‘Anchor Babies’ and the Law: An Explainer From a Former Consular Officer

Posted: 1:55 am EDT

 

NPR News writes that both Florida Sen. Marco Rubio and former Florida Gov. Jeb Bush have defended birthright citizenship, but they have said more needs to be done about women who might come into the U.S. expressly to have children. “If there’s abuse, if people are bringing, pregnant women are coming in to have babies simply because they can do it, then there ought to be greater enforcement,” Bush told conservative radio host Bill Bennett this week, as reported by Politico. Like how, or greater enforcement of what?

Birthright citizenship and “anchor baby”  are in the front burner of political campaigns these days.  The Congressional Research Service (CRS) issued this report on Birthright Citizenship Under the 14th Amendment of Persons Born in the United States to Alien Parents (via Secrecy News) back in 2012.  The report is dated January 10, 2012 but is an interesting read on the various legislative proposals and its history. There is a useful discussion of the Fourteenth Amendment and the Civil Rights Act of 1866 included in the report. In related news, denial of birth certificates to U.S. born children of undocumented immigrants in Texas is now a lawsuit in the U.S. District Court in Austin, TX.

Peter Van Buren, a consular officer by trade until his retirement from the Foreign Service has written a straight-forward explainer on this subject. Excerpted below:

Explainer: ‘Anchor Babies’ and the Law
by Peter Van Buren (We Meant Well Blog)

Thanks to brave presidential candidates Trump and Bush, et al, the term “anchor baby” is now the subject of interest and ignorance by a media preoccupied with whatever shiny object is held in front of it.

Trump wants to tear up part of the Constitution he unilaterally proclaims is unconstitutional; no one is sure what the other Republicans plan to “do” about this issue, but they sure don’t support it somehow.

Anchor Babies

So what are “anchor babies” and which parts of American law affect them?

An “anchor baby” (many find the term offensive, referring as it does to a child as an object) is a child born in the United States to a foreign citizen, legally or illegally present in the U.S., who, by virtue of the 14th Amendment to the Constitution, automatically and forever acquires American citizenship. The child need only prove s/he was born in the U.S.

The term anchor comes into play because at the age of 21 the child can begin filing green card paperwork for his/her extended family. The single American citizen in a family becomes the “anchor” through which all can eventually become legal permanent residents of the U.S. and soon after, citizens.

Many conservatives feel conveying citizenship so freely cheapens the meaning of being an “American,” and especially object to the idea that a mother illegally in the United States can birth an American citizen. Others are troubled by a growing industry that sends foreign mothers to the U.S. specifically so that they can create such citizens, so-called “birth tourism.”

The Law

The concept that anyone born in the U.S. (one exception: those born not subject to U.S. law, which has been held to apply primarily to Native Americans and to children of certain accredited foreign diplomats exempt [immune] from U.S. laws, though there are loopholes even there) is automatically an American citizen is part of the 14th Amendment to the Constitution, the so-called Citizenship Clause.

The 14th was adopted in 1868, in the aftermath of the Civil War as part of reconciling the status of millions of slaves forcibly brought to the United States. The Citizenship Clause specifically overruled the 1857 Supreme Court decision in Dred Scott v. Sandford), which had held that Americans descended from African slaves could not be citizens of the United States. The Amendment cleared up any ambiguities, stating “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

The most significant test of the 14th Amendment came in 1898, via United States v. Wong Kim Ark. The Supreme Court upheld that a child born in the United States automatically became a U.S. citizen. At issue were laws passed after the Wong child’s birth that excluded Chinese citizens from entering the U.S. The decision in Wong has been understood to mean that the legal status of the mother, as well as any secondary immigration laws below the Constitution, have no bearing on the granting of citizenship.

It can get complicated, and there have been unsuccessful efforts to overturn or reinterpret Wong in light of contemporary concerns over immigration.

For those who like their law in Latin, the idea that anyone born in a certain country automatically acquires citizenship there is called jus soli (right of soil.) The opposite, that citizenship is derived only via one’s parents, is called jus sanguinis (right of blood.) No European nation offers unrestricted jus soli, and very few other countries outside the Western Hemisphere do either.

Foreigners, Visas and Babies

While some foreigners who give birth in the U.S. enter illegally by walking across a land border, a significant number of moms enter the U.S. on visas or the rough equivalent, the visa waiver program, which provides less fettered access to citizens from certain countries, mostly Europeans. Some give birth in the U.S.; is this legal?

It is. There is no law whatsoever that prohibits someone from coming to the United States specifically to give birth here and create an “anchor baby.”

Many uninformed commentators point to two visa laws that they feel may prohibit such an act, the “public charge” provision and the fraud provision.
[…]
Birth Tourism

The current issue of Rolling Stone contains a long article on “birth tourism.” Such “tourism” is a huge business in Asia, particularly in China where rising incomes coincide with existing interest in emigration. Companies arrange for everything; a mom need only provide money. The companies legally assist the mother in obtaining a visa, arrange for her to stay in the U.S. in an apartment complex (dubbed “maternity hotels”), usually in California for convenience for flights from Asia, full of other Chinese moms, and then give birth in a local hospital staffed with Chinese-speaking doctors.
[…]
There is absolutely nothing illegal about birth tourism under U.S. law.

Read in full Explainer: ‘Anchor Babies and the Law at the We Meant Well blog.

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OIG Compliance Review: Minimum Security Standards For Overseas Facilities Remain a Hard Nut to Crack

Posted: 2:00 pm EDT

 

Three ARB-related IG reports were issued this past week, two of them, the Audit of the DOS Implementation of the Vital Presence Validation Process and the Review of the Implementation of the Benghazi Accountability Review Board Recommendation have been designated as Classified. The third one, the Compliance Followup Review of the 2013 Special Review of the Accountability Review Board Process is available in full online.

On September 25, 2013, State/OIG released its Special Review of the Accountability Review Board (ARB) Process. That report contains 20 formal and 8 informal recommendations. For the status of the 20 formal recommendations, see Appendix B of the report.  For the status of the informal recommendations, see Appendix C of the report. The OIG notes that the action taken by State at some Benghazi ARB recommendations “did not appear to align with the intent of the recommendations and some Benghazi ARB recommendations did not appear to address the underlying security issues adequately.”

Thirteen of the formal recommendations and five of the informal recommendations are related to the ARB process. The remaining seven formal and three informal recommendations mirror or are closely related to the Benghazi ARB recommendations. As stated in the ARB process review report, the ARB process team’s rationale for issuing these recommendations was that the action taken to date on some of the Benghazi ARB recommendations did not appear to align with the intent of the recommendations and some Benghazi ARB recommendations did not appear to address the underlying security issues adequately. The classified annex to the report provides an assessment of the Department’s implementation of the recommendations of the Benghazi ARB as of the date of the review. Its focus is on the implementation of the 64 tasks S/ES issued in response to the Benghazi ARB recommendations. It contains no OIG recommendations.

In the Compliance Followup Review or CFR dated August 2015, State/OIG reissued one recommendation from the 2013 inspection report, that the Under Secretary of State for Management, in coordination with the Bureau of Diplomatic Security and the Bureau of Overseas Buildings Operations, develop minimum security standards that must be met prior to occupying facilities located in designated high-risk, high-threat locations and include these minimum standards for occupancy in the Foreign Affairs Handbook as appropriate. The report also include a little nugget about DOD cooperation with investigative reports of security-related incidents that involve State Department personnel, specifically mentioning “the incident in Zabul Province, Afghanistan.” That’s the incident where FSO Anne Smedinghoff and four others were killed in Zabul, Afghanistan in April 2013.

Outstanding Recommendation on Minimum Security Standards 

Recommendation 17 of the ARB process review report recommended that the Department develop minimum security standards that must be met prior to occupying facilities in HRHT locations. The Department rejected this recommendation, stating that existing Overseas Security Policy Board standards apply to all posts and that separate security standards for HRHT posts would not provide better or more secure operating environments. Furthermore, recognizing that Overseas Security Policy Board standards cannot be met at all locations, the Department has a high threshold for exceptions to these standards and the waiver and exceptions process requires “tailored mitigation strategies in order to achieve the intent of the standards.”5

Although OIG acknowledges the Department’s assertion of a “high threshold for exceptions,” the Department’s response does not meet the recommendation’s requirement for standards that must be met prior to occupancy. As was noted in the ARB process review report, “…occupying temporary facilities that require waivers and exceptions to security standards is dangerous, especially considering that the Department occupies these facilities long before permanent security improvements are completed.”6 As the Department has not identified minimum security standards that must be met prior to occupancy, Recommendation 17 is being reissued.

Recommendation CFR 1: The Office of the Under Secretary of State for Management, in coordination with the Bureau of Diplomatic Security and the Bureau of Overseas Buildings Operations, should develop minimum security standards that must be met prior to occupying facilities located in Department of State-designated high-risk, high-threat environments and include new minimum security standards of occupancy in the Foreign Affairs Handbook as appropriate. (Action: M, in coordination with DS and OBO)

So, basically back to where it was before Benghazi, when there were no minimum security standards prior to occupying temporary facilities.

How high is this “high threshold of exceptions” that’s being asserted?

Risk management process now called “tailored mitigation strategies” — resulting in waivers of Inman standards?

So waivers will continue to be executed?

And temporary facilities will continue to be occupied?

Key Findings:

  • The Department of State has complied with all the formal and informal recommendations of the 2013 Special Review of the Accountability Review Board Process, except one, which has been reissued in this report.
  • The Department of State has implemented regulatory and procedural changes to delineate clearly who is responsible for implementation, and oversight of implementation, of Accountability Review Board recommendations. The Under Secretary for Management, in coordination with the Under Secretary for Political Affairs, is responsible for implementation of Accountability Review Board recommendations. The Deputy Secretary for Management and Resources is responsible for overseeing the Department’s progress in Accountability Review Board implementation, which places accountability for implementation at an appropriately high level in the Department of State.
  • The Office of Management Policy, Rightsizing, and Innovation manages the Accountability Review Board function. The Accountability Review Board process review report was critical of the Office of Management Policy, Rightsizing, and Innovation’s recordkeeping and files of past Accountability Review Boards. The Office of Management Policy, Rightsizing, and Innovation has since revised its Accountability Review Board recordkeeping guidelines. These revised guidelines have yet to be tested, as no Accountability Review Board has met since the Benghazi Accountability Review Board, which issued its report in December 2012.

More details excerpted from the IG report

Flow of Information

Formal Recommendations 1, 2, 3, and 9—as well as Informal Recommendations 1 and 3—concern the flow of information within the Department and from the Department to Congress. The recommendations introduce additional reporting requirements for all incidents that might meet the criteria to convene an ARB, as well as a more clearly defined list of congressional recipients for the Secretary’s Report to Congress. Recommendation 9 tasks S/ES with creating a baseline list of congressional recipients for the Secretary’s report to Congress. That list is now more clearly specified and included in regulations governing the ARB process.

Informal Recommendation 3 requires broader circulation of ARB reports as well as the Secretary’s report to Congress. The M/PRI position is that these reports belong to the Secretary and their dissemination should be at the Secretary’s discretion. OIG continues to believe that the Secretary should exercise discretion and circulate ARB reports and subsequent reports to Congress more widely within the Department.

ARB Recordkeeping

In December 2014, M/PRI revised its ARB recordkeeping guidelines regarding those records to be retained and safeguarded. However, because no ARB has convened since Benghazi, these revised guidelines remain untested. Although these guidelines require recording and transcribing telephone interviews, they do not mandate verbatim transcripts of all interviews, including in-person meetings, as the Inspector General suggested in his May 29, 2014, memorandum to the D/MR.

Action Memo for the Secretary

In compliance with Recommendation 1, the OIG CFR team found that M/PRI now drafts an action memo for the Secretary after every Permanent Coordinating Committee (PCC) meeting detailing the PCC decision, even if the PCC does not recommend convening an ARB.

In response to Recommendation 4, the Under Secretary for Management amended 12 FAM 030 to require vetting and reporting security-related incidents, which do not result in convening a PCC. Those cases will be communicated to the Secretary.

Alternative Review

To meet the intent of Recommendation 2, M/PRI has included in its instructions to the PCC chair a reminder to PCC members that if the PCC votes not to convene an ARB, the PCC should decide whether to recommend that the Secretary request an alternative review.

Terminology

Recommendation 5 recommends establishing written criteria to define the key terms “serious injury,” “significant destruction of property,” and “at or related to a U.S. mission abroad.” The 2013 OIG inspection team found that ambiguity in the terminology had led to their inconsistent application as criteria in decisions to convene ARBs.

ARB Implementation

Recommendations 10 and 11 recommend institutionalizing the oversight of the implementation of ARB recommendations as a responsibility of D/MR. M/PRI’s revision of 12 FAM 030 and addition of 12 Foreign Affairs Handbook (FAH)-12 now clearly delineate who is responsible for managing the ARB process and who is responsible for oversight of implementation of ARB recommendations. The Deputy Secretary’s responsibility for overseeing implementation of ARB recommendations places accountability for implementation at an appropriately high level in the Department.

Personnel Performance 

Recommendation 19 tasks M/PRI, in coordination with the Bureau of Human Resources and the Office of the Legal Adviser, to prepare clear guidelines for ARBs on recommendations dealing with issues of poor personnel performance. M/PRI has revised its standing guidance to ARB members, referring them to the Department’s new leadership principles in 3 FAM 1214, 4138, and 4532 when documenting instances of unsatisfactory performance or poor leadership. The Department further codified this ARB authority by expanding the list of grounds for taking disciplinary or separation action against an employee, including “conduct by a senior official that demonstrates unsatisfactory leadership in relation to a security incident under review by an [ARB] convened pursuant to 22 U.S.C. 4831.” In addition, in January 2013 the Department began seeking an amendment to the ARB statute (22 U.S.C. 4834(c)) to provide explicitly that unsatisfactory leadership may be a basis for disciplinary action and that the ARB would have the appropriate authority to recommend such action. No change to the statute has yet been made.

Strengthening Security at High-Risk, High-Threat Posts

New courses:  Guided by a panel of senior DS special agents and outside organizations, DS updated its former High Threat Tactical Course to create a suite of mandatory courses for DS agents assigned to HRHT locations, drawing on lessons learned from the attacks in Benghazi, Libya, and Herat, Afghanistan. The cornerstone of these courses is the “High Threat Operations Course” (HT-310), which, as of October 1, 2013, was made mandatory for all DS agents at grades FS 04 through 06 who are assigned to HRHT locations. Similar, but shorter duration courses (HT-310E and HT-315) are required for senior and mid-level DS agents assigned to such locations.

Marine Detachments

The Department, in coordination with DOD, has added 20 new MSG detachments, and Marine Corps Headquarters has created the Marine Security Augmentation Unit. Although some HRHT posts still lack MSG detachments, for example, because of the lack of host government approval, the Department has made progress in deploying new detachments and increasing the size of existing detachments.[…] The June 2013 revision of the memorandum of agreement also includes a revision of the MSG mission. In the previous version, the MSG’s primary mission was to prevent the compromise of classified information. Their secondary mission was the protection of personnel and facilities. In the revised memorandum of agreement, the mission of the MSG is to protect mission personnel and prevent the compromise of national security information.

DS Agents Embed With DOD Forces

An additional area of security improvement beyond reliance on the host government has been the Department’s closer relationship with DOD, whose personnel have been involved in every Department contingency operation at an HRHT post since the Benghazi attack. Furthermore, DS agents are now embedded in DOD expeditionary forces.

About That Zabul Incident

Recommendation 6 recommends that the Department seek greater assurances from the Department of Defense (DOD) in providing investigative reports of security-related incidents that involve Department personnel. The Department makes its requests via Executive Secretary memorandum to the equivalent DOD addressee, in accordance with 5 FAH-1 H-120. The DOD counterpart has been responsive in delivering requested materials in all the recent instances, including the incident in Zabul Province, Afghanistan. M/PRI will continue to monitor DOD responses to requests for reports in the future.

That means, the State Department now has the Army investigation report into the death of FSO Anne Smedinghoff and four others in Zabul, Afghanistan in April 2013.  See Zabul Attack: Spox Says State Dept Did Its Own Review, It’s Classified, and There’s Now a Checklist! Zabul Attack: Walking But Not Lost, More Details But Not Official; Plus Update on Kelly HuntArmy Report: Poor planning led to FSO Anne Smedinghoff and troops’ death in Afghanistan.

The Chicago Tribune FOIA’ed that Army report but did not make the document public. The State Department internal report of the incident as far as we are aware, remains Classified. Then State Department spox, Jennifer Psaki referred to “multiple investigations” in April 2014;  none publicly released.

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Related item:

ISP-C-15-33 | Compliance Followup Review of the Special Review of the Accountability Review Board Process | August 2015

 

Senate Confirms 14 Ambassador Nominees, Others Are Stuck For Now

Posted: 7:31 pm EDT

 

In the early evening of August 5, 2015, the U.S. Senate confirmed the following executive nominees by voice vote:

Executive Calendar # 198 David Hale, of New Jersey, to be Ambassador to the Islamic Republic of Pakistan.

Executive Calendar #199 Atul Keshap, of Virginia, to be Ambassador to the Democratic Socialist Republic of Sri Lanka, and to serve concurrently and without additional compensation as Ambassador to the Republic of Maldives.

Executive Calendar #200 Alaina B. Teplitz, of Illinois, to be Ambassador to the Federal Democratic Republic of Nepal.

Executive Calendar #201 William A. Heidt, of Pennsylvania, to be Ambassador to the Kingdom of Cambodia.

Executive Calendar #202 Glyn Townsend Davies, of the District of Columbia, to be Ambassador to the Kingdom of Thailand.

Executive Calendar #203 Jennifer Zimdahl Galt, of Colorado, to be Ambassador to Mongolia.

Executive Calendar #256 Sheila Gwaltney, of California, to be Ambassador to the Kyrgyz Republic.

Executive Calendar #257 Perry L. Holloway, of South Carolina, to be Ambassador to the Co-operative Republic of Guyana.

Executive Calendar #258 Kathleen Ann Doherty, of New York, to be Ambassador to the Republic of Cyprus.

Executive Calendar #259 Hans G. Klemm, of Michigan, to be Ambassador to Romania.

Executive Calendar #260 James Desmond Melville, Jr., of New Jersey, to be Ambassador to the Republic of Estonia.

Executive Calendar #261 Peter F. Mulrean, of Massachusetts, to be Ambassador to the Republic of Haiti.

Executive Calendar #262 Laura Farnsworth Dogu, of Texas, to be Ambassador to the Republic of Nicaragua.

Executive Calendar #264 Paul Wayne Jones, of Maryland, to be Ambassador to the Republic of Poland.

Executive Calendar #265 Michele Thoren Bond, of the District of Columbia, to be an Assistant Secretary of State (Consular Affairs).

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That’s it until September.  The Senate notes that “By unanimous consent, all the nominations received by the Senate during the 114th Congress, first session, remain in status quo, notwithstanding the provisions of rule XXXI, paragraph 6, of the Standing Rules of the Senate.” The following nominees were cleared by the Senate Foreign Relations Committee but were not confirmed by the full Senate at this time:

  • Cassandra Q. Butts, of the District of Columbia, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Commonwealth of The Bahamas (cleared by the SFRC on May 21)
  • Azita Raji, of California, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Kingdom of Sweden. (cleared by the SFRC on June 10)
  • Brian James Egan, of Maryland, to be Legal Adviser of the Department of State, vice Harold Hongju Koh, resigned. (cleared by the SFRC on June 25)
  • Dr. Sarah Mendelson, of the District of Columbia, to be Representative of the U.S. on the Economic and Social Council of the U.N., with the rank of Ambassador, and Alternate Representative of the U.S. to the General Assembly of the U.N. (cleared by the SFRC on July 29)
  • Mr. Samuel D. Heins, of Minnesota, to be Ambassador to the Kingdom of Norway (cleared by the SFRC on July 29)
  • Ms. Gayle Smith, of Ohio, to be Administrator of the United States Agency for International Development (cleared by the SFRC on July 29)
  • Thomas O. Melia, of Maryland, to be an Assistant Administrator of the United States Agency for International Development, vice Paige Eve Alexander, resigned. (cleared by the SFRC on July 29)

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Tick Tock: Ambassador Nominees Cleared by SFRC Still Waaaaaaaiting For Senate Votes

Posted: 12:54  pm EDT

 

The Senate will head out for its five-week August recess this week. According to the calendar, the recess would kick off on August 10 and run through Labor Day. The following nominees are currently waiting for a full Senate vote. Unless they get confirmed this week, they’re stuck in confirmation purgatory for another month.
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Cleared by the SFRC on May 21:

  • Cassandra Q. Butts, of the District of Columbia, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Commonwealth of The Bahamas.

Cleared by the SFRC on June 10:

  • Azita Raji, of California, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Kingdom of Sweden.

Cleared by the SFRC on June 25:

  • David Hale, 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 Islamic Republic of Pakistan.
  • Atul Keshap, of Virginia, 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 Democratic Socialist Republic of Sri Lanka, and to serve concurrently and without additional compensation as Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Maldives.
  • Alaina B. Teplitz, of Illinois, 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 Federal Democratic Republic of Nepal.
  • William A. Heidt, of Pennsylvania, 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 Kingdom of Cambodia.
  • Glyn Townsend Davies, of the District of Columbia, 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 Kingdom of Thailand.
  • Jennifer Zimdahl Galt, of Colorado, 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 Mongolia.
  • Brian James Egan, of Maryland, to be Legal Adviser of the Department of State, vice Harold Hongju Koh, resigned.

Cleared by the SFRC on July 29

  • 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.

Also cleared by the SFRC are the two USAID nominees and one Foreign Service list with 181 names:

FOREIGN SERVICE

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.

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.

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The Iran Hostages: Long History of Efforts to Obtain Compensation

Posted: 12:22  pm EDT

 

We’ve previously blogged about the Iran hostages here (see Supremes Say No to Appeal from US Embassy Iran HostagesJanuary 20, 1981: The Iran Hostages – 30 Years LaterNovember 4, 1979: Iranian Mob Attacks US Embassy Tehran; Hostages Compensated $50/Day).  The following CRS report dated July 30, 2015  outlines the history of various efforts, including legislative efforts and court cases, and describes one bill currently before Congress, the Justice for Former American Hostages in Iran Act of 2015 (S. 868) on the bid to compensate the hostages.

Excerpted from CRS report via Secrecy News:

Even today, after the passage of more than three decades, the 1979-1981 Iran Hostage Crisis remains an event familiar to most Americans. Many might be unaware that the 52 American mostly military and diplomatic personnel held hostage in Tehran for 444 days or their survivors continue to strive for significant compensation for their ordeal. The former hostages and their families did receive a number of benefits under various civil service laws, and each hostage received from the U.S. government a cash payment of $50 for each day held hostage. The hostages have never received any compensation from Iran through court actions, all efforts having failed due to foreign sovereign immunity and an executive agreement known as the Algiers Accords, which bars such lawsuits. Congress took action to abrogate Iran’s sovereign immunity in the case, but never successfully abrogated the executive agreement, leaving the plaintiffs with jurisdiction to pursue their case but without a judicial cause of action.

Having lost their bids in the courts to obtain recompense, the former hostages have turned to Congress for relief.
[…]
The Justice for Former American Hostages in Iran Act of 2015, S. 868, a bill similar to S. 559 (113th Cong.), was introduced in the Senate at the end of March and referred to the Committee on Foreign Relations. Like its predecessor bill, S. 868 would establish the American Hostages in Iran Compensation Fund in the U.S. Treasury to be funded through a 30% surcharge on penalties, fines, and settlements collected from violators of U.S. sanctions prohibiting economic activity with Iran. The 2015 bill, however, would permit payments from the fund to be administered by the plaintiffs’ representative and principal agent in Roeder I, under the supervision of the Secretary of the Treasury. The surcharge would apply to sanctions administered by Department of State, the Department of the Treasury, the Department of Justice, the Department of Commerce, or the Department of Energy. Surcharges would be required to be paid to the Secretary of the Treasury without regard to whether the fine or penalty is paid directly to the federal agency that imposed it or it is deemed satisfied by a payment to another federal agency.

The purpose of the fund would be to make payments to the former hostages and their family members who are members of the proposed class in Roeder I, as well as to settle their claims against Iran. The proposed class in Roeder I appears to consist of “Representatives, administrators and/or executors of the estates of all diplomatic and military personnel and the civilian support staff who were working at the United States Embassy in Iran during November 1979 and were seized from the United States Embassy grounds, or the Iranian Foreign ministry, and held hostage from 1979 to 1981.”

Accordingly, it is unclear whether all spouses and children of the former hostages qualify for payments from the fund.

Payments would be made in the following amounts and according to this order of priority:

(A) To each living former hostage identified as a member of the proposed class described in subsection (a)(1), $10,000 for each day of captivity of the former hostage [$4.44 million per former hostage].

(B) To the estate of each deceased former hostage identified as a member of the proposed class described in subsection (a)(1), $10,000 for each day of captivity of the former hostage [$4.44 million per estate of a former hostage].

(C) To each spouse and child of a former hostage identified as a member of the proposed class described in subsection (a)(1) if the spouse or child is identified as a member of that proposed class, $5,000 for each day of captivity of the former hostage [$2.22 million per qualifying spouse or child of a former hostage].

The bill would not appear to provide compensation for former hostages who were released from captivity prior to 1981.

Under the bill, once a class member consents and receives payments from the fund, the recipient would be barred from bringing a lawsuit against Iran related to the hostage crisis. Once all payments are distributed according to the above plan, all such claims against Iran would be deemed waived and released.

Read in ful here: CRS R43210: The Iran Hostages: Efforts to Obtain Compensation.

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Reuters: State Department watered down human trafficking report

Posted: 3:45  am EDT

 

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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.

Read in full here.

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Related item:

-07/27/15  Under Secretary of State for Civilian Security, Democracy, and Human Rights Sarah Sewall on the 2015 Trafficking in Persons Report;  Under Secretary for Civilian Security, Democracy, and Human Rights Sarah Sewall; Washington, DC

SFRC Clears 11 Ambassador Nominees and 1 Foreign Service List (181 Names)

Posted: 1:54 am EDT

 

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.

UNITED NATIONS

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.

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State Dept to Release 5,000 Pages to Benghazi Panel, No Hearing With Kerry Top Aide For Now

Posted: 12:40  am EDT

 

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.

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What if Congress grants the State Dept the Suspension Without Pay (SWOP) hammer?

Posted: 1:44  pm EDT

 

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).”

So when the Senate Foreign Relations Committee passed the Fiscal Year 2016 Department of State Operations Authorization and Embassy Security Act which contains a similar language on security clearance suspension without work and no pay for Foreign Service employees, we were wondering what’s up with that (see S.1635: DOS Operations Authorization and Embassy Security Act, Fiscal Year 2016 – Security Clearance).

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.

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Ex-Gov Who Wanted Ambassadorship to India Just Got 5 of 18 Counts Thrown Out by Appeals Court

Posted: 12:24 am EDT

 

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

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.)

Read in full here (pdf).

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