@StateDept Officials on Clinton Private Email Debacle: Yo! Had Been Caught Off Guard? Ay, Caramba!

Posted: 11:25 am EDT



Excerpt below with annotation:

“When we were asked to help the State Department make sure they had everything from other secretaries of state, not just me, I’m the one who said, ‘Okay, great, I will go through them again,’ ” Clinton said Sunday on CBS’s “Face the Nation.” “And we provided all of them.”

But State Department officials provided new information Tuesday that undercuts Clinton’s characterization. They said the request was not simply about general rec­ord-keeping but was prompted entirely by the discovery that Clinton had exclusively used a private e-mail system. They also said they *first contacted her in the summer of 2014, at least three months before **the agency asked Clinton and three of her predecessors to provide their e-mails.
She has said repeatedly that it was “permitted” by the State Department and widely known in the Obama administration.

But the early call from the State Department is a sign that, at the least, officials in the agency she led from 2009 to 2013 were concerned by the practice — and that they had been caught off guard upon discovering her exclusive use of a private account.

***In the spring and summer of 2014, while it was in the process of trying to find records sought by the newly formed House Select Committee on Benghazi, the State Department’s congressional affairs office found Clinton’s personal e-mail address listed on a few records in a batch of Benghazi documents but no government e-mail account for her.

“We realized there was a problem,” said a State Department official who until that moment had not been aware of Clinton’s private e-mail setup. The official, like some others interviewed for this story, spoke on the condition of anonymity because of the sensitive nature of the case.

The agency is releasing those e-mails in batches, in accordance with a court order stemming from a public-records lawsuit.

The issue has led to frustrations within the State Department in recent months, as some officials have grown tired of having to answer for a political controversy not of their making, according to three senior officials.


Ay, caramba!

If the State Department had first contacted her in the summer of 2014, we have yet to see that correspondence. It was potentially sent sometime in August 2014, three months before the letters to Clinton and predecessors went out in November 12, 2014 from “M” (see below).  Three months is an early call?  C’mon! Secretary Clinton left State in February 2013.

As to the notion that officials had been “caught off guard” upon discovering her exclusive use of a private account, do spin doctors seriously expect us to buy this on a double discount?

The NYT broke the news that Secretary Clinton exclusively used a personal email account to conduct government business as secretary of state on March 2, 2015.

It took six months for three senior State Department officials to tell WaPo that they “had been caught off guard” by the secretary of state’s exclusive use of a private account?  These officials “were concerned by the practice”, so much so that they issued a three month-“early call” in the summer of 2014, 1 year and 6 months after the end of the Clinton tenure.  And we’re only hearing about this concern now, 2 years and 7 months after Secretary Clinton left office? Yeah.

Dates of note:

December 11, 2012: NARA Chief Records Officer Paul M. Wester Jr. Email to NARA’s Margaret Hawkins and Lisa Clavelli on how they “should delicately go about learning more” about the transition plans for Secretary Clinton’s departure from State. Concerns that “there are or maybe plans afoot to taking her records from State to Little Rock.” Invokes the specter of the Henry Kissinger experience vis-a-vis Hillary Clinton (view email in pdf). So there were discussions within NARA about the Clinton records as early as December 2012. It appears that NARA’s main contact (pdf) at State is Margaret P. Grafeld, the Deputy Assistant Secretary for Global Information Services (A/GIS).It should be interesting to see how or when the Clinton federal records were discussed between NARA and State.

* August 28, 2014: State Department U/S for Management sends memo to department principals on Senior Officials’ Records Management Responsibilities (view memo pdf). See State Department issued instructions for Preserving Email of Departing Senior Officials (view memo p.13 pdf)

** November 12, 2014Letter to Hilary Clinton’s representative, Cheryl Mills re: the Federal Records Act of 1950, November 12, 2014; to Colin Powell, to Condoleezza Rice; to Madeleine Albright;

*** August 11, 2014: The State Department sends its first group of documents to the new Select Benghazi committee, a partial response to a previous subpoena. The production contains a few — less than 10 — emails either to or from Clinton. Committee staffers notice immediately that the emails are from a previously unseen address, hdr22@clintonemail.com. Meanwhile, the committee presses State to meet its legal obligation to fully respond to the pair of subpoenas originally issued in August 2013. (Via Washington Examiner)


Brown v. State Department: Another Day, Another FOIA Lawsuit

Posted: 2:01 am EDT


David W. Brown is coauthor of Deep State (John Wiley & Sons, 2013) and The Command (Wiley, 2012). He is a regular contributor to TheWeek.comVoxThe Atlantic, and mental_floss. On September 7, he filed the latest FOIA lawsuit against the State Department. He explains why:

If it is now policy to allow private lawyers to hoard potentially classified information, the public is entitled to know the authority by which such policies are maintained, and who is permitted such generous treatment. The public is owed an explanation for blind eyes turned, in the case of Kendall and Clinton, to the obvious dangers to national security. Did no one at State object to this? And if so, who overruled those objections?

To find out, Kel McClanahan and I have filed suit against the U.S. State Department. Our lawsuit is the result of a Freedom of Information Act request for records concerning State’s decision-making in this matter. The State Department first acknowledged our request, and agreed to expedite its processing. Then they ended all correspondence. Americans have the legal right to these records, and our goal is to compel State to hand them over.

This goes beyond politics. If the State Department wants to pick and choose which private citizens get to store classified material at their homes or offices, the public needs an explanation of how such decisions are made, and why. Once we know that, we might know just how poorly our secrets are really being kept.

Read in full here.

The lawsuit is available to read here.


The Secretary of State: “If you are this confused ….”

Posted: 3:36  am EDT

Last week, NBC News reported that former Secretary of State Hillary Clinton apologized for the “confusion” surrounding the email controversy:


She needs somebody who can translate her email debacle to an average person.

Below is a telephone conversation between Secretary Kissinger and Ted Koppel, who was then the diplomatic correspondent for ABC News at the State Department. Something about everyone being confused, too:

HAK Telcon with Ted Koppel | November 14, 1975 0000D8D4

Screen Shot 2015-09-08

From Kissinger-Koppel telcon, November 14, 1975 click image to read pdf file

Via foia.state.gov | The Henry Kissinger Telephone Transcripts

The transcript above is from a collection of telephone conversations of Dr. Henry Kissinger during his tenure as Secretary of State under Presidents Nixon and Ford (September 1973 to December 1976). The Department of State obtained the collection of roughly 9550 pages of telephone transcripts from the Library of Congress. Of those received, over 8400 pages of transcripts have been released and are available here on-line. The Nixon-era transcripts conform to the National Archives and Records Administration’s review under the Presidential Recording Materials Preservation Act. The Ford-era transcripts have been reviewed under the Freedom of Information Act. The transcripts are conversations that Dr. Kissinger had with: former President Richard Nixon, leaders in government and business, members of the press, foreign ambassadors, and prominent members of the national and international communities. The transcripts record Dr. Kissinger’s role in the Middle East peace process, shuttle diplomacy after the 1973 Yom Kippur War, the Cyprus crisis of 1974, US-Soviet Union relations, Strategic Arms Limitation Talks (SALT) negotiations, and actions in negotiating a Vietnamese peace treaty.


Who signed off on Secretary Clinton having a private server? Over there – go fetch!

Posted: 1:19 am EDT

DPB, September 1, 2015

QUESTION: But do you know who signed off on her having a private server?

MR TONER: Who signed off on her? I don’t, no.

QUESTION: I mean —

QUESTION: Did anybody?

MR TONER: Again, I’m not going to answer that question. I’m not going to litigate that question from the podium.

QUESTION: So you’re saying that nobody signed off on her having a private server?

MR TONER: No. I’m saying – look, everyone – there were – people understood that she had a private server. I think we’ve talked about that in the past.

QUESTION: What level was that knowledge? How high did that go up in this building?

MR TONER: I mean, you’ve seen from the emails. You have an understanding of people who were communicating with her, at what level they were communicating at, so —

QUESTION: Was there anybody in this building who was against the Secretary having her own private server?

MR TONER: I can’t answer that. I can’t.

QUESTION: And just —

MR TONER: I mean, I don’t have the history, but I also don’t have – I don’t have the authority to speak definitively to that.


MR TONER: Again, these are questions that are appropriate, but appropriate for other processes and reviews.

QUESTION: But not the State Department? She was the Secretary of State and —

MR TONER: No, I understand what you’re asking. But frankly, it’s perfectly plausible – and I talked a little bit with Arshad about this yesterday – is for example, we know that the State IG is – at the Secretary’s request – is looking at the processes and how we can do better and improve our processes. And whether they’ll look at these broader questions, that’s a question for them.
QUESTION: So last opportunity here: You don’t know who signed off on Secretary Clinton having her own server?

MR TONER: Again, I don’t personally, but I don’t think it’s our – necessarily our responsibility to say that. I think that that’s for other entities to look at.


Holy Molly Guacamole!

See here? I don’t have enough fingers to count the verbal calisthenics the public is subjected to these days from the official podium of the oldest executive agency in the union.

He’s just doing his job, like … what would you do?

Pardon me? You’re embarrassed, too? Well, I suggest wearing a brown paper bag when watching the Daily Press Briefing from now on.

Are we ever going to reach a point when the career folks at the State Department will say “Enough, I’m not doing this anymore?

Hard to say. Hard to say. Although that did happen in Season 1, Episode 15 of Madam Secretary, so there is a clear precedent.


Holy Mother of FAM!!! Oh, Mr. Toner, What Have You Done?

Posted: 2:39 am PDT


On August 31, the State Department’s deputy spox was asked if the Secretary of State is bound by the rules of the Foreign Affairs Manual or not? (see Question of the Day: Is the Secretary of State bound by the rules of the Foreign Affairs Manual or not?). On September 1, the question was asked again and Mr. Toner promised to get an answer.

On September 3, the question was revisited for the third time, and here is the delightful exchange:

QUESTION: I have a – I’d asked you a question the other day and you said you’d get me an answer to it —

MR TONER: Did I? (Laughter.)

QUESTION: — and the question was whether the Foreign Affairs Manual applies to secretaries of state? Does it?

MR TONER: So – (laughter) – yeah. So I did do some research into this, as did others. It is – the Foreign Affairs Manual is – it is not comprehensive in, nor is it a bible for all Foreign Service officers or civil servants. So – and what do I mean by that? I mean it’s not – for example, there’s things in there about reimbursement of the use of your private vehicle. Certainly, that doesn’t apply to the Secretary of State or many people within the State Department.

So it’s – what’s contained in the Foreign Affairs Manual – and this is – I apologize but this is a kind of an in-the-weeds question – all of that is not necessarily relevant to, for example, ambassadors or secretaries of state or senior Department officials. I mean, if I can say what I think the essence of your question was, and I’m sorry if this is presumptive, but was whether they are bound by the responsibility to protect classified information. That certainly is true, that any Secretary of State, any senior State Department official is bound by that. And I spoke to this the other day, is that any individual, whether you’re the Secretary of State on down, takes that responsibility seriously.

QUESTION: But my question —


QUESTION: I mean, I really – I was not asking whether they were bound by every aspect of it, including those that are not relevant to them. It was whether they’re bound – basically whether they’re bound by the things that are relevant to them.

So to take the one that you raised, which is not whether they’re bound to protect classified information or to take seriously the responsibility to protect classified information, the question would be then, since you raised that as a specific: Are they bound – are secretaries of state bound by the rules in the Foreign Affairs Manual with regard to the handling of classified information?

MR TONER: I would say, as they are pertinent to the – and again, I don’t have the Foreign Affairs Manual in front of me – but as they are pertinent to the responsibility to protect and safeguard classified information, and we’ve talked about this, frankly, ad nauseum about the gradations and how we classify stuff and how we look at it. But as those rules – they apply to everyone in the State Department, including, for example, politically appointed ambassadors, and certainly by a secretary of state who is appointed by the President and, frankly, serves at the pleasure of the President and is not a Foreign Service officer in that regard or a civil servant.

QUESTION: So insofar as the regulations of the Foreign Affairs Manual touch on the protection of classified information, they apply to everyone, including the Secretary of State?

MR TONER: Again, I don’t have it in front of me but – and I’m not trying to parse this, but in a sense I am. Insofar as those regulations apply to the protection and safeguarding of classified information, yes.

QUESTION: Thank you.

QUESTION: Can we go back —

QUESTION: That didn’t seem like a parse to me.


Selective application, amirite?

First, Mr. Toner says, “So I did do some research into this…” Excuse me, why the heck is he doing the research on this? What’s the use of the Office of Legal Adviser, if you can’t get them to issue a formal opinion on this matter?

Then he says, “the Foreign Affairs Manual is – it is not comprehensive in, nor is it a bible for all Foreign Service officers or civil servants.”

Oh dear. Quick! If you’re in a disciplinary process, tell your lawyers.

Saying “again, I don’t have the Foreign Affairs Manual in front of me” might be a trick in the PA playbook but it’s not cute, okay?  This question has been asked since August 31st. The FAM is online, and easily retrievable.

He did say that “Insofar as those regulations apply to the protection and safeguarding of classified information, yes,” when asked if  the protection of classified information apply to everyone, including the Secretary of State per FAM.

Hey, did you know that “reimbursement of the use of your private vehicle doesn’t apply to the Secretary of State or many people within the State Department?”

Makes you wonder, for all the stuff where the FAM doesn’t cover the Secretary of State and many other people within the State Department, what alternate rules and regulations govern their workplace, and conduct on and off their jobs?  We’d like to know in case we’re tapped by  President Julian Navarro to find a successor for the libidinous Secretary Larson.

But seriously.

Per 2 FAM 1111.1 the Department of State articulates official guidance, including procedures and policies, on matters relating to Department management and personnel, known collectively as “directives,” in the Foreign Affairs Manual and Handbook Series. Directives include Department administrative organization policies and procedures. These directives derive their authority from statutes, Executive orders, other legal authorities, and Presidential directives, such as OMB circulars, and Department policies.

Per 2 FAM 1115.5-1 the Foreign Affairs Handbook (FAH) series is a supplemental series providing guidelines and procedures for implementing policies and directives contained in the FAM. Materials published in the FAH has the same force and effect as materials published in the FAM.

These directives apply to the Department of State and its operations worldwide (2 FAM 1111.3)

These directives apply to all Department of State and other relevant personnel worldwide (2 FAM 1111.4)

Note that 2. FAM 1111.4 does not make a distinction whether an employee is a career employee or a political appointee who is employed by the State Department.  Also, every time the FAM is updated, a Change Transmittal documents it.  All transmittals includes the following reminder:

Officers are reminded that Department-issued materials not codified in the Foreign Affairs Manual or its supplemental Foreign Affairs Handbook series generally have no regulatory validity (see 2 FAM 1115.2).

Pardon me?  Between 1-10, how confusing is all this? Sigh…

By the way, AFSA did ask a similar question earlier this year concerning this (see AFSA Politely Asks the State Dept: Is Adherence to the Foreign Affairs Manual Optional For Some?). We understand that the State Department had issued a response in the waning days of the previously elected AFSA Governing Board. As far as we are aware, that response has not been released to the AFSA membership. And we have not been able to get a response to two questions we sent to the newly elected president and VP of AFSA.




“On Background” Senior State Department Official Outs Self During Special Briefing

Posted: 5:18  pm EDT


The State Department announced that it will will host, GLACIER, “an important conference in Anchorage, Alaska on August 30-31 that will focus the world’s attention on the most urgent issues facing the Arctic today.”

GLACIER stands for Global Leadership in the Arctic: Cooperation, Innovation, Engagement, & Resilience and “will be a global conversation” convened by U.S. Secretary of State John Kerry. It will reportedly include senior U.S. Government officials and representatives from seven other Arctic nations as well as Arctic experts from the global scientific and policy communities, public and private sector representatives, and Alaskan State, local and indigenous leadership. The conference expects delegations from around 20 countries and about 450 participants.

As a prelude to the event starting Sunday, the State Department held a Special Briefing via teleconference with a senior State Department official. It also issued an “important reminder” that this was an “on-background call, so [Senior State Department Official] should be referred to as a senior State Department official going forward” and asked attendees to “appreciate that courtesy professionally.” “On background” usually means that a reporter can use the information you give them, but cannot name or quote you directly.

Excerpt below from the Senior State Department Official.:

The excitement and momentum are building here in Anchorage as we approach the GLACIER conference. I’ve been here, I think, as I said, since Monday, and have been involved with one other conference, the Alaskan Arctic Conference, which was organized by former Lieutenant Governor Mead Treadwell, who is currently the president of Pt Capital, and Alice Rogoff, who owns the Alaska Dispatch News. I spoke at that conference on Tuesday to wrap that up. And over the intervening days, I’ve had an opportunity to meet with the mayor, the governor, and other senior officials here in Alaska. I visited the University of Alaska; I traveled down to Seward, Alaska to the Alaska SeaLife Center; and also took a walk out to, most appropriately, the Exit Glacier since we’re here for the GLACIER conference. It was a special treat to go out there not just to see the glacier and the beauty of the Alaska countryside, but also to see the dramatic changes that have occurred over the years, particularly looking at pictures and the geography out there on how that particular glacier has receded, and particularly over the last couple of decades.

Senior State Department official hikes Exit Glacier in Seward, Alaska, August 2015 (Photo via DipNote)

So it’s a great scene setter for me. I returned to Anchorage yesterday after the seward trip. I met with a series of people, including students at the University of Alaska. Today, I’ll be going out to Alaska Command to talk about our U.S. leadership efforts in the Arctic Council, doing a couple of interviews both on TV and with the press, and most importantly, speaking to all of you today.

GLACIER is going to be a historic event. The media outlets up here have been promoting not just the conference, but in particular, the fact that our final speaker on Monday will be the President of the United States. Even beyond that, he is coming in for the GLACIER conference, but I think as everybody knows now, he’s going to spend some time in Alaska and he will be the first president – the first sitting president to visit the American Arctic, going above the Arctic Circle here in Alaska.

We have a jam-packed day on Monday. There’ll be an opening plenary session with senior officials, leadership from Alaska and Alaska native groups speaking to the entire session. Secretary Kerry, Dr. John Holdren, the science advisor to the President will speak, and then the ministers will be involved in a track for the remainder of the day covering various topics, talking about the challenges in the Arctic. And the other participants – the 300 or so other participants in addition to the delegations will be broken down into two separate tracks which will cover various issues throughout the day as well. Everybody’s brought back together at the end of the day for the final plenary session, at which time we’ll have the President speak to us and we’re all, as I said, very excited about that.

This is obviously a very significant event for Alaska, but I think it’s also a significant event for the world. Whenever the United States gets involved in a project, whenever the United States puts its focus on problems or issues, there is usually action that occurs. And as an individual, as an American, as a retired Coast Guardsman, an employee of the State Department, I could not be more excited that we are now gaining this focus on our Arctic challenges all brought together here in this wonderful conference that’s going to occur on Monday.




According to his brief bio, Adm. Robert J. Papp Jr., USCG (Ret.) became the U.S. State Department’s special representative for the Arctic in July of 2014. Prior to his appointment, Papp served as the 24th Commandant of the U.S. Coast Guard, and led the largest component of the Department of Homeland Security. We are aware of no other Senior State Department official who also previously served as a retired Coast Guardsman.

Why the State Department find it necessary to have a special briefing on background with its special representative for the Arctic is perplexing. We’ve come up with zero bucket for reasons. Anybody out there understand the why here, please share.


Clinton Email Controversy Needs Its Own Cable Channel, For Now, a Timeline

Posted: 1:42 am EDT


“[T]he system we used was set up for President Clinton’s office. And it had numerous safeguards. It was on property guarded by the Secret Service. And there were no security breaches.”
Hillary Clinton, March 10, 2015

It’s hard trying to keep track of the highs and lows of the Clinton email debacle. Since this is not going away anytime soon, or going away quietly, we thought we’d build a timeline, to keep the details we find relevant for our reference. Feel free to scroll.  We’ve written previously —  in this whole email mess at the State Department —  it must be said that this might not have happened if not enabled by senior bureaucrats in the agency. We do not believe for a moment that senior officials were not aware about the email practices of then Secretary Clinton or the record retention requirement. But hey, if the practice was done for four years over the protests and dissent of officials at “M”, “A”, the Legal Adviser or the CIO, we’d like to see that email trail. We will update the timeline, as needed.


November 21, 2008: NY Times says Hillary Clinton accepts US Secretary of State position

December 1, 2008: President-Elect Barack Obama announces Hillary Clinton as Secretary of State (video)


January 13, 2009:  Internet records show that the domain ‘clintonemail.com’ was created and had Network Solutions LLC as registrar. http://www.whois.com/whois/clintonemail.com

January 13, 2009:  Senate Confirmation Hearing for Secretary of State Nominee Hillary Clinton

January 15, 2009: Senate Foreign Relations Committee votes 16–1 to approve Clinton.

January 21, 2009:  Clinton is confirmed by the U.S. Senate as President Obama’s secretary of state by a roll call vote of 94–2.

January 21, 2009Clinton takes the oath of office of Secretary of State administered by Associate Judge Kathryn Oberly with Bill Clinton in attendance.  She resigned from the Senate the same day. (Hillary Clinton, the 67th Secretary of State)

July 31, 2009: State/OIG issues Review of the Information Security Program for Sensitive Compartmented Information Systems at the Department of State (CLASSIFIED) aud-it-09-21.pdf

November 2, 1009: NARA Notes on State Department State Messaging and Archive Retrieval Toolset (SMART) system rollout. Per IPS, people are “using the record email function” but huge issues with memos. Appears that the Executive Secretariat (S/ES) will be establishing its own recordkeeping system as the follow on to STARS. (view in pdf).


January 21, 2010: Clinton give remarks on Internet Freedom, launches 21st Century Statecraft.

April 19, 2010:  Computer World reports that Network Solutions LLC is hacked, injected with malicious JavaScript and the affected sites redirecting unsuspecting users to a Ukrainian attack server.

December 22, 2010NARA Bulletin 2011-03 | December 22, 2010 – Guidance Concerning the use of E-mail Archiving Applications to Store E-mail


June 28, 2011:  State Department releases cable on Securing Personal Email Accounts (Via FoxNews)

October 19, 2011“Classified” Information Contained in We Meant Well – It’s a Slam Dunk, Baby!


March 12, 2012State Department Chief Freedom of Information Act Officer Annual Report | March 12, 2012

August 10, 2012: State OIG issues review of US Embassy Kenya, dings Ambassador Scott Gration, among other things, for use of commercial email (see State/OIG Releases Ambassador Scott Gration’s Embassy Report Card – And Look, No Redactions!)

August 24, 2012: OMB/NARA issues Managing Government Records Directive, OMB M-12-18 (pdf)

September 11, 2012: Ambassador Chris Stevens and three others killed in Benghazi, Libya

September 2012: State/OIG Inspection of the Bureau of Administration, Global Information Services, Office of Information Programs and Services Report Number ISP-I-12-54

October 2, 2012After a Year of Serious Roars and Growls, State Dept Officially Retires FSO-Non Grata Peter Van Buren (despite allegation that “two pages of the book manuscript we have seen contain unauthorized disclosures of classified information.”)

November 20, 2012State Dept FOIA Requests: Agency Ranks Second in Highest Backlog and Here’s Why

December 11, 2012: NARA Chief Records Officer Paul M. Wester Jr. Email to NARA’s Margaret Hawkins and Lisa Clavelli on how they “should delicately go about learning more” about the transition plans for Secretary Clinton’s departure from State. Concerns that “there are or maybe plans afoot to taking her records from State to Little Rock.” Invokes the specter of the Henry Kissinger experience vis-a-vis Hillary Clinton (view email in pdf)

December 19, 2012: Accountability Review Board (ARB) Singles Out DS/NEA Bureaus But Cites No Breach of Duty


February 1, 2013:  Clinton leaves the State Department (Photo of the Day: 67 Says Goodbye to Foggy Bottom)

Early 2013:  After HRC left government service in early 2013, the Clintons decided to upgrade the system, hiring Platte River as the new manager of a privately managed e-mail network. The old server was removed from the Clinton home by Platte River and stored in a third party data center.[…] “The information had been migrated over to a different server for purposes of transition,” from the old system to one run by Platte River, said Barbara J. Wells, a Denver lawyer who represents Platte River Networks Inc., recalling the transfer that occurred in June 2013. (Via WaPo)

March 5, 2013: State Department publishes Foreign Affairs Manual updates on 12 FAM 540 Sensitive But Unclassified Information (SBU) View pdf file here.

March 20, 2013: Clinton’s private email address, hdr22@clintonemail.com, is made public by Romanian hacker named ‘Guccifer’  (real name is Marcel Lazăr Lehel) after hacking into Clinton adviser Sidney Blumenthal’s AOL email account. (via Gawker; emails published in full here via RT).

May 28, 2013:  House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) announced the issuance of a subpoena for  “documents and communications referring or relating to the Benghazi from ten current and former State Department officials. See House Oversight Committee Subpoenas Benghazi-Related Documents To/From Ten State Dept Officials.

June 2013  Hillary’s team shifts control of the email network to an outside IT contractor in Denver called Platte River Networks, and sends the original server hardware to a data center facility in New Jersey, where it is erased. (Via Daily MailVia WaPo)

June 27, 2013After 1,989 Day-Vacancy — President Obama Nominates Steve Linick as State Dept Inspector General

August 1, 2013: House Oversight Committee issues two subpoenas, 1) State Department documents that had been covered but not produced after earlier requests, and 2) documents related to the Benghazi Accountability Review Board.

August 19, 2013The Other Benghazi Four: Lengthy Administrative Circus Ended Today; Another Circus Heats Up

August 29, 2013: NARA Bulletin 2013-02 |  All Agencies, Guidance on a New Approach to Managing Email Records

September 9, 2013: NARA Bulletin 2013-03 | Guidance for agency employees on the management of Federal records, including email accounts, and the protection of Federal records from unauthorized removal

September 30, 2013Senate Confirms Steve Linick; State Dept Finally Gets an Inspector General After 2,066 Days


January 16, 2014: State/OIG issues Management Alert – OIG Findings of Significant, Recurring Weaknesses in Dept of State Info System Security Program 220066.pdf

May 8, 2014: The House of Representatives adopted H. Res. 567, Providing for the Establishment of the Select Committee on the Events Surrounding the 2012 Terrorist Attack in Benghazi, Libya. Rep. Trey Gowdy, R-S.C., is named chairman.

August 5, 2014: State Department updates 12 FAM 530 STORING AND SAFEGUARDING CLASSIFIED MATERIAL.  Officers are reminded that Department-issued materials not codified in the Foreign Affairs Manual or its supplemental Foreign Affairs Handbook series generally have no regulatory validity (see 2 FAM 1115.2)

August 11, 2014: The State Department sends its first group of documents to the new Select Benghazi committee, a partial response to a previous subpoena. The production contains a few — less than 10 — emails either to or from Clinton. Committee staffers notice immediately that the emails are from a previously unseen address, hdr22@clintonemail.com. Meanwhile, the committee presses State to meet its legal obligation to fully respond to the pair of subpoenas originally issued in August 2013. (Via Washington Examiner)

August 28, 2014: State Department U/S for Management sends memo to department principals on Senior Officials’ Records Management Responsibilities (view memo pdf). See State Department issued instructions for Preserving Email of Departing Senior Officials (view memo p.13 pdf)

September 15, 2014: Former State Dept DAS Raymond Maxwell Alleges Benghazi Document Scrub Pre-ARB Investigation

September 15, 2014: NARA Bulletin 2014-06 | All Agencies, Guidance on Managing Email

September 16, 2014:  State Department Denies Raymond Maxwell’s Document Scrub Allegations. Peeeeriod!!!!

September 19, 2014:  State Dept on Former DAS Raymond Maxwell’s Allegations: Crazy. Conspiracy Theory. What Else?

September 30, 2014: State/OIG Audit of the Information Security Program for Sensitive Compartmented Information Systems at the Department of State for FY 2014 (CLASSIFIED) aud-it-14-36.pdf

October 10, 2014:  William Fischer, the Department of State agency records officer, sends message to NARA with a draft email policy to update State’s Foreign Affairs Manual (5 FAM 447). Requests for limited distribution within NARA to those “with equities in this issue.” (View email in pdf)

October 30, 2014: Memo to the Field (All Diplomatic and Consular Posts) from Under Secretary for Management, Patrick F. Kennedy re: State Department Records Responsibilities and Policy, October 30, 2014

November 4, 2014:  Jason Leopold submits a FOIA request for “any and all records that were prepared, received, transmitted, collected and/or maintained by the Department of State (DOS) mentioning or referring to or prepared by Secretary of State Hillary Clinton or any member of the Office of the Secretary (S) from January 21, 2009 to February 1, 2013.”  (source here- pdf).

November 07, 2014: State/OIG posts online Audit of Department of State Information Security Program | aud-it-15-17.pdf

November 12, 2014: Letter to Hilary Clinton’s representative, Cheryl Mills re: the Federal Records Act of 1950, November 12, 2014; to Colin Powell, to Condoleezza Rice; to Madeleine Albright;

November 2014: The Benghazi committee asks the State Department for a larger batch of Clinton’s emails and receives about 300 that relate to the Libya saga, amounting to 850 printed pages  (Source: Washington Examiner)

December 5, 2014:  Clinton’s aide Cheryl Mills says that in response to a request from the State Department, they have handed over (about 55,000 pages) her work-related emails (comprising 30,490 messages); Response to Under Secretary of State for Management, Patrick F. Kennedy from Hilary Clinton’s representative, Cheryl Mills re: the Federal Records Act of 1950, December 5, 2014

December 29, 2014: Updates to Foreign Affairs Manual 5 FAM 440 Electronic Records, Facsimile Records, and Electronic Mail Records published with the following notation:  “In October, 2014, the Department issued an interim directive superseding some text in this section. This subchapter will be revised to reflect the new guidance – Refer to Department Notice 2014_10_115 for more information.” (View pdf, department notice available here.)


January 25, 2015: Leopold v. State Department (view lawsuit here- pdf).

February 13, 2015 The State Department sends the Benghazi committee another 850 pages of Clinton’s emails, including some from two different accounts on the private ‘clintonemail.com’ server  (Source: Washington Examiner)

February 27, 2015  State Department staffers tell Benghazi committee aides that Clinton had used her private address exclusively during her tenure at the agency, and that they don’t have any of her emails other than those she provided voluntarily. (Source: Washington Examiner)

February 27, 2015:  Mike Schmidt, reporter with The New York Times contacts NARA General Counsel requesting off the record chat on regulations for government employees who use their personal email addresses to conduct government business. Gary Stern tells his boss “I am happy to talk to him about what the law is (there are no regulations at this time).” (View email here)

March 2, 2015: NYTimes broke the news that Hillary Clinton exclusively used a personal email account to conduct government business as secretary of state.

March 2, 2015: NARA Legal Counsel talks to State Department Deputy Legal Advisor on the use of personal email accounts (View email from NARA Records Officer Wester to State/DAS Margaret P. Grafeld)

March 3, 2015: NARA puts together ‘Talking Points’ on Clinton emails. (View pdf). Talking Points available here.

March 3, 2015: NARA Acting IG asks NARA: “[W]ho is the NARA liaison with the State department for records management? Were we aware the gov email system was not being used by Ms Clinton. If we were not aware why not. What checks and balances do we have in place to ensure the gov email systems are being used. (View email)

March 4, 2015:  Clinton tweeted, “I want the public to see my email. I asked State to release them. They said they will review them for release as soon as possible.”

March 6, 2015: Marie Harf, a State Department spokeswoman, said the Foreign Affairs Manual was a department document and didn’t carry the force of law. She also said a memo to diplomatic staff around the word bearing Mrs. Clinton’s name and discouraging the use of personal emails was “colloquial guidance,” not a mandate. (Via Wall Street Journal)

March 10, 2015: Clinton holds a presscon at the UN, admits that she deleted more than 30,000 emails that she says were personal in nature, says she turned over everything work-related to the State Department, while insisting that “I did not email any classified material to anyone on my email.” (Ex-Chief Information-Disclosure Guru on Hillary’s Email Defense and the Folks Asleep at the SwitchFormer Secretary Clinton talks about her state.gov private emails)

March 10, 2015:  “I don’t have the FAM in front of me. I can certainly check and see if there were certain policies, if there were regulations. The FAM is not a regulation; it’s recommendations,” said Jennifer Psaki, State Department Spokesman during the Daily Press Briefing.  NewsFlash: “The FAM is not a regulation; it’s recommendations.” Hurry, DECLINE button over there!

March 11, 2015: The Associated Press sues the State Department to force the release of Clinton’s emails and other documents that the agency has failed to turn over following a Freedom Of Information Act request. The legal action comes after repeated requests filed under the U.S. Freedom of Information Act have gone unfulfilled. They include one request the AP says it made five years ago and others pending since the summer of 2013.

March 12, 2015: Senators Burr, Corker, Johnson sends a letter to State/OIG to coordinate “with the Inspector General for the Intelligence Community, and any other appropriate Federal entities, conduct a thorough audit related to electronic communications by State Department employees, including former senior officials, that were principally carried out on non-government-owned, or non-government-protected, information networks.” (View letter here via freebeacon.com).

March 25, 2015: Letter from Secretary of State, John Kerry to State Department IG, Steve Linick re: review of records management, preservation, and transparency practices, March 25, 2015

April 12, 2015: The former secretary of state announced her second presidential campaign in a video released online. (Video)

May 18, 2015: Leopold v. State Department – Court Declaration of State Depart FOIA official John F. Hackett (view in pdf)

May 21, 2015:  The Department releases a set of 296 of Clinton documents which previously had been provided in February 2015 to the House Select Committee on Benghazi. May Release via foia.state.gov. This is the first batch of Clinton’s emails made public by the State Department; roughly 850 pages, captures concerns over Libya (Via NYTimes).

May 27, 2015:  U.S. District Court Judge Rudolph Contreras set particular targets for the State Department to meet each month as it wades through the roughly 30,000 emails totaling about 55,000 pages. (The percentages set for each disclosure can be viewed in the judge’s written order, posted here.) Scheduled every 30 days, setting monthly targets for State so the work is completed by January 29, 2016 (Via Politico).

May 29, 2015: State Department updates its Foreign Affairs Manual 5 FAM 480 CLASSIFYING AND DECLASSIFYING NATIONAL SECURITY INFORMATION—EXECUTIVE ORDER 13526

June 2015: State Department releases more emails. June Release via foia.state.gov

June 25, 2015: State Department updates 12 FAM 530 STORING AND SAFEGUARDING CLASSIFIED MATERIAL

June-July 2015:  | Potential Issues Identified by the Office of the Inspector General of the Intelligence Community Concerning the Department of State’s Process for the Review of Former Secretary Clinton’s Emails under the Freedom of Information Act (pdf)

July 23, 2015: Charles McCullough, the inspector general for the U.S. intelligence community tells members of Congress in a letter that a limited sampling of 40 Clinton emails turned up four that “should have been marked and handled at the SECRET level.” (View memo here via Politico)

July 24, 2015: Andrea Williams, a spokeswoman for the inspector general for the Intelligence Community, told NPR’s Carrie Johnson that at least four emails that were sent through Clinton’s private email network “were classified when they were sent and are classified now.” 

July 25, 2015:  “I am confident that I never sent nor received any information that was classified at the time it was sent and received,” Clinton told reporters in Winterset, Iowa, after news emerged this week that a federal watchdog had asked the FBI to review whether potentially classified material in her e-mails had been jeopardized during a State Department review of the messages ahead of public release. (Via Bloomberg).

July 27, 2015: Select Committee on Benghazi Chairman Trey Gowdy announced the State Department’s pledged to produce 5,000 new pages of documents to the Committee. As a result of the forthcoming production, the Chairman accepted Mr. Finer’s request to postpone the compliance hearing. (see State Dept to Release 5,000 Pages to Benghazi Panel, No Hearing With Kerry Top Aide For Now)

July 27, 2015: The State Department issues enhanced guidance for speaking, writing, teaching and media engagement for its employees, retirees, externs, interns and others. The clearance requirement covers  testimony provided in Congress even in an employee’s private capacity.  See State Dept Releases New 3 FAM 4170 aka: The “Stop The Next Peter Van Buren” Regulation

July 31, 2015: The second installment of emails from Hillary Clinton’s private server, released Friday by the State Department, includes 41 messages that reviewers determined contained classified material. (Via Daily Mail).

July 2015: State Department releases more emails. July Release via foia.state.gov

August 7, 2015: According to Nick Merrill, a Clinton press secretary, “She did not send nor receive any emails that were marked classified at the time.” (Observer.com)

August 10, 2015: Clinton makes court declaration under penalty of perjury per request from U.S. District Court Judge Emmet Sullivan. (Via Politico“While I do not know what information may be ‘responsive’ for purposes of this law suit, I have directed that all my emails on clintonemail.com in my custody, that were or potentially were federal records be provided to the Department of State, and on information and belief, this has been done,” wrote Clinton (view declaration here).

August 11, 2015: McCullough updates his statement to Congress on classified materials on personal electronic storage devices,  saying that Clinton emails reviewed contains information classified up to TOP SECRET//SI/TK//NOFORM. (See pdf file here)

August 12, 2015: Server was transferred to the FBI by Platte River Networks, a Denver firm hired by Clinton (via Associated Press)

August 13, 2015:  Gawker Media has previously requested the release of emails belonging to Philippe Reines, the loyal Hillary Clinton aide and former deputy assistant secretary of state. The department claimed that “no records responsive to your request were located.”  On August 13, lawyers for the U.S. Attorney General submitted a court-ordered status report to the U.S. District Court of the District of Columbia in which it disclosed that State employees had discovered “5.5 gigabytes of data containing 81,159 emails of varying length” that were sent or received by Reines during his government tenure. Of those emails, the attorneys added, “an estimated 17,855” were likely responsive to Gawker’s request (See status report for the court via Gawker).

August 17, 2015: Screeners of the 30,000 Hillary Clinton e-mail messages ordered released by a federal judge in May have flagged 305 of those documents for further review by U.S. intelligence agencies, government lawyers said in court papers. (via Bloomberg)

August 17, 2015: Clinton told reporter Clay Masters with Iowa Public Radio what she thinks will come of her controversial decision to exclusively use private email while secretary of state. “I think this will all sort itself out,” Clinton said. “And in a way, it’s kind of an interesting insight into how the government operates. Because if I had not asked for my emails all to be made public, none of this would have been in the public arena. But I want people to know what we did, I’m proud of the four years I was secretary of state.” (Via Politifact)

August 19, 2015: An email from a top Clinton adviser containing classified military intelligence information, and one from a top aide containing classified information about the Benghazi terror attack, were reportedly the documents that kick-started the FBI investigation into the mishandling of classified information. See the two of the Benghazi-related emails on the server (Via Fox News)

August 20, 2015: U.S. District Judge Emmet Sullivan orders the State Department to work with the FBI to determine if any of Hillary Clinton’s emails on her server during her tenure as secretary of state could be recovered. The State Department has 30 days to comply with Sullivan’s order. (Via Fox News) At a hearing for a Freedom of Information Act lawsuit against the State Department, Judge Sullivan of Federal District Court for the District of Columbia, said that “we wouldn’t be here today if the employee had followed government policy.” (Via NYTimes)

August 21, 2015: Dozens of Clinton emails were classified from the start, U.S. rules suggest (Via Reuters)

August 21, 2015: Clinton attorney David Kendall writes a letter to U/S for Management Patrick Kennedy and explains how, contrary to a Judge Emmet D. Sullivan’s s comment this week, her use of personal email was permitted under the NARA, FRA and FAM guidelines in place at the time she served. (letter here via ScribD)

August 21, 2015:  The lawyer for Huma Abedin, a longtime confidante of Hillary Rodham Clinton, wrote a letter to the State Department disputing concerns that Senator Charles E. Grassley raised about a possible conflict of interest involving her. (read the letter via NYTimes)

August 24, 2015: State Dept. Spokesman John Kirby Tells CNN:  “At The Time, When She Was Secretary Of State, There Was No Prohibition To Her Use Of A Private Email”


Sigh … to be continued

October 22, 2015: Clinton is scheduled to appear before the Select Committee on Benghazi.


P.S. For obvious reasons, the slugfeast ring for this post is disabled.

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.


Related items:


Download it here (pdf).


1) More Systems Compromised in #OPMHack, 2) A Love Letter to Hackers, and 3) What’s a Credit Freeze?

Posted: 3:29 am  EDT


On June 4, OPM released a statement on “a cybersecurity incident” that potentially affected personnel data of current and former federal employees, including personally identifiable information (PII) (see OPM Hack Compromises Federal Employee Records, Not Just PII But Security Clearance Info).  The initial estimate was that the OPM hack affected potentially 4 million employees. On June 12, fedscoop reported that the American Federation of Government Employees (AFGE) believed that the breach may have compromised personal data of as high as 14 million employees.

We understand that the State Department issued a notice to employees concerning the OPM breach on June 4. A second notice dated June 12 (am told this was actually a June 11 notice) was shared with BuzzFeed (see below). Several unnamed State Department employees were quoted in that BuzzFeed article, a tell-tale sign of growing frustration that we can also see from our inbox.






Excerpt from email sent by Under Secretary of Management Pat Kennedy on June 12 (via BuzzFeed)

This is an update to my previous e-mail of June 4th [repeated at the very end of this message.]

As was communicated last week, the U.S. Office of Personnel Management (OPM) recently became aware of a cybersecurity incident affecting its systems and data that may have exposed the Personally Identifiable Information (PII) of some current and former Federal employees. This email provides additional information regarding next steps for those affected State Department employees. But, every employee should read this email.

In the coming weeks, OPM will be sending notifications to individuals whose PII was potentially compromised in this incident. The email will come from [DELETED] and it will contain information regarding credit monitoring and identity theft protection services being provided to those Federal employees impacted by the data breach. In the event OPM does not have an email address for the individual on file, a standard letter will be sent via the U.S. Postal Service.

As a note of caution, confirm that the email you receive is, in fact, the official notification. It’s possible that malicious groups may leverage this event to launch phishing attacks. To protect yourself, we encourage you to check the following:

1. Make sure the sender email address is [DELETED]

2. The email is sent exclusively to your work email address. No other individuals should be in the To, CC, or BCC fields.

3. The email subject should be exactly [DELETED]

4. Do not click on the included link. Instead, record the provided PIN code, open a web browser then manually type the URL {DELETED]. You can then use the provided instructions to enroll [DELETED].

5. The email should not contain any attachments. If it does, do not open them.

6. The email should not contain any requests for additional personal information.

7. The official email should look like the sample screenshot below.

Additional information has also been made available beginning on June 8, 2015 on the company’s website [DELETED].

Regardless of whether or not you receive this notification, employees should take extra care to ensure that they are following recommended cyber and personal security procedures. If you suspect that you have received a phishing attack, contact your agency’s security office.

In general, government employees are often frequent targets of “phishing” attacks, which are surreptitious approaches to stealing your identity, accessing official computer systems, running up bills in your name, or even committing crimes using your identity. Phishing schemes use e-mail or websites to trick you into disclosing personal and sensitive information.

Oh, man.

Hopefully no one will copy this “recipe” to send folks a fake notification to enroll somewhere else.

On May 28, just days before the OPM breach was reported, OPM issued a solicitation for OPM Privacy Act Incident Services. The services required include 1) notification services, 2) credit report access services, 3) credit monitoring services, 4) identity theft insurance and recovery services, and 5) project management services. According to the solicitation, these services will be offered, at the discretion of the Government, to individuals who may be at risk due to compromised Personally Identifiable Information (PII).  The $20,760,741.63 contract for Call 1 was awarded to Winvale Group, LLC on June 2 but was published on fedbiz on June 5, the day after the breach was reported. Call 1 contract includes services to no more than 4 million units/employees.

Note that the State Department notice dated June 12 says that “email should not contain any attachments (#5). The OPM Services awarded on June 2 includes the following: Contractor email Notification: The Contractor will prepare and send email notifications to affected individuals using read receipts. Emails (or attachments) will appear on Government letterhead, will contain Government-approved language, and will contain the signature of the Government official(s). Emails may contain one or more attachments. Email notification proof(s) will be provided to the Government for approval not later than 48 hours after award of a Call against the BPA. The Government will approve the email notification within 24 hours to enable the Contractor to begin preparation for distribution. The Contractor will require, receipt, track, and manage read receipts for email notifications.

Get that?

Now this. Somebody from State sent us a love letter for the hackers:

Dear Hackers: While you’re in there, please get my travel voucher for $291.46 approved, permanently cripple Carlson Wagonlit so we can stop wasting money on a useless product, and figure out how many special political hires there really are roaming our halls.  Oh and please don’t use my SF-86 info against my parents, it isn’t their fault I was an idiot and gave the government every last bit of info on my entire life.  I’m sure there’s more but it’s the weekend, let’s chat Monday. #LetsActLikeNothingHappened #SeriouslyThoughWTF .

And because the initial report is often understated per abrakadabra playbook hoping the bad news will go away, we’re now hearing this:

Oops, wait, what’s this?

Well, here is part of that email sent from “M” on  June 15, 5:35 pm ET:

“OPM has recently discovered that additional systems were compromised. These systems include those that contain info related to background investigations of current, former, and prospective Federal government employees, as well as other individuals from whom a Federal background investigation was conducted. This separate incident…was discovered as a result of OPM’s aggressive efforts to update its cybersecurity posture… OPM will notify those individuals whose info may have been compromised as soon as practical. You will be updated when we have more info on how and when these notifications will occur.”

So that original OPM estimate of 4 million affected employees is now OBE. That original $20 million contract will potentially go up.

Brian Krebs‘ piece on credit monitoring, the default response these days when a breach happens is worth a read. Basically, he’s saying that credit monitoring services aren’t really built to prevent ID theft (read Are Credit Monitoring Services Worth It?).

What can you do besides the suggestions provided by the State Department and OPM? Brian Krebs suggests a “credit freeze” or a “security freeze” not discussed or offered by OPM. Check out the very informative Q&A here.


We  know what else is on our to-do list today.


New Sounding Board Topic: “Please don’t share the Sounding Board with Al Kamen.”

Posted: 2:53 am EDT



We have it in good authority that there is now a hopeless new Sounding Board topic that says, “Please don’t share the Sounding Board with Al Kamen.”

C’mon, folks. Don’t do this. People should be able to talk freely about rodents and critters with whoever they want, even Al. Like  the song goes … ♫ let it go, let it go,  don’t hold back, it’s only about the damn rats ♬

Oh, but there’s something else, please cover your eyes if you don’t want to see this but … last year somebody unearthed a Mike Causey column from the Washington Post that talks about … you guess it, rats.  The Ghost of DC says this was published on October 7th, 1968.

1968! That was before all of you were born.

But there’s good news.  An average rat’s life span is 2-3 years. The bad news? Apparently, according to Discover Magazine, a female rat can mate as many as 500 times with various males during a six-hour period of receptivity—a state she experiences about 15 times per year. Thus a pair of brown rats can produce as many as 2,000 descendants in a year if left to breed unchecked.  See  20 Things You Didn’t Know About… Rats

Ugh! So, clearly, the old plan from 1968 still works: the rats must be stopped now before the Government gets bogged down in another unwanted ground war. Sign-up sheets over there.