Senate Judiciary Committee chairman Chuck Grassley has been keeping the records folks awake in Foggy Bottom. Last week, he directed his attention on the missing permanent IG at the State Department from 2008-2013. Over two years late but this gotta be good.
In any case, Senator Grassley now wants to know why the IG vacancy at the State Department lasted, by official count, 2,071 straight days. Late but okay, we’d like to know, too. The senator wrote a letter to Michael E. Horowitz, the Chair of Council of the Inspectors General on Integrity and Efficiency (CIGIE) and to Secretary Kerry. Excerpt below:
Congress needs a better understanding of how and why the State Department lacked a permanent IG who could serve as an independent watchdog for 2,071 straight days. Accordingly, please respond to the following by September 11, 2015:
CIGIE Chair Horowitz: Assuming that CIGIE prepared a list of recommended candidates to fill the IG vacancy at the State Department created upon the departure of former IG Howard Krongard in 2008:
a. Who were the candidates?
b. When were they recommended?
c. Who sent the slate of recommendations from CIGIE to the White House?
d. Who received the slate of recommendations at the White House from CIGIE?
e. What was the response, if any, from the White House regarding the slate of candidates?
f. Who, if anyone, at CIGIE received the White House’s response?
g. When and how was any such response from the White House received?
h. Please provide all records from any CIGIE official at the time relating to communications with the White House about the IG vacancy or potential candidates to fill the vacancy.
i. Did CIGIE provide candidate names to the State Department? If so, please provide the Committee with all records from any CIGIE official at the time relating to communications with the State Department about the IG vacancy or potential candidates to fill the vacancy.
Secretary Kerry: Please provide the Committee with all State Department records related to the IG vacancy or potential candidates to fill the vacancy, including communications between and among former Secretary Clinton, her senior staff, or any State Department personnel, any CIGIE official, or any White House official.
[ As an aside — the original OIG draft/report on DS investigations dates back to 2012 and was made part of the Higbie v. Kerry, a title VII employment discrimination case in Texas. That case was subsequently dismissed by the district court and affirmed by the Court of Appeals (pdf) in March 2015. But in 2013, the government sought to exclude the “improperly obtained documents” that Higbie obtained via a subpoena from a retired OIG employee, Aurelia Fedenisn. The government asserted that the documents, including the draft report, were improperly retained by Fedenisn after her employment ended in 2012. We’re reminded of this case in relation to the IG vacancy because the Washington Examiner recently reported that the then acting IG had sought to keep early drafts of a controversial OIG report under wraps in the Higbie case in federal court in 2013. Note that the contents of that draft report have already circulated and were reported on by the press in June 2013].
Secretary Kerry will be on a historic trip to Havana this Friday where he will preside over the ceremonial reopening of the U.S. Embassy there. At a State Department background briefing, a senior administration official gave a quick rundown of the secretary’s events in Havana:
The opening ceremony, which is the flag-raising ceremony at the embassy, is principally a government-to-government event. It’ll include officials from the Cuban Government, a range of U.S. Government agencies, as well as members of Congress. There will be some U.S. and Cuban private citizens there, but it is primarily a government-to-government event, and it is extremely constrained in space. If you’ve ever been to our embassy, you know what the – I was somewhat amused to see it described as our front lawn, because it’s a very constrained space. But it is principally a government-to-government event, signifying this new relationship and the reopening of an embassy.
Later in the day, we are having a large event at the chief of mission’s residence, which is also a diplomatic installation, in which a broad range of groups will be invited, including the Cuban Government, Cuban Americans, Cuban artists and cultural leaders, the Diplomatic Corps, entrepreneurs, and Cuban political human rights and media activists.
On the issues of the Secretary’s delegation, let me say that I think, for example, one of the things that is most important to us is to make sure that our colleagues at the Treasury Department and the Commerce Department are recognized for their work in the change in policy, so there will be senior representatives from both those departments on the Secretary’s delegation. The regulations that were put in place after the President’s December 17th announcement were Treasury and Commerce regulations, and so it’s particularly important to us that those departments be represented by senior members. Obviously, we’ve long had colleagues from the Department of Homeland Security involved in our relationship with Cuba as part of our migration talk because they work on – for example, the Coast Guard has had a relationship with Cuba for a number of years now, a very productive operational relationship. So I think that it is those kinds of other agencies that will be part of this delegation.
Here’s a couple of interesting pieces on the road to this day:
President Barack Obama talks with Ricardo Zuniga, National Security Council’s Senior Director for Western Hemisphere Affairs, after the President delivered a statement on Cuba and the release of American Alan Gross in the Oval Office, Dec. 17, 2014. National Security Advisor Susan E. Rice watches from the doorway. (Official White House Photo by Pete Souza)
In December 2008, then Illinois Gov. Rod Blagojevich and his chief of staff, John Harris, were arrested for what U.S. Atty. Patrick Fitzgerald called a “political corruption crime spree” that included attempts to sell the U.S. Senate seat vacated by President-elect Barack Obama. He was accused of talking on FBI recordings about plotting to extract a $1.5 million campaign contribution from U.S. Rep. Jesse Jackson Jr.—in exchange for appointing Jackson to Obama’s vacated seat. Via Politico:
A federal criminal complaint detailed Blagojevich’s attempt to cash in on his power to appoint Obama’s replacement by first attempting to arrange a presidential cabinet appointment. When that failed, Blagojevich hoped for an ambassadorship.
Specifically, India or South Africa …er, no, India.
Via Lapham’s Quarterly
Just to show how little Blago and his chief of staff knew about the diplomatic service. Blagojevich in one recording says, “How much would you think a position like that would pay? I mean, again, this requires a lot of travel, it’s a lot of work. A reasonable…” The chief of staff responds, “Well, I mean you’d get an expense account. So it’s not all in pay.”
In 2015, the caps for Senior Foreign Service pay is between $172,074 – $183,300. He would have received hardship and COLA differentials. They’re currently 20% + 10% respectively of basic pay for FS employees assigned in New Delhi. The ambassador’s expense account? Teh-heh! Best read Bloomberg’s The Economics of Being a U.S. Ambassador.
Poor sod probably did not realize that the Indian monsoon would also ruin his properly combed hat.
In any case, for those who were hoping that Blago’s case would temper similar arrangements in the future will be disappointed. On June 22, the United States District Court for the Northern District of Illinois dismissed five of the 18 counts and ordered that the former governor be resentenced. Below is an excerpt from the Appeals Court ruling dated July 21, 2015.
Blagojevich now asks us to hold that the evidence is insufficient to convict him on any count. The argument is frivolous. The evidence, much of it from Blagojevich’s own mouth, is overwhelming. To the extent there are factual disputes, the jury was entitled to credit the prosecution’s evidence and to find that Blagojevich acted with the knowledge required for conviction.
But a problem in the way the instructions told the jury to consider the evidence requires us to vacate the convictions on counts that concern Blagojevich’s proposal to appoint Valerie Jarrett to the Senate in exchange for an appointment to the Cabinet. A jury could have found that Blagojevich asked the President-‐‑elect for a private-sector job, or for funds that he could control, but the instructions permitted the jury to convict even if it found that his only request of Sen. Obama was for a position in the Cabinet. The instructions treated all proposals alike. We conclude, however, that they are legally different: a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment.
Because the instructions do not enable us to be sure that the jury found that Blagojevich offered to trade the appointment for a private salary after leaving the Governorship, these convictions cannot stand. Compare Yates v. United States, 354 U.S. 298 (1957), and United States v. Rivera Borrero, 771 F.3d 973 (7th Cir. 2014), with Griffin v. United States, 502 U.S. 46 (1991). (Perhaps because the jury deadlocked at the first trial, the United States does not seriously contend that any error was harmless; a one-line statement in the brief differs from an argument. Cf. Hedgpeth v. Pulido, 555 U.S. 57, 60–62 (2008) (an error of this kind is not “structural”).)
McCormick describes the offense as a quid pro quo: a public official performs an official act (or promises to do so) in exchange for a private benefit, such as money. See also United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404– 05 (1999); United States v. McDonnell, 2015 U.S. App. LEXIS 11889 (4th Cir. July 10, 2015). A political logroll, by contrast, is the swap of one official act for another. Representative A agrees with Representative B to vote for milk price supports, if B agrees to vote for tighter controls on air pollution. A President appoints C as an ambassador, which Senator D asked the President to do, in exchange for D’s promise to vote to confirm E as a member of the National Labor Relations Board. Governance would hardly be possible without these accommodations, which allow each public official to achieve more of his principal objective while surrendering something about which he cares less, but the other politician cares more strongly.
A proposal to appoint a particular person to one office (say, the Cabinet) in exchange for someone else’s promise to appoint a different person to a different office (say, the Senate), is a common exercise in logrolling. We asked the prosecutor at oral argument if, before this case, logrolling had been the basis of a criminal conviction in the history of the United States. Counsel was unaware of any earlier conviction for an exchange of political favors. Our own research did not turn one up. It would be more than a little surprising to Members of Congress if the judiciary found in the Hobbs Act, or the mail fraud statute, a rule making everyday politics criminal.
Let’s work this through statute by statute. Section 1951, the Hobbs Act, which underlies Counts 21 and 22, forbids interference with commerce by robbery or extortion. Blagojevich did not rob anyone, and extortion, a defined term, “means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right” (§1951(b)(2)). The indictment charged Blagojevich with the “color of official right” version of extortion, but none of the evidence suggests that Blagojevich claimed to have an “official right” to a job in the Cabinet. He did have an “official right” to appoint a new Senator, but unless a position in the Cabinet is “property” from the President’s perspective, then seeking it does not amount to extortion. Yet a political office belongs to the people, not to the incumbent (or to someone hankering after the position). Cleveland v. United States, 531 U.S. 12 (2000), holds that state and municipal licenses, and similar documents, are not “property” in the hands of a public agency. That’s equally true of public positions. The President-elect did not have a property interest in any Cabinet job, so an attempt to get him to appoint a particular person to the Cabinet is not an attempt to secure “property” from the President (or the citizenry at large).
Sekhar v. United States, 133 S. Ct. 2720 (2013), shows that the phrase “obtaining of property” in the Hobbs Act must not be extended just to penalize shady dealings. Sekhar holds that a recommendation about investments is not “property” under §1951(b)(2) for two principal reasons: first, in the long history of extortion law it had never before been so understood (similarly, political logrolling has never before been condemned as extortion); second, the making of a recommendation is not transferrable. The Court restricted “property” to what one owner can transfer to another. By that standard a job in the Cabinet (or any other public job) is not “property” from the employer’s perspective. It is not owned by the person with appointing power, and it cannot be deeded over. The position may be filled by different people, but the position itself is not a transferrable property interest. A position is “held” or “occupied” but not “obtained,” and under Sekhar something that cannot be “obtained” also cannot be the subject of extortion.
Section 666, the basis (through a conspiracy charge) of Count 23, forbids theft or bribery in publicly funded programs (of which the State of Illinois is one). Count 23 relies on §666(a)(1)(B), which makes it a crime for an agent of a covered organization to solicit “corruptly … anything of value” in connection with a transaction worth $5,000 or more. “Corruptly” refers to the recipient’s state of mind and indicates that he understands the payment as a bribe or gratuity. United States v. Hawkins, 777 F.3d 880, 882 (7th Cir. 2015). It would not be plausible to describe a political trade of favors as an offer or attempt to bribe the other side.
So if a Governor appoints someone to a public commission and proclaims the appointee “the best person for the job,” while the real reason is that some state legislator had asked for a friend’s appointment as a favor, then the Governor has committed wire fraud because the Governor does not actually believe that the appointee is the best person for the job. That’s not a plausible understanding of §1346, even if (as is unlikely) it would be valid under the First Amendment as a criminal penalty for misleading political speech. And no matter what one makes of the subject, the holding of Skilling v. United States, 561 U.S. 358 (2010), prevents resort to §1346 to penalize political horse-trading. Skilling holds that only bribery and kickbacks violate §1346. So unless political logrolling is a form of bribery, which it is not, §1346 drops out.
The prosecutor insists, however, that Blagojevich’s situation is different and uncommon because he sought a post in the Cabinet for himself. It isn’t clear to us that this is unusual. The current Secretary of State was appointed to that position from a seat in the Senate, and it wouldn’t surprise us if this happened at least in part because he had performed a political service for the President. Ambassadors, too, come from the House or Senate (or from state politics) as part of political deals.
Some historians say that this is how Earl Warren came to be Chief Justice of the United States: he delivered the California delegation at the 1952 Republican convention to Eisenhower (rather than Senator Taft) in exchange for a commitment to appoint him to the next vacancy on the Supreme Court.
If the prosecutor is right, and a swap of political favors involving a job for one of the politicians is a felony, then if the standard account is true both the President of the United States and the Chief Justice of the United States should have gone to prison. Yet although historians and political scientists have debated whether this deal was made, or whether if made was ethical (or politically unwise), no one to our knowledge has suggested that it violated the statutes involved in this case. (Whether it might have violated 18 U.S.C. §599, and whether that statute is compatible with the First Amendment, are issues we do not address.)
OPM announced the results of the interagency forensic investigation into the second incident. As previously announced, in late-May 2015, as a result of ongoing efforts to secure its systems, OPM discovered an incident affecting background investigation records of current, former, and prospective Federal employees and contractors. Following the conclusion of the forensics investigation, OPM has determined that the types of information in these records include identification details such as Social Security Numbers; residency and educational history; employment history; information about immediate family and other personal and business acquaintances; health, criminal and financial history; and other details. Some records also include findings from interviews conducted by background investigators and fingerprints. Usernames and passwords that background investigation applicants used to fill out their background investigation forms were also stolen.
While background investigation records do contain some information regarding mental health and financial history provided by those that have applied for a security clearance and by individuals contacted during the background investigation, there is no evidence that separate systems that store information regarding the health, financial, payroll and retirement records of Federal personnel were impacted by this incident (for example, annuity rolls, retirement records, USA JOBS, Employee Express).
This incident is separate but related to a previous incident, discovered in April 2015, affecting personnel data for current and former Federal employees. OPM and its interagency partners concluded with a high degree of confidence that personnel data for 4.2 million individuals had been stolen. This number has not changed since it was announced by OPM in early June, and OPM has worked to notify all of these individuals and ensure that they are provided with the appropriate support and tools to protect their personal information.
Analysis of background investigation incident. Since learning of the incident affecting background investigation records, OPM and the interagency incident response team have moved swiftly and thoroughly to assess the breach, analyze what data may have been stolen, and identify those individuals who may be affected. The team has now concluded with high confidence that sensitive information, including the Social Security Numbers (SSNs) of 21.5 million individuals, was stolen from the background investigation databases. This includes 19.7 million individuals that applied for a background investigation, and 1.8 million non-applicants, predominantly spouses or co-habitants of applicants. As noted above, some records also include findings from interviews conducted by background investigators and approximately 1.1 million include fingerprints. There is no information at this time to suggest any misuse or further dissemination of the information that was stolen from OPM’s systems.
If an individual underwent a background investigation through OPM in 2000 or afterwards (which occurs through the submission of forms SF 86, SF 85, or SF 85P for a new investigation or periodic reinvestigation), it is highly likely that the individual is impacted by this cyber breach. If an individual underwent a background investigation prior to 2000, that individual still may be impacted, but it is less likely.
So, are we supposed to wait for another credit monitoring offer from OPM’s partners for this BI hack, after already being offered credit monitoring for the personnel data compromised in an earlier breach?
Ms. Archuleta should do the right thing and resign.
Part of OPM’s public response to these breaches has been to protect the director’s record at the agency. While she remains in charge, I suspect that the fixes at OPM will also include shielding the director from further damage. News reports already talk about OPM’s push back. Next thing you know we’ll have “setting the record straight” newsbots all over the place.
While it is true that Ms. Archuleta arrived at OPM with legacy systems still in operation, these breaches happened under her watch. Despite her protestation that no one is personally responsible (except the hackers), she is the highest accountable official at OPM. Part and parcel of being in a leadership position is to own up to the disasters under your wings. Ms. Archuleta should resign and give somebody else a chance to lead the fixes at OPM.
On June 30, Secretary Kerry announced the appointment of Lee Wolosky, as the State Department’s Special Envoy for Guantanamo Closure:
Today, I am pleased to announce the appointment of Lee Wolosky, as the State Department’s Special Envoy for Guantanamo Closure. Lee will lead our ongoing diplomatic engagement to make possible the closure of the Guantanamo detention facility in a timely manner, consistent with American interests and the security of our people.
Lee Wolosky is a highly-skilled and experienced attorney who served as the National Security Council’s Director for Transnational Threats under Presidents Clinton and George W. Bush. He is ideally qualified to continue the hard diplomatic engagement that is required to close Guantanamo in accordance with President Obama’s directives. Lee will assume lead responsibility for arranging for the transfer of Guantanamo detainees abroad and for implementing transfer determinations, and overseeing the State Department’s participation in the periodic reviews of those detainees who are not approved for transfer.
In so doing, he will engage directly with America’s overseas friends and partners, while consulting closely with other interested U.S. agencies and with the appropriate committees of Congress.
I am very pleased at Lee’s decision to return to government service and look forward to working closely with him in his new position.
The State Department says that the incoming special envoy has not yet visited the detention facility at Guantanamo but that Mr. Wolosky, whose new appointment does not require Senate confirmation, “intends to visit the detention facility and meet with the detention facility leadership very soon.”
Mr. Wolosky is the third appointee to this position since it was created in 2009.
In January 2013, the NYT reported that Daniel Fried, the first special envoy for Gitmo closure was reassigned, his office closed, and his former responsibilities “assumed” by the office of the department’s legal adviser. Via NYT:
Mr. Fried’s special envoy post was created in 2009, shortly after Mr. Obama took office and promised to close the prison in his first year. A career diplomat, Mr. Fried traveled the world negotiating the repatriation of some 31 low-level detainees and persuading third-party countries to resettle about 40 who were cleared for release but could not be sent home because of fears of abuse.
But the outward flow of detainees slowed almost to a halt as Congress imposed restrictions on further transfers, leaving Mr. Fried with less to do. He was eventually assigned to work on resettling a group of Iranian exiles, known as the M.E.K., who were living in a refugee camp in Iraq, in addition to his Guantánamo duties.
But in June 2013, the AP reported that President Obama had chosen a high-powered Washington lawyer Clifford Sloan to reopen the State Department’s Office of Guantanamo Closure, shuttered since January 2013 and folded into the department’s legal adviser’s office “when the administration, in the face of congressional obstacles, effectively gave up its attempt to close the prison.”
Sixteen months later, Secretary Kerry announced the departure of Special Envoy Clifford Sloan on December 22, 2014:
I’d like to have about a hundred Cliff Sloans. He’s the real deal. He’s the model of someone very successful on the outside who comes in to the State Department and builds relationships instead of burning bridges, gets people on board with a tough assignment, masters the inter-agency process, and just keeps his head down and proves the doubters dead wrong.
Now the results are clear. We’ve made huge progress thanks in large measure to Cliff. This guy promised me 18 months, and he delivered maximum effort for each of those 18 months. Cliff was very skillful negotiating with our foreign partners and allies, and it’s a big part of why we moved thirty-four detainees on his watch, with more on the way. Cliff also played a major role in our successful efforts to reform the Congressional restrictions on foreign transfers, and in launching the new Periodic Review Board process.
The NYT reported that the resignation of Mr. Sloan, apparently a close confidant of Secretary Kerry, came as officials at the State Department and the White House increasingly expressed frustration with the Defense Department’s slow pace of transferring approved prisoners. In an interview, Mr. Sloan denied that he was leaving because he was frustrated by foot-dragging at the Pentagon. He said he had always intended to stay a maximum of 18 months, noting that he was right on schedule.
According to history.state.gov, the United States remained in Cuba as an occupying power until the Republic of Cuba was formally installed on May 19, 1902 following the defeat of Spain in 1898. On May 20, 1902, the United States relinquished its occupation authority over Cuba, but claimed a continuing right to intervene in Cuba. Diplomatic relations and the U.S. Legation in Havana were established on May 27, 1902, when U.S. Envoy Extraordinary and Minister Plenipotentiary Herbert Goldsmith Squiers presented his credentials to the Government of the Republic of Cuba. Following an act of Congress, the U.S. Legation in Havana, Cuba, was raised to Embassy status on February 10, 1923, when General Enoch H. Crowder was appointed Ambassador. The United States severed diplomatic relations with Cuba on January 3, 1961, citing unwarranted action by the Government of Cuba that placed crippling limitations on the ability of the United States Mission to carry on its normal diplomatic and consular functions.
Today, after over 50 years, a new day. For once, instead of boots on the ground, diplomatic negotiations and engagement made this day possible. It appears that we have rediscovered the non-coercive instruments of statecraft (as Ambassador Chas Freeman spoke about so eloquently), that persuaded the Cubans that they can benefit by working with us rather than against us. A big shout-out to our diplomats who labored so hard to get us here!
On June 29, OPM announced the temporary suspension of the online system used to submit background investigation forms. The system could be offline from 4-6 weeks. Below via opm.gov:
WASHINGTON, D.C. – The U.S. Office of Personnel Management today announced the temporary suspension of the E-QIP system, a web-based platform used to complete and submit background investigation forms.
Director Katherine Archuleta recently ordered a comprehensive review of the security of OPM’s IT systems. During this ongoing review, OPM and its interagency partners identified a vulnerability in the e-QIP system. As a result, OPM has temporarily taken the E-QIP system offline for security enhancements. The actions OPM has taken are not the direct result of malicious activity on this network, and there is no evidence that the vulnerability in question has been exploited. Rather, OPM is taking this step proactively, as a result of its comprehensive security assessment, to ensure the ongoing security of its network.
OPM expects e-QIP could be offline for four to six weeks while these security enhancements are implemented. OPM recognizes and regrets the impact on both users and agencies and is committed to resuming this service as soon as it is safe to do so. In the interim, OPM remains committed to working with its interagency partners on alternative approaches to address agencies’ requirements.
“The security of OPM’s networks remains my top priority as we continue the work outlined in my IT Strategic Plan, including the continuing implementation of modern security controls,” said OPM Director Archuleta. “This proactive, temporary suspension of the e-QIP system will ensure our network is as secure as possible for the sensitive data with which OPM is entrusted.”
Meanwhile, on June 22, AFSA sent a letter to OPM Director Katherine Archuleta with the following requests:
via afsa.org (click for larger view)
On June 25, AFSA is one of the 27 federal-postal employee coalition groups who urge President Obama to “immediately appoint a task force of leading agency, defense/intelligence, and private-sector IT experts, with a short deadline, to assist in the ongoing investigation, apply more forceful measures to protect federal personnel IT systems, and assure adequate notice to the federal workforce and the American public.” (read letter here: AFSA Letter sent in conjunction with the Federal-Postal Coalition |June 25, 2015 | pdf)