Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 1 of 52
The Honorable Thomas S. Zilly
2 3
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
4
5
KIRT! TIW ARI, et al.,
No.: 2:17-cv-00242 (TSZ)
6 Plaintiffs,
7 v.
8
9
JAMES MATTIS, Secretary, U.S. Department of Defense, in his official capacity.
10
Defendant.
11
Pursuant to 28 U.S.C. § 1746, I hereby declare as follows:
12 13
14
DECLARATION OF CHRISTOPHER P. ARENDT
1.
I make this declaration in support of Defendant's opposition to Plaintiffs' Motion for a
Preliminary Injunction, ECF No . 7. This declaration sets forth the background of the Military
15 Accessions Vital to the National Interest ("MAVNI") program and explains how the program has 16 17
evolved since its inception in 2008, including the provisions challenged in this case that were
18
issued in 2016. In addition, I explain below why the requested injunction will cause significant
19
harm to the operation of the program and thus to the military's ability to use this important tool
20
in a manner consistent with the strength and quality of the armed forces of the United States.
21
2.
I am currently the Deputy Director, Accession Policy Directorate, in the Office of the
22 Under Secretary of Defense for Personnel and Readiness ("USD(P&R)"), in Washington, D.C.
23 24
In this capacity, I have oversight for developing, reviewing, and analyzing policies, resource
25
levels, and budgets for enlisted recruiting and officer-commissioning programs.
26
include oversight of the MAVNI Pilot Program.
My duties
27 28 DECLARATION OF CHRISTOPHER P. ARENDT Tiwari. et al. v. Mau is, No. 2: I7-cv-00242 (TSZ)
U.S. DEPARTMENT O F JUSTICE Civil Dh•ision, Federal Progra ms Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-7667
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 2 of 52
1
3.
2
and a Master of Science in Management from Troy State University. My military career was
3
I am a graduate of Villanova University, and I hold a Bachelor of Science in Accounting
performed in the fields of naval aviation and personnel management. My active duty service
4 included deployments on numerous ships, including support of joint operations in Grenada and 5
6
maritime interdiction during Desert Storm/Desert Calm, as well as service with NATO Standing
7
Forces in the Adriatic (Bosnia) and Atlantic. My staff assignments include Branch Head, Sea
8
Special Programs in the Bureau of Naval Personnel; Director, Enlisted Plans and Policy and the
9
Head Enlisted Community Manager on the Staff of the Chief of Naval Personnel in Washington
10 DC; and my current position. Before joining the Office of the Secretary of Defense as a civilian 11
12 13
in 2007, I served for 26 years on active duty in the United States Navy and retired in 2007 as a Captain. Overview of the MA VNI Pilot Program
14 15
16
4.
Any individual wishing to enlist in the armed forces must meet citizenship or residency
requirements. See 10 U.S.C. § 504(b). 1 However, 10 U .S.C. § 504(b)(2) provides the Secretary
17 of Defense and the Secretaries of the Military Departments the authority to enlist certain
18 19
individuals who do not meet citizenship and residency requirements when they determine that
20
such enlistment is "vital to the national interest." Pursuant to 8 U.S.C. § 1440, a person who is
21
not a Legal Permanent Resident ("LPR") who enlists in the armed forces "during any other period
22 23 24 25 26 27
28
1
1OU.S.C. § 504 is the statutory standard for enlistment in the Armed Forces. While this statutory authority authorizes enlistments vital to the national interest, others eligible for enlistment under this authority must be one of the following: a national of the United States; an alien who is lawfully admitted for permanent residence; and a person described in section 341 of one the following compacts (The Compact of Free Association between the Federated States of Micronesia and the United States; The Compact of Free Association between the Republic of the Marshall Islands and the United States; or The Compact of Free Association between Palau and the United States). DECLARATION OF CHRISTOPHER P. ARENDT - 2 Tiwari. et al. v. Mallis. No. 2: 17-cv-00242 (TSZ)
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts 1he.• NW Washington, DC 20530 Tel: (202) 305-8902
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 3 of 52
1
2 3
which the President by Executive order shall designate as a period in which Armed Forces of the United States are or were engaged in military operations involving armed conflict with a hostile foreign force" may apply to be naturalized as a citizen "whether or not he has been lawfully
4
5 6
admitted to the United States for permanent residence" without regard to age, period ofresidence in the United States or length of military service. On July 3, 2002, the President determined, for
7
purposes of 8 U.S.C. § 1440, that the military is engaged in such armed conflict. Exec. Order
8
No. 13269, 67 Fed. Reg. 45,287 (July 3, 2002), Expedited Naturalization of Aliens and
9
Noncitizen Nationals Serving in an Active Duty Status During the War on Terrorism. This
10 Executive Order remains in effect. 11 12
5.
Pursuant to this authority, in 2003, the Army launched the "09L Pilot Program." Under
13
this program. LPRs could enlist in the military to become interpreters and translators. They could
14
then invoke the benefits of 8 U .S.C. § 1440 during the naturalization application process.
15
Subsequent to this program, the Secretary of Defense authorized the creation of the MA VNI pilot
16
program in 2008, which provided the Army, Navy, Marine Corps, and Air Force (collectively
17 the " Military Services") authority through December 2009 to enlist noncitizen recruits who are 18 19
determined to be vital to the national interest. The program was designed to attract two types of
20
recruits (1) health care professionals ("HCPs") and (2) persons who possess critical foreign
21
language skills ("CFLs"), both of which are necessary to sustain effective military operations.
22
The MAVNI pilot program was reinitiated in 2012, and extended in 20 14, and 2016. Renewal
23
of the program has always remained dependent on periodic reviews and re-authorization by the
24 USD(P&R). To date, the Military Services have recruited more than 10,000 noncitizens under 25 26
the MA VNI Pilot Program.
27 28 DECLARATION OF CHRISTOPHER P. ARENDT · 3 Tiwari, et al. v. Mallis. No. 2: l 7-cv-00242 (TSZ)
U.S. DEPARTMENT OF JUSTICE Civil Divis ion, F~'
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 4 of 52
1
6.
2
and ultimately become naturalized citizens. While MAVNI is the only program that allows
3
The MANVI program is not the only means by which non-citizens may join the military
recruits who are not citizens or LPRs to enlist and gain a path to U.S. citizenship, LPRs can also
4
5
gain expedited citizenship under the provisions of 8 U.S .C. § 1439. Under this statute, LPRs
6
who have at least one year of honorable service in the military may be naturalized without having
7
to fulfill continuous residency requirements. However, during a period of declared hostilities,
8
procedures for naturalization under 8 U.S.C.§ 1440 take precedence over procedures for
9
naturalization under 8 U.S.C. § 1439. DODI 5500.14, Naturalization of Aliens Serving in the
10 Armed Forces of the United States and of Alien Spouses and/or Alien Adopted Children of 11 12
Military and Civilian Personnel Ordered Overseas (Jan 4, 2006) ~ E2.1.5.
13
7.
14
naturalized a total of 109,321 members of the military. See U.S. Citizenship and Immigration
15
Services,
16
From 2001 through September 2015, the U.S. Citizenship and Immigration Services has
"Naturalization
Through
Military
Service:
Fact
Sheet,"
available
https://www.uscis. gov/news/fact-sheets/naturalization-through-military-service-fact-sheet.
at As
17
noted above, only about 10,000 of these persons were recruited under and are subject to the 18
19
requirements of the MA VNI Pilot Program at issue in this case.
20
8.
21
whether recruiting an individual applicant is vital to the national interest. HCP recruits must
22
possess skills to fill a critical shortfall in certain medical specialties, while CFL recruits must
23
Under the MA VNI Pilot Program, each Military Service has the discretion to determine
possess capabilities in a specific language as well as an understanding of the associated cultural
24 background for that language. In addition, all MA VNI recruits must have a valid visa status for 25 26 27
at least two years immediately prior to the enlistment date, and must not have had any single absence from the United States of more than 90 days during the two-year period immediately
28 DECLARATION OF CHRISTOPHER P. ARENDT - 4 Tiwari. eta/. v. 11tfattis, No. 2:17-cv-00242 (TSZ)
U.S. OEPARHIENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305·8902
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 5 of 52
preceding the date ·Of enlistment. See Memorandum from Acting Under Secretary of Defense for
2 3
Personnel and Readiness Memorandum to Secretary of .A..nny, Navy, and Airforce (Sept. 30, 2016) ("Sept. 30, 2016 Memo) (attached as Exhibit 1).
4 9.
5
6
In addition to possessing skills eligible for accession under the MA VNI Pilot Program,
MA VNI applicants must meet the minimum enlistment standards applicable to all recruits, e.g.,
7
medical screening, physical fitness, and moral conduct/criminal activity screening. MA VNI
8
personnel must also undergo additional security checks, as described further below, before they
9
can be accessed into a Military Service. MA VNI personnel who successfully pass such screening
10 and are certified are allowed to enlist may submit their application for citizenship to the U.S. 11
12
Citizenship and Immigration Service upon arrival at their initial entry training (colloquially,
13
"boot camp"), which typically lasts ten weeks and is where recruits learn the basics of becoming
14
a soldier. MAVNI recruits who are approved for citizenship are then typically naturalized during
15
the last week of initial entry training. Thus, a key benefit of MA VNI is that it is the only program
16 17
that allows recruits who are not U.S. citizens or LPRs to enlist and gain a faster path to U.S . citizenship. 2
18
Military-Service Determinations
19
All recruits that enlist in the military must undergo a "military-service determination"
20
10.
21
(also called a "suitability-for-service determination"). See Department of Defense Instruction
22
("DODI") 1304.26 (Mar. 23, 2015, Incorporating Change 2, April 11, 2017, Qualification
23
Standards for Enlistment, Appointment, and Induction~ E3.P2(h); see also Army Regulation
24 25 26 27
28
("Am1y Reg."), Active and Reserve Components Enlistment Program, 601-210 ~ 4-2 (e). By
2
Normally, a non-citizen wishing to become a U.S. citizen must have five years of legal permanent residency in the United States to apply. Non-citizens married to a U.S. citizen for at least three years can apply after three years of residency. DECLARATION OF CHRISTOPHER P. ARENDT • 5 Tiwari. et al. v. Mauis. No. 2: l 7-cv-00242 (TSZ)
U.S. DEPARTMENT OF J USTICE Civil Oi,•ision, Federal Programs Branch Z.O Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 6 of 52
1 2 3
reviewing an applicant's character and conduct, the military seeks to "minimize entrance of persons who are likely to become disciplinary cases, security risks, or who are likely to disrupt good order, morale, and discipline." Id. Generally, the military service standard "that must be
4
5
applied in determining whether a person is suitable under national security criteria for [military
6
service] is that, based on all available information, there is no reasonable basis for doubting the
7
person's loyalty to the Government of the United States." DoD 5200.2-R tjl C2. l .3 ; see Army
8
Reg. 380-67, Personnel Security Program (Jan. 24, 2014) ~ 2-3. This determination includes a
9 10
review of the soldier's "criminal history (regardless of disposition) or questionable conduct character." Army Reg. 601-210 ~ 4-2(e) (1). In the case of the MAVNI Pilot Program, due to
11
12
counter-intelligence, security, and insider threat concerns, an additional level of screening has
13
been applied in order to compensate for the general lack of information accessible by the
14
Government in making a suitability decision, specifically the MAVNI applicants' extensive life
15
and relationships outside of the United States.
16
11.
In the scope of the nonnal recruiting program, a recruit may access into the military before
17 there is complete adjudication of suitability for service determination if no immediate
18 19
disqualifying information is found. See DODI 1304.26 ~ E.3P2(h).
However, in those cases,
20
"any additional disqualifying information during the adjudication should be transmitted to the
21
appropriate personnel or human resource offices ... for appropriate action." Id. For the MAVNI
22
Pilot Program, the DoD's policy intention since 2008 was for vetting to be completed prior to
23
accessions due to the concerns noted above.
24
Securitv-Clearance-Eligibility Determinations 25 26 27
12.
Separate from a military-service determination, service members in the military may,
depending on the needs of a particular position, be evaluated and recommended for eligibility
28 DECLARATION OF CHRISTOPHER P. ARENDT • 6 Tiwari. et al. v. Mat1is, No. 2: I 7-<:v-00242 (TSZ)
U.S. DEPARTMENT OF JlJSTICE Civil Division, Federal Programs Branch 20 Massacbusens Ave., NW Washington, OC20S30 Tel: (202) 305-8902
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 7 of 52
1
to access classified national security information. For a separate determination of whether
2
someone is eligible for access to classified information, the standard "is whether, based on all
..., .)
available information, the person' s loyalty, reliability, and trustworthiness are such that
4 5
entrusting the person with classified information or assigning the person to sensitive duties is
6
clearly consistent with the interests of national security." DoD 5200.2-R ~ C2. l .3. 3 While the
7
ultimate decision in applying either the suitability for military service standard or the standard
8
for the eligibility for access to classified information "must be an overall common sense
9
determination based upon all available facts," the criteria for determining eligibility for a
10 clearance to access national security information is significantly more robust than that for a
11 12
"suitability for service" determination. 4 DoD 5200-R ~ C2.2. l; Army Reg. 380-67 ~ 2-4. In the
13
case of the MAVNI Pilot Program, additional requirements have been implemented in an attempt
14
to mitigate counter-intelligence, security, and insider threat concerns. During reviews prior to
15
renewals of the MAVNI Pilot Program, policy is adjusted as needed to address past experiences
16
and concerns in order to best serve the military's mission.
A description of how this review
17
process evolved with respect to a recruit's el igibility for security clearances from 2008 to the 18 current policy is provided below.
19 20 21 22 23 24
26
3
DoD 5200.2-R was canceled on April 3, 2017, and incorporated into DoD Manual 5200.02, Procedures for the DoD Personnel Security Program (PSP). DoD Manual 5200.02 words the standard slightly differently: "Military, civilian, contractor, consultant, and other affiliated personnel assigned to national security positions or required to perform national security duties will be subject to investigation to determine whether they are and will remain reliable, trustworthy, of good conduct and character, and loyal to the United States and whether granting or continuing national security eligibility is clearly consistent with the national interest." Id. "3.1.
27 28 DECLARATION OF CHRISTOPHER P. ARENDT - 7 Tiwari. el al. v. Mau ls, No. 2: l 7-cv-00242 (TSZ)
U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 8 of 52
13.
2 3
Delegated from the Director of National Intelligence ("DNI") and the Secretary of
Defense, the DoD Consolidated Adjudication Facility ("DoD CAF") is the principal authority, outside of the DoD Intelligence Agencies, to determine eligibility for access to classified
4 information for current and prospective DoD military, civilian and contractor personnel. The 5
6
DoD CAF is organizationally separate from the Department of the Army. In addition, the DoD
7
CAF makes recommendations to the Military Services for military service determinations. For
8
the Army, the military service recommendation from the DoD CAF is sent to U.S. Army
9
IO
Recruiting Command for recruits who have not begun initial entry training, which makes the actual s military-service determination. For soldiers who have begun initial entry training, the
11 12
DoD CAF recommendation is sent through Army command channels for action.
Investigations to Gather Information Necessary for Military-Sen-ice and Eligibility-for-Access-to-Classified-Information Determinations
13
14 14.
For either a military-service determination, or an eligibility-for-access-to-classified-
15 16
information determination, there are different types of personnel security investigations that are
17
undertaken. The scope of a personnel security investigation will vary to meet the purpose of the
18
determination, and to take in account how best to collect needed information See Dep' t of
19
Defense ("DoD'') 5200.2-R, Personnel Security Program (Jan. 1987) ~ C2-3. For example, a
20 "National Agency Check," ("NAC") checks several government sources for previous 21 22
investigations as well as checking for criminal conduct in the U.S. by both name and fingerprint.
23
See id. " C2.3.2. All soldiers prior to enlistment, including MAVNI recruits, undergo a NAC,
24
with a fingerprint search.
25
15.
26
Subsequently and in conjunction with the pre-enlistment NAC, all accessing soldiers
undergo a Tier 3 background investigation (at a minimum), in order to complete the military
27 service determination and determine if they are eligible for a clearance. That investigation 28 DECLARATION OF CHRISTOPHER P. ARENDT - 8 Tiwari. el al. v. Mallis, No. 2:17-cv-00242 (TSZ)
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave.. NW Washington, DC 20530 Tel: (202) 305-8902
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 9 of 52
includes a NAC, local law enforcement checks, credit checks, foreign affiliation, education and
2 3
employment checks, and select scoping as required to resolve unfavorable or questionable information for the past 7 to 10 years.
4
16.
5
Another such type of background investigation is the single scope background
ii APl. l.1.2.
6
investigation ("SSBI"), or now kno\.\n as a Tier 5. Id.
7
investigates a subject's most recent ten years of history, and "may be expanded as necessary, to
8
resolve issues and/or address employment standards unique to individual agencies." Id.
9 10
An SSBI generally
In
addition, a subject's spouse, cohabitant, and members of the subject's family are checked against relevant databases. Id. In many instances, a MAVNI applicant has limited association with the
11 12
United States and therefore has significant foreign contacts. In addition, investigation standards
13
require DoD to validate an applicant's history as far back as seven to ten years. In those
14
circumstances, an investigation may take up to two years to determine the extent of the MAVNI
15
applicant's foreign contacts and connections and to find alternative methods of inquiry to
16
mitigate the missing scope of the investigation.
17
18.
MAVNI soldiers in their first term of enlistment who have undergone SSBis have done
18 19
so for the purpose of making a military-service determination. Early in the program, some of
20
these soldiers have been informed that the result of the SSBI is "favorable.''
21
word does not indicate a favorable determination of eligibility for access to classified
22
information.
23
The use of this
Rather, the term " favorable" is used to connote a favorable suitability
recommendation for a military service determination. For MAVNI personnel that have already
24 25
undergone an SSBI (or more recently, a Tier 5 investigation), additional steps must be taken in
26
order to be eligible for a security clearance and access to classified national security information.
27
These additional steps depend on the individual case and are determined by the facts relating to
28 DECLARATION OF CHRISTOPHER P. ARENDT • 9 Tiwari. et al. v. Mau is, No. 2: 17-cv-00242 (TSZ)
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530
Tel: (202) 305-8902
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 10 of 52
1
that particular individual. Such additional steps may include requesting an updated background
2
investigation, or an updated counter-intelligence security interview. 5 A polygraph may also be
3
required. Thereafter, MA VNI personnel must be evaluated under the more fulsome security-
4 5
clearance standard. Changes in Policy to the Investigative Requirements for MA VNI Personnel
6
On August 10, 2010, the Deputy Secretary of Defense issued a Memorandum extending
7
19.
8
the MAVNI Pilot Program through December 31, 2011 , provided that "all MA VNJ applicants
9 10
are subjected to a [SSBI] and each Service established a comprehensive counter-intelligencefocused security review and monitoring program for MAVNI recruits." See Aug. 10, 2010
11
12
Memorandum from Deputy Secretary of Defense to (Aug. 17, 2010), (attached as Exhibit 2).
13
These measures also applied to MA VNI soldiers accessioned prior to August 17, 2010. rlbis
14
Memorandum further provided that "MAVNI recruits shall not be considered for security
15
clearances or for positions within the intelligence community until they have served in the
16
military and lived in the U.S . for a sufficient time period whereby a thorough background
17 investigation and monitoring can be conducted." 18
19
20.
This 2010 policy change was issued to address reports that standard background
20
investigations of MA VNI personnel were deficient in developing and resolving issues,
21
particularly issues of influence by or preference for foreign governments, persons, or
22
organizations. Consequently, with this policy change, investigators would have greater ability
23
to discover and provide relevant records to meet the investigative scope requirement to make a
24 security-clearance-eligibility determination.
While the LPR population also presents this
25
26 27 28
5
A CI focused security review includes the submission of a review of the results of the SSBI, completion of a National Intelligence Agency Check ("NIAC"), and an issue-oriented counterintelligence interview or issued-specific polygraph as applicable. DECLARATION OF CHRISTOPHER P ARENDT • I 0 Tiwari. et al. ''· Mallis, NQ. 2: 17-cv-00242 (TSZ)
lJ.S. DEPARTMENT OF JUSTICE
Ch'il Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, OC 20530 Tel: (202) 305-8902
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 11 of 52
1
challenge, it is to a much lesser degree because they have on average been in the United States
2
for a significantly greater amount of time than the MA VNI population.
3
21.
Additional security review requirements were added during the 2012, 2014, and 2016
4
5
authorizations of the program. On February 16, 2012 the Under Secretary of Defense for
6
Intelligence ("USD(I)") issued a policy designed to strengthen the program and mitigate evolving
7
counter-intelligence, security, and insider threat concerns.
8
Secretary of Defense for Intelligence to Secretaries of the Military Departments (Feb. 16, 2012)
9
See Memorandum from Under
(attached as Exhibit 3). This policy added the requirement that all MA VNI applicants must
10 undergo a SSBI as part of a suitability-for-military service determination and advised the Military 11 12
Services that they were responsible for establishing comprehensive counter-intelligence focused
13
security reviews and ongoing monitoring programs for the length of each MAVNI recruit's
14
enlistment. These measures were applied retroactively to soldiers who entered the Army under
15
previous pilots of the MAVNI Pilot Program. In addition to incorporating the security screening
16
provisions of the 2010 and 2012 reauthorizations of the MAVNI Pilot Program, the 2014
17 reauthorization of the program reinforced that qualified MAVNI applicants be subjected to and 18
19
monitoring program. See Memorandum from Under Secretary of Defense for Personnel and
20
Readiness to Secretary of Army, Navy, Air Force (Sept. 25, 2014) (attached as Exhibit 4). The
21
2014 reauthorization added the requirement that MAVNI recruits may be subject to an SSBI,
22
National Intelligence Agency Check, a counter-intelligence focused security review, and an
23
issue-oriented interview and/or issue-oriented polygraph, if needed to resolve any foreign
24 influence or foreign preference concerns. The results of these reviews were to be considered to 25 26 27
make the military suitability determination. 22.
However, subsequent reviews of the program determined that the screening outlined in
28 DECLARATION OF CHRISTOPHER P. ARENDT • 11 Tiwari, et al. v. Mallis, No. 2: l 7-cv-00242 (TSZ)
U.S. D.EPARTMtNT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts A \'e., NW Washington, DC 20530 Tel: (202) 305-8902
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 12 of 52
1
the 20 I 0 through 2014 program reauthorizations was not being implemented adequately.
2
Through a review led by USD(P&R) and USD(l) from June through September 2016, it was
3
determined that some MA VNI enlistees had been permitted to enter the program without
4
5 6
completed background checks and that the Military Services did not adequately track MA VNI enlistees post-accession, both of which were required by then-existing policy. 6 As a result, some
7
MA VNJs with a positively adjudicated military-service determination were granted access to
8
classified information erroneously without an appropriately adjud icated determination that they
9
were eligible to receive national security information.
The review also showed that some
10 MA VNI enlistees may have engaged in pre-accession criminal activity (e.g., the making and/or
11
12
possess.ion of fraudulent student visas) and/or pose a significant counter-intelligence security
13
threat.
14
23.
15
military based on receiving fraudulent visas for universities that did not exist; (2) some MAVNJ
16
For exan1ple, the review uncovered that (1) a number of individuals accessed into the
recruits attended, and later falsified transcripts, from universities owned by a Foreign National
17 Security Agency, and a State Sponsored Intelligence Organization (notably, most of the 18
19
university classmates of one MA VNI recruit later worked for the same State Sponsored
20
Intelli gence Organization); and (3) one MAVNI recruit who entered the United States on a
21
student visa professed support to 9/11 terrorists and said he would voluntarily help China in a
22
crisis situation. In addition, the review w1covered a case where a MA VNI applicant failed to list
23
foreign contacts from Eastern Europe and Russia, even though the recruit' s father manages the
24 25
26 27
28
Because of a backlog in conducting these investigations, in February 2013 the Chief, Accessions Division, was authorized to "grant exceptions to policy on a case-by case basis to ship MAVNI Future Soldiers to training who are not in receipt of SSBI results, but who have received favorable NIAC results."
6
DECLARATION OF CHRISTOPHER P ARENDT - 12
Tnvari. et al. v. Mau is, No. 2: 17-cv-00242 (TSZ)
U.S. OEPARTMENT OF JUSTICE Civil Divis ion, Federal Progra ms Branch 20 Mass:ichusetts ..he .. NW Washington, DC 20530 Tel: (202) 305-8902
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 13 of 52
military department of a foreign factory and his brother-in-law worked for a foreign political
2 3
party. In DoD's judgment, these examples indicated that sufficient vetting of MA VNI personnel was not occurring at the accessions stage, contrary to the goal of avoiding accessions of
4
5
individuals who could constitute potential counter-intelligence, security, or insider threats
6
altogether. Separate reviews conducted by representatives of the Department of Defense and
7
Department of the Army in May 2016 also found similar problems with the vetting of MA VNI
8
personnel.
9
24.
On September 30, 2016, USD(P&R) issued a memorandum extending the MA VNI Pilot
10 Program through September 30, 2017. USD(P&R) implemented several program revisions to 11 12
strengthen and improve the execution of the program Among other things, the September 30,
13
2016 Memo prohibited all recruits and current soldiers who are accessing or accessed through
14
the MA VNI language program from obtaining security clearances until after their first term of
15
enlistment. 7 This. was intended to ensure the services did not inadvertently assign MAVNI
16
soldiers to jobs requiring security clearances before the soldiers had sufficient time in the United
17 States to allow the for mitigation of the gaps in investigative coverage and any counter-
18 19 20
intelligence, security, and insider threat concerns, including the types of counter-intelligence investigations and risks that had surfaced in the prior reviews of the MAVNI Pilot Program. 8
21 22 23 24
25
7
Although one passage of the September 30, 2016 Memo states that the security-clearance prohibition applies only to MAVNI soldiers " accessed under language/associated culture MAVNI eligibility," see Sept. 30, 2016 Memo at 2, the policy in fact prohibits all MAVNI soldiers from applying for clearances during their first term of enlistment, see id. at Program Eligibility at 4. 8
26 27
As stated in the September 30, 2016 Memo, the prohibition on MA VNI soldiers from applying for security clearances applies only in a soldier's first term of enlistment. Although the first term is typically 6-8 years, recruits are able to re-enlist after they have served on active duty sometimes only 2.5 years depending on the needs of the military services. Thus, for
28 DECLARATION OF CH RISTOPHER P. ARENDT • 13 Tiwari. et al. v. Mauis. No. 2: 17-cv-00242 (TSZ)
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 14 of 52
1
25.
2
risk to the Military Services associated with previous MA VNI personnel who may have entered
3
Furthermore, the September 30, 2016 changes were implemented to help decrease the
the progran1 with fraudulent credentials or who posed other counter-intelligence, security, and
4
5 6
insider threat concerns. By conducting a complete counter-intelligence focused review as well as by delaying the MAVNI personnel ' s ability to obtain access to classified information, the
7
Military Services are able to identify risks associated with MAVNI soldiers prior to placing them
8
in positions in which they are required to have access to classified information. These changes
9
are consistent with previous changes to the program that were designed to strengthen the program
10 and to eliminate risk related to counter-intelligence, security, and insider threat concerns. None 1]
12
of the policy changes announced in the September 30, 2016 Memo apply to naturalized citizens
13
who enlisted outside of the MA VNI Pilot Program.
14
26.
15
the changes to the MAVNI Pilot Program first announced in the September 30, 2016 Memo. See
16
On January 6, 2017, the Department of the Army issued a memorandum implementing
Memorandum from Department of the Army, Office of the Assistant Secretary, Manpower and
17 Reserve Affairs to Army Deputy Chiefs of Staff (Jan. 6, 2017) (attached as Exhibit 5). As of 18 19
April 5, 2017, fo llowing the completion of screening procedures outlined in the 2016 MAVNI
20
memorandum, recruits undergoing a military-suitability determination must meet the eligibility-
21
for-access-to-classified-inf01mation standard. See Memorandum from the Under Secretary of
22
Defense (Personnel & Readiness) to Director, Department of Defense Consolidated
23
Adjudications Facility (Apr. 5, 2017) (attached as Exhibit 6). As explained in the memorandum,
24 this policy change " is critical to the sustainment of the MAVN1 Pilot Program and the welfare of 25 26
27 28
soldiers who opt to re-enlist, the September 30, 2016 policy may preclude them from applying for a security clearance for only 3-4 years. DECLARATION OF CHRISTOPHER P. ARENDT • 14 Tiwari. et al. v. Mattis, No. 2: I 7-cv-00242 (TSZ)
U.S. DEPARTMENT OF JUSTICE Civil Division, F~deral Programs Branch 20 Massachusetts A.. e., NW Washington, DC 205JO Tel : (202) 305-8902
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 15 of 52
its participants." Id.
2
This change was completed because prior to September 30, 2016, the
CAF's review of suitability-for-military-service criteria revealed that the criteria were unclear,
,., .)
ambiguous, and lacked mitigating criteria to assist in a full and proper adjudication. The final 4 military-suitability determination for MA VNI personnel who have not begun initial entry training 5
6
remains with U. S. Army Recruiting Command.
Harm to the Agency If the 2016 Policy is Enjoined
7
8
9
27.
An injunction that halts the prohibition on the ability of MA VNl soldiers to apply for a
security clearance in their first term of enlistment would risk significant harm the military in
10
several ways.
First, such an injunction would restrict DoD's ability to address counter-
11 12
intelligence, security, and insider threat concerns posed by the MA VNI Pilot Program in a
13
manner that DoD has judged is necessary based on years of experience with the program.
14
Although the MA VNI Pilot Program has provided many benefits to the armed services, it has
15
also presented unique security concerns, which have been the subject of DoD review and
16
deliberation in recent years. A court order requiring DoD to operate the MA VNI Pilot Program
17 in a particular fashion would upset the careful balance DoD has determined is necessary between 18
19
accessing highly-skilled recruits in a timely fashion while simultaneously ensuring that the
20
program is not exploited by foreign powers, criminal elements, or other threats, in any matter-
21
a balance that the DoD has determined necessary to maintaining the national security.
22
28.
23
Second, an injunction against enforcing the first-term security-clearance prohibition for
MAVNI soldiers would undercut DoD 's ability to fully vet and screen soldiers who are seeking
24
25 26 27
to gain access to classified information. DoD's review of the MAVNI Pilot Program has revealed a need to conduct additional screening measures for MAVNI soldiers given that, as a whole, they have spent significantly more time in foreign countries and have more foreign contacts than do
28 DECLARATION OF CHRISTOPHER P. ARENDT - 15 Tiwari. er al. v. Mallis, No. 2: l 7-cv-00242 (TSZ)
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachuserts Ave., NW Washington, DC 20530 Tel: (202) JOS-8902
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 16 of 52
1
2 3
other soldiers who are U. S. citizens or legal permanent residents. Requiring DoD to consider MA VN1 soldiers for clearances before these additional screening measures are undertaken has the potential to increase the number of persons who are wrongly given clearances to access
4 5
classified national security information. A court order that would effectively limit DoD to the
6
option of screening every MAVNI recruit who seeks access to classified information solely on
7
an individualized basis would either seriously tax DoD's ability to conduct the fulsome
8
investigations necessary for these individuals, or potentially would result in recruits not receiving
9
a favorable determination for access to classified information because an adequate background
10
investigation for them could not be completed. 11
12 13
Seven Plaintiffs Have Been Granted Waivers from the Security-Clearance Prohibition Announced in the September 30, 2016 Memo 29.
On April 24, 2017, the Department of the Army sought an exception to policy that
14 15 16
would permit seven Plaintiffs to this action (Plaintiffs Seung Yoon Yang, Amandeep Singh, Duncan Makau, Valdeta Mehanja, Luobin Sun, Rui Zhang, and Raj Chettri) to apply for
17
security clearance eligibility during their first term of enlistment. Army sought these waivers
18
in light of these Plaintiffs' "significant periods of residence and/or military service." See
19
Memorandum from Department of the Army, Office of the Assistant Secretary, Manpower and
20 Reserve Affairs to Under Secretary of Defense (Personnel and Readiness) (Apr. 24, 2017) 21 22
(attached as Exhibit 7). On May 5, 2016, USD(P&R) granted the request for an exception for
23
all seven individuals, concluding that each solider "may be considered for a security clearance
24
under the same terms, conditions, and criteria as any other U.S . citizen." See Memorandum
25
from Assistant Secretary of Defense, Manpower and Reserve Affairs to Assistant Secretary of
26
the Army, Manpower and Reserve Affairs (May 5, 2017) (attached as Exhibit 8). The waivers
27 are valid for the entire duration of the Plaintiffs' first term of enlistment.
28 DECLARATION OF CHRISTOPHER P. ARENDT - 16 Tiwari, et al. v. Mattis, No. 2: I 7-cv-00242 (TSZ)
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal P rograms Branch 20 Massachusetts A,·e.• NW Washington, DC 20530 Tel: (202) 305-8902
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 17 of 52
30.
2 3
DoD thus has the authority to grant exceptions to policy on an individualized basis
where, as with the Plaintiffs here, circumstances may warrant the issuance of waivers. The waiver process allows DoD the flexibility to exercise its judgment as to which particular
4 5
6
individuals may seek security clearances, while retaining discretion over the proper timing and process for making these important decisions.
7
8
9
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on May
1,2017.
10 11 12
CHRISTOPHER P. ARENDT
13
14 15
16 17 18 19 20 21 22
23
24 25
26 27 28 DECLARATION OF CHRISTOPHER P. ARENDT - 17 T1wari. e1al. v. Mallis. No. 2: .I 7-cv-00242 (TSZ)
U.S. DEPARTMENT Of .JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts A\•e., NW Washington, DC 20530 Tel: (202) 305-8902
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 18 of 52
ARENDT DECLARATION EXHIBIT 1 Memorandum from Acting Under Secretary of Defense for Personnel and Readiness to Secretary of Army, Navy, and Airforce (Sept. 30, 2016)
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 19 of 52 UNDER SECRETARY OF DEFENSE 4000 DEFENSE PENTAGON WASHINGTON, D.C. 20301-4000
SEP 30 2016
PERSONNEL ANO READINESS
MEMORANDUM FOR SECRETARY OF THE ARMY SECRETARY OF T HE NAVY SECRETARY OF THE AIR FORCE SUBJECT: Military Accessions Vital to the National Interest Pilot Program Extension The Military Accessions Vital to the National Interest (MA VN I) pilot program is currently set to expire on September 30, 20 16. This memorandum was developed in coordination with the Under Secretary of Defense for Intelligence and extends the MAVNI pilot program through September 30, 2017, and implements revised eligibility requirements. T his gu idance wi ll serve as a single source document for the administration of the MA VNI program and replaces all previously issued program guidance. The appl ication of the limited authority under section 504(b)(2) of title JO, United States Code, allows the Services to expand the military recruiting market to include certain non-immigrant aliens. The authority is contingent upon a case-by-case determination by the Secretary of the Military Department concerned that each such enl istment is vital to the national interest. The exercise of such authority regarding health care professionals shall be limited to those holding medical specialties for which a Service has a critical shortfall. The recruitment of persons with special language and associated cultural backgrounds shall be limited to those with qualifications necessary to support current and projected future military operations, and for which the Mi litary Service concerned currently has a critical shortfall. Persons enlisted under this program shall be screened and identified for eligibility for special operations and special operations support career fields, and if eligible, assignment priority will be given to those units. Changes reflected in the enclosed guidance w ill strengthen and improve the execution of the MA VNI program. T hese changes are the result of a comprehensive review of the program and include specific security and mission requirements outlined below and also in the enclosure. The Secretaries of the Military Departments will ensure adequate controls and audit processes are in place for compliance with all administrative, security, and suitability requirements outlined in this memorandum. The Service MA VNI program allocations for the maximum number of annual accessions will be: Army- I ,200; Navy - 65; Marine Corps - 65; and Air Force - 70. Within 60 days of the date of this memorandum, the Secretaries of the Military Departments will provide a report to the Assistant Secretary for Manpower and Reserve Affairs detailing the methodology supporting requested accession allotments agai nst critical manpower gaps and operational requirements. In execution of the enclosed guidance, the Secretaries of the Mil itary Departments shall: • •
limit the accession of individuals with language/culture skills to not more than I0 percent of the total Service allocation for reserve accessions; access medical personnel for Active and Reserve enlistments as needed;
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 20 of 52
• •
limit the number of annual accessions for any one language/associated culture capabilities to not more than I 0 percent of total MA VNI Service authorization. prohibit Category 2 language/associated culture applicants from shipping to basic training or serving for any period ohime on active duty until the Military Service certifies in writing to the Under Secretary of Defense for Personnel and Readiness (USO (P&R)) and the Under Secretary of Defense for Intelligence (USD(I)) their ability to meet administrative, security, and suitability protoco ls mandated herein prior to accessing any new applicants into the Delayed Entry Pool (DEP).
Updated guidance regarding program eligibil ity, languages, security reviews, and screening processes, eligibility for a security clearance, suitabi lity determination, and military endorsement for naturalization are necessary to ensure the security, success and susta inability of the MA VNI program. Specific policy details and methodologies are outlined in the enclosed guidance. •
•
•
The guidance within this memorandum applies to all MAVNls currently in the DEP, all future applicants. and all Reserve accessions who enter Service or ship to basic training on or after the date of this memorandum. Those persons in t~e DEP who were recruited under the eligible language list in effect since 2014 may continue in the accession process, but they must be satisfactorily screened under the revised screening protocols found in this memorandum. All personnel accessed through the MA VNI program since its inception in 2009 must be continuously monitored and accounted for throughout the duration of their affiliation with the Department of Defense (e.g. active duty, Reserve, government civilian, or contractor). No Service member accessed under language/associated culture MA VNI eligibi lity is eligible for a security clearance until they have satisfied time in service requirements and have have received an updated and favorable determination by the Consolidated Adjudications Facility.
All costs associated with the accession of MA VNI applicants are borne by the contracting Service. Services recruiting under MA VN I will provide to USD(P&R) and USD(I) a MA VNI report by accession cohort at the end of each quarter and annually fol lowing the end of each fiscal year. Complete reports listing all MA VNis in service will be provided to USO(P&R) and USD(I) on an annual basis. The Services shall notify USD(P&R), USD(I), and United States Citizenship and Immigrati on Services (USCIS) when individuals become classified as "unsatisfactory participants" and/or are administratively separated from the military. Any clarification required concerning this guidance shall be requested prior to program implementation by the Military Depart!J)e.n concer ed. Services may not deviate from these requirements without a written app al to do so fr m the USD(P&R) in coordination with USD(l).
Attachments:
As stated
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 21 of 52
cc: Chairman of the Joint Chiefs of Staff Under Secretary of Defense for Intelligence Chief of the National Guard Bureau Assistant Secretary of the Army for Manpower and Reserve Affairs Assistant Secretary of the Navy for Manpower and Reserve Affairs Assistant Secretary of the Air Force fo r Manpower and Reserve Affairs
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 22 of 52
Program Eligibility Overall Eligibility: 1.
Eligibility is extended to aliens in one of the fo llowing categories at time of enlistment: a. Asylee, refugee, Temporary Protected Status (TPS), or b. Nonimmigrant categories E, F, H, I, J, K, L, M, 0, P, Q, R, S, T, TC, TD, TN, U, or V.
2.
Additionally, program applicants: a. Must have been in a valid status in one of those categories for at least the 2 years immediately prior to the enlistment date. However, it does not have to be the same category as the one held on the date of enlistment; b. Must not have had any single absence from the United States of more than 90 days during the 2-year period immediately preceding the date of enlistment; and c. Are rendered ineligible by virtue of having a pending application for adjustment of status to lawful permanent residence. In the specific case of an alien with H nonimmigrant status at the time of filing a pending application for adjustment of status who has lost such status while his or her application for adjustment was pending, and who is otherwise eligible for enlistment under the MA VNI program, the military Service may on a case by case basis waive the requirement that the alien be in a status described in paragraph 1 above at the time of enlistment; however, the Service will ensure the applicant in DEP maintains an immigration status or obtains Deferred Action from the Department of Homeland Security (DHS) or the applicant in DEP will no longer qualify for enlistment. 3. Individuals who have been granted deferred action by the DHS pursuant to the Deferred Action for Childhood Arrivals process are eligible.
Program Specific Eligibility (Services may add additional requirements) 1. Health Care Professionals a. Applicants must be recruited specifically to fill medical specialties wherein the Service has a critical shortfall. b. Applicants must meet all qualification criteria required for their medical specialty. c. Applicants must meet the criteria required for foreign-trained Department of Defense med ical personnel recruited under other authorities. d. Applicants must demonstrate proficiency in English - reading, speaking, and listening on a standardized test in accordance with all existing Service criteria for commissioned officers.
Attachment 1
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 23 of 52
e. Enlistments must be for at least 3 years of Active Duty or 6 years of SELRES service.
2. Enlisted Individuals with Special Language and Culture Backgrounds Enlistments must be for at least 3 years of Active Duty or 6 years of SELRES service, and enlistees must: a. Possess capability in a specific language with the associated cultural background from the list of critical eligible languages (below), and b. Demonstrate language proficiency at the 2/2/2 level on the Defense Language Proficiency Test or 2/2 on the Oral Proficiency Interview; or as needed for the career field, but not at less than 1+on any modality.
Eligible Languages Services may recommend additional languages to meet emerging needs or request exceptions to policy for especially meritorious individual cases to the Office of the Deputy Assistant Secretary of Defense for Military Personnel Policy.
Category l Albanian Bengali Bulgarian Cebuano Czech
Dhivehi (language of Maldives) Haitian-Creole Hungarian Malayalam Polish
Portuguese Sinhalese Tagalog Tamil Thai
Category 2 Amharic Arabic Azerbaijani Burmese Cambodian-Khmer French (limited to individuals possessing citizenship from an African country) Georgian Hausa Hindi
lgbo Indonesian Kashmiri Kurdish Lao Malay Moro Nepalese Pahari Punjabi Pushtu (aka Pashto) Serbo-Croatian
2
Sindhi Somali Swahili Tajik Turkish Turkmen Ukrainian Urdu Uzbek Yoruba
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 24 of 52
Security and Suitability Screening Requirements 1. Applicability. Services may not deviate from the following requirements without written approval from the Under Secretary of Defense for Personnel and Readiness (USD(P&R)) in coordination with the Under Secretary of Defense for Intelligence (USD(I)). 2. Initial Screening. Prior to shipping to basic training or serving for any period of time on active duty in the Armed Forces, each MA VNI applicant must satisfactori ly complete all security screening requirements. Services shall clearly annotate MA VNI in all Service Component Accessions Systems and use the Joint Personnel Adjudication System (JP AS) (or its successor, the Defense Information System for Security (DISS)) Agency Use Block and indicate MAVNI to ensure the Department's ability to track MA VNI's period of military service. Sequencing of security screening (NIACs, Counterintelligence (CI)-Security Interviews, Tier 3 or Tier 5 background investigations, polygraphs) as applicable is critical and provided at Enclosure 2. a. National Intelligence Agency Check (NIAC): The NIAC will include at a minimum a name check of the following databases: i. ii. m. iv. v. vi. vu.
CIA External Name Trace System PORTICO (USD(I)-approved CI information system) National Crime Infonnation Center Defense Central Index oflnvestigations FBI Checks (Name and Foreign Terrorism Tracking Task Force) Foreign Travel (Advance Passenger Information System or similar system when available) Public Records, Commercial Data, Social Media (as appropriate)
Services will forward the results of the NIAC to the DoD Consolidated Adjudications Facility (CAF) leading to a National Security Determination in support of a suitability for service determination. b. CI-Security Interview: The Service counterintelligence element will conduct the CISecurity Interview. The CI-Security Interview will be based upon the findings of the completed NIAC, a review of the subjects SF-86, and standard questions from the Services and the DoD CAF. Results of the CI-Security Interview will be forwarded to the DoD CAF to support the National Security Determination. c. Military Suitability Determination: The DoD CAF will render a National Security Determination based on 13 National Adjudicative Guidelines. JPAS will then be coded as "No Determination Made" (MA VNis are not eligible for a security clearance during their initial accession, see Para 4 below for security clearance eligibility requirements). The DoD CAF will forward a notification to the Service recruiting command, via the Case Adjudication Tracking System, with one of the following decisions: 1) The subject has an non-favorable national security determination based on unmitigated derogatory or missing information or; 2) A nonfavorable national security determination solely because of citizenship with the absence, or successful mitigation, of other derogatory information. If derogatory information was revealed, the DoD CAF will provide information to the accessing service via the Case Adjudication Tracking System. The accessing service will use this information to then render the final military suitability determination in accordance with DoDI 1304.26 and any service specific policies.
3
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 25 of 52
d. Health Care Professionals and Category 1 Language Requirements: Will have a completed Tier 3 background investigation, a completed NIAC, a completed CI-security interview, a National Security Determination by the DoD CAF, and a favorable military suitability determination rendered by the Service accession organization. If derogatory information is revealed in the background investigation or NIAC and cannot be mitigated, the DoD CAF may request a polygraph examination as applicable. The Military Service may either administer a polygraph to resolve the issue or separate the individual. Applicants refusing to consent to a polygraph examination will be separated. A Category 1 MA VNI's country of origin should be taken into consideration to determine whether at Tier 5 investigation is more appropriate vice a Tier 3 investigation. e. Category 2 Language Requirements: Will have a completed Tier 5 background investigation, a completed NIAC, a completed CI-security interview, a National Security Determination by the DoD CAF, and a favorable military suitability determination rendered by the service accession organization. If derogatory information is revealed in the background investigation or NIAC and cannot be mitigated, the DoD CAF may request a polygraph examination as applicable. The Military Service may either administer a polygraph to resolve the issue or separate the individual. Applicants refusing to consent to a polygraph examination will be separated. 3. Continuous Monitoring (CM). The Services will execute annual comprehensive counterintelligence CM throughout each MAVNI ' s period of military service. Services shall use the JPAS (or its successor DISS) to record completion of annual CM and vetting status throughout their periods of military and government service.
a. Continuous Monitoring requirements: The Service CI-element will conduct, at a minimum, a NIAC on each MAVNI serving, ammally. Any derogatory information identified by CM (or separately by the unit) will be reported per DoDI 5200.02. If the CAF cannot mitigate derogatory information, the DoD CAF may request a CI-security interview and/or a polygraph examination, as applicable. The Military Service may administer a polygraph and/or interview to resolve the issue or separate the individual. Service members refusing to consent to a polygraph examination and/or interview will be separated. This process will serve as CM until further capabilities are available. b. Reporting requirements: Annually in September, each Service Deputy Chief of Staff for Manpower and Personnel will submit a comprehensive report of all MA VNis serving in all Components to its Service CI-element, USD(I), and USD(P&R). An initial submission is due to those organizations within 60 days of the date of this memorandum. The listing shall include at a minimum the name, DoD ID number, job title, unit of assignment, country of origin, native language, and security clearance classification if any. This reporting requirement is intended to inform and facilitate Service CI-elements execution of CM. 4. Security Clearance Eligibility Requirements. MAVNis will be designated in JP AS (or its successor DISS) as not eligible for an interim security clearance or access until the completion of first enlistment and a positive national security eligibility determination is made by the DoD CAF. Commands may request eligibility for a clearance for MAVNls through its Service security manager after ensuring MAVNis have completed the first enlistment and meet all other requirements for a clearance. The DoD CAF is responsible for adjudicating completed personnel security background investigations to render a determination of each individual 's eligibility to access classified information and may require the Military Components to submit a request for an updated background investigation, updated CI-security interview, or NIAC as 4
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 26 of 52
applicable, prior to rendering a security clearance eligibility determination. If the CAF cannot mitigate derogatory information, the DoD CAF may request a Cl-security interview and/or a polygraph examination, as applicable. The Military Service may administer a polygraph and/or interview to resolve the issue or separate the individual.
5
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 27 of 52
DoD MA VNI Security and Suitability Sequence Map
..........
~-·trt ..-.r.l:T.T~ .
I ... .
.. . .
M\C
lll!UB!l . . . . •
.
....... •
. ......... ,
..... .......
•
I
I
.
.
-------------· I 1. NIAC : 2.SF86 I 3. Questionnaire
I
~ - ---1
1
L------------•
.... .....,.
fOUGWtft .
unmitigated Oerog
'!".!!
.......
G-MM
••• .
..... ··:=.
NON FAVORABLE Military Suitability Determination
----·;
FAVORABLE Military suitability Determination
~
. .........
•
.......
.,
IUllAll8Y
l tte
r .1 •.L •
·-·
.....,
---
.....-: ·-· •
.....1..... 1! .
Attachment 2
6
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 28 of 52
ARENDT DECLARATION EXHIBIT 2 Memorandum from Deputy Secretary of Defense (Aug. 17, 2010)
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 29 of 52
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 30 of 52
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 31 of 52
ARENDT DECLARATION EXHIBIT 3 Memorandum from Under Secretary of Defense for Intelligence to Secretaries of the Military Departments (Feb. 16, 2012)
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 32 of 52 U NDER SECRETARY OF DEFENSE 5000 DEF ENSE PENTAGON WASH INGTON , DC 20301-5000
FEB 1 6 2012 INTELLIGENCE
MEMORANDUM FOR SECRETARIES OF THE MILITARY DEPARTMENTS SUBJECT: Military Accessions Vital to the National Interest (MAVNI) Program Security Reviews and Monitoring Programs The August 17, 2010, Deputy Secretary of Defense memorandum authorized a 2-year extension to the MAVNI pilot program through December 31, 2011 (TAB A) and the Office of the Under Secretary of Defense (Personnel and Readiness) is pursuing a further extension. The 2010 extension contains a number of provisions designed to strengthen the program and mitigate potential counterintelligence (CI) and security concerns, to include initiating a single scope background investigation (SSBI) for all MAVNI applicants. The Military Departments are responsible for establishing comprehensive CI-focused security reviews and ongoing monitoring programs for the length of each MAVNI recruit' s enlistment in accordance with the attached guidelines (TAB B). As prescribed in the Deputy Secretary' s memorandum, MAVNI applicants shall not be assigned to duties that require a security clearance at the time of enlistment or induction, nor shall they be considered for security clearances or for positions in the intelligence community until they have served in the military and lived in the United States for a sufficient time period whereby a thorough background investigation and monitoring can be conducted. MAVNI participants will be eligible for Secret clearances upon meeting the following minimum requirements in accordance with DoD 5200.2-R, Personnel Security Program: •
Attainment of U.S. citizenship.
•
Favorable adjudication of an SSBI.
•
Residency in the United States for 2 years prior to enlistment, plus a minimum of 1 year of military service (the military service requirement does not apply to health care professionals commissioned under MAVNI).
•
For assignment to positions in the Intelligence Community or positions requiring a Top Secret security clearance (including access to sensitive compartmented information), the U.S. residency requirement is 5 years, of which 2 must be in military service. In addition to the above citizenship and investigative requirements, MAVNI personnel requiring Top Secret security clearances may be subject to a polygraph.
The SSBI must provide full investigative coverage if a MAVNI participant' s assigned duties include providing assistance in a military mission where the unauthorized disclosure or manipulation of information could: (1) jeopardize human life or safety, (2) cause grave damage to intelligence sources and methods vital to national security, or (3) compromise technologies,
0
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 33 of 52
operational plans, or security procedures vital to the strategic advantage of the United States and its allies. If the SSBI reveals derogatory information that cannot be mitigated, an issue-specific polygraph examination to resolve any remaining personnel security issues may be offered to applicants, subject to their voluntary consent. Component Senior Intelligence Officials or Combatant Commands may waive the clearance-specific residency and time in service requirements under compelling operational needs. The Military Departments and Combatant Commands will provide the Office of the Under Secretary of Defense for Intelligence a copy of all waivers granted under this authority. The original eligibility requirement of 2 years ' U.S. residency for all MAVNI program applicants may not be waived. Component Senior Intelligence Officials will ensure their component's MAVNI screening and monitoring plan conforms to these guidelines prior to implementing the MAVNI program. My point of contact for MAVNI background investigations is Mr. Steve Lewis at (703) 604-2768 or
[email protected]. For CI screening and monitoring of MAVNI personnel, please contact Ms. Angela Recker at (703) 697-4853 or
[email protected].
Michael G. Vickers
Attachments: As stated cc: Joint Staff Combatant Commands
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 34 of 52
ARENDT DECLARATION EXHIBIT 4 Memorandum from Under Secretary of Defense for Personnel and Readiness to Secretary of Army, Navy, Air Force (Sept. 25, 2014)
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 35 of 52 UNDER SECRETARY OF DEFENSE 4000 DEFENSE PENTAGON WASHINGTON, D.C. 20301-4000
SEP 2 5 2014 PERSONNEL AND READINESS
MEMORANDUM FOR SECRETARY OF THE ARMY SECRETARY OF THE NAVY SECRETARY OF THE AIR FORCE SUBJECT: Military Accessions Vital to National Interest Program Changes The Military Accessions Vital to National Interest pilot program is currently set to expire on September 30, 2014. This memorandum extends the Military Accessions Vital to National Interest pilot program through the end of Fiscal Year 2016, and expands the categories of individuals who are eligible to be considered for enlistment under the Military Accessions Vital to National Interest program. In addition to the categories of individuals specified as eligible in the Military Accessions Vital to National Interest program memorandum dated May 16, 2012, individuals who have been granted deferred action by the Department of Homeland Security pursuant to the Deferred Action for Childhood Arrivals process are now also eligible for consideration. All other eligibility criteria remain in force. The Military Departments shall review and ensure that all program guidelines have been implemented and are in effect before commencing Military Accessions Vital to National Interest recruiting programs for Fiscal Year 2015. If a Military Service desires an increase to its previously approved maximum number of accessions under this program, a written request should be submitted to the Under Secretary of Defense for Personnel and Readiness.
cc: Chairman of the Joint Chiefs of Staff Chief of the National Guard Bureau Assistant Secretary of the Army for Manpower and Reserve Affairs Assistant Secretary of the Navy for Manpower and Reserve Affairs Assistant Secretary of the Air Force for Manpower and Reserve Affairs
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 36 of 52
ARENDT DECLARATION EXHIBIT 5 Memorandum from Department of the Army, Office of the Assistant Secretary, Manpower and Reserve Affairs to Army Deputy Chiefs of Staff (Jan. 6, 2017)
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 37 of 52 DEPARTMENT OF THE ARMY OFFICE OF THE ASSISTANT SECRETARY MANPOWER AND RESERVE AFFAIRS 111 ARMY PENTAGON WASHINGTON, DC 20310-0111
SAMR
6 JAN 2017
MEMORANDUM FOR Deputy Chief of Staff, G-1, 300 Army Pentagon, Washington, DC 20310-0300 Deputy Chief of Staff, G-2, 1000 Army Pentagon, Washington, DC 20310-1000 SUBJECT: Authority to Reinstate the Military Accessions Vital to the National Interest Pilot Program
1. References: a. Memorandum, Under Secretary of Defense (Personnel and Readiness), 30 September 2016, subject: Military Accessions Vital to the National Interest Pilot Program Extension. b. Memorandum, Under Secretary of Defense (Personnel and Readiness), 30 September 2016, subject: Military Accessions Vital to the National Interest Pilot Program. 2. In accordance with reference, 1a, I hereby authorize the Deputy Chief of Staff (DCS), G-1 to reinstate the Military Accessions Vital to the National Interest (MAVNI) program for 2017 only after the currently enlisted MAVNI population (in the: permanent party, training base, and Delayed Entry Pool) have received the required background investigations and have received a favorably adjudicated suitability determination or have initiated the separation process. This authority will expire on 30 September 2017 unless rescinded earlier. 3. Additionally, per reference 1a, the DCS G-2 must ensure that all individuals who enlisted via the MAVNI program are subjected to continuous monitoring (annual NIAC check) throughout their period of service. 4. Until such time as the DCS G-1 has notified me, in writing, that all individuals who enlisted via the MAVNI program prior to 30 September 2016 have received a favorable military suitability determination or have initiated the separation process; and the DCS G-2 has notified me, in writing, that continuous monitoring is underway; no new MAVNI enlistments are authorized. 5. All MAVNI applicants must submit to a National Intelligence Agency Check (NIAC), a Tier 3 (formerly National Agency Check with Law and Credit) or Tier 5 (formerly Single Scope Background Investigation) Personnel Security Investigation (as applicable), completion of a Counterintelligence (Cl) - Security Interview, a polygraph examination as applicable and a favorable military suitability recommendation rendered by the DoD Consolidated Adjudications Facility (DoD CAF).
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 38 of 52 SAMR SUBJECT: Authority to Reinstate the Military Accessions Vital to the National Interest Pilot Program
6. In accordance with reference, 1b, in order to remain eligible to ship to basic training, all MAVNI applicants must remain in a valid immigration status until they enter active duty or active duty for training. 7. I direct that Soldiers who do not receive a favorable NIAC result or a favorable military suitability determination from their background investigation (Tier 3 or Tier 5) be processed for separation IAW AR 625-200 or AR 135-178. Additionally, if a Soldier is determined to be unfit for citizenship by the United States Citizenship and Immigration Service (USCIS), the Soldier will be processed for separation. I further direct that any Soldier discharged under these authorities receive a Re-Entry (RE) code of 4. 8. MAVNI enlistees must receive favorable NIAC results and a favorable military suitability determination before being authorized to ship to Basic Training. Exceptions are not authorized except through written authorization by the Deputy Assistant Secretary of the Army (Military Personnel/Quality of Life) (DASA-MPQ). 9. MAVNI enlistees (excluding HCPs and Chaplains) are ineligible to reclassify, apply for officer producing programs or positions/programs that require a security clearance during their initial term of enlistment. For purposes of reenlistment into a Military Occupational Specialty requiring a security clearance or access, individuals must have a favorably adjudicated Tier 3 or Tier 5 background investigation rendered by the DoD CAF, a completed Cl-Security Interview and favorable annual continuous monitoring results. Exceptions to reclassify are not authorized except through written approval by the Deputy Assistant Secretary of the Army (Military Personnel/Quality of Life) (DASA-MPQ). 10. The DCS G-1 and DCS G-2 will factor in associated costs for screening, background investigations and Cl-Security Interviews into their annual budget. Ensure that the Army Budget Office is informed of all associated costs. 11. The DCS G-1 is required to submit a quarterly report, as well as an annual report NLT 30 September each year, through the DASA MPQ, to this office that addresses the following: • Annual MAVNI accession numbers by language and MOS. • Number of MAVNI applicants who failed to receive favorable adjudication • Results of the Army's continuous monitoring program (separate report may be required due to potentially sensitive material). • A consolidated list that contains: Name, DoD ID number, job title, unit of assignment, country of origin, native language, and security clearance classification if any. 12. Point of contact for this action is Mr. Lin H. St. Clair,
[email protected] or 703695-4423.
~~ DEBRA S. WADA
2
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 39 of 52
ARENDT DECLARATION EXHIBIT 6 Memorandum from the Under Secretary of Defense (Personnel and Readiness) to Director, Department of Defense Consolidated Adjudications Facility (Apr. 5, 2017)
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 40 of 52
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 41 of 52
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 42 of 52
ARENDT DECLARATION EXHIBIT 7 Memorandum from the Department of the Army, Office of the Assistant Secretary, Manpower and Reserve Affairs to Under Secretary of Defense (Personnel and Readiness) (Apr. 24, 2017)
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 43 of 52
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 44 of 52
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 45 of 52
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 46 of 52
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 47 of 52
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 48 of 52
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 49 of 52
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 50 of 52
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 51 of 52
ARENDT DECLARATION EXHIBIT 8 Memorandum from Assistant Secretary of Defense, Manpower and Reserve Affairs to Assistant Secretary of the Army, Manpower and Reserve Affairs May 5, 2017)
Case 2:17-cv-00242-TSZ Document 23-1 Filed 05/08/17 Page 52 of 52
