10 U.S.C. § 1564b — Security vetting for foreign nationals

Page 1490 TITLE 10—ARMED FORCES § 1564b eligibility of, persons described in subsections (b)(1) and (c). (B) With the consent of, or upon the request of, the examinee, to— (i) resolve serious credible derogatory in- formation developed in connection with a personnel security investigation; or (ii) exculpate him- or herself of allegations or evidence arising in the course of a coun- terintelligence or personnel security inves- tigation. (C) To assist, in a limited number of cases when operational exigencies require the imme- diate use of a person’s services before the com- pletion of a personnel security investigation, in determining the interim eligibility for du- ties described in subsection (c) of the person. (D) With respect to persons described in sub- section (b)(2), to assist in assessing any coun- terintelligence threats identified in an author- ized investigation of foreign preference or for- eign influence risks, as described in part 147 of title 32, Code of Federal Regulations, or such successor regulations. (3) Polygraph examinations conducted under this section shall provide adequate safeguards, prescribed by the Secretary of Defense, for the protection of the rights and privacy of persons subject to this section under subsection (b) who are considered for or administered polygraph ex- aminations under this section. Such safeguards shall include the following: (A) The examinee shall receive timely notifi- cation of the examination and its intended purpose and may only be given the examina- tion with the consent of the examinee. (B) The examinee shall be advised of the examinee’s right to consult with legal counsel. (C) All questions asked concerning the mat- ter at issue, other than technical questions necessary to the polygraph technique, must have a relevance to the subject of the inquiry. (f) OVERSIGHT.—(1) The Secretary shall estab- lish a process to monitor responsible and effec- tive application of polygraph examinations within the Department of Defense. (2) The Secretary shall make information on the use of polygraphs within the Department of Defense available to the congressional defense committees. (g) POLYGRAPH RESEARCH PROGRAM.—The Sec- retary shall carry out a continuing research pro- gram to support the polygraph examination ac- tivities of the Department of Defense. The pro- gram shall include the following: (1) An on-going evaluation of the validity of polygraph techniques used by the Department. (2) Research on polygraph countermeasures and anti-countermeasures. (3) Developmental research on polygraph techniques, instrumentation, and analytic methods. (Added Pub. L. 108–136, div. A, title X, § 1041(a)(1), Nov. 24, 2003, 117 Stat. 1607; amended Pub. L. 109–163, div. A, title X, § 1054(a), Jan. 6, 2006, 119 Stat. 3436; Pub. L. 115–232, div. A, title XVI, § 1623(a)–(c), Aug. 13, 2018, 132 Stat. 2119.) Editorial Notes REFERENCES IN TEXT Executive Order No. 12958, referred to in subsec. (c)(1)(B), which was formerly set out as a note under section 435 (now section 3161) of Title 50, War and Na- tional Defense, was revoked by Ex. Ord. No. 13526, § 6.2(g), Dec. 29, 2009, 75 F.R. 731. PRIOR PROVISIONS Provisions similar to those in this section were con- tained in Pub. L. 100–180, title XI, § 1121, Dec. 4, 1987, 101 Stat. 1147, as amended, which was set out as a note under section 113 of this title, prior to repeal by Pub. L. 108–136, div. A, title X, § 1041(b), Nov. 24, 2003, 117 Stat. 1608. AMENDMENTS 2018—Subsec. (b). Pub. L. 115–232, § 1623(a), amended subsec. (b) generally. Prior to amendment, text read as follows: ‘‘Except as provided in subsection (d), the fol- lowing persons, if their duties are described in sub- section (c), are subject to this section: ‘‘(1) Military and civilian personnel of the Depart- ment of Defense. ‘‘(2) Personnel of defense contractors. ‘‘(3) A person assigned or detailed to the Depart- ment of Defense. ‘‘(4) An applicant for a position in the Department of Defense.’’ Subsec. (c). Pub. L. 115–232, § 1623(c)(1), substituted ‘‘subsection (b)(1)’’ for ‘‘subsection (b)’’ in introductory provisions. Subsec. (e)(2)(A). Pub. L. 115–232, § 1623(c)(2), sub- stituted ‘‘subsections (b)(1) and (c)’’ for ‘‘subsections (b) and (c)’’. Subsec. (e)(2)(D). Pub. L. 115–232, § 1623(b), added sub- par. (D). 2006—Pub. L. 109–163 reenacted section catchline without change and amended text generally. Prior to amendment, section related to authority for program for administration of counterintelligence polygraph ex- aminations in subsec. (a), persons covered in subsec. (b), exceptions from coverage for certain intelligence agencies and functions in subsec. (c), oversight in sub- sec. (d), and polygraph research program in subsec. (e). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2006 AMENDMENT Pub. L. 109–163, div. A, title X, § 1054(b), Jan. 6, 2006, 119 Stat. 3438, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall apply with respect to polygraph examinations administered begin- ning on the date of the enactment of this Act [Jan. 6, 2006].’’ CONSTRUCTION Pub. L. 115–232, div. A, title XVI, § 1623(d), Aug. 13, 2018, 132 Stat. 2119, provided that: ‘‘Nothing in section 1564a of title 10, United States Code, as amended by this section, shall be construed to prohibit the granting of a security clearance to persons described in subsection (b)(2) of such section absent information relevant to the adjudication process, as described in part 147 of title 32, Code of Federal Regulations, or such successor regulations.’’ § 1564b. Security vetting for foreign nationals (a) STANDARDS AND PROCESS.—(1) The Sec- retary of Defense, in coordination with the Se- curity Executive Agent established pursuant to Executive Order 13467 (73 Fed. Reg. 38103; 50 U.S.C. 3161 note), shall develop uniform and con- sistent standards and a centralized process for the screening and vetting of covered foreign in- dividuals requiring access to systems, facilities, Page 1491 TITLE 10—ARMED FORCES § 1565 1 See References in Text note below. personnel, information, or operations, of the De- partment of Defense, including with respect to the background investigations of covered for- eign individuals requiring access to classified in- formation. (2) The Secretary shall ensure that the stand- ards developed under paragraph (1) are con- sistent with relevant directives of the Security Executive Agent. (3) The Secretary shall designate an official of the Department of Defense to be responsible for executing the centralized process developed under paragraph (1) and adjudicating any infor- mation discovered pursuant to such process. (b) OTHER USES.—In addition to using the cen- tralized process developed under subsection (a)(1) for covered foreign individuals, the Sec- retary may use the centralized process in deter- mining whether to grant a security clearance to any individual with significant foreign influence or foreign preference issues, in accordance with the adjudicative guidelines under part 147 of title 32, Code of Federal Regulations, or such successor regulation. (c) COVERED FOREIGN INDIVIDUAL DEFINED.—In this section, the term ‘‘covered foreign indi- vidual’’ means an individual who meets the fol- lowing criteria: (1) The individual is— (A) a national of a foreign state; (B) a national of the United States (as such term is defined in section 101 of the Im- migration and Nationality Act (8 U.S.C. 1101)) and also a national of a foreign state; or (C) an alien who is lawfully admitted for permanent residence (as such term is defined in section 101 of the Immigration and Na- tionality Act (8 U.S.C. 1101)). (2) The individual is either— (A) a civilian employee of the Department of Defense or a contractor of the Depart- ment; or (B) a member of the armed forces. (Added Pub. L. 115–232, div. A, title XVI, § 1622(a), Aug. 13, 2018, 132 Stat. 2117.) Editorial Notes REFERENCES IN TEXT Executive Order 13467, referred to in subsec. (a)(1), is Ex. Ord. No. 13467, June 30, 2008, 73 F.R. 38103, which is set out as a note under section 3161 of Title 50, War and National Defense. § 1565. DNA identification information: collection from certain offenders; use (a) COLLECTION OF DNA SAMPLES.—(1) The Sec- retary concerned shall collect a DNA sample from each member of the armed forces under the Secretary’s jurisdiction who is, or has been, con- victed of a qualifying military offense (as deter- mined under subsection (d)). (2) For each member described in paragraph (1), if the Combined DNA Index System (in this section referred to as ‘‘CODIS’’) of the Federal Bureau of Investigation contains a DNA analysis with respect to that member, or if a DNA sample has been or is to be collected from that member under section 3(a) of the DNA Analysis Backlog Elimination Act of 2000, the Secretary con- cerned may (but need not) collect a DNA sample from that member. (3) The Secretary concerned may enter into agreements with other Federal agencies, units of State or local government, or private entities to provide for the collection of samples de- scribed in paragraph (1). (b) ANALYSIS AND USE OF SAMPLES.—The Sec- retary concerned shall furnish each DNA sample collected under subsection (a) to the Secretary of Defense. The Secretary of Defense shall— (1) carry out a DNA analysis on each such DNA sample in a manner that complies with the requirements for inclusion of that analysis in CODIS; and (2) furnish the results of each such analysis to the Director of the Federal Bureau of Inves- tigation for inclusion in CODIS. (c) DEFINITIONS.—In this section: (1) The term ‘‘DNA sample’’ means a tissue, fluid, or other bodily sample of an individual on which a DNA analysis can be carried out. (2) The term ‘‘DNA analysis’’ means analysis of the deoxyribonucleic acid (DNA) identifica- tion information in a bodily sample. (d) QUALIFYING MILITARY OFFENSES.—The of- fenses that shall be treated for purposes of this section as qualifying military offenses are the following offenses, as determined by the Sec- retary of Defense, in consultation with the At- torney General: (1) Any offense under the Uniform Code of Military Justice for which a sentence of con- finement for more than one year may be im- posed. (2) Any other offense under the Uniform Code of Military Justice that is comparable to a qualifying Federal offense (as determined under section 3(d) of the DNA Analysis Back- log Elimination Act of 2000 (42 U.S.C. 14135a(d))).1 (e) EXPUNGEMENT.—(1) The Secretary of De- fense shall promptly expunge, from the index de- scribed in subsection (a) of section 210304 of the Violent Crime Control and Law Enforcement Act of 1994, the DNA analysis of a person in- cluded in the index on the basis of a qualifying military offense if the Secretary receives, for each conviction of the person of a qualifying of- fense, a certified copy of a final court order es- tablishing that such conviction has been over- turned. (2) For purposes of paragraph (1), the term ‘‘qualifying offense’’ means any of the following offenses: (A) A qualifying Federal offense, as deter- mined under section 3 of the DNA Analysis Backlog Elimination Act of 2000. (B) A qualifying District of Columbia of- fense, as determined under section 4 of the DNA Analysis Backlog Elimination Act of 2000. (C) A qualifying military offense. (3) For purposes of paragraph (1), a court order is not ‘‘final’’ if time remains for an appeal or application for discretionary review with re- spect to the order.