The data was obtained, the hacker told Motherboard, by first compromising the email account of a DoJ employee, although he would not elaborate on how that account was accessed in the first place. (On Monday, the hacker used the DoJ email account to contact this reporter). From there, he tried logging into a DoJ web portal, but when that didn’t work, he phoned up the relevant department.
“So I called up, told them I was new and I didn’t understand how to get past [the portal],” the hacker told Motherboard. “They asked if I had a token code, I said no, they said that’s fine—just use our one.”
If that’s true, then it took just one employee and elementary social engineering to start the ball rolling in this newest data breach.
Our State Department friends have a favorite response to most questions. “It depends.”
About 10 years ago, State/OIG conducted a review of the Visa Referral Process in Nonimmigrant Visa Adjudication.
By law neither an ambassador nor a DCM can direct a consular officer to issue a particular visa. Even the Secretary of State has no authority to override a consular officer’s deci sion, pursuant to the Immigration and Nationality Act, 8 USC 1104. Recognizing the importance of the visa process both as a bilateral diplomatic issue and as a legitimate diplomatic tool for achieving U.S. aims, and considering the importance of providing as much information as possible to consular officers, the Department has long understood the need for a policy and system to allow all elements of the mission to benefit from the visa system and to protect consular officers from inappropriate pressure. After September 11, 2001, this system has been signifi cantly strengthened.
Based on the results of the survey, observations in the field, and discussions in Washington, OIG concluded that most ambassadors and DCMs appear to under stand the importance of their personal oversight of the referral system and that there are serious repercussions, including removal from post, in the most egregious cases of abuse. While Department oversight of referral systems is important, entrusting chiefs of mission with local supervision and responsibility is still appro priate and necessary, just as the Department entrusts chiefs of mission with the lives of all employees and dependents in their missions, the management of top secret information, and the conduct of key bilateral relations with the host country.
Clearly most missions’ front offices are overseeing the referral system as intended by the Department, sometimes after a little persuasion. For example, an officer at a post that was having problems said, “Our recent OIG inspection was helpful in making the front office realize the impact of their interventions with us and the appearance of undue influence. Despite our education of the front office, they have been incredulous that their good causes may pose us problems under the law.” One of the areas of emphasis for OIG inspection teams is border security readiness, which includes oversight of the referral program.
The survey, however, did reveal some disillusionment with the available recourses in those instances when the front office was itself exerting undue influence. One officer at a post in the Near East said, “In general the consular section feels pressure to act simply as a rubber stamp to visa referrals by chiefs of section and above.” Another stated,“The front office is the only section that has ever tried to influence decisions in referral cases. If I were to refuse the case, then I would be hurt in the employee evaluation report (EER) process as my rater is the DCM and the Ambassador is the reviewing officer.”
It’s an instructive read from 2005, see in full here (PDF).
Let’s fast forward to two cases in 2015 specifically mentioned by State/OIG. The following is from the State/OIG inspection report of the U.S. Embassy in Tajikistan (PDF). The IG report lists Susan M. Elliott as COM, and Robert G. Burgess as DCM.
The Offices of Visa Services and Fraud Prevention Programs, the Consular Integrity Division, and the front office of the Bureau of Consular Affairs all expressed concern about the embassy’s contravention of the worldwide visa referral policy. In the latter half of 2013, the Ambassador in seven cases and the DCM in two cases contravened the worldwide nonimmigrant visa referral policy by submitting noncompliant referrals and improperly advocating for issuance.
Complications arising from noncompliance with the policy led to deteriorating relations between the consular officer and other embassy offices, perceptions of intimidation and isolation, and increased involvement of and intervention by various offices in the Bureau of Consular Affairs. In response to revised guidance from the Bureau of Consular Affairs on referral policy, dated January 13, 2014, Embassy Dushanbe issued a management notice on January 17, 2014. On October 15 and 17, 2014, the embassy conducted briefings for referring officers and obtained current compliance agreements reflecting the revised policy guidance. The OIG team met with the front office and the consular officer, and they confirm that they understand and are committed to continuing to comply with the policy going forward.
How is it that this consular officer did not get the Barbara Watson Award for demonstrating courage?
The “Worldwide Visa Referral Policy Problems” below is from the State/OIG report of the U.S. Embassy in Armenia (see PDF). According to the IG report, the ambassador at that time was John Heffern:
In at least 15 documented cases, the Ambassador contravened the worldwide nonimmigrant visa referral policy (9 FAM Appendix K, Exhibit I) by contacting the consular chief to communicate information about visa applicants instead of providing referral forms for the applicants. The referral policy states, “Referrals are the only allowed mechanism to advocate for or assist visa applicants prior to visa adjudication.” Some of the cases involved previously refused applicants. Referral policy permits requesting assistance via referral on behalf of previously refused applicants only in extremely limited circumstances. Few, if any, of the violations involved applicants who would have been eligible for visa referrals. The consular chief did not take adequate steps to stop the Ambassador’s inappropriate communications or to report them to the Department, as required by Department referral polices.
The embassy provides no formal, detailed briefing (“referral school”) as recommended in the worldwide policy. The consular chief gives informal referral briefings on an individual basis to new arrivals at the embassy. Lack of a formal understanding of the referral policy and process can cause misunderstanding or abuse.
Wow! And the consular section chief got harshly treated by the … the um alphabet, which did not quite line up to say he/she was at fault but you get the idea.
It is not clear what kind of repercussions are suffered by chiefs of mission who contraven the worldwide nonimmigrant visa referral policy. According to a FAM update last November 2015, Consular Affairs has now added a NIV Referral Program Ombudsman (see 9 FAM 601.8-8(C).
Oh, wait, there’s more.
There’s an FSGB case where an FP-03 Diplomatic Security (DS) Special Agent (SA) with the Department of State (Department) was warned that there were strict prohibitions against anyone attempting to influence the visa process. The State Department later proposed to suspend him for four days on a charge of Misuse of Position. The proposal was sustained by the Grievance Board on March 3, 2015.
On October 5, 2010, a family friend of his (REDACTED), a (REDACTED) national, applied for a B1/B2 non-immigrant visa at the U.S. Embassy in REDACTED. His stated purpose for the visa request was to visit with grievant in the U.S. When the application was denied, grievant sent an email on that same date from his State Department account to REDACTED, the Deputy Consular Section Chief in REDACTED voicing his disappointment that his friend’s visa application had been turned down. In the email, grievant asked for assistance, provided additional information on behalf of his friend and cited his own experience as a DS officer who had collaborated with consular officials investigating fraud cases. All of grievant’s emails contained his electronic signature and identified him as “Special Agent, REDACTED, U.S. Department of State, Bureau of Diplomatic Security.” In response to this email, re-interviewed and approved his visa application. REDACTED subsequently visited grievant in the US.
To make the long story short, grievant was investigated (PDF) by DS for his efforts to procure visa approvals for his friend.
The Department reviewed the DS report of investigation (ROI) and determined that between 2010 and 2012, grievant used official communication channels to contact consular officials in the U.S. Embassy in and identified himself as a DS Special Agent in order to influence favorable decisions on visa applications submitted by his friend. On December 2, 2014, grievant received notice of the Department’s proposal to suspend him for four days on a charge of Misuse of Position. The proposal was sustained on March 3, 2015.
Every day, our team here at State works towards big goals like this that benefit from the leadership and creativity of the innovation community.
And every day, our team tackles issues at the intersection of technology and foreign policy—from modernizing arms control agreements to negotiating norms of behavior in cyberspace or outer space.
Despite this focus, we need to create more bridges that allow our diplomats to tap into the energy and ingenuity of American education, innovation, and entrepreneurship—and enable our foreign policy priorities to spark or accelerate new ideas.
Developed under Deputy Secretary Burns’ leadership, the Foreign Service Institute’s Center for the Study of the Conduct of Diplomacy is one such bridge—ensuring that we apply the lessons of the past to our conduct and actions in the future.
We are also developing a new core curriculum at FSI, to ensure that everyone starts their careers with foundational knowledge and skills relevant to this century. Through new and experiential training, we will prepare our officers to better understand unstated assumptions that shape conflict and collaboration, apply future forecasting to the geopolitical world of tomorrow, and tap into unconscious drivers of behavior that will help us effectively conduct and advance our foreign policy.
To help build another of these bridges, Secretary Kerry recently established the Innovation Forum in order to enable our foreign policy leaders to be able to see around the innovation corner—to ask important questions like: “What does the revolution in robotics mean for warfighting? What do advances in artificial intelligence mean for our labor markets? What does the advent of digital currency mean for the dollar?”
One of the four men was Jason Rezaian, a Washington Post reporter who had covered the Iran nuclear talks. Rezaian was being held on baseless charges of espionage in order to try to extract concessions from the Americans. Our source, State’s Chase Foster, was upset that the U.S. had failed to secure the Americans’ release as part of the nuclear deal, and it was his understanding that the talks had since collapsed. But as we reported out the tip, we discovered that, unbeknownst to Foster, the talks had never really stopped.
What added an extra wrinkle to this ethical dilemma was the State Department official, Foster, Schulberg’s on-the-record source. To describe such a situation as unusual wouldn’t do it justice: State Department officials with specific knowledge of prisoner negotiations don’t talk publicly about them. It just doesn’t happen. Yet to Schulberg’s credit as a reporter, Foster was doing so in this case. His frustration motivated him to speak out — and, eventually, to quit his job, which he did late last year.
Any public official willing to air grievances on the record, whether those grievances are legitimate or not, should be thought of as a whistleblower. And if a whistleblower is willing to risk his career and reputation to share information he thinks the public needs to have, a news outlet needs to have an awfully good reason not to run his story. On the other hand, we never asked him not to talk to other outlets or to take his concerns public on his own, which was always an option, but one he didn’t take. And had he known the talks were once again going on, that may have changed his calculus about going public, which in turn was something we had to keep in mind. And it wasn’t something we could share with him.
When we reached out to the administration, the frontline press folks there were extremely aggressive and served up a bunch of garbage we later confirmed to be garbage. But when we approached administration officials higher up the chain, they told us what was actually happening. They told us that reporters for The Washington Post and The Wall Street Journal were withholding details of the talks as well, though neither knew of Foster, whose identity we never revealed to the government. They did not put hard pressure on us to hold our story, but instead calmly laid out their analysis of the possible consequences of publishing, and offered confidence that the talks were moving forward and headed toward a resolution.
More than a year of informal discussions between Sherman and her counterpart, Majid Takht Ravanchi, the Iranian Foreign Ministry official in charge of American and European affairs, led to an agreement, in late 2014, that the issue should be handled separately—but officially—through a second channel. After debate within the Administration, Obama approved the initiative. But it was so tightly held that most of the American team engaged in tortuous negotiations on Iran’s nuclear program were not told about it.[…] Brett McGurk, a senior State Department official, headed the small American team, which also included officials from the Department of Justice, the F.B.I., and the intelligence community.
According to NYT, Mr. McGurk’s team sat down with their Iranian counterparts in Geneva for the first time in November 2014, according to an account by several American officials on the condition of anonymity.
HuffPo’s source Chase Foster, a Foreign Affairs officer at the State Department since 2012, was reportedly upset that the U.S. had failed to secure the Americans’ release as part of the nuclear deal according to the Huffington Post. FAOs are civil service positions at the State Department that typically requires regional or functional expertise. His LinkedIn profile says that he had an advanced degree in Professional Studies in Persian and speaks Persian. It does not say which bureau he works in. But by the time he quit the State Department in frustration late last year, the negotiations for the prisoners release has been going on for about 13 months.
Foster was willing to risk his career by speaking on the record. That’s not something we often see these days. His heart was in the the right place, and we won’t blame him for it. But he may have also forgotten what François de Callières said about secrecy as being “the very soul of diplomacy.”
If mentorship works at State as it should have, somebody could have counseled him quietly that absence of apparent action does not mean lack of action. The American team working the nuke negotiations was not even told about the second channel secret negotiations. We would not be surprise if the top honchos at the NEA bureau with decades of USG service were also out of the loop. And no one has even mentioned James O’Brien, the newly appointed Special Presidential Envoy for Hostage Affairs.
TFW when you resign your State Department post in protest only to learn you just weren't read-in to the negotiations.
This could have easily gone the other way. We’re glad that it didn’t, that senior administration officials did not dish more garbage, that the journalists listened, and the negotiations worked out in the end.
Shane Bauer is one of the three Americans who were hiking in a mountainous region of Turkey near Iran in June 2009 when they were seized by Iranian border guards. He and his friend Joshua Fattal were detained in Evin prison in Tehran for more than two years. He was charged on August 21, 2011 with espionage and illegal entry and given an eight year sentence. On September 21, 2011, one month after his sentence, Mr. Bauer (and Mr. Fattal) was released and allowed to return to the United States.
He is now a senior reporter at Mother Jones, covering criminal justice and human rights. As news broke this weekend about the Iran prisoner swap, Politico reported that he called Clinton’s appeal for more sanctions “totally irresponsible” and accused her of constantly inflaming tensions with Iran. Read Politico’s story here. He also tweeted this:
In October 2011, the NYT had this item about the passing of FSO Philo Dibble. He died on October 1, 2011, 10 days after Fattal and Bauer were released:
Philo Dibble, a career Foreign Service officer who played a central role in the release of two American hikers who had been held in an Iranian prison for more than two years, died at his home in McLean, Va., on Oct. 1, 10 days after the hikers were freed. He was 60.
The cause was a heart attack, said his wife, Elizabeth Link Dibble, who is also a State Department official. Both worked in the Bureau of Near Eastern Affairs, where he was deputy assistant secretary of state for Iranand she is the bureau’s principal deputy secretary.
“Philo really was the lead in the State Department for coordinating all U.S. government efforts regarding the release of the hikers,” Jeffrey D. Feltman, the Near Eastern bureau’s assistant secretary, said Thursday.
While explaining that he could not provide details because “it’s pretty sensitive,” Mr. Feltman said Mr. Dibble had coordinated efforts with diplomats from other nations, including Oman and Switzerland, in trying to free the hikers. (Switzerland has represented American interests in Iran since the hostage crisis of 1979-81.)
We may not know the full story how the release of the hikers went down until somebody from State writes a book about it or do an ADST oral history but some random Internet person actually tweeted what we were thinking:
@shane_bauer I'm very happy to read that Oman worried for your well being and initiated your release. Must be nice to have a king worry 4 U
Emails about the hikers were part of the latest Clinton email dump. Below is a selection of the emails:
Bauer’s letter to D/S Bill Burns with a redacted request – PDF
Statement of Facts issued by the State Department for Mr. Bauer – PDF The hikers’ parents letter to President Obama copied to State – PDF
OpsAlert updates during release of two hikers – PDF Bauer and Fattal statements after release (transcript) PDF
In FSGB Nos. 2014-041, the grievant, an FS-02 Foreign Service Officer with the Department of State, appealed the agency-level grievance decision upholding her three-day suspension without pay for improper personal conduct and poor judgment. While the FSGB reduced the penalty to a Letter of Reprimand, the FSO had to grieved the case before the reduction of penalty:
While grievant was serving as Public Affairs Officer (PAO) at a U.S. Embassy, the Assistant Public Affairs Officer (APAO) filed an Equal Employment Opportunity (EEO) complaint alleging that grievant made numerous inappropriate and insensitive comments (many of which she overheard) – including several references to the national origin of some local and American employees; that she used harsh and profane language that made others uncomfortable in the workplace; and that she exhibited behavior that lacked professionalism, cultural sensitivity and good judgment. The EEO complaint triggered an Office of Civil Rights (S/OCR) investigation during which about a dozen local and American employees of the embassy were interviewed and signed affidavits. The S/OCR report was forwarded to the Office of Human Resources (HR/ER). The Department proposed to suspend grievant for five days without pay based on charges of improper personal conduct (seven specifications) and poor judgment (four specifications). The Deciding Official did not sustain three of the four poor judgment specifications and mitigated the penalty to three days. Grievant filed an agency-level appeal, which was denied.
Here are the things the FSO said which made the Department charged the employee with improper personal conduct and poor judgment:
Specification 1 – Grievant asked the APAO: “What’s the name of the Chinese guy who came to borrow a recorder, who speaks bad English?”
Specification 2 – After a telephone conference with State Department staff in Washington, grievant said to the APAO: “What the hell is that woman doing in that position! She’s not even a real American!” On the following day, grievant allegedly said again: “but this woman is not a real American!”
Specification 3 – In describing to the APAO an event at a previous post involving a naturalized U.S. citizen, grievant stated: “. . . she has a U.S. passport, but she is not a true American. She was Asian. In fact, I think she was Vietnamese.”
Specification 4 – The APAO overheard grievant say – in responding to a question from an REDACTED employee of the Embassy about the children born to immigrants to the U.S.: “[T]hose immigrants are coming to the U.S. and having babies. Even though they grow up in the States, they are not culturally American.” Her comment in the workplace where she could be overheard was inappropriate.
Specification 5 – In the presence of an American colleague, the APAO, and other local embassy employees grievant shouted into her cell phone, “You f—ing c–t! You already ate?! You didn’t wait for me!” Her use of profanity was inappropriate.
Specification 6 – An American colleague stated that at a social event hosted by a senior Embassy official he had asked what the hostess meant in saying that as a college student she had been a “little sister” in a fraternity. Grievant explained to him – in earshot of several expatriates — that “it means you don’t have a gag reflex.” The American colleague interpreted this to mean that the “little sister” was obliged to perform oral sex on members of the fraternity. In this situation grievant’s comment was inappropriate.
Specification 7 – An English Language Fellow (ELF) reported that in a conversation with the ELF in an embassy vehicle driven by an REDACTED employee of the embassy, grievant referred to REDACTED as “stupid” and “slow.”
The FSGB in this case finds that “the Department has not proved seven of eight specifications, included in two charges that were the bases for its decision to suspend Grievant for three days. With respect to the penalty, the Board finds that it has inappropriately applied the charge of Discriminatory Harassment as an aggravating factor with respect to the sole specification that has been sustained. The Department is directed to reduce the penalty to no more than a Letter of Reprimand, and to advise the Board of its actions within 30 days of receipt of this Decision.”
The elves working at the FAM factory worked long and hard to get their directives out. The elves know very well that you can lead a horse to water, but you can’t make him drink. Nonetheless, they sent an ALDAC to all missions with a reminder to remember disaster preparedness as they start 2016. There are, afterall, 10 Major Natural Disasters Predicted In The Near Future. If that’s not scary enough, here are the 5 Cities That Will Be Wiped Off the Map by Natural Disasters according to cracked.com. And just because the world did not end in December 2012 despite the Mayan prediction and the Roland Emmerich movie, doesn’t mean it’s not going to happen, right?
The elves point out in the ALDAC that per FAM 1812, a crisis unready organization is one that:
Does not know where it is at risk
Does not routinely communicate internally or externally
Has not considered how to respond
Has not identified key managers
Has unclear policy guidance
Has no emergency procedures checklists
Has an uncertain/unclear media policy and strategy
Is concerned more with liability than results
The American Consulate General Erehwon is vulnerable to natural disasters like flood, cyclones, heat waves, even droughts. One year it almost drowned in flood, and was almost washed away another year by a super cyclone. The principal officer was wondering if the elves were talking specifically about his post when he saw the ALDAC. He had nightmares that employees under his command were swept away by flash floods and he was eaten then spit out by an giant snake like Jon Voight in Anaconda. Nightmares. And that my friends, is how USCG Erehwon ended up with the following New Year’s Resolutions For Disaster Preparedness this year.
#1. The EAP is boring but a must-read. I need to get familiar with post’s Emergency Action Plan (EAP). This year, no kidding. I now recognize that a plan is just an illusion of preparedness in a binder unless accompanied by training and constant practice. We all need to know the plan and know the drill. As one ambassador once said, “we drilled for asylum seekers, for bomb threats, for anything we could think of.” I guess, we’ve got to do it. Per 7 FAM 1812.1, my broadest and deepest responsibility is to ensure the safety of U.S. citizens in the event of a crisis. I will make sure that the plan is tested, that regular radio tests are done, and we go through the mission’s telephone tree, even if I have to run the tests myself.
#2. I will no longer skip the Crisis Management Exercise (CME). Yes, the CME scenarios are occasionally fantastic but an earthquake, a tsunami, and a nuclear meltdown did happen all at the same time at one post. It could happen again elsewhere. Per 7 FAM 1812.1-9, a crisis management exercise at post is an excellent way to test planning and identify problems to address before a crisis hits. I get that. Really. No, I would not want a Congressional committee asking me on C-SPAN why I missed the crisis management exercise at post.
Debris fills the land in Ofunato, Japan after a tsunami during a search and recovery mission on March 15, 2011. Members of the Los Angeles Search and Rescue Team, Task Force 2 are responding to the recent national emergency in Japan due to the earthquake while providing needed care, rescue techniques and tools. 4th Combat Camera Squadron Photo by Tech. Sgt. Daniel St. Pierre Date Taken:03.15.2011 Location:OFUNATO, IWATE, JP
#3. Remember the humans, yes I will. People applying for visas show up whether there’s a flood or a cyclone as long as the consular section is open. Local employees show up as long as the office is open. Per 7 FAM 1812.4-1, while the host government and even other embassy sections may exert pressure to keep visa services open, the protection and welfare of U.S. citizens must always take priority over visa services. Also postponement of a conference or a dinner party is not/not the end of the world. I will be mindful that local staff supporting a conference or a dinner party have family members to take case of in the event of a crisis or a natural disaster. When flood water is rising or when the cyclone is roaring, post closure “out of an abundance of caution” actually makes sense.
#4. I will bevisible, present and attentive. I will show up for my colleagues, post clients and the community before, during, and after a crisis. I heard that leaders who hide or appear removed from the crisis negate their perceived and expected leadership actions. I will be there for you next time, and every time after that. I know now that I cannot just show up for a photo-op after a crisis, even if the photo is for DipNote. My colleagues rolled their eyes the last time I did that, and there’s apparently a video of that! So never again!
#5. I will work to improve communication. I was personally distressed at the unfolding calamity. I did not do any town halls though I heard that the RSO did one brief radio announcement. I know now that my staff needed to hear from me before, during and after the incident. I will endeavor to improve my communication skills to avoid misunderstandings, inaccurate information, and misinterpretations. One ambassador once used the embassy radio network to brief the staff twice a day during a coup d’état. After things settled down, staff members expressed their appreciation for these briefings, noting how reassuring it was to know what was going on and, moreover, that someone was at the helm. I will try my best to emulate that.
#6. I will learn to prioritize. I am learning that people are more important than events or things. More important than the blasted dinner reception for the principal officer’s conference. Or that antique china cabinet that needs rescuing from rising flood water. Per 7 FAM 1814.2, a disaster checklist would be helpful to capsulate the plan into a streamlined format that outlines what needs to be done, and in what order. If there are sacrifices to be made – and there will be – I will step up to the plate first. Yes, everyone will get fuel for their home generators before mine. I promised I will be the last one the support staff will need to worry about in a crisis.
#7 . I will attempt to understand the likely response of the host government. What options are available when ports are closed or when roads are dangerous? What happens if shelter in place is no longer the best scenario? Per 7 FAM 1813.3-1, I will make every effort to learn and understand the response infrastructure the government has in place, get to know the officials who would have primary responsibility for crisis management and identify any predetermined sites the host government plans to use, such as communications centers, emergency shelters, mass feeding areas, etc. I need to know who can assist post if the unthinkable happens and there are no USG assets to rely on.
#8: I will request mental health services for my staff. I will make it clear that getting treated for a mental health issue is a sign of strength and responsibility, not weakness, and that my request for a visit from RMO/P is not a “check the box” exercise nor to shield myself from criticisms but in recognition that people handle traumas and crises differently.
9. I will do a debrief. From now on, post will do a lessons learned debriefing exercise and endeavor to share it with others. The exercise will include a collective self-analysis of actions taken and leadership decisions, successes and failures, and perhaps most importantly, what can be made better if the same thing happen again in the future.
#10. I will thank people and show appreciation. I will learn to show appreciation to everyone who made it possible for post to survive the crisis. I will remember to prepare appropriate awards for staff members, and formal commendations appropriate to persons outside of the mission who provided assistance. I will pat myself on the back but only in private and will not self-nominate myself for any award even if I think I did a most excellent job.
Happy First Week of 2016! If I’m not faithful to these new year’s resolutions, you know what to do!
In 1976, Henry Kissinger apparently left the State Department with records of his telcons, along with his memcons and office files, at the conclusion of his tenure as the 56th Secretary of State. The National Security Archive in 2001 filed a legal complaint directed at the State Department and the National Archives “for abdicating their duty under the Federal Records Act to recover the Kissinger documents, which were produced on government time with government resources.” In March 2015, the National Security Archive again filed suit against the State Department under the Freedom of Information Act to force the release of the last 700 transcripts of Kissinger’s telephone calls (telcons). The Archive’s appeal of State’s withholding dates back to 2007. State has apparently claimed they were “pre-decisional” or covered by executive privilege — claims that the Archive says “should long since have expired in the case of 40-year-old records.”
In 2013, 67th did not have to removed her record emails since they were not even in the State Department systems. Meanwhile, the State Department will be tied up in multiple civil litigations related to these damn emails until 2055.
In any case, Congress is on it! No one will be able to do this ever again. No one, that is, until the next secretary of state maybe in 2028 … and it’ll be for something similar to the telephones, or emails, but different; perhaps out of a new technology that is yet to be invented… records retention for lifelogging or mindprinting, anyone?
Well, here is what Congress did for now. A section of the ‘‘Consolidated Appropriations Act, 2016’’ which became Public Law No: 114-113 on December 18, 2015 includes the following item on Records Management with funding restrictions on the use of email accounts and email servers created outside the .gov domain, a requirement for records management reports from both the State Department and USAID within 30 days, and a provision for withholding $10,000,000 from the “Capital Investment Fund” until the reports required are submitted to Congress.
(1) LIMITATION AND DIRECTIVES.—
(A) None of the funds appropriated by this Act under the headings “Diplomatic and Consular Programs” and “Capital Investment Fund” in title I, and “Operating Expenses” in title II that are made available to the Department of State and USAID may be made available to support the use or establishment of email accounts or email servers created outside the .gov domain or not fitted for automated records management as part of a Federal government records management program in contravention of the Presidential and Federal Records Act Amendments of 2014 (Public Law 113–187).
(B) The Secretary of State and USAID Administrator shall—
(i) update the policies, directives, and oversight necessary to comply with Federal statutes, regulations, and presidential executive orders and memoranda concerning the preservation of all records made or received in the conduct of official business, including record emails, instant messaging, and other online tools;
(ii) use funds appropriated by this Act under the headings “Diplomatic and Consular Programs” and “Capital Investment Fund” in title I, and “Operating Expenses” in title II, as appropriate, to improve Federal records management pursuant to the Federal Records Act (44 U.S.C. Chapters 21, 29, 31, and 33) and other applicable Federal records management statutes, regulations, or policies for the Department of State and USAID;
(iii) direct departing employees that all Federal records generated by such employees, including senior officials, belong to the Federal Government; and
(iv) measurably improve the response time for identifying and retrieving Federal records.
(2) REPORT.—Not later than 30 days after enactment of this Act, the Secretary of State and USAID Administrator shall each submit a report to the Committees on Appropriations and to the National Archives and Records Administration detailing, as appropriate and where applicable—
(A) the policy of each agency regarding the use or the establishment of email accounts or email servers created outside the .gov domain or not fitted for automated records management as part of a Federal government records management program;
(B) the extent to which each agency is in compliance with applicable Federal records management statutes, regulations, and policies; and
(C) the steps required, including steps already taken, and the associated costs, to—
(i) comply with paragraph (1)(B) of this subsection;
(ii) ensure that all employees at every level have been instructed in procedures and processes to ensure that the documentation of their official duties is captured, preserved, managed, protected, and accessible in official Government systems of the Department of State and USAID;
(iii) implement the recommendations of the Office of Inspector General, United States Department of State (OIG), in the March 2015 Review of State Messaging and Archive Retrieval Toolset and Record Email (ISP–1–15–15) and any recommendations from the OIG review of the records management practices of the Department of State requested by the Secretary on March 25, 2015, if completed;
(iv) reduce the backlog of Freedom of Information Act and Congressional oversight requests, and measurably improve the response time for answering such requests;
(v) strengthen cyber security measures to mitigate vulnerabilities, including those resulting from the use of personal email accounts or servers outside the .gov domain; and
(vi) codify in the Foreign Affairs Manual and Automated Directives System the updates referenced in paragraph (1)(B) of this subsection, where appropriate.
(3) REPORT ASSESSMENT.—Not later than 180 days after the submission of the reports required by paragraph (2), the Comptroller General of the United States, in consultation with National Archives and Records Administration, as appropriate, shall conduct an assessment of such reports, and shall consult with the Committees on Appropriations on the scope and requirements of such assessment.
(4) FUNDING.—Of funds appropriated by this Act under the heading “Capital Investment Fund” in title I, $10,000,000 shall be withheld from obligation until the Secretary submits the report required by paragraph (2).
You gotta do what you gotta do, now for some laughs via SNL:
We’ve been able to locate the FSGB case here (PDF), and the appeal case here (PDF).
Grievant filed his initial grievance with the Department on August 7, 2012,1 claiming that he was improperly excluded from promotion consideration by the 2008-2012 Selection Boards, during which time he was encumbering a position at the REDACTED. His assignment to REDACTED was effected by separation/transfer (“secondment,” according to Department usage) in the spring of 2007, and he exercised re-employment rights to return to agency rolls in 2012. Grievant claimed he believed he would remain eligible for promotion consideration during the REDACTED assignment, based on information contained in the Information Sheet that accompanied his Separation Agreement and on alleged assurances he received from Department Human Resources (HR) personnel. He claimed that shortly after he took the REDACTED assignment, he became aware that the Promotion Precepts exclude from review employees who have been separated/transferred to international organizations. Nonetheless, he claimed that the official notification of his assignment (SF-50 Personnel Action) assigned him to a status (the Multinational Force and Observers in the Sinai (MFO)) that specifically permits officers so assigned to remain eligible for promotion consideration. He argued that instead of using the separation/transfer mechanism, the Department should have detailed him to REDACTED leaving him on Department rolls and eligible for promotion consideration during the assignment. Grievant argued that Department errors in documentation of his assignment, and its different explanations of its own regulations, amount to bad faith on the part of the Department.
The Department acknowledged inaccuracies in the original Department documentation and in its decision on grievant’s appeal, in which it claimed that grievant’s separation/transfer instead of a detail was “standard protocol” for cases such as grievant’s. […] Notwithstanding the inaccuracies in documentation, the Department argued that separating/transferring grievant to the was not a clear violation of agency policy in effect at the time, and there was no impediment to taking that action.[…] The agency argued, therefore, that its actions were not contrary to law, regulation or collective bargaining agreement, and that neither the SF-50 errors, nor the errors contained in the Information Sheet, alter grievant’s status. Finally, the agency claimed it is an established fact that grievant did not serve in the Sinai in the MFO, and he is not entitled to benefits afforded to officers who serve there.
The FSGB ruled that “Regardless of the reason(s) why an “incorrect” SF-50 was issued in the first place, the preponderance of the evidence supports the conclusion that the only SF-50 in the record was issued containing several errors, not the least of which is that grievant was assigned to the MFO in the Sinai – where we know he did not serve. We fail to see the manifest injustice based on grievant’s arguments in this respect that would constitute grounds for reconsideration of our March 19, 2014, decision.”
We understand that this grievant was actually assigned to OSCE but his SF-50 says he was assigned to MFO. No, the grievant did not prepare his own SF-50, silly :-). Wondering why the SF-50 says MFO, and was never corrected. Was it intended as a work-around? If not, why was it never corrected the entire time the FSO was on assignment at an organization that was obviously not the MFO in the Sinai?
Standard Form 50, is the official form the government uses to calculate your retirement. Your SF-50s determine your retirement eligibility, your federal pension, and in this case, it also impacts promotion eligibility.
In any case, this is an expanding case not just in the Foreign Service Grievance Board (FSGB), but also with the Office of Special Counsel and now in federal court.
The individual would not discuss his ongoing court case but here is what we got:
“I decided to raise this issue with the new AFSA Board, which came into office with much fanfare as the “Strong Diplomacy” slate. After more than a month of non-response, I finally received the following this morning from an AFSA Board member:
“With limited resources, AFSA is unable to pursue each and every dispute with management and must focus on those issues that have the greatest impact on our membership and most benefit the Foreign Service as a whole. I understand you have already pursued this issue with private counsel through the grievance process. Given other competing priorities, this is not an issue AFSA is going to pursue with management.”
In other words, although AFSA is aware of an ongoing and systematic violation of federal law on the part of Department management, it is choosing not to pursue the issue with management due to more pressing priorities, thus leaving dues-paying members to fend for themselves in the courts, at their own expense.”
It’s worth noting that the promotion precepts are negotiated and agreed annually between the State Department and AFSA. We’re not sure what to make of this. If an employee is not able to rely on its union for disputes like this, who can he/she rely on? Is there a threshold on how many people should be put through the wringer before AFSA takes it up with management?