Case No. VSO-0060, 25 DOE ¶ 82,788 (H.O. Mann Jan. 31, 1996)

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* The original of this document contains information which is subject to withholding from disclosure under 5 U.S.C. 552. Such material has been deleted from this copy and replaced with XXXXX's.

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Hearing

Date of Filing: October 5, 1995

Case Number: VSO-0060

This Opinion concerns the continued eligibility of XXXXX (hereinafter referred to as "the individual") to hold a level "Q" access authorization under the regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." The individual's access authorization was suspended by the Manager of DOE's XXXXX Field Office (DOE/XXXXX). As explained below, I recommend against restoring the individual's access authorization.

Statement of the Case

The individual has been employed for over 15 years by DOE contractors at XXXXXXXXXXXX. In a Personnel Security Interview (PSI) on August 28, 1980, the individual admitted smoking marijuana while a college student, but stated that he had last used the drug in 1979. On that same date, he signed a DOE Drug Certification in which he promised to abstain from the use of illegal drugs while holding a "Q" clearance. On July 18, 1985, the individual signed a DOE Personnel Security Questionnaire (PSQ) in which he answered "No" to a question asking if he was a user of marijuana.

In May 1994, DOE/XXXXX received information from PSIs with two separate sources, who each independently named the individual as a user of marijuana during the 1980s. The first source stated that he had smoked marijuana with the individual on a weekly basis during an 18 month period in 1983 and 1984 when they both worked in XXXXX. May 17, 1994 PSI Transcript at 15. The second source (who was also interviewed a second time in July 1994), stated that he had smoked marijuana with the individual once or twice at the home of a mutual acquaintance, and two or three times outside of a bar. In an October 1994 PSI, the individual denied that he had used marijuana since coming to work at XXXXXXXXXXX in 1979. In February 1995, the second source was interviewed for a third time to clarify his accounts of marijuana use with the individual. The second source stated that he smoked marijuana with the individual twice in the summer of 1985 or 1986, and indicated that he had purchased small quantities of marijuana from the individual on two or three occasions during the same time period. February 7, 1995 PSI Transcript at 8, 12-18. Both the first and second sources told DOE/XXXXX security interviewers that they would be willing to testify about the individual's drug use at an administrative review hearing. Finally, in March 1995, the individual was interviewed again, and told that DOE/XXXXX had received extensive information from two sources about his marijuana use during the 1980s. The individual again denied having had any involvement with marijuana since 1979.

On September 6, 1995, the DOE/XXXXX issued a Notification Letter to the individual. The Notification Letter charged that the individual had engaged in conduct subject to the criteria set forth in 10 C.F.R. § 710.8 (f) and (l). Criterion F concerns information that a person has:

[d]eliberately misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive Positions, a personnel qualifications statement, a personnel security interview, written or oral statements made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization....

10 C.F.R. § 710.8(f). Criterion L describes information that a person has:

[e]ngaged in any unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable, or trustworthy; or which furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress which may cause the individual to act contrary to the best interests of the national security....

10 C.F.R. § 710.8(l).

On September 18, 1995, the individual filed a request for a hearing on the charges that led to suspension of his "Q" clearance. DOE/XXXXX transmitted the individual's hearing request to the Office of Hearings and Appeals (OHA) on October 2, 1995. We received the request on October 5, 1995, and the OHA Director appointed me as Hearing Officer in this case on October 11, 1995. I convened a hearing in this matter at XXXXXXXXXXX on XXXXXXXXXXXXXXXXX, and received the transcript of the hearing on XXXXXXXXXXXXXXX.

At the hearing, the individual was represented by a union official. The individual declined to testify on his own behalf, but he called five character witnesses. DOE/XXXXX also presented four witnesses at the hearing: XXXXXXXXXXXXXXX, a DOE contractor Security Specialist, XXXXX, a XXXXX contractor employee (the first source), XXXXX, another XXXXX contractor employee (the second source), and XXXXXXXXXXXXX, a DOE contractor Security Specialist.

The applicable DOE regulations state that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.7(a). In resolving questions about the individual's eligibility for access authorization, I must consider the relevant factors and circumstances connected with the individual's conduct. These factors are set out in § 710.7(c):

the nature, extent, and seriousness of the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the voluntariness of participation; the age and maturity of the individual at the time of the conduct; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct; the potential for pressure, coercion, exploitation, or duress; and the likelihood of continuation or recurrence.

The DOE/RL relies on 10 C.F.R. § 710.8(f) and (l) as the bases for suspending the individual's "Q" access authorization. The instances cited in the Notification Letter for both of these criteria raise questions concerning the individual's honesty, reliability and trustworthiness based on his concealment of information about his involvement with marijuana after executing a DOE Drug Certification in August 1980. In addition, the Notification Letter raises a concern under Criterion L that the individual might be subject to coercion by someone who knew he was covering up his illegal drug use, which might cause him to act contrary to the best interests of the national security.

Findings of Fact and Analysis

Under the circumstances of this case, the findings of fact are going to dictate the result. In his 1985 PSQ and his 1994 and 1995 PSIs, the individual has steadfastly denied that he had any involvement with marijuana during the 1980s, even when advised that two sources had given the DOE/XXXXX security analysts extensive information about his drug use during that period. In addition, he declined to testify at the hearing, and introduced no direct factual evidence that might contravene the statements by the two sources. Thus, if I find that there is credible evidence in the PSIs with the two sources to make me doubt the individual's honesty about his involvement with marijuana during the 1980s, I must recommend that his access authorization be revoked.

A DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal case, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. In this type of case, we are dealing with a different standard which is designed to protect national security interests. Administrative review is authorized when the existence of derogatory information leaves unresolved questions about an individual's eligibility for access authorization. A hearing is "for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization." 10 C.F.R. § 710.21(b)(6). The burden is on the individual to come forward at the hearing with evidence to convince the DOE that restoring his access authorization "would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.7(a). See Personnel Security Hearing, 24 DOE ¶ 82,752 at 85,511 (1995) and cases cited therein. The individual has failed to meet this burden.

There are several unusual aspects to this case. Although they appeared under subpoena, neither of the two sources was willing to testify at the XXXXX hearing about the individual's drug use; each source cited his Fifth Amendment privilege against self-incrimination as grounds for refusing to testify. In fact, this was the second administrative review hearing in which these same two sources refused to testify about prior drug use by an individual employed at XXXXX. Since the DOE Counsel knew from prior experience that DOE/XXXXX could not produce their live testimony at the hearing, he had no choice but to rely instead on the transcripts of the PSIs with the two sources, in which they detailed instances during the 1980s of marijuana use and distribution by the individual, as the best evidence to support the charges in the Notification Letter. As a result, the individual had no opportunity to cross-examine either source about the derogatory information in the statements they made to DOE/XXXXX in their PSIs. Nor did I as the Hearing Officer have an opportunity to question these two sources about their statements. The second source also revealed at the XXXXX hearing that his own DOE access authorization had been terminated under 10 C.F.R. § 710.6(c) for failure to cooperate, shortly after he had refused to testify at the previous administrative review hearing, which took place in September 1995. XXXXXXXXXXXXX, a security analyst for DOE/XXXXX, explained that since the second source refused to testify at the two administrative review hearings, she had concerns about the veracity of the information he provided to the DOE in his several PSIs about this individual's drug use. That is one of the reasons why she recommended revoking the second source's access authorization under Section 710.6(c). Finally, the individual himself refused to testify, even though I specifically explained how his testimony might help me decide what recommendation to make on restoring his access authorization. XXXXX Hearing Transcript (hereinafter "Hearing Tr.") at 78-86. The individual thus offered no evidence of mitigating circumstances that might have resolved the security concerns raised by the derogatory information provided about him in the PSIs with the two sources.

Rather than testify at the hearing, the individual relies on his own PSIs in which he answered "No." to a series of questions about his involvement with marijuana after 1979. Hearing Tr. at 78-80; March 7, 1995 PSI Transcript at 5-7; October 13, 1994 PSI Transcript at 6. Thus, the individual refused to be subject to cross-examination, and the fact remains that two different sources each independently identified him as a person with whom they had smoked marijuana during the 1980s. I have carefully reviewed the transcripts of the several PSIs with these two sources to assess their credibility, and I am convinced that their accounts of extensive marijuana use with the individual ring true. Each source was remorseful about his own drug use, and was obviously uncomfortable when asked to provide information about the other XXXXX employees who used marijuana with them, including this individual. Yet both sources were persuaded that it was their duty to cooperate with the DOE/XXXXX security program, and they both claimed that their statements were not coerced. Neither source could remember the exact dates when the events took place, but they each could remember the approximate times by reference to the years when they worked in the same XXXXX building, or played on the same softball team, or attended specific sporting events with the individual. Their limited degree of recall is understandable, given the passage of time. In fact, I would be more suspicious of their statements if they claimed to remember those events in any greater detail. The favorable testimony of the character witnesses is not sufficient to overcome the evidence of the individual's extensive involvement with marijuana. None of the character witnesses gave any evidence about the specific occasions on which the two sources claim that they smoked marijuana with the individual, or purchased it from him.

The regulations state that "[i]t is the policy of DOE to provide for the security of its programs in a manner consistent with traditional American concepts of justice and fairness." 10 C.F.R. § 710.4(a). The procedures are designed to maintain a balance between the right of an individual to confront the evidence against him, and the overriding interests of national security. Thus, it is contemplated that all witnesses in a DOE administrative review hearing shall be subject to cross-examination, "if possible." 10 C.F.R. § 710.26(d). Statements in PSIs are generally entitled to less weight than if there were given orally at the hearing. However, "hearsay evidence" (meaning evidence that is not subject to cross-examination) is also admissible, both the DOE/XXXXX and the individual rely on it, and I find that there is good cause for considering it in this case. See 10 C.F.R. § 710.26(h). The information in the PSIs with the two sources is credible, and it raises serious concerns about the individual's eligibility for access authorization which he has failed to rebut. In addition, it is not the fault of DOE/XXXXX that the two sources reneged on their promises to cooperate with DOE and refused on Fifth Amendment grounds to testify at the hearing about their drug use with the individual. I take some comfort in the fact that even though the individual was unable to cross-examine the two sources at the hearing, the PSI transcripts in the record indicate that the DOE security analysts did question the two sources extensively during their interviews. As noted above, the second source was interviewed three times, to ascertain the accuracy of his information. The general demeanor of the two sources when they appeared at the hearing showed that they were embarrassed and uncomfortable, but not dishonest. Moreover, I place great weight on the fact that the individual himself declined to take the stand and testify under oath in his own behalf, and thus declined to contradict the information provided by the two sources, and refused to be cross-examined about his own terse, one-word denials of post-1979 marijuana use. See March 7, 1995 PSI Transcript at 5-7. If the individual had testified, and provided credible evidence to undermine the information provided by the two sources, I would have found it difficult to recommend against restoring his access authorization. In Personnel Security Hearing, 25 DOE ¶ 82,777 (1995), an OHA Hearing Officer found that vague allegations about another individual's alleged marijuana use, from sources who refused to testify at the hearing, was controverted by evidence submitted by the individual. Accordingly, he recommended against revoking the clearance on that ground. In this case, however, there is no evidence of mitigating circumstances that would lead me to recommend in favor of restoring the individual's access authorization. See 10 C.F.R. § 710.7(c).

Finally, I have considered the danger that for reasons of anger or jealousy, someone could give false information to the DOE that would jeopardize the security clearance of another individual. The record shows that the DOE/XXXXX security personnel did explore the possibility that the statements against the individual might have been motivated by some personal bias on the part of the two sources. However, there is no evidence that either source was motivated by jealousy or dislike of the individual. Nor did the individual himself provide any evidence during his PSIs which would show that either of the sources was motivated by a personal bias against him. March 7, 1995 PSI Transcript at 14-15. It is also significant that the DOE/XXXXX security analysts did not consider suspending the individual's clearance until the information about his extensive marijuana use had been corroborated by two independent sources.

Conclusion

Based on the foregoing discussion, and in view of the critical failure of the individual to testify and subject himself to cross-examination, I find that the individual did smoke and distribute marijuana after signing his August 1980 Drug Certification, and I further find that he made false statements to the DOE about his drug involvement in the 1985 PSQ and 1994 and 1995 PSIs. False statements by an individual in the course of an official inquiry regarding a determination of eligibility for DOE access authorization raise serious issues of honesty and trustworthiness. The DOE security program is based on trust, and if a security clearance holder lies to the DOE that trust is violated. Personnel Security Hearing, 25 DOE ¶ 82,751 (1995). There is no evidence that the individual was involved with marijuana since the mid-1980s, but that does not affect my conclusion that he has not been honest with the DOE about his drug use in the five or six year period immediately after signing his Drug Certification. I therefore conclude that the individual violated Criterion F, 10 C.F.R. § 708(f). For the same reasons, I find that he has engaged in conduct which tends to show that he is not honest, reliable, and trustworthy, in violation of Criterion L, 10 C.F.R. § 708(l). I also find that before the issuance of the Notification Letter to the individual, he might have been subject to coercion by someone who knew that he was covering up his extensive marijuana use during the 1980s, and it is possible that this could have caused him to act contrary to the best interests of the national security.

As explained in this Opinion, I find that the individual has failed to show that restoring his access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, I recommend that the individual's "Q" access authorization not be restored.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of this Hearing Officer's Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585-0107, and served on the party. If either party elects to seek review of the Opinion, that party must file a statement identifying the issues on which it wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files its request for review. The party seeking review must serve a copy of its statement on the other party, who may file a response within 20 days of receipt of the statement. 10 C.F.R. § 710.28(b). The address to which submissions must be sent for purposes of serving them on the Office of Security Affairs is as follows:

Director

Office of Safeguards and Security, NN-51

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874

Thomas O. Mann

Hearing Officer

Office of Hearings and Appeals