEAD 4:

1. Contact… with a foreign family member, business or professional associate, friend or other person who is a citizen of or a resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure or coercion;
2. Connections to a foreign person, group, government or country that create a potential conflict of interest between the individual’s obligation to protect classified or sensitive information or technology and the individual’ s desire to help a foreign person, group or country by providing that information or technology;
3. Failure to report or fully disclose, when required, association with a foreign person, group, government, or country;
4. Counterintelligence information, whether classified or unclassified, that indicates the individual’s access to classified information or eligibility for a sensitive position may involve unacceptable risk to national security;
5. Shared living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure or coercion;
6. Substantial business, financial, or property interests in a foreign country or in any foreign-owned or foreign-operated business that could subject the individual to a heightened risk of foreign influence or exploitation or personal conflict of interest;
7. Unauthorized association with a suspected or known agent, associate or employee of a foreign intelligence entity;
8. Indications that representatives or nationals from a foreign country are acting to increase the vulnerability of the individual to possible future exploitation, inducement, manipulation, pressure or coercion; and
9. Conduct, especially while traveling or residing outside the U.S., that may make the individual vulnerable to exploitation, pressure, or coercion by a foreign person, group, government or country.

Mitigating Factors for Foreign Influence Cases

In terms of potential mitigation regarding foreign influence security concerns, the government considers the following mitigating considerations under Paragraph 8 of SEAD 4:

1. The nature of the relationships with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the United States;
2. There is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, or allegiance to the group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the United States, that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest;
3. Contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation;
4. The foreign contacts and activities are on U.S. Government business or are approved by the agency head or designee;
5. The individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons, groups, or organizations from a foreign country; and
6. The value or routine nature of the foreign business, financial, or property interests is such that they are unlikely to result in a conflict and could not be used effectively to influence, manipulate, or pressure the individual.

Work Early to Mitigate Security Concerns Involving Foreign Influence

When a clearance holder or applicant has ties to a foreign country, such as close family or assets, it is very important to evaluate these situations early to attempt to mitigate security concerns. There are many methods available to attempt to mitigate foreign influence concerns, but it is essential to focus on (1) the country involved; (2) the nature of the foreign ties or assets; and (3) why this security concern is outweighed by assets, loyalty, and family in the United States.

Contact Us

When an individual is facing foreign influence security clearance concerns it is important to obtain legal advice and/or legal representation. Our law firm advises individuals in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Additionally, our Facebook page is located here and our Twitter account is located here.