In the weeks leading up to a critical annual U.S. report on human trafficking that publicly shames the world’s worst offenders, human rights experts at the State Department concluded that trafficking conditions hadn’t improved in Malaysia and Cuba. And in China, they found, things had grown worse.
The State Department’s senior political staff saw it differently — and they prevailed.
A Reuters examination, based on interviews with more than a dozen sources in Washington and foreign capitals, shows that the government office set up to independently grade global efforts to fight human trafficking was repeatedly overruled by senior American diplomats and pressured into inflating assessments of 14 strategically important countries in this year’s Trafficking in Persons report.
In all, analysts in the Office to Monitor and Combat Trafficking in Persons – or J/TIP, as it’s known within the U.S. government — disagreed with U.S. diplomatic bureaus on ratings for 17 countries, the sources said.
The analysts, who are specialists in assessing efforts to combat modern slavery – such as the illegal trade in humans for forced labor or prostitution – won only three of those disputes, the worst ratio in the 15-year history of the unit, according to the sources.
As a result, not only Malaysia, Cuba and China, but countries such as India, Uzbekistan and Mexico, wound up with better grades than the State Department’s human-rights experts wanted to give them, the sources said. (Graphic looking at some of the key decisions here: reut.rs/1gF2Wz5)
The final decision on disputed rankings this year was made in meetings attended by some of the State Department’s most powerful diplomats, including Deputy Secretary of State Tony Blinken, Under Secretary of State for Political Affairs Wendy Sherman and Kerry’s Chief of Staff, Jonathan Finer, according to the sources.
On July 29th, the Senate Foreign Relations Committee (SFRC) cleared 11 ambassador nominees for the State Department, and two nominees for USAID, including Gayle Smith, nominated as Rajiv Shah’s successor as USAID administrator. It also cleared 1 Foreign Service list with 181 names.
Sheila Gwaltney, of California, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Kyrgyz Republic.
Perry L. Holloway, of South Carolina, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Co-operative Republic of Guyana.
Kathleen Ann Doherty, of New York, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Cyprus.
Hans G. Klemm, of Michigan, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to Romania.
James Desmond Melville, Jr., of New Jersey, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Estonia.
Peter F. Mulrean, of Massachusetts, a Career Member of the Senior Foreign Service, Class of Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Haiti.
Laura Farnsworth Dogu, of Texas, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Nicaragua.
Samuel D. Heins, of Minnesota, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Kingdom of Norway.
Paul Wayne Jones, of Maryland, a Career Member of the Senior Foreign Service, Class of Career Minister, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Poland.
Michele Thoren Bond, of the District of Columbia, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be an Assistant Secretary of State (Consular Affairs), vice Janice L. Jacobs, resigned.
Sarah Elizabeth Mendelson, of the District of Columbia, to be Representative of the United States of America on the Economic and Social Council of the United Nations, with the rank of Ambassador.
Sarah Elizabeth Mendelson, of the District of Columbia, to be an Alternate Representative of the United States of America to the Sessions of the General Assembly of the United Nations, during her tenure of service as Representative of the United States of America on the Economic and Social Council of the United Nations.
UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT
Gayle Smith, of Ohio, to be Administrator of the United States Agency for International Development, vice Rajiv J. Shah, resigned.
Thomas O. Melia, of Maryland, to be an Assistant Administrator of the United States Agency for International Development, vice Paige Eve Alexander, resigned.
PN573 – 1 FOREIGN SERVICE nominations (181) beginning Maura Barry Boyle, and ending Anthony Wolak, which nominations were received by the Senate and appeared in the Congressional Record of June 10, 2015.
The above ambassador nominees will join nine (9) other nominees previously cleared by the SFRC who are currently waiting for a vote in the full Senate. If these ambassador nominees are not confirmed before the Senate takes its August recess next week, they will be stuck in D.C. until after the Senate returns in early September.
On July 22, The Hill reported that the Gowdy committee investigating the 2012 Benghazi attacks announced it has called on one of Secretary of State John Kerry’s top aides to appear this week. The panel apparently wanted Jon Finer, Kerry’s chief of staff, to appear on July 29th to discuss the State Department’s compliance with the panel’s investigation.
Late on July 27, The Hill reported that the State Department has agreed to release 5,000 pages of documents to the House Select Committee on Benghazi tomorrow, July 28. This document release temporarily cancels Mr. Finer’s appearance before the panel but chairman Trey Gowdy (R-S.C.) has not ruled out any future appearance.
The new document dump comes after a standoff between the State Department and the House panel, which had previously ordered a top aide to Secretary of State John Kerry to testify on Wednesday.
After the department committed to releasing the 5,000 new pages to the committee, the hearing with that aide — Kerry’s chief of staff, Jon Finer — will be postponed until after Kerry has completed a marathon string of briefings and hearings to sell the international nuclear deal with Iran.
“If the State Department does not fulfill this production, or if production continues to be anemic and underwhelming, we will move forward with scheduling a compliance hearing before the committee,” he added.
The Hill State Dept to release 5,000 pages to Benghazi panel: The State Department has agreed to release 5,000… http://t.co/Rq0Cb88AHq
According to the Foreign Affairs Manual, the Act of August 26, 1950 (64 Stat. 476), codified at 5 U.S.C. 7532, “confers upon the Secretary of State the authority, in the Secretary’s absolute discretion, to suspend without pay any civilian officer or employee of the Department (including the Foreign Service of the United States) when deemed necessary in the interest of the national security (see 12 FAM 235.2).”
Section 610 (2)(c)(1) of S.1635 says that in order to promote the efficiency of the Service, the Secretary may suspend a member of the Service without pay when—
(A) the member’s security clearance is suspended; or
(B) there is reasonable cause to believe that the member has committed a crime for which a sentence of imprisonment may be imposed.
The new language indicates suspension without pay (SWOP) whenever the security clearance is suspended for whatever reason. Not just for national security reasons anymore, folks.
The most widely reported FSO with a suspended clearance in recent memory is Peter Van Buren whose TS clearance was suspended for about a year. Under this proposed bill, PVB would not have been assigned to a telework position or paid for the duration of his fight with the State Department. Which means he and others like him would have to quit and find a paying job or starve unless he/she has a savings account that can sustain the investigation for a year or years.
Any FS employee who might dissent or engage in whistleblowing activity, any perceived troublemaker for that matter, can be put on SWOP, and that would be it. An FSO who experienced first hand the suspension of a security clearance put this in very stark terms:
In practical terms they can remove the employee instantly, without telling anyone why until much later, by which time the employee will have resigned unless they can afford to go for months or years without a salary. And once the employee has resigned, the case is closed, the former employee loses their clearance because they resigned, and with it any right to know the reasons for the suspension. If the employee quits, the Department does not have to justify itself to anyone, and if the Department doesn’t have to pay them, 99.9 percent will quit.
We want to look at the numbers of suspension and revocation, unfortunately, this is something that is not publicly available from Diplomatic Security. A source speaking on background put the numbers very low at less than 30 suspensions a year and of those probably less than 5 are revocations. Another source long familiar with this issue guesstimate the number as closer to 70-80 suspension per year, and the number of revocations probably at15-20 per year. We are unable to verify these numbers independently. The higher numbers may be due to greater hiring, as well as to the use of “Scattered Castles,” a computer database that lists all prior security clearance determinations by other agencies which may prompt a suspension and re-investigation of the clearance. But even if we take the higher numbers of 80 suspensions, that is still a small number compared to the total FS workforce.
A source not authorized to speak on this subject told us that the bulk of security clearance suspensions and revocations involve personal behavior issues ranging from alleged sexual misconduct to alcohol abuse, to failure to report on time a relationship that should be reported. Very few security clearance cases involve a matter that is criminal, so very few result in prosecution.
The question then becomes why? Why would Congress want this? And just as important, why does the State Department support this?
The long history of this section of the bill reportedly dates back to Condoleezza Rice’s term at the State Department. It was allegedly intended to create parity between Foreign Service (FS) and Civil Service (CS) employees.
State can indeed put CS employees on SWOP as soon as clearance is suspended, but the rules also gives CS employees appeal rights to the Merit Systems Protection Board (MSPB). We understand that MSPB records and procedures are public and that it is specifically granted authority to review security clearance cases. The FS employees do not have the same protection with the Foreign Service Grievance Board. The final review adjudicative body, the Security Appeals Panel, not part of FSGB, allegedly does not even keep records of its deliberative process or set precedent for future cases. Currently, the rules on the FAM says: “If the individual is represented by counsel or other representative, the representative does not have a right to have access to or to review any material. However, to the extent authorized by the individual and the Department, the representative may review material that the individual has access to pursuant to subsection (b) above if he or she is properly cleared.”
The numbers of suspension/revocation are low but Congress doesn’t have to talk about the numbers. The members can talk about getting rid of bad apples in the government, which is always popular. In doing so, Congress can look tough on security, tough on the State Department and tough on keeping tabs on government money.
This is not a good idea. If only a quarter of all suspensions end in revocation, isn’t the USG throwing money and lives away? In addition to our concern that this could be use by the State Department to shut-up dissenters or potential whistleblowers, we also have the following concerns:
Costs in hiring/training
The USG has a lengthy hiring process for FS employees and typically trains them before sending them to posts overseas. The cost of that investment does not come cheap. Members of the FS also go through language training and spends most of their careers in overseas assignments.The length of time to replace/train/deploy an FS employee is significantly longer than the time to replace a CS employee.
FS family logistics
FS members overseas with suspended clearance are normally sent home to a desk job that does not require a clearance or their expertise. Not all FS members have houses to come home to in the WashDC area. They’ll have to pull kids out of schools, and move their entire household. What happens to them in DC if the employee is without work and without pay under this proposal? A suspension in this case would technically be a firing as the FS employee will be forced to find an alternate job that pays. So what happens when the case is resolved without a revocation, will the employee be able to come back? Since the investigation ends when the employee leaves, there is no win here for the employee.
Prime targets of hostile intel service
FS employees spends most of their career overseas. By virtue of their positions, they are prime targets of any hostile intel service. They can be subject of a security investigation though no fault of their own. This is even more concerning with the OPM hack purportedly conducted by a foreign government. If true that a foreign government now has the personal details of over 20 million security clearance holders, including those in the State Department who used OPM’s e-Qip system, how does one even protect oneself from the potential misuse of that information that can lead to a clearance suspension?
What can you do?
As we have posted earlier, the State Authorization bill was offered as an amendment when the NDAA was debated in the Senate in June but it was not voted on when the NDAA passed on June 18 (That would be H.R. 1735 which passed 215 (71-25) We understand that both chambers are now starting the process to bring the bill to conference in order to resolve differences. The State Authorization bill, we are told, will not be part of those discussions. In order for this to move forward, it will either need to be brought to the floor as a stand alone vote or Corker/Cardin could try again to attach it to another piece of legislation. Given that this is the first authorization bill passed by the SFRC in 5 years, and made it through the committee with bi-partisan support, we suspect that this might not be the end of this bill.
We’re hoping that employees’ fundamental rights and due process do not become casualties particularly in gaining concessions from Congress on the overseas comparability pay (CP) fight. That would be a terrible bargain. Educate your elected representative on the consequences of this section of the bill. See that AFSA is tracking this matter and talking to Congress.
In December 2008, then Illinois Gov. Rod Blagojevich and his chief of staff, John Harris, were arrested for what U.S. Atty. Patrick Fitzgerald called a “political corruption crime spree” that included attempts to sell the U.S. Senate seat vacated by President-elect Barack Obama. He was accused of talking on FBI recordings about plotting to extract a $1.5 million campaign contribution from U.S. Rep. Jesse Jackson Jr.—in exchange for appointing Jackson to Obama’s vacated seat. Via Politico:
A federal criminal complaint detailed Blagojevich’s attempt to cash in on his power to appoint Obama’s replacement by first attempting to arrange a presidential cabinet appointment. When that failed, Blagojevich hoped for an ambassadorship.
Specifically, India or South Africa …er, no, India.
Via Lapham’s Quarterly
Just to show how little Blago and his chief of staff knew about the diplomatic service. Blagojevich in one recording says, “How much would you think a position like that would pay? I mean, again, this requires a lot of travel, it’s a lot of work. A reasonable…” The chief of staff responds, “Well, I mean you’d get an expense account. So it’s not all in pay.”
In 2015, the caps for Senior Foreign Service pay is between $172,074 – $183,300. He would have received hardship and COLA differentials. They’re currently 20% + 10% respectively of basic pay for FS employees assigned in New Delhi. The ambassador’s expense account? Teh-heh! Best read Bloomberg’s The Economics of Being a U.S. Ambassador.
Poor sod probably did not realize that the Indian monsoon would also ruin his properly combed hat.
In any case, for those who were hoping that Blago’s case would temper similar arrangements in the future will be disappointed. On June 22, the United States District Court for the Northern District of Illinois dismissed five of the 18 counts and ordered that the former governor be resentenced. Below is an excerpt from the Appeals Court ruling dated July 21, 2015.
Blagojevich now asks us to hold that the evidence is insufficient to convict him on any count. The argument is frivolous. The evidence, much of it from Blagojevich’s own mouth, is overwhelming. To the extent there are factual disputes, the jury was entitled to credit the prosecution’s evidence and to find that Blagojevich acted with the knowledge required for conviction.
But a problem in the way the instructions told the jury to consider the evidence requires us to vacate the convictions on counts that concern Blagojevich’s proposal to appoint Valerie Jarrett to the Senate in exchange for an appointment to the Cabinet. A jury could have found that Blagojevich asked the President-‐‑elect for a private-sector job, or for funds that he could control, but the instructions permitted the jury to convict even if it found that his only request of Sen. Obama was for a position in the Cabinet. The instructions treated all proposals alike. We conclude, however, that they are legally different: a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment.
Because the instructions do not enable us to be sure that the jury found that Blagojevich offered to trade the appointment for a private salary after leaving the Governorship, these convictions cannot stand. Compare Yates v. United States, 354 U.S. 298 (1957), and United States v. Rivera Borrero, 771 F.3d 973 (7th Cir. 2014), with Griffin v. United States, 502 U.S. 46 (1991). (Perhaps because the jury deadlocked at the first trial, the United States does not seriously contend that any error was harmless; a one-line statement in the brief differs from an argument. Cf. Hedgpeth v. Pulido, 555 U.S. 57, 60–62 (2008) (an error of this kind is not “structural”).)
McCormick describes the offense as a quid pro quo: a public official performs an official act (or promises to do so) in exchange for a private benefit, such as money. See also United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404– 05 (1999); United States v. McDonnell, 2015 U.S. App. LEXIS 11889 (4th Cir. July 10, 2015). A political logroll, by contrast, is the swap of one official act for another. Representative A agrees with Representative B to vote for milk price supports, if B agrees to vote for tighter controls on air pollution. A President appoints C as an ambassador, which Senator D asked the President to do, in exchange for D’s promise to vote to confirm E as a member of the National Labor Relations Board. Governance would hardly be possible without these accommodations, which allow each public official to achieve more of his principal objective while surrendering something about which he cares less, but the other politician cares more strongly.
A proposal to appoint a particular person to one office (say, the Cabinet) in exchange for someone else’s promise to appoint a different person to a different office (say, the Senate), is a common exercise in logrolling. We asked the prosecutor at oral argument if, before this case, logrolling had been the basis of a criminal conviction in the history of the United States. Counsel was unaware of any earlier conviction for an exchange of political favors. Our own research did not turn one up. It would be more than a little surprising to Members of Congress if the judiciary found in the Hobbs Act, or the mail fraud statute, a rule making everyday politics criminal.
Let’s work this through statute by statute. Section 1951, the Hobbs Act, which underlies Counts 21 and 22, forbids interference with commerce by robbery or extortion. Blagojevich did not rob anyone, and extortion, a defined term, “means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right” (§1951(b)(2)). The indictment charged Blagojevich with the “color of official right” version of extortion, but none of the evidence suggests that Blagojevich claimed to have an “official right” to a job in the Cabinet. He did have an “official right” to appoint a new Senator, but unless a position in the Cabinet is “property” from the President’s perspective, then seeking it does not amount to extortion. Yet a political office belongs to the people, not to the incumbent (or to someone hankering after the position). Cleveland v. United States, 531 U.S. 12 (2000), holds that state and municipal licenses, and similar documents, are not “property” in the hands of a public agency. That’s equally true of public positions. The President-elect did not have a property interest in any Cabinet job, so an attempt to get him to appoint a particular person to the Cabinet is not an attempt to secure “property” from the President (or the citizenry at large).
Sekhar v. United States, 133 S. Ct. 2720 (2013), shows that the phrase “obtaining of property” in the Hobbs Act must not be extended just to penalize shady dealings. Sekhar holds that a recommendation about investments is not “property” under §1951(b)(2) for two principal reasons: first, in the long history of extortion law it had never before been so understood (similarly, political logrolling has never before been condemned as extortion); second, the making of a recommendation is not transferrable. The Court restricted “property” to what one owner can transfer to another. By that standard a job in the Cabinet (or any other public job) is not “property” from the employer’s perspective. It is not owned by the person with appointing power, and it cannot be deeded over. The position may be filled by different people, but the position itself is not a transferrable property interest. A position is “held” or “occupied” but not “obtained,” and under Sekhar something that cannot be “obtained” also cannot be the subject of extortion.
Section 666, the basis (through a conspiracy charge) of Count 23, forbids theft or bribery in publicly funded programs (of which the State of Illinois is one). Count 23 relies on §666(a)(1)(B), which makes it a crime for an agent of a covered organization to solicit “corruptly … anything of value” in connection with a transaction worth $5,000 or more. “Corruptly” refers to the recipient’s state of mind and indicates that he understands the payment as a bribe or gratuity. United States v. Hawkins, 777 F.3d 880, 882 (7th Cir. 2015). It would not be plausible to describe a political trade of favors as an offer or attempt to bribe the other side.
So if a Governor appoints someone to a public commission and proclaims the appointee “the best person for the job,” while the real reason is that some state legislator had asked for a friend’s appointment as a favor, then the Governor has committed wire fraud because the Governor does not actually believe that the appointee is the best person for the job. That’s not a plausible understanding of §1346, even if (as is unlikely) it would be valid under the First Amendment as a criminal penalty for misleading political speech. And no matter what one makes of the subject, the holding of Skilling v. United States, 561 U.S. 358 (2010), prevents resort to §1346 to penalize political horse-trading. Skilling holds that only bribery and kickbacks violate §1346. So unless political logrolling is a form of bribery, which it is not, §1346 drops out.
The prosecutor insists, however, that Blagojevich’s situation is different and uncommon because he sought a post in the Cabinet for himself. It isn’t clear to us that this is unusual. The current Secretary of State was appointed to that position from a seat in the Senate, and it wouldn’t surprise us if this happened at least in part because he had performed a political service for the President. Ambassadors, too, come from the House or Senate (or from state politics) as part of political deals.
Some historians say that this is how Earl Warren came to be Chief Justice of the United States: he delivered the California delegation at the 1952 Republican convention to Eisenhower (rather than Senator Taft) in exchange for a commitment to appoint him to the next vacancy on the Supreme Court.
If the prosecutor is right, and a swap of political favors involving a job for one of the politicians is a felony, then if the standard account is true both the President of the United States and the Chief Justice of the United States should have gone to prison. Yet although historians and political scientists have debated whether this deal was made, or whether if made was ethical (or politically unwise), no one to our knowledge has suggested that it violated the statutes involved in this case. (Whether it might have violated 18 U.S.C. §599, and whether that statute is compatible with the First Amendment, are issues we do not address.)
Update: A source on the Hill alerted us that the State Authorization bill was offered as an amendment when the NDAA was debated in the Senate last month but it was not voted on and the NDAA passed on June 18 (That would be H.R. 1735 which passed 215 (71-25) We understand that both chambers are now starting the process to bring the bill to conference in order to resolve differences. The State Authorization bill, we are told, will not be part of those discussions. In order for this to move forward, it will either need to be brought to the floor as a stand alone vote or Corker/Cardin could try again to attach it to another piece of legislation. Given that this is the first authorization bill passed by the SFRC in 5 years, and made it through the committee with bi-partisan support, we suspect that the senators will not just easily forget about this. — DS
On June 9, 2015, U.S. Senators Bob Corker (R-Tenn.) and Ben Cardin (D-Md.), the chairman and ranking member of the Senate Foreign Relations Committee, applauded the unanimous committee passage of the Fiscal Year 2016 Department of State Operations Authorization and Embassy Security Act. The SFRC statement says that it has been five years since the Senate Foreign Relations Committee passed a State Department Authorization bill and 13 years since one was enacted into law. This State Department Authorization bill has been offered as an amendment to the National Defense Authorization Act, which currently is on the Senate floor. It is quite lengthy so we’re doing this in installments.
Below is the section on information technology system security that mandates security breach reporting, as well as making State Dept systems and networks available to the Director of the National Security Agency (NSA) and any other such departments or agencies to carry out necessary tests and procedures.
The State Department’s Consular Consolidated Database (CCD) as of 2011 contains over 137 million American and foreign case records and over 130 million photographs and is growing at approximately 40,000 visa and passport cases every day. If the CCD is compromised, it would be a jackpot for hackers that would make the OPM hack severely pales in comparison.
If this bill passes, will the penetration test by NSA on one of the world’s largest data warehouses finally happen?
Section 206.Information technology system security
The Secretary shall regularly consult with the Director of the National Security Agency and any other departments or agencies the Secretary determines to be appropriate regarding the security of United States Government and nongovernment information technology systems and networks owned, operated, managed, or utilized by the Department, including any such systems or networks facilitating the use of sensitive or classified information.
In performing the consultations required under subsection (a), the Secretary shall make all such systems and networks available to the Director of the National Security Agency and any other such departments or agencies to carry out such tests and procedures as are necessary to ensure adequate policies and protections are in place to prevent penetrations or compromises of such systems and networks, including by malicious intrusions by any unauthorized individual or state actor or other entity.
(c)Security breach reporting
Not later than 180 days after the date of the enactment of this Act, and every 180 days thereafter, the Secretary, in consultation with the Director of the National Security Agency and any other departments or agencies the Secretary determines to be appropriate, shall submit a report to the appropriate congressional committees that describes in detail—
(1)all known or suspected penetrations or compromises of the systems or networks described in subsection (a) facilitating the use of classified information; and
(2)all known or suspected significant penetrations or compromises of any other such systems and networks that occurred since the submission of the prior report.
Each report submitted under subsection (c) shall include—
(1)a description of the relevant information technology system or network penetrated or compromised;
(2)an assessment of the date and time such penetration or compromise occurred;
(3)an assessment of the duration for which such system or network was penetrated or compromised, including whether such penetration or compromise is ongoing;
(4)an assessment of the amount and sensitivity of information accessed and available to have been accessed by such penetration or compromise, including any such information contained on systems and networks owned, operated, managed, or utilized by any other department or agency of the United States Government;
(5)an assessment of whether such system or network was penetrated by a malicious intrusion, including an assessment of—
(A)the known or suspected perpetrators, including state actors; and
(B)the methods used to conduct such penetration or compromise; and
(6)a description of the actions the Department has taken, or plans to take, to prevent future, similar penetrations or compromises of such systems and networks.
Update: A source on the Hill alerted us that the State Authorization bill was offered as an amendment when the NDAA was debated in the Senate last month but it was not voted on and the NDAA passed on June 18 (That would be H.R. 1735 which passed 215 (71-25) We understand that both chambers are now starting the process to bring the bill to conference in order to resolve differences. The State Authorization bill, we are told, will not be part of those discussions. In order for this to move forward, it will either need to be brought to the floor as a stand alone vote or Corker/Cardin could try again to attach it to another piece of legislation. Given that this is the first authorization bill passed by the SFRC in 5 years, and made it through the committee with bi-partisan support, we suspect that the this is not the end of this bill. We hope to write a follow-up post on the security clearance component of this legislation. — DS
On June 9, 2015, U.S. Senators Bob Corker (R-Tenn.) and Ben Cardin (D-Md.), the chairman and ranking member of the Senate Foreign Relations Committee, applauded the unanimous committee passage of the Fiscal Year 2016 Department of State Operations Authorization and Embassy Security Act. The SFRC statement says that it has been five years since the Senate Foreign Relations Committee passed a State Department Authorization bill and 13 years since one was enacted into law.
“Our committee has a responsibility to ensure limited federal resources for the State Department are used in a cost-effective manner to advance U.S. interests,” said Corker. “This effort takes a modest but important step toward reestablishing oversight of the State Department through an annual authorization, which hasn’t been enacted into law since 2002. In addition to prioritizing security upgrades for U.S. personnel at high threat posts, the legislation lays the groundwork to streamline State Department operations and make them more effective.”
This State Department Authorization bill has been offered as an amendment to the National Defense Authorization Act, which currently is on the Senate floor. It is quite lengthy so we will chop this down in bite sizes.
Below is the part related to the suspension of security clearance. If this bill passes, it means placing a member of the Foreign Service in a temporary status without duties and without pay once a determination to suspend clearance has been made. Diplomats with suspended clearances are typically given desk jobs or telecommuting work that require little or none of their expertise; looks like this bill changes that. The bill does not say what happens (does he/she gets back pay?) if the suspension of clearance does not result in revocation and the employee is reinstated. Or if suspended employees with no work/no pay will be allowed to take temporary jobs while waiting for the resolution of their suspended clearances.
Section 216. Security clearance suspensions
Section 610 of the Foreign Service Act of 1980 (22 U.S.C. 4010) is amended—
(1)by striking the section heading and inserting the following:
610.Separation for cause; suspension
(2)by adding at the end the following:
(1)In order to promote the efficiency of the Service, the Secretary may suspend a member of the Service without pay when—
(A)the member’s security clearance is suspended; or
(B)there is reasonable cause to believe that the member has committed a crime for which a sentence of imprisonment may be imposed.
(2)Any member of the Foreign Service for whom a suspension is proposed under this subsection shall be entitled to—
(A)written notice stating the specific reasons for the proposed suspension;
(B)a reasonable time to respond orally and in writing to the proposed suspension;
(C)representation by an attorney or other representative; and
(D)a final written decision, including the specific reasons for such decision, as soon as practicable.
(3)Any member suspended under this subsection may file a grievance in accordance with the procedures applicable to grievances under chapter 11.
(4)If a grievance is filed under paragraph (3)—
(A)the review by the Foreign Service Grievance Board shall be limited to a determination of whether the provisions of paragraphs (1) and (2) have been fulfilled; and
(B)the Board may not exercise the authority provided under section 1106(8).
(5)In this subsection:
(A)The term reasonable time means—
(i)with respect to a member of the Foreign Service assigned to duty in the United States, 15 days after receiving notice of the proposed suspension; and
(ii)with respect to a member of the Foreign Service assigned to duty outside the United States, 30 days after receiving notice of the proposed suspension.
(B)The terms suspend and suspension mean placing a member of the Foreign Service in a temporary status without duties and pay.
On June 30, Secretary Kerry announced the appointment of Lee Wolosky, as the State Department’s Special Envoy for Guantanamo Closure:
Today, I am pleased to announce the appointment of Lee Wolosky, as the State Department’s Special Envoy for Guantanamo Closure. Lee will lead our ongoing diplomatic engagement to make possible the closure of the Guantanamo detention facility in a timely manner, consistent with American interests and the security of our people.
Lee Wolosky is a highly-skilled and experienced attorney who served as the National Security Council’s Director for Transnational Threats under Presidents Clinton and George W. Bush. He is ideally qualified to continue the hard diplomatic engagement that is required to close Guantanamo in accordance with President Obama’s directives. Lee will assume lead responsibility for arranging for the transfer of Guantanamo detainees abroad and for implementing transfer determinations, and overseeing the State Department’s participation in the periodic reviews of those detainees who are not approved for transfer.
In so doing, he will engage directly with America’s overseas friends and partners, while consulting closely with other interested U.S. agencies and with the appropriate committees of Congress.
I am very pleased at Lee’s decision to return to government service and look forward to working closely with him in his new position.
The State Department says that the incoming special envoy has not yet visited the detention facility at Guantanamo but that Mr. Wolosky, whose new appointment does not require Senate confirmation, “intends to visit the detention facility and meet with the detention facility leadership very soon.”
Mr. Wolosky is the third appointee to this position since it was created in 2009.
In January 2013, the NYT reported that Daniel Fried, the first special envoy for Gitmo closure was reassigned, his office closed, and his former responsibilities “assumed” by the office of the department’s legal adviser. Via NYT:
Mr. Fried’s special envoy post was created in 2009, shortly after Mr. Obama took office and promised to close the prison in his first year. A career diplomat, Mr. Fried traveled the world negotiating the repatriation of some 31 low-level detainees and persuading third-party countries to resettle about 40 who were cleared for release but could not be sent home because of fears of abuse.
But the outward flow of detainees slowed almost to a halt as Congress imposed restrictions on further transfers, leaving Mr. Fried with less to do. He was eventually assigned to work on resettling a group of Iranian exiles, known as the M.E.K., who were living in a refugee camp in Iraq, in addition to his Guantánamo duties.
But in June 2013, the AP reported that President Obama had chosen a high-powered Washington lawyer Clifford Sloan to reopen the State Department’s Office of Guantanamo Closure, shuttered since January 2013 and folded into the department’s legal adviser’s office “when the administration, in the face of congressional obstacles, effectively gave up its attempt to close the prison.”
Sixteen months later, Secretary Kerry announced the departure of Special Envoy Clifford Sloan on December 22, 2014:
I’d like to have about a hundred Cliff Sloans. He’s the real deal. He’s the model of someone very successful on the outside who comes in to the State Department and builds relationships instead of burning bridges, gets people on board with a tough assignment, masters the inter-agency process, and just keeps his head down and proves the doubters dead wrong.
Now the results are clear. We’ve made huge progress thanks in large measure to Cliff. This guy promised me 18 months, and he delivered maximum effort for each of those 18 months. Cliff was very skillful negotiating with our foreign partners and allies, and it’s a big part of why we moved thirty-four detainees on his watch, with more on the way. Cliff also played a major role in our successful efforts to reform the Congressional restrictions on foreign transfers, and in launching the new Periodic Review Board process.
The NYT reported that the resignation of Mr. Sloan, apparently a close confidant of Secretary Kerry, came as officials at the State Department and the White House increasingly expressed frustration with the Defense Department’s slow pace of transferring approved prisoners. In an interview, Mr. Sloan denied that he was leaving because he was frustrated by foot-dragging at the Pentagon. He said he had always intended to stay a maximum of 18 months, noting that he was right on schedule.
This bill grants competitive status for appointment to a position in the competitive service for which the employee is qualified to any employee of the Special Inspector General for Iraq Reconstruction (SIGIR) who was not terminated for cause, and who completes at least 12 months of service at any time before the termination of the SIGIR on October 5, 2013.
The Secretary of State shall certify to Congress that the Department of State has made reasonable efforts to ensure the integrity and independence of the Office of the Inspector General Information Technology systems.
Each Department entity under the Foreign Service Act of 1980 shall report within five business days to the Inspector General (IG) any allegations of:
program waste, fraud, or abuse;
criminal or serious misconduct on the part of a Department employee at the FS-1, GS-15, GM-15 level or higher;
criminal misconduct on the part of any Department employee; and
serious, noncriminal misconduct on the part of any individual who is authorized to carry a weapon, make arrests, or conduct searches (such as conduct that would constitute perjury or material dishonesty, warrant suspension as discipline for a first offense, or result in loss of law enforcement authority).
The IG may investigate such matters.
No Department entity with concurrent jurisdiction over such matters, including the Bureau of Diplomatic Security, may initiate an investigation without first reporting the allegations to the IG.
A Department entity that initiates an investigation of such a matter must fully cooperate with the IG, unless the IG authorizes an exception.
Temporary relaxation of such restrictions may occur in exigent circumstances.
This bill was referred to the Senate Committee on Foreign Relations which will consider it before sending it to the Senate floor for consideration. According to govtrack.us, there are 5,343 bills and resolutions currently before the United States Congress. Of those, only about 5% will become law. They must be enacted before the end of the 2015-2017 session (the “114th Congress”).