State Dept Releases New 3 FAM 4170 aka: The “Stop The Next Peter Van Buren” Regulation

Posted: 3:41 am EDT

Congratulations!  This is almost three years in the making!

We’ve previously covered the Peter Van Buren case quite extensively in this blog (see After a Year of Serious Roars and Growls, State Dept Officially Retires FSO-Non Grata Peter Van Buren). The State Department officially retired Mr. Van Buren on September 30, 2012. He left with full retirement. In December 2012, we were informed by inside the building sources that the Department was rewriting its 3 FAM 4170 rules on official clearance for speaking, writing, and teaching. (see State Dept to Rewrite Media Engagement Rules for Employees in Wake of Van Buren Affair).

On July 27, 2015, two months short of Year 3 since Mr. Van Buren retired, the State Department without much fanfare released its new 3 FAM 4170 rules in 19 pages. For the FAM is not a regulation; it’s recommendations” crowd, we hope you folks have great lawyers.

My! Look who’s covered!

The updated FAM, same as the old FAM, is divided into two meaty parts — official capacity public communication and personal capacity public appearances and communications.  The new version of 3 FAM 4170 is all encompassing, covering the following (not exhaustive list):

— all personnel in the United States and abroad who are currently employed (even if in Leave Without Pay status) by the Department of State and the United States Agency for International Development (USAID), including but not limited to Foreign Service (FS) employees, Civil Service (CS) employees (including schedule C appointees and annuitants returning to work on temporary appointments on an intermittent basis, commonly referred to as “While Actually Employed (WAE)” personnel), locally employed staff (LE Staff), personal service contractors (PSCs), employees assigned to fellowships or details elsewhere and detailees or fellows from other entities assigned to the Department, externs/interns, and special government employees (SGEs).

— Former Department of State employees (including former interns and externs) must seek guidance from A/GIS/IPS for applicable review process information. Former USAID employees (including former interns and externs) must consult the Bureau for Legislative and Public Affairs for applicable review process information.

— Employee testimony, whether in an official capacity or in a personal capacity on a matter of Departmental concern, may be subject to the review requirements of this subchapter. Employees should consult with the Department of State’s Office of the Legal Adviser or USAID’s Office of the General Counsel, as appropriate, to determine applicable procedures.

In practical terms, we think this means that if you get summoned to appear before the House Select Benghazi Committee and is testifying in your personal capacity as a former or retired employee of the State Department, these new regulations may still apply to you, and you may still need clearance before your testimony.

Convince us that we’re reading this wrong, otherwise, somebody poke Congress, please.

Also, does this mean that all retired FSOs who contribute to ADST’s Oral History project are similarly required to obtain clearance since by its definition, “online forums such as blogs” and “a person or entity engaged in disseminating information to the general public” are considered media organizations under these new rules?

Institutional interest vs. public interest

We are particularly interested in the personal capacity publication/communication rules because that’s the one that can get people in big trouble, as shown in the Van Buren case. Here’s the equivalent of our bold Sharpie.

3 FAM 4176.4 says:  “A principal goal of the review process for personal capacity public communications is to ensure that no classified or other protected information will be disclosed without authorization. In addition, the Final Review Office will evaluate whether the employee’s public communication is highly likely to result in serious adverse consequences to the efficiency or mission of the Department, such that preventing those consequences outweighs the employee’s presumptively high interest in communicating and the public’s interest in receiving the communication.”

 

Institutional interest trumps public interest? Where do you draw the line? You can still write a dissent cable as the “3 FAM 4172.1-3(D). No Review of Dissent Channel Communications” included in the 2009 version of the FAM survives as 3 FAM 4171 (e) in the current rules:

Views on matters of Departmental concern communicated through methods of internal communication (including, for example, the Department’s internal dissent channel) or disclosures made pursuant to 5 U.S.C. 2302(b)(8)(B) are not subject to the review requirements of this subchapter.

Which is fine and all, except — who the heck gets to read your dissent cable except the folks at Policy Planning? The State Department is not obligated to share with Congress or with the American public any dissenting opinions from its diplomats. One might argue that this is appropriate, after all, you can’t have diplomats second guessing in public every foreign policy decision of every administration. So, the American public typically only hears about it when a diplomat quits.  But given the two long wars in Iraq and Afghanistan, is the American public best served by this policy?  And by the way, candid opinion like the case of the six-page memo, entitled “The Perfect Storm,” in the lead up to the Iraq War, is still classified. Why is that?

The new regs also say this:

“To the extent time and resources allow, reviewers may assist the employee in identifying possible modifications or other adjustments to avoid the inclusion of non-classified but otherwise protected information, or the potential for adverse consequences to the Department’s mission or efficiency (including the employee’s ability to perform his or her duties effectively in the future).”

If we weigh the Van Buren book against these parameters, how much of the book’s 288 pages would survive such “modifications” or “adjustments.”

There goes the book, We Meant Well in Afghanistan, Also.

The Peter Van Buren Clause

We’ve come to call “3 FAM 4172.1-7 Use or Publication of Materials Prepared in an Employee’s Private Capacity That Have Been Submitted for Review as the Peter Van Buren clause. Below is the original language from the 2009 version of the FAM:

An employee may use, issue, or publish materials on matters of official concern that have been submitted for review, and for which the presumption of private capacity has not been overcome, upon expiration of the designated period of comment and review regardless of the final content of such materials so long as they do not contain information that is classified or otherwise exempt from disclosure as described in 3 FAM 4172.1-6(A).

That section of the FAM appears to survive under the current 3 FAM 4174.3 Final Review Offices, underlined for emphasis below.

c. To ensure that no classified information is improperly disclosed, an employee must not take any steps to proceed with a public communication (including making commitments to publishers or other parties) until he or she receives written notice to proceed from the Final Review Office, except as described below. If, upon expiration of the relevant timeframes below, the Final Review Office has not provided an employee with either a final response or an indication that a public communication involves equities of another U.S. Government entity (including a list of the entity or entities with equities), the employee may use, issue, or publish materials on matters of Departmental concern that have been submitted for review so long as such materials do not contain information described in 3 FAM 4176.2(a) and taking into account the principles in 4176.2(b). When an employee has been informed by the Final Review Office that his or her public communication involves equities of another U.S. Government entity or entities, the employee should not proceed without written notice to proceed from the Final Review Office. Upon the employee’s request, the Final Review Office will provide the employee with an update on the status of the review of his or her public communication, including, if applicable, the date(s) on which the Department submitted the employee’s communication to another entity or entities for review. Ultimately, employees remain responsible for their personal capacity public communications whether or not such communications are on topics of Departmental concern.

The Van Buren clause appears to survive, until you take a closer look; italicized below for emphasis:

3 FAM 4176.2 (a) Content of Personal Capacity Public Communications

a. When engaging in personal capacity public communications, employees must not:

(1) Claim to represent the Department or its policies, or those of the U.S. Government, or use Department or other U.S. Government seals or logos; or

(2) Disclose, or in any way allow the public to access, classified information, even if it is already publicly available due to a previous unauthorized disclosure.

3 FAM 4176.2 (b) Content of Personal Capacity Public Communications

b. As stated in 3 FAM 4174.2(c)(1), a purpose of this review process is to determine whether the communication would disclose classified or other protected information without authorization. Other protected information that is or may be subject to public disclosure restrictions includes, but is not limited to: 

(1) Material that meets one or more of the criteria for exemption from public disclosure under the Freedom of Information Act (FOIA), 5 U.S.C. 552(b), including internal pre-decisional deliberative material; 

(2) Information that reasonably could be expected to interfere with law enforcement proceedings or operations;

(3) Information pertaining to procurement in violation of 41 U.S.C. 2101-2107;

(4) Sensitive personally identifiable information as defined in 5 FAM 795.1(f); or

(5) Other nonpublic information, when used in a manner as prohibited by 5 CFR 2635.703.

Can one make the case that the conversations between the writer and his boss in the Van Buren book are “internal pre-decisional deliberative material?” Or that any conversation between two FSOs are deliberative? Of course. State can make a case about anything and everything.  Remember, it did try to make the case that the book contained classified information. (see “Classified” Information Contained in We Meant Well – It’s a Slam Dunk, Baby!). Also, we should note that documents marked SBU or sensitive but unclassified are typically considered nonpublic information.  Under these new rules, it’s not just classified information anymore, anything the agency considers deliberative material or any nonpublic material may be subject to disclosure restrictions.

 

3 FAM 4174.2 Overview (2015): Waving the ‘suitability for continued employment’ flag

c. Employees’ personal capacity public communications must be reviewed if they are on a topic “of Departmental concern” (see 3 FAM 4173). Personal capacity public communications that clearly do not address matters of Departmental concern need not be submitted for review.

(1) The personal capacity public communications review requirement is intended to serve three purposes: to determine whether the communication would disclose classified or other protected information without authorization; to allow the Department to prepare to handle any potential ramifications for its mission or employees that could result from the proposed public communication; or, in rare cases, to identify public communications that are highly likely to result in serious adverse consequences to the mission or efficiency of the Department, such that the Secretary or Deputy Secretary must be afforded the opportunity to decide whether it is necessary to prohibit the communication (see 3 FAM 4176.4).

(2) The purposes of the review are limited to those described in paragraph (1); the review is not meant to insulate employees from discipline or other administrative action related to their communications, or otherwise provide assurances to employees on matters such as suitability for continued employment (see, e.g., 3 FAM 4130 for foreign service personnel and 5 CFR 731 for civil service personnel). Ultimately, employees remain responsible for their personal capacity public communications whether or not such communications are on topics of Departmental concern.

 

More 3 FAM 4170 Fun: Not meant to insulate employees from discipline or other administrative action

3 FAM 4176.1(e) General

e. As stated in 3 FAM 4174.2(c)(1), the review process is limited to three purposes. (See also 3 FAM 4176.4.) Therefore, completion of the review process is not a Department “clearance” or “approval” of the planned communication, and is not meant to insulate employees from discipline or other administrative action related to their communications, including for conducting personal capacity public communications that interfere with the Department’s ability to effectively and efficiently carry out its mission and responsibilities, by, for example, disrupting operations, impairing working relationships, or impeding the employee from carrying out his or her duties. Ultimately, employees remain responsible for their personal communications whether or not the communications are on topics of Departmental concern.

 

3 FAM 4176.3 Employee must disclose his/her identity to Department reviewers

a. PA reviews all personal capacity public communications on matters of Departmental concern by senior officials at the Assistant Secretary level and above, including Chiefs of Mission. For all other employees wishing to communicate publicly in their personal capacity on matters of Departmental concern, there are two review processes available:

(1) Individuals may, as a first step, submit their requests for review to the Final Review Office (as described in 3 FAM 4174.3(a)). For employees submitting a request to PA, such requests should be submitted via PAReviews@state.gov. The Final Review Office will then consult with the employee’s immediate supervisor(s) and any other offices concerned with the subject matter in accordance with 3 FAM 4176.4(c). The Final Review Office will then make the final determination; and

(2) Alternatively, employees may initially submit their requests for review to their immediate supervisor(s), the Public Affairs Office in their bureaus or posts, and any other Department offices concerned with the subject matter. The materials must then be submitted to the Final Review Office, noting all such reviewers and any comments received. The Final Review Office will then verify those reviews, assess whether other reviews are needed, and make the final determination.

b. Supervisors, Public Affairs Offices, or any other offices involved in the review process must flag for the Final Review Office any view that the proposed public communication may:

(1) Contain classified or other protected information;

(2) Result in serious adverse consequences to the efficiency or mission of the Department; or

(3) Be or become high impact or high profile, for example communication that is controversial, or otherwise involves a sensitive Department priority; and

(4) The Final Review Office will then apply the standard described in 3 FAM 4176.4(a).

c. In all cases, an employee must disclose his or her identity to the relevant Department reviewers.

d. If another U.S. Government entity seeks Department review of a personal capacity public communication by that entity’s employee, the Department office in receipt of such request must coordinate with PA.

 

3 FAM 4177 Noncompliance may result in disciplinary action, criminal prosecution and/or civil liability.

a. Failure to follow the provisions of this subchapter, including failure to seek advance reviews where required, may result in disciplinary or other administrative action up to and including separation. Violations by USAID employees may be referred to the Deputy Administrator for Human Resources or USAID’s Office of the Inspector General (see 3 FAM 4320). Disciplinary action will be pursued consistent with applicable law, including 5 U.S.C. 2302

b. Publication or dissemination of classified or other protected information may result in disciplinary action, criminal prosecution and/or civil liability.

This is the part where we must remind you that what the former State Department spokesperson said about the FAM being recommendations is a serious bunch of hooey!

Oh, hey, remember the 2-day clearance for tweets …’er scandal?

We wrote about it here and here, and the “ain’t gonna happen 2-day clearance” for social media posting is now part of the Foreign Affairs Manual.  Apologies if the 2-working day review timeframe below for social media postings is too shocking for 21st century statecraft innovation purists. These are the rules, unless you can get the current State Department spokesperson to say from the podium that these are merely recommendations that employees/retirees/interns/charforce are free to ignore. We must add that the 2009 version of these rules, required that materials of official concern submitted in the employee’s private capacity must “be submitted for a reasonable period of review, not to exceed thirty days.” The old rules made no distinction whether the submitted material is a book manuscript, an article, a blogpost or a tweet.
screen grab from 3 FAM 4172

screen grab from 3 FAM 4170

Yo! What’s Missing?

The new regs emphasized the need for official clearance for official and private communication “to ensure that no classified information is improperly disclosed.” It however, does not include any guidance on the use of a private server for emails and social media postings where classified information could be improperly disclosed.

A Much Better FAM Version, Hey?

From the organizational perspective, some folks would say that this is a “much better” version of the FAM.  We’d call this a much better plug. An insider could argue that this is a “very fine sieve.”

Okeedokee, but what do you think will be its consequences for the rank and file? No one will officially admit this as the intent, but after reading this new version of 3 FAM 4170, this is what we think it really says:

The updated regs also says that “In light of the rapid pace with which many social media platforms are used, all offices, sections, or employees who routinely post to such platforms in their official capacity are encouraged to seek advance blanket authorization to engage for their social media communications, in accordance with 3 FAM 4175.1(c).”

The blanket authorization as far as we can tell only applies to those who are engaged in social media platforms in their official capacities, it makes no similar provision for employees in social media platforms in their private capacities.

Fun With Fido or Grumpy Cat

The new regs helpfully notes that “Employees who, in their personal capacity, wish to communicate publicly on matters that are clearly not “of Departmental concern” (see 3 FAM 4173) need not seek Department review under the procedures outlined herein, and need not use the personal capacity disclaimer discussed below in paragraph (b).”

So, basically, if you blog, tweet or write a book about Kitty Kat or Fidodog, or about their travels and adventures in Baghdad, Kabul, Sanaa, and all the garden spots, you don’t need to seek Department review. That is, as long as Kitty Kat is not secretly arming the rodent insurgents and tweeting about it and Fidodog is not flushing government money down the toilet and blogging about it.

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Related items:

Read the new 3 FAM 4170 July 27, 2015 | REVIEW OF PUBLIC SPEAKING, TEACHING, WRITING, AND MEDIA ENGAGEMENT

Download it here (pdf).

 

The Purposeful and Targeted Cultivation of a Relationship with a Consular Officer

Posted: 1:04 am EDT

 

Former FSO Michael T. Sestak was arrested in Thailand on May 7, 2013. He was initially arraigned on September 13, 2013 and pled guilty on November 6, 2013.  He is scheduled to be sentenced on August 14 before Judge John D. Bates at the U.S. District Court of the District of Columbia. The USG is recommending (#303) that Mr. Sestak be sentenced to a term of 84 months of incarceration followed by 3 years of supervised release.

The USG in its memorandum in aid of sentencing writes:

The U.S. State Department is dedicated to administering its visa programs fairly and without graft or corruption. SESTAK and his co-conspirators damaged the reputation of the U.S. State Department by tainting the process and likely preventing deserving applicants from obtaining visas.

This was not a momentary lapse in judgment for any of the conspirators, including SESTAK. This was a sophisticated scheme that exploited a system and made millions of dollars after months of careful planning and substantial efforts to cover their tracks.
[….]
SESTAK has provided substantial assistance to the government from the time of his initial detention on May 9, 2013. On that date, the defendant waived his Miranda rights and agreed to be interviewed. During this initial interview, the defendant acknowledged his guilt and provided investigators with information regarding the conspiracy, including details about how the scheme actually operated and how the proceeds were laundered and moved out of Vietnam. While SESTAK was somewhat naïve and uninformed about the full extent of the conspiracy and the deep involvement of Binh Vo’s family members, he never minimized his own critical role in the scheme.

Mr. Sestak’s lawyer, Gray B. Broughton in his court filing argues that as of August 14, 2015, Mr. Sestak will have already forfeited over twenty-seven (27) months of his liberty in facilities designed for short-term detention and that a thirty-three (33) month sentence will serve as adequate punishment. “As a result of his indictment and conviction, Michael lost his job with the State Department and will never again be able to work in a similar capacity in public service. Even worse than the incarceration and job loss is Michael Sestak’s loss of reputation. The amount of shame and contrition that Michael Sestak continues to carry with him cannot be overstated. The loss of one’s profession and reputation is a severe punishment that serves the retributive goals of sentencing.” 

We will keep tabs on the sentencing set for Friday morning. Meanwhile, below is an excerpt from the court filing which is instructive, particularly, the emails exchanged by some of the conspirators.  If you’re a consular officer and somebody wants to make you an “honorary” brother, or sister, some other pretend relative, or fairy godparent, you gotta run as fast and as far away as possible!

This is what a purposeful and targeted cultivation of a relationship with a consular officer overseas looks like.  Note that this is an excerpt from the defense filing:

When Michael arrived in Vietnam, he had hit a personal low. Michael had become dissatisfied working for the State Department and had contemplated resigning at the end of his assignment to Poland. Michael had witnessed others being promoted who he believed were less deserving than he was. To make matters worse, Michael’s involvement in the fruitless search for WMD throughout Iraq shook his previously unwavering trust in the United States Government.
[…]
Most significantly, when Michael arrived in Vietnam, his personal life was totally unfulfilling. Within his first year assigned to Vietnam, Michael turned 40. Michael was unmarried, had no children, and no serious prospects for finding someone to share life together.  One aspect of being a Foreign Service Officer was that Michael changed countries every two years, usually coming back to Washington D.C. for several months in between for training. In both Spain and Poland, Michael had a girlfriend that he met towards the end of his tour. Unable to further develop these relationships in such a short amount of time, Michael arrived at his next assignment unaccompanied. It was during these transitions that Michael began to question the meaning of life and finding true happiness.
[…]
It was during this time and with this personal baggage that Michael first met Binh Vo. They met at Michael’s very first Consulate event in Vietnam in August 2010. Binh Vo and a Vietnamese businessman approached Michael and started talking. Binh Vo and Michael were approximately the same age; similarly, Binh Vo was American and well-educated.
[…]
Binh Vo slowly became Michael’s closest confident. Their friendship developed to the point where they met almost daily for meals or coffee. Binh Vo introduced Michael to his siblings, who went out of their way to include Michael in “family-only” functions. Binh Vo’s siblings referred to Michael as an honorary “Vo” brother. This circle of new-found friends constituted roughly 80% of Michael’s social activity in Vietnam. As described above, Michael was unable to develop any real friendships with American employees at the Consulate and he didn’t really have any Vietnamese friends; the few Vietnamese men that Michael met who ran in the same circles would ultimately harass Michael for visa “favors.” For the first year and four months of Michael’s time in Vietnam, Binh Vo was the only single male with whom he could communicate and socialize without reporting requirements because Binh Vo was American. Additionally, Binh Vo was always available, had a comparable level of education, and didn’t ask any favors.

Michael felt very fortunate to have stumbled upon a great relationship with Binh Vo and his family. Michael was unaware that Binh Vo and his family had targeted Michael from the onset and that every coffee, meal, family dinner, and drink was an orchestrated, results-driven event with the end goal of executing Binh Vo’s scheme to fraudulently sell non-immigrant visas to Vietnamese citizens.

As the Government stated in its sentencing memorandum for Binh Vo, Binh Vo “purposefully cultivated a relationship with Sestak in order to recruit him to approve visas for the conspiracy.” Government Mem., Doc. 289 at 8. Binh Vo exploited the weakness that Michael tried to hide, but some easily saw.
[…]

The Government’s sentencing memorandum illustrates how Binh Vo and his family preyed on Michael’s weakness and transformed him from a law-abiding officer and government official into a willing participant of the Vo’s scheme to enrich themselves:

The defendant [Binh Vo] orchestrated the visa fraud conspiracy from beginning to end. During the summer of 2011, according to electronic communications between the defendant [Binh Vo]’s sister and another co-conspirator, [Binh Vo] cultivated a relationship with [Michael] Sestak in order to get Sestak to approve visas for their family and acquaintances.

In a Google chat dated June 1, 2011, co-defendant Hong Vo stated to an acquaintance:

[L]ast night we went out with this guy who works at the consulate — he’s the one that approves peoples visas… and he’s this single guy who wants to find someone to be wth [sic]… and my brother knows that – so he’s been trying to get this guy out and introduce him to people… so then later he can do him favors like … have him approve visas for people.

In an email dated June 1, 2011, co-defendant Hong Vo stated to her boyfriend:

This guy who works for the US consulate here came out and joined us for dinner. He’s the guy that approves Visas for Vietnamese people to go to the United States so he’s a really good connection to have. My brother plans on using him to get [a sister-in-law’s] Visa to go to the States so [the sister-in-law] will most likely travel back with me in August . . . he just likes to people watch — he does this with the consulate guy (Mike) and they check out girls.

In a Google chat dated June 27, 2011, co-defendant Hong Vo again discussed the sister-in-law referenced in the above paragraph.

I applied for her Visa … so her interview is July 13th … and i told the consulate guy … so he said he’ll pull her file … but now he knows our family … so he’s more trusting … but she’ll most likely get accepted this time … because Mike will pull up her file … and he considers Binh like his best friend.

In another Google chat dated June 27, 2011, co-defendant Hong Vo discussed Sestak:

I have to go out now… it’s freaking 11P and Binh forgot it was Mike’s birthday… this loser guy who works for the consulate but we have to go out because he’s going to help us get [the sister-in-law’s] visa ugh

The USG in its court filing says that “the conduct that led to the present charges appears to be significantly out of character for the defendant.” It has also credited Mr. Sestak for accepting responsibility for his actions and for expression of remorse:

As far as the government is aware, prior to these offenses SESTAK had an unblemished record first as a as a police officer, then a Deputy United States Marshal, a U.S. Naval Intelligence Officer, and finally as a U.S. Foreign Service Officer. The fact that he immediately accepted responsibility for his actions at the time of his initial detention and agreed to cooperate with the government from that day forward supports the government’s belief that the defendant is not a career criminal. The defendant’s cooperation has included numerous meetings and debriefings and significant assistance with the sale of the condominiums in Thailand that he purchased with the illegal proceeds from the scheme. Since the time of his initial detention in May 2013, the defendant has repeatedly expressed shame and genuine remorse for his actions.

Mr. Sestak faces 19-24 years in prison under federal sentencing guidelines. The USG is asking for 84 months or 7 years and three years of supervised release. Defense is asking for 33 months. We’ll have to wait until August 14 to hear Judge Bates’ decision.

We’ve posted a couple of the publicly available Sestak documents in the forum’s Document Dump for friends of the blog. Click here to login. It looks like all of Mr. Sestak’s cooperation with the government is related to the cases against the other conspirators and the disposal of properties purchased through illegal proceeds.  We want to know how can the next Sestak be prevented from happening; he maybe in the best position to answer that question. We’ve requested to do an interview with him after the sentencing.  Will keep you posted.

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A blog mistake hounds an FSO: Despite a good reputation for work, “there was the blog thing.”

Posted: 3:43 am EDT

 

There are over 500 Foreign Service blogs by State Department employees and family members. Long-time readers of this blog may remember the tigers who bite bloggers (see Foreign Service Blogging: Tigers Have Teeth, Rather Sharp … Rawr!!!).

When I wrote that Rawr piece in 2011, I wrote this:

I have not seen or heard of Tigers actually yanking anybody’s clearance due to an offending blog. I am aware of private sessions of discouragements, issues with onward assignments, and of course, threats of various colors and stripes among directed at FS bloggers.  And as far as I know, they have not technically kicked out anyone who blogs either —  unless you call the “push” to retirement a payback kick.

Well, State did yank Peter Van Buren‘s clearance afterwards, but it was for more than just a blog.  Occasionally, I get a request to cite a case where identified individuals got into real trouble due to blogging in the Foreign Service. Except for a small number of cases (PVB, ADA and MLC), I’ve refrained from writing about the blog troubles out of concern that writing about them makes it worse for the individual bloggers. In many cases, the bloggers themselves quietly remove their blogs online without official prompting. Out of the abundance of caution.

A recent FSGB case decided in January 2015 shows a charge of “Poor Judgment” against an FSO based on a post in her personal blog written in October 2008.  That’s right. The blog post was online for barely a day and was taken down in 2008. To be clear, the poor judgment charge related to the blog is just half the charges filed against this employee.  But in January 2013, State proposed a five day suspension for the FSO. Excerpt from the FSGB record of proceeding available online:

The Improper Personal Conduct charges are based on grievant’s personal relationships in the summer of 2008 with two individuals to whom she had previously issued non-immigrant visas, and the Poor Judgment charge is based on a post in her personal Internet blog in October of 2008.
[…]
During a flight to the United States during the spring of 2008, grievant unexpectedly encountered another citizen of Country X (Citizen B) for whom she had issued a visa, fell into conversation with him, and exchanged contact information. Upon her return to Country X, grievant was hospitalized in June 2008. While in the hospital, she received a call from Citizen B, who said he would ask his family members to visit her. They did so. Soon after Citizen B returned to Country X, grievant invited him to lunch. Thereafter, the two conducted an intimate relationship for about three weeks.

Later, Citizen A contacted grievant requesting her assistance in issuing a visa to his new wife. Grievant told him she could not be involved in his wife’s visa application process because she knew him. Consequently, another Consular Officer adjudicated and issued the visa for Citizen A’s new wife. Shortly thereafter, grievant posted on her personal blog (using Citizen A’s initials) a comment saying, in effect, that sharing a bottle of wine with someone could be disastrous, especially when that person shows up at your workplace seeking a visa for his new bride. Within a day of this blog posting, grievant was warned by a colleague to take it down, and grievant did so.
[…]
In a letter issued on January 31, 2013, the Department of State proposed to suspend grievant for five workdays, based on three charges that arose from conduct occurring in 2008. Ultimately, the suspension was reduced to three workdays. Grievant’s appeal raised issues of timeliness as well as challenges to the substance of the charges. Grievant is a class FS- 04 Consular Officer who was serving abroad in 2008. In May 2009, a co-worker at her Embassy complained to the RSO that grievant had become too close to some visa applicants and their attorneys and was maintaining improper personal relationships with them. The Office of the RSO investigated the allegations and eventually referred the matter to the Consular Integrity Division (CID). In its report of October 2009, CID found no wrongdoing and returned the matter to post. Nonetheless, the RSO referred the complaint of the co-worker to DS for investigation, but did not do so until January 2011. DS, for no articulated reason, did not assign the case to a field agent until September 28, 2011. DS then did not complete its investigation and forward the matter to HR until late October or early November 2012.

The Board concluded that there was no fact-based excuse for the delay at the RSO level and that there was no evidence of necessity for the length of time engulfed in the DS investigation. The Board found that the grievant had been harmed by the overall delay, caused by two different bureaucracies in the Department. The Board identified the harm as the statistically diminished promotability of this particular officer, given her combination of time-in-service and time-in- class.

The FSGB explains in the footnotes that 1) “She [grievant] was unmarried and remained unmarried through at least the date of her suspension. We mention her marital status only because in other disciplinary cases, an officer’s married status has been deemed a risk for coercion if someone knowing of the sexual misconduct threatened to reveal it to the officer’s spouse. Here, however, it does not appear that the grievant’s marital status was relevant to the selection of penalty or the choice of the charges. Noting grievant’s marital status may obviate confusion, if anyone examining other grievances or appeals should consider this case for comparison purposes.” 2) “Because of sensitivity surrounding the country in which grievant served her first tour, both parties refer to it as “Country X…”

In its decision last January, the FSGB held (pdf) that “grievant had shown by a preponderance of the evidence that the Department’s delay of over three years in proposing grievant’s suspension was unexcused and unreasonable and that grievant’s promotional opportunities had been harmed as a result of the delay. Grievant is entitled to reversal of the three-day suspension for charges of Improper Personal Conduct and Poor Judgment, as well as removal of the suspension letter from her OPF. Grievant is entitled to promotion to the FS-03 level, as recommended by the 2013 Selection Boards, retroactive to 2013.”

While this case was resolved on the FSO’s favor, I’m taking note of this case here for several reasons:

1) According to the redacted report published online, the misconduct was reported to the agency by one of grievant’s co-workers on May 20, 2009.  An embassy is a fishbowl.  Anyone at post familiar with one’s activities, in real life or online can file an allegation. If you write a blog specific to your post, people at post inevitably will connect you to it. A single blogpost, even if taken down, can reach back and bite. Across many years.  State’s position is that grievant’s argument that the Department had no regulations or guidelines about personal blogs in 2008 “does not make her posting any less wrong.” Interestingly, that official line doesn’t seem to apply when it comes to the former secretary of state’s use of private email.

2)  Even if an allegation is dismissed by the Consular Integrity Division (CID), it does not mean the end of it, as this case clearly shows.  After the case was dismissed by CID, the case was forwarded to Diplomatic Security for another investigation.  “Counting from the date on which the behavior was reported (as specific misconduct) to the agency to the date of proposal of the five-day suspension, the period of delay in dispute is three (3) years and eight months.” While I can understand what might have prompted the initial complaint, I’m curious about the second referral.  I’d be interested to see comparable cases to this. I’m wondering if this case would have been referred to a second investigation if she were a male officer? Absolutely, yes, no? But why a duplicate investigation?

3) When grievant departed Country X for a new post,  her continued blogging activity prompted other Consular (CID) investigations.  Since there are no public records of these incidents until the cases end up in the FSGB, it is impossible to tell how many FS employees have been referred to CID or DS for their blogging activities. Or for that matter, what kind of topics got them in trouble.  I am aware of cases where FS bloggers had difficulties with onward assignment, but those were never officially tied to their blogging activities; that is, there were no paper trail pointing directly at their blogs.  This is the first case where we’re seeing on paper what happens:

Grievant states in the ROP that “while in [REDACTED] she did not receive any of the initial positions she bid on. Eventually, she was told that even though she had a good reputation for her work, “there was the blog thing.” Also, she recalls that a “handshake” offer of a Consular Chief position in [REDACTED] was rescinded. She attributes this to an unnamed official’s claim that “Embassy decided they did not want me after CID told them about my history (presumably the blog, and my time in Country X).”

4) Beyond the consequences of not getting onward assignments, here’s the larger impact:  “In 2015, the first year her file would be reviewed without any discipline letter, grievant would have been in the Foreign Service for nine years and in class FS-04 for seven years. In point of fact, these lengths of time in service and time in class fall far above the average promotion times for officers moving from grade FS-04 to FS-03.[…]  We conclude, under the totality of circumstances, that the untimely suspension prejudiced her chances for promotion to FS-03 in the years 2015-2018.”

5) Beyond the blog thing — the FSO in this grievance case was an untenured officer serving her first tour at a “sensitive” country the FSGB would only refer to as Country X. When the FSO argue that she was never counseled at post regarding these relationships (other half of charges is for Improper Personal Conduct), the State Department contends that “any lack of counseling “does not erase the perception of impropriety [grievant’s] actions could create if made public, nor does it serve as an implicit concession that [grievant’s] actions were somehow appropriate.”   \

Well, okay, but ….. 3 FAM 4100 is the rules for the road when it comes to  employee responsibility and conduct. Which part of the current A100 or leadership and management classes are these FAM sections incorporated?  While I can understand the  department’s contention above, it also does not absolve the agency from its responsibility to provide appropriate counsel and training, most especially for entry level officers. Or is this a gap in the training of new employees?  When a new, inexperienced officer is first posted overseas, who can he/she ask about delicate issues like this? Is there a Dear Abby newbies can write to or call for counsel at the State Department without the question trailing the employee down every corridor?

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21.5 Million Americans Compromised, OPM’s Ms. Archuleta Still Not Going Anywhere

Posted: 1:36 am  PDT

Excerpt via opm.gov:

OPM announced the results of the interagency forensic investigation into the second incident.  As previously announced, in late-May 2015, as a result of ongoing efforts to secure its systems, OPM discovered an incident affecting background investigation records of current, former, and prospective Federal employees and contractors.  Following the conclusion of the forensics investigation, OPM has determined that the types of information in these records include identification details such as Social Security Numbers; residency and educational history; employment history; information about immediate family and other personal and business acquaintances; health, criminal and financial history; and other details.  Some records also include findings from interviews conducted by background investigators and fingerprints.  Usernames and passwords that background investigation applicants used to fill out their background investigation forms were also stolen.

While background investigation records do contain some information regarding mental health and financial history provided by those that have applied for a security clearance and by individuals contacted during the background investigation, there is no evidence that separate systems that store information regarding the health, financial, payroll and retirement records of Federal personnel were impacted by this incident (for example, annuity rolls, retirement records, USA JOBS, Employee Express).

This incident is separate but related to a previous incident, discovered in April 2015, affecting personnel data for current and former Federal employees.  OPM and its interagency partners concluded with a high degree of confidence that personnel data for 4.2 million individuals had been stolen.  This number has not changed since it was announced by OPM in early June, and OPM has worked to notify all of these individuals and ensure that they are provided with the appropriate support and tools to protect their personal information.

Analysis of background investigation incident.  Since learning of the incident affecting background investigation records, OPM and the interagency incident response team have moved swiftly and thoroughly to assess the breach, analyze what data may have been stolen, and identify those individuals who may be affected.  The team has now concluded with high confidence that sensitive information, including the Social Security Numbers (SSNs) of 21.5 million individuals, was stolen from the background investigation databases.  This includes 19.7 million individuals that applied for a background investigation, and 1.8 million non-applicants, predominantly spouses or co-habitants of applicants.  As noted above, some records also include findings from interviews conducted by background investigators and approximately 1.1 million include fingerprints.  There is no information at this time to suggest any misuse or further dissemination of the information that was stolen from OPM’s systems.

If an individual underwent a background investigation through OPM in 2000 or afterwards (which occurs through the submission of forms SF 86, SF 85, or SF 85P for a new investigation or periodic reinvestigation), it is highly likely that the individual is impacted by this cyber breach. If an individual underwent a background investigation prior to 2000, that individual still may be impacted, but it is less likely.

So, are we supposed to wait for another credit monitoring offer from OPM’s partners for this BI hack, after already being offered credit monitoring for the personnel data compromised in an earlier breach?

Yes. Wonderful.

Ms. Archuleta should do the right thing and resign.

Part of OPM’s public response to these breaches has been to protect the director’s record at the agency.  While she remains in charge, I suspect that the fixes at OPM will also include shielding the director from further damage. News reports already talk about OPM’s push back. Next thing you know we’ll have “setting the record straight” newsbots all over the place.

While it is true that Ms. Archuleta arrived at OPM with legacy systems still in operation, these breaches happened under her watch. Despite her protestation that no one is personally responsible (except the hackers), she is the highest accountable official at OPM.  Part and parcel of being in a leadership position is to own up to the disasters under your wings.  Ms. Archuleta should resign and give somebody else a chance to lead the fixes at OPM.

via reactiongifs.com

via reactiongifs.com

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OPM Director Writes Investigation “Update” on Data Breach on July 4th, 8 p.m. Yawn. Rumble Burble CYA

Posted: 3:14 am  EDT

 

Katherine Archuleta who remains OPM director following the drip, drip, drip reports on the OPM data breach wrote a blog post at 8 pm on Saturday, July 4th, updating the “hardworking Federal workforce” on the “Cyberintrustion Investigation.”

The update does not provide any real update on the investigation, except to say they hope to have something this week. Two sentences on the investigation from an eight para message. Oy!

The purpose of the message appears to be — to show that the director is working on a Federal holiday. At 8 pm, too. While you all are celebrating the Fourth of July, the OPM director who is “as concerned about these incidents as you are,” is writing a blog post, and talking about the “tireless efforts” of her team. She wants folks to know that she “shares your anger,” and that she remains “committed to improving the IT issues that have plagued OPM for decades.” She also writes that she is “committed to finishing the important work outlined” in her Strategic IT Plan.

Hey, no one is personally responsible for this breach except the hackers, and it looks like Ms. Archuleta is committed enough that she won’t be going anywhere. No, not even to go back in time.

Here’s the part of her message that gave me a nasty headache. She writes, “I encourage you to take some time to learn about the ways you can help protect your own personal information.” 

Ay, holy molly guacamole!

May I also encourage OPM to take some time to learn about the ways it can help protect the personal information of Federal employees, job applicants, retirees and contractors, and their family members, because why not? See this timeline:
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Cybersecurity is already a priority in our lives and work. We’re all in this great mess because it wasn’t a priority for OPM.  I certainly welcome more substantive details of this breach but these updates that are nothing more than rumble burble CYA are mighty useless, and they don’t do  anything to improve my perception of OPM or its leadership.

Dear White House. Please.Make.Her.Stop.

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Via opm.gov

As our hardworking Federal workforce enjoys a much-deserved holiday weekend, I want to share a quick update on the ongoing investigation into the recent theft of information from OPM’s networks.

For those individuals whose data may have been compromised in the intrusion affecting personnel records, we are providing credit monitoring and identity protection services. My team has worked with our identity protection contractor to increase staff to handle the large volume of calls, and to dramatically reduce wait times for people seeking services. As of Friday, our average wait time was about 2 minutes with the longest wait time being about 15 minutes.

Thanks to the tireless efforts of my team at OPM and our inter-agency partners, we also have made progress in the investigation into the attacks on OPM’s background information systems. We hope to be able to share more on the scope of that intrusion next week, and in the coming weeks, we will be working hard to issue notifications to those affected.

I want you to know that I am as concerned about these incidents as you are. I share your anger that adversaries targeted OPM data. And I remain committed to improving the IT issues that have plagued OPM for decades.

One of my first priorities upon being honored with the responsibility of leading OPM was the development of a comprehensive IT strategic plan, which identified security vulnerabilities in OPM’s aging legacy systems, and, beginning in February 2014, embarked our agency on an aggressive modernization and security overhaul of our network and its systems. It was only because of OPM’s aggressive efforts to update our cybersecurity posture, adding numerous tools and capabilities to our networks, that the recent cybersecurity incidents were discovered.

I am committed to finishing the important work outlined in my Strategic IT Plan and together with our inter-agency partners, OPM will continue to evaluate and improve our security systems to make sure our sensitive data is protected to the greatest extent possible, across all of our networks.

We are living in an era where cybersecurity must be a priority in our lives at work and at home. I encourage you to take some time to learn about the ways you can help protect your own personal information. There are many helpful resources available on our website.

I’m wishing you a safe and relaxing 4th of July weekend.

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State Department’s Visa Systems Now Operational at 165 of 220 Posts Worldwide

Posted: 1:56 am  EDT

 

The State Department’s Consular Consolidated Database problems that affected travelers globally is is now back online at 165 of 220 visa issuance posts worldwide.  The latest update does not explain in details the cause of the glitch except to cite the hardware issue.  It also says that service was restored “using a redundant, secondary backup system and other sources.”  It does not explain what “other sources” mean but if it took at least 9 days to get that redundant, secondary back-up system to kick in, that’s not a very good system.

The Consular Affairs-issued FAQ asks how many people were affected by this outage? The answer it provides to this question is neither here nor there.  Folks, if you can’t answer your own question, please don’t include it.

According to travel.state.gov, the average visa applications processed every day worldwide is 50,000 x 9 days (June 9-19)=450,000 + 25,000 (half the average daily applications) x 4 days (June 22-25) = 100,000. Total number potentially affected 550,000.  Is that close enough?

The June 25 update says that if systems had been operating normally, posts would have issued approximately 540,000 visas since the outage started. Whoa! Help us out here. What kind of refusal/approval rates are we looking at here? That 540,000 figure is a little hinky because not all applicants who apply are issued visas. If it would have issued 540,000  visas, what would have been the total number of applicants?  Note that all of them must pay the visa fees. We estimate that the USG loss from this latest glitch is between $72 to $84 million (average daily applications globally x no. of days x $160 visa fee). Is that too low?

Meanwhile, StarrFMonline.com reported that the US Embassy in Accra, has “dismissed reports that it is ripping Ghanaians off by accepting visa fees in spite of the visa issuance imbroglio that has hit US embassies across the world.” The consular section chief  had to explain that “if anybody was refused a visa, that was because of the case and has nothing to do with our technical issues.”

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On June 24, the Bureau of Consular Affairs reports that 50 posts, representing nearly 73 percent of its  nonimmigrant visa demand worldwide, are back online and issuing visas.  It also says that “posts overseas have issued more than 150,000 non-immigrant visas since June 9.” And that for context, if systems had been operating normally, posts would have issued approximately 450,000 visas during the June 9-23 timeframe.

On June 25, the Bureau of Consular Affairs reports that 165 posts, representing more than 85 percent of nonimmigrant visa demand worldwide, are now online and issuing visas.  The update says that if systems had been operating normally, posts would have issued approximately 540,000 visas since the outage started.

Via travel.state.gov, June 25 update:

Visa Systems Issues

  • The Bureau of Consular Affairs reports that 165 posts, representing more than 85 percent of our nonimmigrant visa demand worldwide, are now online and issuing visas. 

  • Posts overseas issued more than 82,000 visas on June 24. 

  • Posts overseas have issued more than 238,000 non-immigrant visas this week. For context, if systems had been operating normally, posts would have issued approximately 540,000 visas since the outage started. 

  • We will continue to bring additional posts online until connectivity with all posts is restored. All posts worldwide are now scheduling interviews with applicants, including with those who applied after the systems problems began on June 9.

  • We deeply regret the inconvenience to travelers who are waiting for visas, as well as their families and U.S. businesses that have been affected.

  • We continue to post updates to our website, travel.state.gov.

 

Q: Reports indicate that your backlog is 700,000 visas. Is this accurate?

No. While there is a large backlog of cases to clear, it never approached that level, and we have already made good progress issuing those visas. Many posts are working overtime this week and during the upcoming weekend, and we expect to eliminate the backlog in a week or less.


Q: How old is this equipment? And does the age of the equipment and the need to have so many repairs to the hardware mean that this equipment should have been replaced? Is this a funding issue at the base of it?

The hardware that impacted the biometrics system is several years old. The Department was working to move the biometrics system off of this hardware.

The operational requirements to keep this database running for domestic and overseas passport and visa issuances caused delays in upgrading the database according to our planned maintenance schedule.

We have been working to upgrade our systems over the past year.

We will move ahead with planned migration and systems upgrades as soon as we fully restore service.

Q: How did you restore service?

We restored service using a redundant, secondary backup system and other sources. That data allowed us to begin to re-connect posts to the affected portion of the system and synchronize biometric data. This system is running on newer hardware, and has a synchronized standby system in a different Department data center.

In parallel, we are continuing to restore data from backups and overseas post databases. This process is ongoing.

Q: Do you know whether this is equipment that was acquired directly by the State Department, or was this acquired through a third-party contractor?

The equipment was acquired by the Department of State.

Q: How many people were affected by this outage?

During the past two weeks, consular sections have continued to interview travelers who applied June 8 or earlier. Those posts reconnected to our system are now issuing visas for those applicants.

Q: How are cases being prioritized?

We continue to facilitate urgent cases for those individuals who need to travel imminently, and will continue to do so until the systems are normal.

We apologize to travelers and recognize that this has caused hardship to some individuals waiting for visas as well as families and employers.

Q: What about the foreign agricultural workers (H2A visa holders?)

More than 2,500 temporary or seasonal workers have been issued new visas in Mexico since last week.

We will continue to prioritize H-2 applicants as our systems return to normal, and issue as many approved cases as possible. However, we will not be able to process these as quickly as we typically do until our systems are functioning normally. We continue to ask that any employers with urgent needs contact the post which is processing their applicants and we will do everything we can to facilitate the cases.

We are no longer asking CBP to provide Port of Entry waivers, as we have now begun issuing visas at border posts.

Visa applicants, including agricultural workers, who have not received a visa should not report to the border. Please contact the nearest embassy or consulate.

Read more here.

Center for Strategic Counterterrorism Communications and Bureaucratic Bang! Bang!

Posted: 1:18 am EDT

 

“The fate of the CSCC just underscores the difficulty of experimentation in government — there is zero tolerance for risk and no willingness to let a program evolve. […] “It’s easier to do the same stuff over and over and wring your hands instead of investing resources and having patience.”

Daniel Benjamin
Former State Department CounterTerrorism Chief
Source: WaPo in In a propaganda war against ISIS, the U.S. tried to play by the enemy’s rules | May 8, 2015

 

Video clip via WaPo:

USAID’s Arab Spring Challenges in Egypt, Tunisia, Libya, Yemen: The State Department, It’s No.2 Challenge

Posted: 12:10 am EDT

 

USAID’s Office of Inspector General (OIG) conducted a survey (pdf) to identify the challenges USAID faced during the early transition period (December 2010-June 2014) in Egypt, Tunisia, Libya, and Yemen. USAID/OIG identified and interviewed 31 key USAID officials from various parts of the organization who have worked on activities in these countries.It also administered a questionnaire to supplement the information gathered from the interviews. Together, 70 employees from USAID were either interviewed or responded to the questionnaire. It notes that the while the survey collected the perspectives of a number of USAID employees, it is not statistically representative of each office or USAID as a whole.

The highest addressee on this report is USAID/Middle East Bureau Assistant Administrator, Paige Alexander. It includes no State Department official nor congressional entities.

Below is an excerpt:

In 2013 OIG conducted a performance audit of USAID/Egypt’s economic growth project1 and found that the changes of the Arab Spring severely affected the project’s progress. Approximately midway through implementation, the project had not made significant progress in seven of the ten tasks in the original plan mainly because of changes in the Egyptian Government’s counterparts and priorities. To adapt to the environment, the project adjusted its plan and identified three new areas of work to focus on. In another audit that year,2 OIG found similar challenges at USAID/Yemen when one of that mission’s main projects had to adjust its approach after the Arab Spring started (page 16).

Beyond project delays, we found a host of other challenges common to all four countries that revolve around three broad categories:

  1. Security
  2. Increased influence from the State Department
  3. Host-countryreadiness

1. Security.

One of the most commonly cited challenges was the difficulty of operating in a volatile environment. Security dictated many aspects of USAID’s operations after the Arab Spring started, and it was not uncommon for activities to be delayed or cancelled because of security issues.
[…]
In addition to access, security also disrupted operations because employees were evacuated from the different countries. U.S. direct-hire employees at USAID/Egypt were evacuated twice in 3 years. In USAID/Yemen, employees were evacuated twice in 3 years for periods of up to 6 months.3 In our survey, 76 percent of the respondents agreed that evacuations made managing projects more difficult.
[…]
Because of the precarious security situations, strict limits were placed on the number of U.S. direct hires who were allowed to be in each country. Employees said the Agency did not have enough staff to support the number of activities. This problem was particularly pronounced in Tunisia and Libya, where for extended periods, USAID had only one permanent employee in each country

2. Increased Influence From State Department.

According to our survey results, the majority of respondents (87 percent) believed that since the Arab Spring the State Department has increased its influence over USAID programs (Figure 3). While USAID did not have activities in Libya and Tunisia before the Arab Spring, staff working in these countries afterward discussed situations in which the State Department had significant influence over USAID’s work. A respondent from Tunisia wrote, “Everything has been driven by an embassy that does not seem to feel USAID is anything other than an implementer of whatever they want to do.”

Screen Shot 2015-05-27 at 6.56.05 PM

While there is broad interagency guidance on State’s role in politically sensitive environments, the specifics of how USAID should adapt its operations were not entirely clear to Agency employees and presented a number of challenges to USAID’s operations. In Yemen, the department’s influence seemed to be less of an issue (page 17), but for the remaining countries, it was a major concern. As one survey respondent from Egypt wrote:

[State’s control] makes long-term planning incredibly difficult and severely constrains USAID’s ability to design and execute technically sound development projects. A path forward is agreed, steps taken to design activities and select implementation mechanisms, and then we are abruptly asked to change the approach.

State’s involvement introduced a new layer of review and slowed down operations. USAID employees needed to dedicate additional time to build consensus and gain approval from people outside the Agency.

USAID employees also described challenges occurring when State employees, unfamiliar with the Agency and its different types of procurement, made requests that were difficult to accommodate under USAID procedures. One respondent wrote that State “think[s] programs can be stopped and started at will and that we can intervene and direct partners in a manner that goes far beyond the substantial involvement we are allowed as project managers.”

Beyond operational challenges, many people we interviewed expressed frustration over the State Department’s increased role, particularly when State’s direction diverted USAID programming from planned development priorities and goals. This was an especially contentious issue at USAID/Egypt (page 7).

This difference in perspectives caused some to question State’s expertise in development assistance, particularly in transitional situations. A USAID official explained that countries in turmoil presented unique challenges and dynamics, and embassies may not have experts in this area. Others said USAID was taking direction from State advisers who were often political appointees without backgrounds in development.
[…]
State was not the sole source of pressure; employees said other federal entities such as the National Security Council and even the White House had increased their scrutiny of USAID since the start of the Arab Spring. As a result, mission officials had to deal with new levels of bureaucracy and were responding constantly to different requests and demands from outside the Agency.

3. Host-Country Readiness.

In each of the four countries, employees reported problems stemming from award recipients’ ability to implement assistance programs. According to one employee, local capacity in Libya was a major problem because the country did not have a strong workforce. Moreover, local implementers had not developed the necessary technical capacity because development assistance was not a priority in Libya under Muammar Qadhafi’s closed, oil-rich regime. Activities in Tunisia and Yemen encountered similar issues because neither have had long histories of receiving foreign development assistance. In Egypt, employees reported that some of the nongovernmental organizations (NGOs) working on the mission’s democracy and governance program also lacked sufficient capacity.

On Egypt:  More than 85 percent of the employees surveyed who worked on activities related to USAID/Egypt agreed that the State Department had increased its influence over USAID programs since the start of the Arab Spring (Figure 5). A number of respondents said State steered Agency programs to address political rather than development needs. This dynamic had a profound effect on the mission’s ability to follow USAID’s guidance on designing and implementing developmentally sound projects. […] Some mission officials questioned the value of adhering to USAID’s project design procedures when the State Department had already decided a project’s fate. […] In this example, State’s desire to award education scholarships to women in Egypt was difficult to justify because university enrollment data showed that higher education enrollment and graduation rates for women are slightly higher than for men.  […] With so many differing voices and perspectives, USAID employees said they were not getting clear, consistent guidance. They described the situation as having “too many cooks in the kitchen.” One survey respondent wrote:

State (or White House) has had a very difficult time making decisions on USAID programming for Egypt . . . so USAID has been paralyzed and sent through twists and turns. State/White House difficulties in decisions may be expected given the fluid situation, but there has been excessive indecision, and mixed signals to USAID.

On Tunisia: The State Department placed strict restrictions on the number of USAID employees allowed to be in-country. As a result, most Agency activities were managed from Washington, D.C. … [O]ne survey respondent wrote, “I have been working on Tunisia for nearly 3 years now, and have designed programs to be carried out there, but I’ve never been. I don’t feel like I have been able to do my job to the best of my ability without that understanding of the situation on the ground.”

On Libya: The attacks in Benghazi on September 11, 2012, had a profound impact on USAID operations in Libya. According to one interviewee, after the attacks USAID did not want to attract too much political attention and put a number of Agency activities in Libya on hold. The period of inactivity lasted from September 2012 to September 2013. It was not until October 2013, after Prime Minister Ali Zeidan was abducted, that the U.S. Government refocused attention on Libya and funding for activities picked up again.

Before the attacks, USAID had five employees in the country; afterward, only one was allowed to remain. Although his main priority then was to manage USAID/OTI projects in Libya, he also was asked to oversee four to five additional activities managed out of Washington—a stretch for any employee. As one survey respondent wrote, “The lack of people in the field in Libya (small footprint) means that DC overwhelms the field. People in the field are worked ragged.”

On Yemen: USAID/Yemen did not suffer from the challenges of unclear strategy that other USAID missions did in the region; 70 percent of respondents who worked on activities in Yemen believed that the Agency had a clear strategy for its post-Arab Spring activities (Figure 12). This is a stark contrast to responses related to USAID/Egypt, where only 22 percent believed that USAID had a clear strategy. …[O]ur survey also found a strong working relationship between USAID/Yemen and the State Department; the two often agreed on what needed to be done. […] Some respondents said the collaborative atmosphere was due to individual personalities and strong working relationships between USAID and State officials. One employee said because employees of both organizations lived and worked together in the close quarters, communication flowed freely as perspectives could be exchanged easily. …[O]ne senior USAID/Yemen official said, some of what needed to be done was so obvious that it was difficult for the two agencies not to agree.

Lessons Learned

The report offers 15 lessons learned including the development of a USAID transition plan at the country level, even if it may change. USAID/OIG says that by having a short-term transition plan, the Agency “would have a better platform to articulate its strategy, particularly when it disagrees with the decisions of other federal entities.”It also lists the following:

  • Resist the urge to implement large development projects that require the support of host governments immediately after a transition.
  • Prepare mission-level plans with Foreign Service Nationals (FSNs)—locally hired USAID employees who are not U.S. citizens—in case U.S. direct hires are evacuated. Evacuation of U.S. staff can be abrupt with only a few hours’ notice. People we interviewed recommended that U.S. staff develop plans with the mission’s FSN staff ahead of time, outlining roles, responsibilities, and modes of operation to prevent a standstill in operations in the event of an evacuation.
  • Get things in writing. When working in environments where USAID is getting input and instructions from organizations that are not familiar with Agency procedures, decisions made outside of USAID may be documented poorly. In such circumstances, it is important to remember to get things in writing.
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FOIA and Clinton Aides: Some Shock and Awe at the Foggiest Bottom

Posted: 1:02 am EDT

 

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That WSJ article above has this to say about the Keystone-related documents subject to FOIA and the rapid dominance doctrine in the halls of Foggy Bottom:

The Keystone documents Ms. Mills objected to were all either held back or redacted, the same person said. After Ms. Mills began scrutinizing documents, the State Department’s disclosure of records related to Keystone fell off sharply, documents that include a court filing show.

Two others with knowledge of State Department records procedures said political appointees were allowed greater say than the FOIA experts thought was appropriate. It was hard to push back against the political staff, one said.

The pipeline project was so sensitive that an expert on FOIA was invited to a State Department policy meeting to advise on how to prospectively shield documents from disclosure, such as by marking them as involving the “deliberative process,” said a person who attended.

That’s the infamous exemption for the “deliberative process,” otherwise known as the “b-5.” In early May, the Senate Judiciary Committee held a hearing on “Ensuring an Informed Citizenry: Examining the Administration’s Efforts to Improve Open Government.” Joyce Barr, the Assistant Secretary for Administration, as well as Chief FOIA Officer for the Department of State was one of the witnesses and made news for reportedly saying that Secretary Clinton’s use of a private email account for official business was “not acceptable.” Too late much?

One other witness at that hearing was Thomas S. Blanton, the Director of the National Security Archive at George Washington University. Below is from his prepared statement on the “b-5” exemption, also known as the “withhold it if you want to” exemption.

One reason why FOIA does not work is the abuse of the most discretionary exemption in the FOIA, the fifth or “b-5” on deliberative process. This exemption also includes attorney-client privilege, and every lawyer in this room shivers at the idea of infringing on that. Yet, I would point out that the Presidential Records Act dating back to 1978 has eliminated the b-5 exemption as a reason for withholding records 12 years after the President in question leaves office. Through the PRA, we have conducted a 35-year experiment with putting a sunset on the deliberative process exemption, and the facts show us no damage has been done with a 12-year sunset. Yes, some embarrassment, such as the junior White House lawyer who vetted (and rejected) a certain Stephen Breyer for a Supreme Court nomination back in the 1990s. But no new spate of lawsuits. No re-opened litigation. No damage to the public interest. Embarrassment cannot become the basis for restricting open government. In fact, embarrassment makes the argument for opening the records involved.

According to Mr. Blanton, the Justice Department’s use of the “withhold it if you want to” exemption is at an all-time high this year, invoked 82,770 times to withhold records that citizens requested. The same exemption used by the CIA to withhold volume 5 of a 30-year-old internal draft history of the disaster at the Bay of Pigs. This is the same exemption used by the FBI to censor most of the 5,000 pages it recently “released” on the use of the Stingray technology to locate individuals’ cell phones.  Apparently, this is the exemption that the administration also used to keep the Office of Legal Counsel final opinions out of the public domain according to Mr. Blanton.

So, are we terribly shocked yet?

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Conspired to Defraud Uncle Sam? Be Very Afraid. We’re Gonna Put You in Home Confinement!

Posted: 9:40 am EDT

 

Remember the USAID nonprofit contractor IRD? (See Dear USAID OIG — That Nonprofit Contractor Mess Really Needs a Fact Sheet). Well, here’s another one.  This is a case where the CEO of a major USAID contractor gets feather-slapped by the court.

A 2011 ranking of private USAID partners by devex.com lists LBG as the third largest USAID private-sector partner that has contracted some of the government’s largest post-conflict redevelopment projects in Iraq and Afghanistan. According to Bloomberg, Louis Berger International, a unit of Louis Berger Group, got about $736 million to modernize a power system and rehabilitate the Kajakai Dam in Afghanistan.  Whoa! We thought that dam only cost $305.5 million! Plus cost of fuel that  US taxpayers also had to shoulder.

What is missing from this announcement? How much was the total contracts that LBG received in the last 20 years? Who’s paying the independent monitor? And for heaven’s sake, what lessons are we sending to other reconstruction capitalists doing awesome work for love of god and country?

Via USDOJ:

The former president, chief executive officer, and chairman of the board of a New Jersey-based international engineering consulting company was sentenced today to 12 months of home confinement and fined $4.5 million for conspiring to defraud the U.S. Agency for International Development (USAID) with respect to billions of dollars in contracts over a nearly 20-year period, U.S. Attorney Paul J. Fishman announced.

Derish Wolff, 79, of Bernardsville, New Jersey, previously pleaded guilty before U.S. District Judge Anne E. Thompson to a superseding information charging conspiracy to defraud the government with respect to claims. Judge Thompson imposed the sentence today in Trenton federal court.

According to documents filed in this case and statements made in court:

Wolff, the former president and CEO of Morristown, New Jersey-based Louis Berger Group Inc. (LBG), and the former chairman of LBG’s parent company, Berger Group Holdings Inc. (BGH), led a conspiracy to defraud USAID by billing the agency on so-called “cost-reimbursable” contracts – including hundreds of millions of dollars of contracts for reconstructive work in Iraq and Afghanistan – for LBG’s overhead and other indirect costs at falsely inflated rates.

USAID, an independent federal government agency that advances U.S. foreign policy by supporting economic growth, agriculture, trade, global health, democracy, and humanitarian assistance in developing countries, including countries destabilized by violent conflict, awarded LBG hundreds of millions of dollars in reconstruction contracts in Iraq and Afghanistan as well as in other nations. LBG calculated certain overhead rates and charged USAID and other federal agencies these rates on cost-reimbursable contracts, which enabled LBG to pass on their overhead costs to the agency in general proportion to how much labor LBG devoted to the government contracts.

From at least 1990 through July 2009, LBG, through Wolff and other former executives, intentionally overbilled USAID in connection with these cost-reimbursable contracts. The scheme to defraud the government was carried out by numerous LBG employees at the direction of Wolff.

Wolff targeted a particular overhead rate, irrespective of what the actual rate was, and ordered his subordinates to achieve that target rate through a variety of fraudulent means. From at least as early as 1990 through 2000, Wolff ordered LBG’s assistant controller to instruct the accounting department to pad its time sheets with hours ostensibly devoted to federal government projects when it had not actually worked on such projects.

At an LBG annual meeting in September 2001, Salvatore Pepe, who was then the controller and eventually became chief financial officer (CFO), presented a USAID overhead rate that was significantly below Wolff’s target. In response, Wolff denounced Pepe, called him an “assassin” of the overhead rate and ordered him to target a rate above 140 percent, meaning that for every dollar of labor devoted to a USAID contract, LBG would receive an additional $1.40 in overhead expenses supposedly incurred by LBG.

In response, Pepe and former controller Precy Pellettieri, with Wolff’s supervision, hatched a fraudulent scheme from 2003 through 2007 to systematically reclassify the work hours of LBG’s corporate employees, including high-ranking executives and employees in the general accounting division, to make it appear as if those employees worked on federal projects when they did not. At his plea hearing on Dec. 12, 2014, Wolff admitted that Pepe and Pellettieri, at Wolff’s direction, reclassified these hours without the employees’ knowledge and without investigating whether the employees had correctly accounted for their time, and at times did so over an employee’s objection.

In addition to padding employees’ work hours with fake hours supposedly devoted to USAID work, Wolff instructed his subordinates to charge all commonly shared overhead expenses, such as rent, at LBG’s Washington, D.C., office to an account created to capture USAID-related expenses, even though the D.C. office supported many projects unrelated to USAID or other federal government agencies.

On Nov. 5, 2010, Pepe and Pellettieri both pleaded guilty before then-U.S. Magistrate Judge Patty Shwartz to separate informations charging them with conspiring to defraud the government with respect to claims. Also on that date, LBG resolved criminal and civil fraud charges related to Wolff’s and others’ conduct. The components of the settlement included:

  • a Deferred Prosecution Agreement (DPA), pursuant to which the U.S. Attorney’s Office in New Jersey suspended prosecution of a criminal complaint charging LBG with a violation of the Major Fraud Statute; in exchange, LBG agreed, among other things, to pay $18.7 million in related criminal penalties; make full restitution to USAID; adopt effective standards of conduct, internal controls systems, and ethics training programs for employees; and employ an independent monitor who would evaluate and oversee the company’s compliance with the DPA for a two-year period;
  • a civil settlement that required the company to pay the government $50.6 million to resolve allegations that LBG violated the False Claims Act by charging inflated overhead rates that were used for invoicing on government contracts; and an administrative agreement between LBG and USAID, which was the primary victim of the fraudulent scheme.

In the settlement, the government took into consideration LBG’s cooperation with the investigation and the fact that those responsible for the wrongdoing were no longer associated with the company.

Click here for the original announcement (pdf).

 

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