The Consul General in a constituent post in Country X carried on with the consulate’s instructor then made her life miserable after they broke up — all without informing Mission management of this relationship with a subordinate. As the CG apparently thinks his only job is to be a “playboy,” he delegated the running of the consulate to a “tyrannical” subordinate officer.
Quick quiz here:
Consensual relationship policy applies even to playboys True or False
Several people curtailed True or False
Embassy Front Office, nice folks but dysfunctional True or False
The OIG has ignored all complaints about these problems True or False
When one complains to the OIG’s hotline, they refer the complaints to the regional bureau! (exclamation point not mine) True or False
The Project On Government Oversight (POGO) accept calls at (202) 347-1122 and complaints here but advises that you do not use government phone, fax or computer. True or False
Now you, sir — over there – need to leave that girl alone.
If you have not read the consensual relationship policy see 3 FAM 1527(d)) ASAP. The policy as we understand it was set up to avoid: (1) an appearance of impropriety; (2) creation of doubt regarding a supervisor’s objectivity: (3) actual or perceived preferential treatment; and (4) adverse effect on office morale and efficiency. In addition, the policy is designed to avoid “relationships [that] may lead to allegations of sexual harassment.”
If you have been reading this blog for a while, you know that I’ve been following Peter Van Buren’s case for some time. While I do not always agree with everything that Mr. Van Buren says and writes, I am offended by his selective treatment by the State Department that can only be described as retaliatory.
Mr. Van Buren, of course, is not the only recipient of such selective treatment in the State Department. He’s just the loudest and the most vocal Exhibit A under the 21st Century Statecraft tab. Other FSOs and family members have been similarly penalized for running afoul of the department’s movable blogging and social media rules. One I know for sure, have been pushed into retirement, others suffer consequences in future assignments. Even non-blogging FSOs were threatened for the blogging activities of their spouses. For sure, very few threats come in written form but in a culture where corridor reputation is key to every assignment, no written memo is needed to screw up a future assignment in the Foreign Service.
On May 15, the American Civil Liberties Union (ACLU) got into the ring in Mr. Van Buren’s public fight with the State Department. ACLU, the 92 year old institution told the State Department, the first agency created under our Constitution that “public employees don’t give up their First Amendment rights in exchange for a job with the government.”
The ACLU writes in its blog:
[T]he State Department has proposed firing Mr. Van Buren under the guise of a procedural rule, creating the strong appearance of unlawful retaliation. Government employees have the First Amendment right to speak as private citizens on matters of public concern. There’s no question that the subject of Mr. Van Buren’s book, blog posts, and news articles — the reconstruction effort in Iraq — is such a matter. And, government employees are often in the best position to know what ails the agencies that they work for.
The State Department is attempting to justify the firing by claiming that Mr. Van Buren failed to comply with the agency’s prepublication review policy. The State Department’s policy requires all employees to submit everything they write for prepublication review, regardless of whether they are writing in their official or personal capacity. This policy, especially as applied to blog posts and articles, raises serious constitutional questions. By forcing employees to submit all their writings for prepublication review — even articles and blog posts written on their own time — the State Department is effectively shutting its employees out of any meaningful participation in critical public debates. There is no justification for such an expansive prior restraint.
But writing a blog post is not enough. The ACLU also wrote a letter to Patrick F. Kennedy, the Under Secretary for Management with courtesy copies to Linda Thomas-Greenfield, the Director General of the Foreign Service and Director of Human Resources; Jesselyn Radack & Kathleen McClellan, Government Accountability Project (who represents Mr. Van Buren in his Office of Special Counsel case) and Raeka Safai of the American Foreign Service Association.
Below is an excerpt from ACLU’s letter to Mr. Kennedy:
This proposed termination for Mr. Van Buren’s speech raises substantial constitutional questions and creates the appearance of impermissible retaliation for Mr. Van Buren’s criticism of the State Department. The Supreme Court has long made clear that public employees are protected by the First Amendment when they engage in speech about matters of public concern. A public employee’s First Amendment rights can be overcome only if the employee’s interest in the speech is outweighed by the government’s interest, as employer, in the orderly operation of the public workplace and the efficient delivery of public services by public employees. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
The government bears an even greater burden of justification when it prospectively restricts employees’ expression through a generally applicable statute or regulation. United States v. Nat’l Treasury Employees Union, 513 U.S. 454, 468 (1995) (“NTEU”). By those standards, the State Department’s actions here appear to be unconstitutional.
The Supreme Court has repeatedly held that public employees retain their First Amendment rights even when speaking about issues directly related to their employment, as long as they are speaking as private citizens. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). In his book, blog posts, and articles, it is clear that Mr. Van Buren is speaking in his own voice and not on behalf of the State Department. Writing blog posts and articles from home, on his own time and on his personal computer, is a paradigmatic example of speech that public employees may legitimately engage in as private citizens. Pickering, 391 U.S. 563 (unconstitutional to discipline teacher for writing letter to the editor); Garcetti, 547 U.S. at 423 (citing op-eds as private citizen speech).
On prospective restrictions for all present and future diplomats, the ACLU writes:
[T]he State Department’s pre-publication review policy, as applied to blog posts and articles, raises serious constitutional questions. Through its policy, the State Department is prospectively restricting the speech of Mr. Van Buren as well as all present and future State Department employees. Where, as here, the restriction limits speech before it occurs, the Supreme Court has made clear that the government’s burden is especially heightened. NTEU, 513 U.S. at 468. The State Department must show that the interests of potential audiences and a vast group of present and future employees are outweighed by that expression’s necessary impact on the actual operation of government. Id. Courts have also required careful tailoring of prospective restrictions to ensure they do not sweep too broadly and that they actually address the identified harm. Id. at 475. Given this heightened standard, it is highly unlikely that the State Department could sustain its burden of demonstrating that its policy is constitutional.
There is no justification for such an expansive prior restraint on State Department speech. The State Department’s policy affects all employees and is broadly written to include all “matters of official concern.” This encompasses a vast amount of speech – including Mr. Van Buren’s and that of numerous other State Department bloggers – that would in no way harm the “actual operation of the government.” The overbreadth of the State Department’s policy is abundantly clear when compared with the practice of the Department of Defense. Hundreds of active-duty soldiers, many with access to classified and sensitive information, post articles and maintain personal blogs without pre-clearance and without posing any harm to military operations.
Further, the State Department’s pre-publication requirement covers even more speech than necessary to serve the government’s stated interests –to protect classified information and to prevent views of employees from being improperly attributed to the government. 3 FAM 4172.1-1. As such, the policy is not carefully drawn to ensure that it does not unnecessary chill a vast amount of protected speech, nor is it tailored to address the identified harm. See Harman v. City of New York, 140 F.3d 111, 123 (2d Cir. 1998).
You can read the entire letter from the ACLU to Mr. Kennedy here.
The ACLU makes a very compelling argument and I think for the first time, the constitutionality of that broad umbrella of all “matters of official concern” take center stage. It’s a good thing to shine a light on that dark folder. Let’s see what happens.
On a related note, the American Foreign Service Association (AFSA) in February released its guidance for personal use of social media. The union represented Mr. Van Buren in his grievance case within the State Department but has been largely silent in this very public fight. Mr. Van Buren has now asked AFSA if the union is willing to press State into a rational set of regulations on social media:
“We all know that many FSOs and their spouses/partners have been unofficially penalized for blogging, and pushed into going off line. At the same time, we also know there are many, many blogs out there by FSOs and others and that the number grows. Anyone think social media is going to be less a part of life in the next ten years?
I have taken an extreme position on these issues, and know that you have not always (or often?) agreed with what I wrote. That is in fact how it should be, because the issue at hand should not be about the content per se, but the right to write it.
I fully agree that State needs rules about social media; they currently really have none that are realistic and implementable and in fact are considered unconstitutional by America’s leading First Amendment group.
Would AFSA now be willing to make a public statement along these lines and use my case to press State into a rational set of regulations on social media?“
So — I’m sitting here, after midnight, pondering — is AFSA up for this challenge? Guess, we’ll have to wait and see …
US Ambassador to Syria, Robert S. Ford was presented with the John F. Kennedy Profile in Courage Award™ on May 7 at the John F. Kennedy Presidential Library by Caroline Kennedy . He was honored for his bold and courageous diplomacy which has provided crucial support to Syrians struggling under the brutal regime of Syrian president Bashar al-Assad.
U.S. Ambassador to Syria Robert S. Ford
Below is excerpted from the JFK Library announcement:
Robert Ford, United States Ambassador to Syria
Robert S. Ford began serving a recess appointment as the U.S. Ambassador to Syria in January 2011. A few short weeks after his arrival, a wave of prodemocracy protests swept through the Middle East and public protests in Syria launched an uprising against the brutal regime of Syrian President Bashar al-Assad. A former Peace Corps volunteer and then career member of the U.S. Foreign Service, Ford’s robust diplomacy on the ground in Syria centered on a strong show of support for the Syrian opposition movement. At personal risk, he traveled all over the country, talking with the Syrian people and using social media to encourage dissidents to embrace forms of non-violent protest against government-backed brutality.
Ford’s courageous support for the opposition garnered global attention in July 2011, when he visited the city of Hama in advance of planned demonstrations there. Ford’s physical presence in Hama, without official sanction from the Syrian government, functioned as a visible statement of support for the demonstrators and an unambiguous rebuke of the government-backed violence against them. In an August 2011 interview with ABC News, Ford spoke resolutely against the government’s violent crackdown: “I don’t particularly care [if Syria is angry], because we have to show our solidarity with peaceful protestors. I’d do it again tomorrow if I had to…I’m going to keep moving around the country. I can’t stop.” This and other explicit displays of solidarity with the Syrian people stretched the usual bounds of formal diplomacy and put his own safety at risk.
After his visit to Hama, the Associated Press reported assaults on Ford’s residence and convoy. Despite such attacks, Ford continued to support the opposition by attending protestor funerals, speaking with Syrians on the ground and through social media, and educating Americans via satellite images and descriptions of the conflict on the embassy’s official Facebook page. On February 6, 2012, as the violence in Syria worsened, the United States closed the American embassy and removed Ambassador Ford from the country. Robert Ford continues to serve his post from Washington, D.C.
Ambassador Ford is one of the four recipients of the 2012 award. Three former Iowa Supreme Court Justices who were removed from office by Iowa voters after joining a unanimous decision to legalize same-sex marriage in that state were also presented with the John F. Kennedy Profile in Courage Award™ today. “Former Iowa Chief Justice Marsha Ternus and former justices David Baker and Michael Streit were chosen in recognition of the political courage and judicial independence each demonstrated in setting aside popular opinion to uphold the basic freedoms and security guaranteed to all citizens under the Iowa constitution.”
About the Award: “The John F. Kennedy Profile in Courage Award™ is presented annually to public servants who have made courageous decisions of conscience without regard for the personal or professional consequences. The award is named for President Kennedy’s 1957 Pulitzer Prize-winning book, Profiles in Courage, which recounts the stories of eight U.S. senators who risked their careers, incurring the wrath of constituents or powerful interest groups, by taking principled stands for unpopular positions. The John F. Kennedy Library Foundation created the Profile in Courage Award™ in 1989 to honor President Kennedy’s commitment and contribution to public service. It is presented in May in celebration of President Kennedy’s May 29th birthday.”