Posted: 1:55 am EDT
NPR News writes that both Florida Sen. Marco Rubio and former Florida Gov. Jeb Bush have defended birthright citizenship, but they have said more needs to be done about women who might come into the U.S. expressly to have children. “If there’s abuse, if people are bringing, pregnant women are coming in to have babies simply because they can do it, then there ought to be greater enforcement,” Bush told conservative radio host Bill Bennett this week, as reported by Politico. Like how, or greater enforcement of what?
Birthright citizenship and “anchor baby” are in the front burner of political campaigns these days. The Congressional Research Service (CRS) issued this report on Birthright Citizenship Under the 14th Amendment of Persons Born in the United States to Alien Parents (via Secrecy News) back in 2012. The report is dated January 10, 2012 but is an interesting read on the various legislative proposals and its history. There is a useful discussion of the Fourteenth Amendment and the Civil Rights Act of 1866 included in the report. In related news, denial of birth certificates to U.S. born children of undocumented immigrants in Texas is now a lawsuit in the U.S. District Court in Austin, TX.
Peter Van Buren, a consular officer by trade until his retirement from the Foreign Service has written a straight-forward explainer on this subject. Excerpted below:
Explainer: ‘Anchor Babies’ and the Law
by Peter Van Buren (We Meant Well Blog)
Thanks to brave presidential candidates Trump and Bush, et al, the term “anchor baby” is now the subject of interest and ignorance by a media preoccupied with whatever shiny object is held in front of it.
Trump wants to tear up part of the Constitution he unilaterally proclaims is unconstitutional; no one is sure what the other Republicans plan to “do” about this issue, but they sure don’t support it somehow.
So what are “anchor babies” and which parts of American law affect them?
An “anchor baby” (many find the term offensive, referring as it does to a child as an object) is a child born in the United States to a foreign citizen, legally or illegally present in the U.S., who, by virtue of the 14th Amendment to the Constitution, automatically and forever acquires American citizenship. The child need only prove s/he was born in the U.S.
The term anchor comes into play because at the age of 21 the child can begin filing green card paperwork for his/her extended family. The single American citizen in a family becomes the “anchor” through which all can eventually become legal permanent residents of the U.S. and soon after, citizens.
Many conservatives feel conveying citizenship so freely cheapens the meaning of being an “American,” and especially object to the idea that a mother illegally in the United States can birth an American citizen. Others are troubled by a growing industry that sends foreign mothers to the U.S. specifically so that they can create such citizens, so-called “birth tourism.”
The concept that anyone born in the U.S. (one exception: those born not subject to U.S. law, which has been held to apply primarily to Native Americans and to children of certain accredited foreign diplomats exempt [immune] from U.S. laws, though there are loopholes even there) is automatically an American citizen is part of the 14th Amendment to the Constitution, the so-called Citizenship Clause.
The 14th was adopted in 1868, in the aftermath of the Civil War as part of reconciling the status of millions of slaves forcibly brought to the United States. The Citizenship Clause specifically overruled the 1857 Supreme Court decision in Dred Scott v. Sandford), which had held that Americans descended from African slaves could not be citizens of the United States. The Amendment cleared up any ambiguities, stating “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
The most significant test of the 14th Amendment came in 1898, via United States v. Wong Kim Ark. The Supreme Court upheld that a child born in the United States automatically became a U.S. citizen. At issue were laws passed after the Wong child’s birth that excluded Chinese citizens from entering the U.S. The decision in Wong has been understood to mean that the legal status of the mother, as well as any secondary immigration laws below the Constitution, have no bearing on the granting of citizenship.
It can get complicated, and there have been unsuccessful efforts to overturn or reinterpret Wong in light of contemporary concerns over immigration.
For those who like their law in Latin, the idea that anyone born in a certain country automatically acquires citizenship there is called jus soli (right of soil.) The opposite, that citizenship is derived only via one’s parents, is called jus sanguinis (right of blood.) No European nation offers unrestricted jus soli, and very few other countries outside the Western Hemisphere do either.
Foreigners, Visas and Babies
While some foreigners who give birth in the U.S. enter illegally by walking across a land border, a significant number of moms enter the U.S. on visas or the rough equivalent, the visa waiver program, which provides less fettered access to citizens from certain countries, mostly Europeans. Some give birth in the U.S.; is this legal?
It is. There is no law whatsoever that prohibits someone from coming to the United States specifically to give birth here and create an “anchor baby.”
Many uninformed commentators point to two visa laws that they feel may prohibit such an act, the “public charge” provision and the fraud provision.
The current issue of Rolling Stone contains a long article on “birth tourism.” Such “tourism” is a huge business in Asia, particularly in China where rising incomes coincide with existing interest in emigration. Companies arrange for everything; a mom need only provide money. The companies legally assist the mother in obtaining a visa, arrange for her to stay in the U.S. in an apartment complex (dubbed “maternity hotels”), usually in California for convenience for flights from Asia, full of other Chinese moms, and then give birth in a local hospital staffed with Chinese-speaking doctors.
There is absolutely nothing illegal about birth tourism under U.S. law.
Read in full Explainer: ‘Anchor Babies and the Law at the We Meant Well blog.
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 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, 2009: Clinton 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).
June 28, 2011: State Department releases cable on Securing Personal Email Accounts (Via FoxNews)
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
October 2, 2012: After 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.”)
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)
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, email@example.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 Mail; Via WaPo)
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.
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
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, firstname.lastname@example.org. 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: NARA Bulletin 2014-06 | All Agencies, Guidance on Managing Email
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 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 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 Switch; Former 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).
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.
Posted: 4:07 am EDT
On August 5, the Senate Foreign Relations Committee cleared a short Foreign Service list (PN573-4) containing 20 nominees for “appointment as Foreign Service Officer of Class Two, Consular Officer and Secretary in the Diplomatic Service of the United States of America.” On the same day, Senator Grassley [R-IA] filed a notice of intent to object to “any unanimous consent request” relating to these appointments:
This development follows Senator Grassley’s objection to the nomination of career foreign service officer David Malcolm Robinson to be an Assistant Secretary of State for Conflict and Stabilization Operations (see Senate Judiciary Sets Sight on Allegations Over Huma Abedin’s State Dept Employment, Senate Hold On). Senator Grassley called Mr. Robinson, “an innocent victim” in his public tussle with the State Department. According to Senator Grassley, his hold on the 20 FSOs “is not intended to question the credentials of the individuals up for appointment.”
The State Department deputy spox was asked about this on August 6, and here is his response:
QUESTION: Well, he said he’s – he said the new holds are on 20 nominees.
MR TONER: I haven’t seen that additional add. I mean, look, we’ve received nearly a dozen letters and requests from Senator Grassley in recent months, and just in – as recently as July 1st we responded to him and then told him that a response that includes a document production was in process, and this response also included substantial responses to his queries on – specific queries on records retention at the State Department. These – as we’ve discussed at length here, these kind of document productions take time, and the Department will be providing information to Senator Grassley in response to the requests in the very near future. And in terms of – I think he sent a letter yesterday. We’re working on a response to his requests from the most recent letter.
According to time.com, the State Department has provided five letters since 2013 in response to Senator Grassley’s inquiries about everything from its use of SGE designations to Clinton’s use of a private e-mail server. But the senator has reportedly accused the department of willfully withholding responsive materials, demonstrating “a lack of cooperation and bad faith in its interaction with Congress.”
So 21 career nominees from 11 states right now. None from Iowa. Just. Pawns.
Posted: 12:40 am EDT
On July 22, The Hill reported that the Gowdy committee investigating the 2012 Benghazi attacks announced it has called on one of Secretary of State John Kerry’s top aides to appear this week. The panel apparently wanted Jon Finer, Kerry’s chief of staff, to appear on July 29th to discuss the State Department’s compliance with the panel’s investigation.
Late on July 27, The Hill reported that the State Department has agreed to release 5,000 pages of documents to the House Select Committee on Benghazi tomorrow, July 28. This document release temporarily cancels Mr. Finer’s appearance before the panel but chairman Trey Gowdy (R-S.C.) has not ruled out any future appearance.
The new document dump comes after a standoff between the State Department and the House panel, which had previously ordered a top aide to Secretary of State John Kerry to testify on Wednesday.
After the department committed to releasing the 5,000 new pages to the committee, the hearing with that aide — Kerry’s chief of staff, Jon Finer — will be postponed until after Kerry has completed a marathon string of briefings and hearings to sell the international nuclear deal with Iran.
“If the State Department does not fulfill this production, or if production continues to be anemic and underwhelming, we will move forward with scheduling a compliance hearing before the committee,” he added.
The Hill State Dept to release 5,000 pages to Benghazi panel: The State Department has agreed to release 5,000… http://t.co/Rq0Cb88AHq
— DEFCON Hill (@defconhill) July 28, 2015
Posted: 2:13 pm PDT
This happened Thursday night. We drafted this post early morning but waited for a piece of information we wanted to see. So yup, overtaken by events. In any case, you may now read the inspector generals memos referenced to in the NYT report here. See NYT: Criminal Inquiry Sought Over Clinton Emails? Read the Inspector Generals Memos. We’re also waiting for the OIG to issue a clarification on the DOJ referral the NYT reported.
The memos went possibly from two IG offices — State Department Steve Linick and Intelligence Community Inspector General I. Charles McCullough, III — to the Under Secretary for Management Patrick Kennedy. The IGs memos are also cc’ed to one of the State Department’s deputy secretaries. It looks like, the memos or contents/snippets of it were shared with DOJ, as a DOJ official appears to be the NYT’s source for this story (see tweets below).
Here are the tweets from July 24:
— Michael S. Schmidt (@MichaelSSchmidt) July 24, 2015
Two inspectors general have filed a criminal referral with DOJ over classified info on Clinton’s personal email. http://t.co/vcrJeiosSM
— Matt Apuzzo (@mattapuzzo) July 24, 2015
The report from the NYT includes the following:
— 1. The memos were provided to The New York Times by a senior government official.
— 2. The inspectors general also criticized the State Department for its handling of sensitive information, particularly its reliance on retired senior Foreign Service officers to decide if information should be classified, and for not consulting with the intelligence agencies about its determinations.
— 3. The revelations about how Mrs. Clinton handled her email have been an embarrassment for the State Department, which has been repeatedly criticized over its handling of documents related to Mrs. Clinton and her advisers.
— 4. Some State Department officials said they believe many senior officials did not initially take the House committee seriously, which slowed document production and created an appearance of stonewalling.
— 5. State Department officials also said that Mr. Kerry is concerned about the toll the criticism has had on the department and has urged his deputies to comply with the requests quickly.
— John Harwood (@JohnJHarwood) July 24, 2015
When you make an error, fix it. pic.twitter.com/OQCkjfdYo2
— Matt Apuzzo (@mattapuzzo) July 24, 2015
On this whole email debacle 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.
By the way, this NYT report follows a July 20 Politico report about a contentious hearing where U.S. District Court Judge Richard Leon demanded explanations for why some of the Associated Press’ FOIA requests received no reply for four years or more before the wire service filed suit in March.
“The State Department’s not going to have the luxury of saying, because we’re focusing on Hillary’s emails, we’re doing so at the cost and expense of four-year-old requests. So, that’s not going to be an excuse,” the judge said. “In my judgment, a four-year-old request gets a priority over a recent request.”
On Mr. Kerry’s concern about the toll the criticism has had on the department … the secretary is right to be concerned. Senior officials did not take Congress seriously? Even if senior bureaucrats do not agree or approve of the conduct of the Select Committee, even if they think this is a sideshow seeking to derail a presidential campaign, the required document production is still part of their jobs. In my view, the most serious consequence on the appearance of stonewalling is it also gives the appearance that bureaucrats are picking sides in this political shitstorm.
This can potentially undermine the expectation of the State Department as an impartial and non-political entity. The perception, right or wrong, that this impartiality is compromised, will not serve it or its employees well in the long run.
You might like to read a couple previous posts on FOIA personnel, costs and the “persistent neglect of fundamental leadership responsibilities” that made this the Clinton email debacle a challenge of Sharknado proportion for the agency. (see Snapshot: State Dept FY2014 FOIA Personnel and Costs and State Dept FOIA Requests: Agency Ranks Second in Highest Backlog and Here’s Why).
Posted: 12:24 am EDT
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.
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.)
Read in full here (pdf).
Posted: 2:46 am EDT
The U.S. Senate was burning the midnight oil Friday night working on S.1357, the FISA extension and managed to also confirmed by voice vote the nominations of our next ambassadors to Mali and Costa Rica before dawn May 23rd; they were just two of the seven nominees waiting for a full Senate vote.
The Senate now stands adjourned (except for pro forma sessions) until 4:00pm on Sunday, May 31, 2015. Roll call votes are possible after 6:00pm during Sunday’s session but that’s it for now until after the break. Senate will resume consideration of the motion to proceed to H.R.2048, the USA Freedom Act upon its return.
Here are the two ambassadors lucky enough to make it through the Senate obstacle course and who can now pack their bags and household effects after a wait of 7-10 months.
Paul A. Folmsbee, of Oklahoma, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Mali. (Folmsbee, Paul A. – Republic of Mali – October 2014)
Paul A. Folmsbee, a career member of the Senior Foreign Service, class of Minister-Counselor, currently serves as Executive Director, Bureau of African Affairs in the Department of State. Known as a talented leader and manager, he has served with distinction in many of our nation’s most demanding positions and challenging posts. Mr. Folmsbee’s excellent communication skills and experience building inter-agency teams and will serve him well as Chief of Mission in Mali.
Previously, Mr. Folmsbee served as the Senior Civilian Representative for Regional Command East, Afghanistan (embedded with the 1st Cavalry at Bagram) (2011-2012), Consul General, Consulate Mumbai, India (2008-2011), Provincial Reconstruction Team Leader, Sadr City / Adhamiya in Baghdad, Iraq (embedded with the 2/82 Airborne) (2007-2008), Director of International Narcotics and Law Enforcement Affairs, Embassy Islamabad, Pakistan (2006-2007), Management Officer, Embassy Port-au-Prince, Haiti (2003-2006), Management Officer, Embassy Dar es Salaam, Tanzania (2000-2003), General Services Officer, Embassy La Paz, Bolivia (1997-2000), General Services Officer, Embassy Colombo, Sri Lanka (1995-1997), Management Officer, Embassy Libreville, Gabon (1992-1995), Area Management Officer, Bureau of Western Hemisphere Affairs, Department of State, (1990-1992), General Services Officer, Embassy Nairobi, Kenya (1987-1989), and General Services Officer, Mission to the Arms Control and Disarmament Agency, Geneva, Switzerland (1985-1987).
Mr. Folmsbee earned a B.A. in Political Science from Tabor College in Hillsboro, Kansas in 1982, a M.A. in Social Anthropology from the University of Oklahoma, Norman, Oklahoma in 1985 and was issued a pilot’s license in 1978 by the FAA after studying aviation at Embry-Riddle Aeronautical University. He is the recipient of five Department of State Superior Honor Awards, five Meritorious Honor Awards and a medal from the Polish Government for service in Afghanistan working with Polish troops. He speaks French and Spanish.
Stafford Fitzgerald Haney, of New Jersey, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Costa Rica. (Haney, S. Fitzgerald – Republic of Costa Rica – July 2014)
S. Fitzgerald Haney is a Principal and Director of Business Development and Client Service (Europe, Middle East and Africa), Pzena Investment Management, New York, New York. Known as a talented international businessman and manager, he has many years of experience serving in senior-level marketing, financial services and manufacturing positions across Latin America. A proven leader with extensive international experience, Mr. Haney will bring essential skills to the task of furthering bilateral relations with the Government of Costa Rica, a key U.S. partner in Latin America and within the Organization of American States.
Previously, Mr. Haney served as Senior Vice President, Ethnic Consumer Products, International Discount Telecommunications (IDT), Newark, New Jersey (10/2006-02/2007), Director, Strategic Planning, Depository Trust and Clearing Corporation, New York, New York (12/2002- 09/2006), Senior Associate, Israel Seed Partners, Jerusalem (09/1999-06/2001) and Vice President, Marketing and Strategic Planning, Citibank, Mexico City, and Monterrey, Mexico (07/1997-02/1999). He held positions with Pepsico Restaurants International (07/1993-07/1997), including Marketing Director, Sao Paulo, Brazil, Senior Marketing Manager, Mexico and Central America, Mexico City, Mexico and Marketing Manager, San Juan, Puerto Rico. He was Assistant Brand Manager, Procter and Gamble, San Juan, Puerto Rico (07/1991-07/1993). He served as Appointed Member, City of Englewood Planning Board and Board of Adjustment, Englewood, New Jersey (12/2004-12/2008).
Mr. Haney earned a B.S. in international economics and a M.S. with distinction in international business and diplomacy from Georgetown University School of Foreign Service, Washington, D.C., 1986-1991. He was the recipient of the Brunswick-Hanigan Scholarship, the Dean’s Award for Academic Excellence and Distinction in Oral Examination at Georgetown University and is a Member of the National Jesuit Honor Society. He speaks Spanish, Portuguese, Hebrew and Conversational French.
The Senate also confirmed six Foreign Service lists which include the names of about 600 nominees.
2015-05-23 PN72-3 Foreign Service | Nomination for Douglas A. Koneff, which nomination was received by the Senate and appeared in the Congressional Record on January 13, 2015. (It looks like three names have been removed from this list and those FSOs remain stuck in the Senate).
2015-05-23 PN259 Foreign Service | Nomination for Judy R. Reinke, which nomination was received by the Senate and appeared in the Congressional Record on March 4, 2015.
2015-05-23 PN260 Foreign Service | Nominations beginning Brian C. Brisson, and ending Catherine M. Werner, which 56 nominations were received by the Senate and appeared in the Congressional Record on March 4, 2015.
2015-05-23 PN368 Foreign Service | Nominations beginning Peter J. Olson, and ending Nicolas Rubio, which 3 nominations were received by the Senate and appeared in the Congressional Record on April 15, 2015.
2015-05-23 PN369 Foreign Service | Nominations beginning Craig A. Anderson, and ending Henry Kaminski, which 346 nominations were received by the Senate and appeared in the Congressional Record on April 15, 2015.
2015-05-23 PN370 Foreign Service | Nominations beginning Anthony S. Amatos, and ending Elena Zlatnik, which 212 nominations were received by the Senate and appeared in the Congressional Record on April 15, 2015.
Posted: 1:01 am EDT
First, the State Department told the court that the Clinton emails won’t be released until next year.
— Jason Leopold (@JasonLeopold) May 19, 2015
But US District Court Judge Rudolph Contreras rejected the proposal and ordered to State Department to get on with it on a rolling basis.
— VICE News (@vicenews) May 19, 2015
And then — oh, look!
— NYT Politics (@nytpolitics) May 19, 2015
According to NYT, here’s what happened:
In the five-minute session with reporters, Mrs. Clinton also addressed questions about her exclusive use of a personal email address while at the State Department, saying she wanted the department to release the emails she had sent and received from her private account sooner rather than the estimated release in January 2016.
“They belong to the State Department, so the State Department has to go through its process,” Mrs. Clinton said. “But as much as they can expedite the process, that’s what I’m asking them to do.”
Because Mrs. Clinton exclusively used a personal email account while at the State Department, much of her correspondence has been shielded from federal records requests, creating a firestorm from Republicans investigating her handling of the 2012 attack on the United States mission in Benghazi, Libya.
By printing emails, Hillary Clinton forced the State Department to spend 5 weeks putting them back in digital form http://t.co/6Z2yTGc8hT
— Byron Tau (@ByronTau) May 21, 2015
Someday, somebody will helpfully calculate the labor cost of 12 employees doing this for 5 weeks; something that could have been avoided if the responsible people were doing their jobs responsibly in the first place.
In any case, Congress has now threatened to benghazimazi the State Department funding, not all of it, just some, of course. Rep. Kay Granger (R-Texas), chairwoman of the House Appropriations subcommittee that oversees funding for State and foreign aid told The Hill that funding could be withheld from the agency’s programs and efforts “unless it relates to our own national security or our allies.” According to The Hill, GOP sources said divisions such as Legislative Affairs and Public Affairs and the Office of the Secretary could be affected. Whether this would be a tame who will blink first contest or a real pissing contest, remains to be seen.
— The Hill (@thehill) May 20, 2015
Also, on May 21st, this happened:
— NYT Politics (@nytpolitics) May 21, 2015
About 350 pages of the Clinton emails obtained by The New York Times and now available online, represent about a third of the roughly 850 pages of emails from Secretary Clinton’s personal account that have been turned over to the Select Committee on Benghazi. The emails seemed to be all Sid, Sid, Sid, but there are also emails from the former Ambassadors to Libya, Chris Stevens (p.116, p.138, p.341) and Gene Cretz (p.70, p.346), former A/S for NEA Jeff Feltman (p.68, p.71), Cheryl Mills, State Department management go-to guy, Pat Kennedy (p.330), among others. Click here to read it or download the pdf file here.
Posted: 11:24 pm EDT
We could not stop watching this gem. We would like to suggest that the good senator hire a dramatic coach. His tone is just not/not menacing enough. And the delivery is lacking some … some real habanero. We tried to imagine this on a SOTU address and it’s just … no, can’t do. Frankly, we don’t scare easily. And if he can’t scare us enough, how will he scare the living daylights out of global jihadists and terrorists? Attention @FearDept, more help over there!
“‘I will hunt you, I will find you, I will kill you.’ -Liam Neeson” -Marco Rubio http://t.co/K2528aePhY
— NowThis (@nowthisnews) May 10, 2015
— Jeremy W. Peters (@jwpetersNYT) May 9, 2015
“Really? Does Marco Rubio know we get kidnapped again every two years?” — Liam Neeson’s movie relatives. https://t.co/PN9TzS6h5f
— Robbie Sherwood (@RobbieSherwood) May 9, 2015