That WSJ article above has this to say about the Keystone-related documents subject to FOIA and the rapid dominance doctrine in the halls of Foggy Bottom:
The Keystone documents Ms. Mills objected to were all either held back or redacted, the same person said. After Ms. Mills began scrutinizing documents, the State Department’s disclosure of records related to Keystone fell off sharply, documents that include a court filing show.
Two others with knowledge of State Department records procedures said political appointees were allowed greater say than the FOIA experts thought was appropriate. It was hard to push back against the political staff, one said.
The pipeline project was so sensitive that an expert on FOIA was invited to a State Department policy meeting to advise on how to prospectively shield documents from disclosure, such as by marking them as involving the “deliberative process,” said a person who attended.
That’s the infamous exemption for the “deliberative process,” otherwise known as the “b-5.” In early May, the Senate Judiciary Committee held a hearing on “Ensuring an Informed Citizenry: Examining the Administration’s Efforts to Improve Open Government.” Joyce Barr, the Assistant Secretary for Administration, as well as Chief FOIA Officer for the Department of State was one of the witnesses and made news for reportedly saying that Secretary Clinton’s use of a private email account for official business was “not acceptable.” Too late much?
One other witness at that hearing was Thomas S. Blanton, the Director of the National Security Archive at George Washington University. Below is from his prepared statement on the “b-5″ exemption, also known as the “withhold it if you want to” exemption.
One reason why FOIA does not work is the abuse of the most discretionary exemption in the FOIA, the fifth or “b-5” on deliberative process. This exemption also includes attorney-client privilege, and every lawyer in this room shivers at the idea of infringing on that. Yet, I would point out that the Presidential Records Act dating back to 1978 has eliminated the b-5 exemption as a reason for withholding records 12 years after the President in question leaves office. Through the PRA, we have conducted a 35-year experiment with putting a sunset on the deliberative process exemption, and the facts show us no damage has been done with a 12-year sunset. Yes, some embarrassment, such as the junior White House lawyer who vetted (and rejected) a certain Stephen Breyer for a Supreme Court nomination back in the 1990s. But no new spate of lawsuits. No re-opened litigation. No damage to the public interest. Embarrassment cannot become the basis for restricting open government. In fact, embarrassment makes the argument for opening the records involved.
According to Mr. Blanton, the Justice Department’s use of the “withhold it if you want to” exemption is at an all-time high this year, invoked 82,770 times to withhold records that citizens requested. The same exemption used by the CIA to withhold volume 5 of a 30-year-old internal draft history of the disaster at the Bay of Pigs. This is the same exemption used by the FBI to censor most of the 5,000 pages it recently “released” on the use of the Stingray technology to locate individuals’ cell phones. Apparently, this is the exemption that the administration also used to keep the Office of Legal Counsel final opinions out of the public domain according to Mr. Blanton.
On May 13, President Obama announced his intent to nominate Minnesota lawyer Samuel D. Heins, as the next Ambassador to the Kingdom of Norway. The WH released the following brief bio:
Samuel D. Heins most recently served as a Partner at Heins Mills & Olson in Minneapolis, Minnesota, from 1994 to 2013. Mr. Heins was a Partner at Opperman Heins and Paquin from 1989 to 1994, a Partner at Tanick and Heins from 1976 to 1989, and an Associate Attorney at the Firestone Law Firm from 1973 to 1976. In 1983, Mr. Heins founded Minnesota Advocates for Human Rights, where he served as First Chair and continues to serve as a member. He is a Board Member of the Ploughshares Fund, Trustee of the PEN American Center, and Board Member and Vice Chair of the Center for Victims of Torture, which he co-founded. He previously served as a Board Member and Vice President of the American Civil Liberties Union of Minnesota. Mr. Heins received a B.A. and J.D. from the University of Minnesota.
Mr. Heins (and his wife Stacy) are listed by the NYT as one of President Obama’s top fund-raisers in 2011/2012. Also click here to see additional data from LittleSis.
If confirmed, Mr. Heins would succeed Boston lawyer Barry B. White who was Ambassador to Norway from 2009-2013. Career diplomat Julie Furuta-Toy has served as chargé d’affaires at the US Embassy in Oslo since Ambassador White’s departure in September 2013.
As of this writing, the nominees for ambassadors to the Bahamas, Costa Rica, Finland and Sweden, all political appointees, have waited between 200-450 days for their confirmation hearings at the Senate Foreign Relations Committee. Career diplomats nominated as ambassadors to South Sudan, Mali, Latvia, Kyrgyzstan and Guyana have waited between 229-282 days. It does not look like the SFRC is in any hurry to confirm anyone clear anyone’s nomination. Next week, eight nominees are scheduled to appear before the panel for their confirmation hearings.
The 2016 presidential election is some 18 months away. Some folks who are hoping to land a gig at some of our European embassies are expecting to get busy just about now. About 2/3 of all ambassadorial appointments will go to career diplomats but about a third will still go to top supporters of the winning candidate, most of them heavy lifters when it comes to rounding up funds to help get their candidate elected. That’s not going to end anytime soon. See list of Obama Bundlers via OpenSecrets. Click here for Obama’s ambassadors during his first term, click here for the current appointees. Click here for George W. Bush’s Pioneer Fundraisers who got similar appointments. @PhilipArsenault has the breakdown of appointments for both presidents, both terms here.
In any case — apparently, the not quite so rich has a new lament this election cycle. “Who needs a bundler when you have a billionaire?” One fundraiser interviewed on WaPo says, “Bundlers felt they were part of the process and made a difference, and therefore were delighted to participate. But when you look at super-PAC money and the large donations that we’re seeing, the regular bundlers feel a little disenfranchised.” All that money is moving the ground under their feet, and disrupting the status of the new incarnation of rangers, pioneers, and bundlers.
It is highly unlikely that the next President of the United States will appoint Super-PACs as ambassadors to Paris, London, Madrid or Brussels, etc.. So folks, calm down! While waiting for the call, folks should gear up learning about what American ambassadors do. Oh, interested individuals also need to figure out which posts to avoid for various reasons. It could be that the official ambassador residence is too small, or smaller than the house the appointee is accustomed to, or too old, or needs a new roof, or new paint, or new floors, or has bad toilets (and new appointee ends up supervising repairs and all that). So put that on the to-do list but for now, an excellent book to read is Ambassador Dennis C. Jett’s book, American Ambassadors, The Past, Present and Future of American Diplomats, because it’s delightful and informative and everyone should know what he/she is getting into. Also mark your calendars; the author will be giving a talk on the book at AFSA on June 11th from 2:00 to 3:30 pm. Many thanks to Ambassador Jett and Palgrave Macmillan’s Claire Smith for permission to share an excerpt from the book with our readers.
On the face of it, the first ambassador for whom I worked seemed perfect for the job. If the director of a movie called up central casting and told them to send over actors to audition for a role as an ambassador, he would have been a shoo-in for the part. He had, in fact, been an actor, costarring in movies with Marlene Dietrich and Shirley Temple. He had also been a successful politician, elected to Congress twice and as governor of Connecticut. The Connecticut Turnpike is named after him.
He came from a wealthy and illustrious lineage—his family included a senator, an admiral, and another ambassador. They could trace their roots back to the pilgrims. Tall, handsome, and silver-haired, he was fluent in several languages. According to one expert on style, he was “one of the most polished gentlemen in America” for more than half a century. He was also named ambassador three times by three different presidents. In referring to him, a journalist once wrote: “If the United States could be represented around the world the way it is represented in Argentina, it would be loved by the peoples of all nations.”
In reality, the ambassador was a disaster—and a dangerous one at that. Although he seemed to some to be the perfect diplomat, those who knew him better considered him, in effect, a threat to national security. The reason for such a divergence of opinion is that there is more to being an ambassador than simply glitz and glamour.
And when it came to John Davis Lodge, there was little else.
I did not know all of that when I was assigned to Buenos Aires as my first diplomatic posting. In early 1973, I had only been in the Foreign Service for a few weeks. All newly minted Foreign Service Officers (FSOs) are introduced to the State Department through a six-week course, a kind of boot camp for bureaucrats. There the raw recruits get basic training about the government they are to represent. Toward the end of the course, the fledgling FSOs are given a list of all the postings in the world that are available for their first tour of duty. They have to decide on their preferences and then hope that the personnel system answers their prayers.
Having grown up and been educated mainly in New Mexico, where the Hispanic and Native American cultures had an influence on even a transplanted Northeasterner like me, I decided Latin America would be my first choice. Because Argentina seemed the most exotic of the possibilities in the southern hemisphere, that country was at the top of my list. As luck would have it, none of my peers ranked it as high, so the job was mine. But first I had to take additional training, including learning Spanish.
It was then that I came across an article in the Washington Post about Lodge written by Lewis Diuguid, the paper’s Latin American correspondent. In essence, the article said that Lodge was all style and no substance; dinners at the elegant ambassadorial residence inevitably dissolved into songfests, with Lodge belting out his favorite tunes from Broadway shows. The article claimed that Lodge kept four staff members in the embassy’s information section engaged full time in trying to get the local press to run photos and articles about his latest social activities.
Diuguid implied that Lodge’s desire to appear in the newspapers did not extend beyond photographs and the society pages. The article went on to quote anonymous sources, who said a serious conversation with Lodge was impossible and that if anyone had any real business to conduct with the embassy, they went to see the deputy chief of mission, the number two person in any embassy and one who is always a career diplomat.
As I read the article, I found it hard to believe it was not grossly exaggerated. I wondered how someone in such an exalted position could be such an apparent lightweight. A few weeks after arriving in Buenos Aires, I had the opportunity to witness Lodge in action. He gave a large formal dinner at the residence for a visiting official from Washington. It was not a social occasion but rather an important opportunity to gather impressions on how the new government would conduct itself. One big question was whether Peronist officials would even come to the dinner. It was feared they might not if hostility toward the United States was going to again be one of Peron’s policies.
The evening unfolded, however, as if the Diuguid article had scripted the event. At the end of the sumptuous meal, as coffee and dessert were being served, Lodge called over an accordionist who had been providing soft background music. With this accompaniment, he burst into song while still seated at the table and rolled off a number of tunes. We all then adjourned to the ballroom, where he continued the entertainment. Among his favorite Argentine guests was a couple whom he summoned to join him at the grand piano. While the husband played, the wife and Lodge sang duets from Porgy and Bess and other Broadway hits.
As the show dragged on, the Peronist officials signaled they wanted to talk to the visiting official and the deputy chief of mission privately, so they all slipped off to the library. The Peronists made it clear that the new government would be open to a constructive and productive relationship with the United States, unlike in the past. This was a significant shift in policy that would be welcomed in Washington.
Finally, after the songfest, the guests began bidding the Lodges good night and thanking them profusely for the evening. The embassy staff members were always the last to leave; it was customary to stay until dismissed by the ambassador. As we waited for this to happen, Lodge learned of the discussion that had taken place in the library while he was singing in the ballroom. He became furious at his deputy, ranting that he had been stabbed in the back before but never in his own home. Unmoved by the success of the discussions, Lodge continued to berate the poor man in front of all of us. That evening I learned an important lesson: a country is not well served by an ambassador who thinks entertaining is the most important of his duties.
The first female ambassador was appointed by President Franklin D. Roosevelt during his first term. She was the first female member of U.S. Congress and the daughter of the 41st Secretary of State William Jennings Bryan.
Owen, Ruth (Bryan) (1885-1954) | Envoy Extraordinary and Minister Plenipotentiary, Denmark 1933-1936 (see Wikipedia entry).
During his second term, President Roosevelt appointed a second female ambassador, this time to Norway.
It was not until 1953 under President Eisenhower when the first female Foreign Service Officer was appointed ambassador. Frances E. Willis was appointed Ambassador to Switzerland in 1953, Ambassador to Norway in 1957, and Ambassador to Sri Lanka in 1961. She was the first female FSO conferred with the rank of Career Ambassador on March 20, 1962.
At that time, there was a message from Mission Command:
“Good morning, Mr. Hunt (or whoever is available). Your mission, should you choose to accept it, involves the retrieval of all Special Government Employee (SGE) names. There are more than a hundred names but no one knows how many more. They are padlocked in the Privacy Act of 1974 vault, guarded by a monstrous fire-breathing creature from Asia Minor. PA1974 vault location is currently in Foggy Bottom. As always, should you or any member of your team be caught or killed, everybody with a badge will disavow all knowledge of your actions. This message will self-destruct in five seconds. If not, well, find a match and burn.”
In January 2014, without Mr. Hunt, the State Department finally released its SGE list as reported by ProPublica here . ProPublica concluded then that “the list suggests that the status is mostly used for its intended purpose: to allow outside experts to consult or work for the government on a temporary basis.” Which makes one wonder why it wasn’t readily released in the first place.
The recent Clinton email debacle, revived interest on Secretary Clinton’s use of the SGE program that allowed some political allies to work for the government while pursuing private-sector careers. In March, Sen. Charles E. Grassley (R-Iowa), who heads the Judiciary Committee was on it.
“The public’s business ought to be public with few exceptions,” Grassley said in a statement Saturday. “When employees are allowed to serve the government and the private sector at the same time and use private email, the employees have access to everything and the public, nothing.”
Senator Grassley’s request to the State Department, apparently not yet answered, is available here.
Last week, Senator Grassley received confirmation that the State Department Office of Inspector General will review the department’s use of the Special Government Employee program. Below is part of Senator Grassley’s statement:
“This program is meant to be used in a limited way to give the government special expertise it can’t get otherwise,” Grassley said. “Is the program working the way it’s intended at the State Department or has it been turned on its head and used in ways completely unrelated to its purpose? An independent analysis will help to answer the question. An inspector general review is necessary. Available information suggests that in at least one case, the State Department gave the special status for employee convenience, not public benefit.”
In response to Grassley’s request, State Department Inspector General Steve Linick confirmed his office “intends to examine the Department’s SGE program to determine if it conforms to applicable legal and policy requirements, including whether or not the program, as implemented, includes safeguards against conflicts of interest.”
Grassley is concerned about potential conflicts of interest arising from a top State Department employee, Huma Abedin, who worked for both the government as a Special Government Employee and an outside firm, Teneo, at the same time.
More about Ms Abedin’s consulting work here. Senator Grassley’s request to IG Linick is available here. IG Linick’s response to Senator Grassley is available here.
You get the feeling that State/OIG is the most wanted office in WashDC these days?
The following is an excerpt from Life After Jerusalem, a blog by a lesbian American Indian Foreign Service officer:
None of the stories I have seen on the event (such as this one in the Washington Post and this one in the Washington Blade), which I am the first to admit is a wonderful thing and evidence of how far we have come, mentioned this absence. Which I take as evidence of how far we have to go.
When the Department recently appointed an LGBT envoy, which to its credit is a career FSO (as is only one of the out gay Ambassadors), it appointed another white man. I was told at the time that there just aren’t any lesbians or people of color who rank highly enough to be considered. And that seems to be true. I can find no lesbian or out person of color who has made it to the ranks of Senior Foreign Service.
Of course, rank didn’t stop the Department during Secretary Rice’s tenure from appointing several men to the position of Deputy Assistant Secretary (DAS) who were only FS 02s in rank (for reference, FS 02 is the Foreign Service equivalent of a Lt. Colonel. Senior Foreign Service is the equivalent of a general. The highest ranking out lesbians that I know of in the Department are FS 01s, or Colonels, higher ranking than those men who were made DASes). And those men did not return to their mid-level positions afterward. In fact, two became Ambassadors, another an Assistant Secretary.
So really, the Department could appoint a career lesbian or out person of color if it really wanted to.
On March 16, the United States and Canada signed a new agreement reaffirming the United States and Canada’s commitment to enhancing security while facilitating lawful travel and trade, and supersedes the existing U.S.-Canada Air Preclearance agreement signed in 2001. The new preclearance agreement – allowing for the immigration, customs and agriculture inspections required for entry into either country to occur on foreign soil – will reportedly reduce congestion and delays at the border and increase efficiency and predictability in cross-border travel, tourism and transportation.
Then yesterday, the Globe and Mail’s Campbell Clark has a long piece on what is reportedly Bruce Heyman’s “rough year” as America’s ambassador to Ottawa.
For Mr. Heyman, it’s telling that since the day he presented his credentials nearly a year ago, when he and his wife Vicki had a 15-minute meet-and-greet with Mr. Harper and his wife Laureen, the U.S. ambassador has never had a one-on-one with the PM.
“There was no edict,” one senior Canadian government figure insisted. But several sources said there was at least a common narrative, from the Prime Minister’s Office to ministers, that Mr. Heyman wasn’t welcome.
A related note — right there is an example of unpaid labor by a chief of mission spouse, a tradition deeply valued by the State Department until 1972 when the directive on diplomatic wives was issued and thereby ruined the much-beloved twofer system. That’s when participation by a Foreign Service wife in the work of a postwas deemed “a voluntary act of a private person” and when the diplomatic spouse’s performance memorandum stopped being placed in the FSO’s performance dossier. We presumed, by the language of the directive, that up to 1972 there were no accompanying male diplomatic spouses in the service.
On March 17, the American Foreign Service Association (AFSA) wrote to Arnold Chacon, the Director General of the Foreign Service and the State Department’s top HR official requesting clarity on the applicability of 3 FAM to career and political/non-career employees of the oldest executive agency in the union.
We would be grateful if you could help us understand if there is, in practice or by law, any difference in how these standards apply to and are enforced for non-career appointees as opposed to career employees, both Foreign Service and Civil Service.
AFSA noted the March 10 press briefing, where “Spokesperson Jen Psaki referred to 3 FAM as “guidelines” as distinguished from “law”:
As the Foreign Service, we have always understood the FAM to consist of regulations to which we must adhere. AFSA would like to ask if non-career appointees are formally subject to all of the rules and regulations in 3 FAM.
Foreign Affairs Manual
3 FAM is the section of the Foreign Affairs Manual that covers personnel:
This volume of the FAM sets forth the policies and regulations governing the administration of the personnel system applicable to the Department of State. Regulations adopted jointly by the Department of State and other agencies (e.g. Broadcasting Board of Governors, USAID, Commerce, Agriculture, Peace Corps,) are so identified wherever they appear in this volume. (see pdf)
Volume 3 of the FAM is organized around eight major personnel topics, each of which is assigned a series of nine chapters of 89 subchapters. In so far as is practicable, each subchapter is restricted to a single topic. Since some topics relate to both Foreign Service and Civil Service employees, while others relate to employees of only one of the services, subchapters, or parts thereof, contain a legend, which indicates coverage.
☞Chapters in the 1000 series contain general information on the organization of the FAM and general policies and regulations relating to all Civil Service and/or Foreign Service employees.
☞Chapters in the 2000 series contain regulations and policies, which govern the day-to-day operations of the Foreign Service and Civil Service personnel systems.
☞Chapters in the 3000 series contain regulations and policies which govern Civil Service and Foreign Service pay, leave administration, benefits (e.g. Federal Employees Health Benefits (FEHB), Federal Employees Group Life Insurance (FEGLI), Office of Worker’s Compensation Program (OWCP), Unemployment Compensation for Federal Employees (UCFE), Reasonable Accommodations), allowances and travel. In addition, Chapters in the 3000 series contains special program regulations and policies such as Transit Subsidy Program, Student Loan Repayment Program (SLRP), and Professional Liability Insurance (PLI).
☞Chapters in the 4000 series contain regulations and policies which govern the conduct of Foreign Service and Civil Service employees; provide penalties for misconduct; establish grievance and appeals procedures; and provide for awards for outstanding performance.
☞Chapters in the 5000 series contain regulations and policies, which govern labor management relations in the Department.
☞Chapters in the 6000 series contain regulations and policies, which govern the administration of the retirement program for Civil Service and Foreign Service employees.
☞Chapters in the 7000 series contain regulations and policies, which govern the administration of the Foreign Service National personnel system for Overseas Employees.
☞Chapters in the 8000 series contain regulations and policies, which govern the administration of the various overseas employment programs administered by the Office of Overseas Employment (HR/OE).
If it comes from the podium, it is official.
So it is, of course, understandable that AFSA is concerned when she calls the FAM “guidelines.” But equally troubling to hear her say from the official podium that the FAM is not regulations but recommendations, as if somehow adherence to it is voluntary and optional. We’ve asked state.gov for a comment and the nice person there told us they’re consulting with their subject matter experts and hopefully will have something for us.
Anyone has an in with the folks at the Office of the Legal Adviser? Would you kindly please ask them to wade in on this?
Dan Metcalfe spent more than thirty years working at the U.S. Department of Justice where he served from 1981 to 2007 as director of the Office of Information and Privacy. He was responsible for overseeing the implementation of the FOIA throughout the entire executive branch. He now teaches secrecy law at American University’s Washington College of Law. His deconstruction of the former secretary of state’s explanation on her exclusive use of private email is probably the best one we’ve seen so far. There is also an analysis here from the National Security Archive.
Below is an excerpt from the op-ed piece Mr. Metcalfe wrote for Politico:
[T]here is the compounding fact that Secretary Clinton did not merely use a personal email account; she used one that atypically operated solely through her own personal email server, which she evidently had installed in her home. This meant that, unlike the multitudes who use a Gmail account, for instance, she was able to keep her communications entirely “in house,” even more deeply within her personal control. No “cloud” for posterity, or chance of Google receiving a congressional subpoena—not for her. No potentially pesky “metadata” surrounding her communications or detailed server logs to complicate things. And absolutely no practical constraint on her ability to dispose of any official email of “hers,” for any reason, at any time, entirely on her own. Bluntly put, when this unique records regime was established, somebody was asleep at the switch, at either the State Department or the National Archives and Records Administration (which oversees compliance with the Federal Records Act)—or both.
[…] as Secretary Clinton might like to claim personal “credit” for this successful scheme when talking with her friends about it within the privacy of her own home—perhaps while leaning against her private Internet server in her basement—the fact is that she didn’t invent this form of law circumvention; she just uniquely refined it. Yes, it was the Bush administration—specifically, the White House Office of Administration in concert with Vice President Dick Cheney, Karl Rove and the Republican National Committee—that likewise succeeded with wholesale email diversion back in the pre-smartphone days of freewheeling Blackberry usage.
Unfortunately for all of us, the competition for perverse “honors” in the world of circumventing both the letter and the spirit of federal records laws is indeed quite stiff.
Then there’s this guy who in 1994 was a 22 year old who worked as a computer programmer for a company called Information Management Consultants tasked with sorting through presidential docs in 1993. He wondered if the Clinton team included technical wizards who designed a flawless keyword search when combing through her emails:
If so, she should release technical documentation of the search algorithm, the test procedure, and the test results — assuming they tested it. Without that information, we have no basis for sharing Hillary Clinton’s “absolute confidence” that the State Department has received all her work-related email communication.
Hey, wouldn’t it be nice to know who should get a large medal for being asleep at the switch at the State Department on this? Asleep at the switch doesn’t sound very good but perhaps it is a kinder version for whatever it was that happened at HST.
“I did email with her from time to time and I don’t remember exactly how it showed up.”
Treasury Secretary Jacob Lew
At a hearing at the House Financial Services Committee in Washington, on March 17, 2015 when asked by GOP lawmaker, Rep. Sean Duffy (R., Wis.), if he knew Mrs. Clinton was emailing on a private account. Mr. Lew was the Deputy Secretary of State for Management and Resources from January 28, 2009 – November 18, 2010 when the D/MR position was first established.