State Dept says enhanced gag rules policy “more protective of employee speech” … no cry, cry, please!

Posted: 5:07 am EDT

On August 17, we wrote about the State Department’s updated and enhanced rules for speaking, writing, teaching and media engagement covering all creatures big and small in Foggy Bottom, and the worldwide diplomatic universe (see State Dept Releases New 3 FAM 4170 aka: The “Stop The Next Peter Van Buren” Regulation).

The Daily Signal picked it up and got an official statement from deputy spox Mark Toner:

State Department Deputy Spokesperson Mark Toner says the reason for the revisions is actually “to underscore that the Department encourages employees to engage with the public on matters related to the nation’s foreign relations.”

“The revised policies and procedures are more protective of employee speech as they establish a higher bar for limiting employees’ writing or speaking in their personal capacity, while also recognizing changing technologies in communication, such as social media,” Toner said in a statement to Daily Signal.

Toner also said the revisions do not change the procedures employees must follow before testifying in court or before Congress but “streamline the review process and also remind employees about existing rules regarding the disclosure of classified and other protected information.”

Streamline-apalooza! Here’s the laugh out loud cry from our favorite Veronica Mars:

“It’s an absolute overreach,” Rep. Jason Chaffetz, chairman of the House Oversight and Government Reform Committee told the Daily Signal:

“They should be able to talk to the media, they should be able to speak to Congress,” the Utah Republican said. “They have an absolute and total right to interact with Congress. There are whistleblower protections. That’s not a balanced approach to current and former employees’ rights.”

No kidding! We imagine that the State Department would say no one is preventing anyone from speaking to the media or Congress, they just want to know what you’re going to say first.  Before you say it. And hey, the agency will even help you clean it up, if needed.

When the ACLU defended Mr. Van Buren in 2012, it made the following argument:

The Supreme Court has long made clear that public employees are protected by the First Amendment when they engage in speech about matters of public concern. A public employee’s First Amendment rights can be overcome only if the employee’s interest in the speech is outweighed by the govemment’s interest, as employer, in the orderly operation of the public workplace and the efficient delivery of public services by public employees. Pickering v. Bd. of Educ, 391 U.S. 563, 568 (1968). The government bears an even greater burden of justification when it prospectively restricts employees’ expression through a generally applicable statute or regulation. United States v. National Treasury Employees Union, 513 U.S. 454, 468 (1995) (“NTEU”).
[…]
The Supreme Court has repeatedly held that public employees retain their First Amendment rights even when speaking about issues directly related to their employment, as long as they are speaking as private citizens. Garcetti
v. Ceballos, 547 U.S. 430, 421 (2006).
[…]
Further, the State Department’s pre-publication review policy, as applied to blog posts and articles, raises serious constitutional questions. Through its policy, the State Department is prospectively restricting the speech of Mr. Van Buren as well as all present and future State Department employees. Where, as here, the restriction limits speech before it occurs, the Supreme Court has made clear that the government’s burden is especially heightened. NTE U, 513 U.S. at 468. The State Department must show that the interests of potential audiences and a vast group of present and future employees are outweighed by that expression’s necessary impact on the actual operation of government. Id. Courts have also required careful tailoring of prospective restrictions to ensure they do not sweep too broadly and that they actually address the identified harm. Id. at 475. Given this heightened standard, it is highly unlikely that the State Department could sustain its burden of demonstrating that its policy is constitutional.

In 2012, the ACLU presumably, used the 2009 version of 3 FAM 4170.  The updated version of 3 FAM 4170 issued July 27, 2015 is much tighter and has a much wider reach.  We don’t know how one could argue that this enhanced policy could better sustain constitutional challenge. But then, perhaps, State has a stable of constitutional lawyers at a ready. Besides, those folks outside  the building do not have legal standing to challenge these rules. So.

Oh, wait, perhaps, the State Department is also counting that no one will cross the fine line after Mr. Van Buren, and this policy functions, at its core, as a simple deterrent.

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Related item:

ACLU Van Buren Letter to U/S Management Patrick Kennedy dtd May 15, 2012

June Is PTSD Awareness Month — Let’s Talk Mental Health, Join Us at the Forum

Posted: 11:13 pm  EDT

Join us at the forum today at http://forums.diplopundit.net, noon – 2pm, EST

I’ve blogged about mental health in the State Department for years now (see links below). I know that a mental health issue affecting one person is not a story of just one person.  It affects parents, spouses, children, siblings, friends; it affects the home and the workplace. It is a story of families and communities. While there is extensive support in the military community, that’s not always the case when it comes to members of the Foreign Service.

I once wrote about a former Foreign Service kid and his dad with severe PTSD. A few of you took the time to write and/or send books to the ex-FS employee incarcerated in Colorado, thank you.

I’ve written about Ron CappsRachel SchnellerCandace Faber, FSOs who came forward to share their brave struggles with all of us. There was also a senior diplomat disciplined for volatile behavior who cited PTSD, I’ve also written about Michael C. Dempsey, USAID’s first war-zone related suicide, and railed about suicide prevention resources.  The 2014 Foreign Service Grievance Board 2014 annual report says that eight of the new cases filed involved a claim that a disability, Post Traumatic Stress Disorder (PTSD), or other medical condition affected the employee performance or conduct that resulted in a separation recommendation.

With very few exceptions, people who write to this blog about mental health and PTSD do so only on background. Here are a few:

  • A State Department employee with PTSD recently told this blog that “Anyone outside of our little insular community would be appalled at the way we treat our mentally ill.”  The individual concludes with clear frustration that it “seems sometimes the only unofficially sanctioned treatment plan encouraged is to keep the commissaries well stocked with the adult beverage of your choice.” 
  • Another one whose PTSD claim from service at a PRT in Iraq languished at OWCP said, “I can assure you that OER and State Med have been nothing but obstructions… as a vet, I have been treated at VA for the past ten months, else I would have killed myself long ago.”
  • Still another one writes: “VA indicates the average time between trauma and treatment-seeking is eight years. The longer it is undiagnosed and treated, the more difficult to ameliorate. I have a formal diagnosis from VA but could not even get the name of a competent psychiatrist from DoS. The bulk of DoS PTSD claims are still a few years away (2008/2009 PLUS 8), with no competent preparation or process.”
  • A friend of a State employee wrote that her DOS friend was “deployed/assigned to a  war-torn country not too long ago for a year. Came back with PTSD and  was forced by superiors to return to very stressful/high pressure work  duties while also seeking medical attention for an undiagnosed then, but eventually diagnosed (took about 6 months) disease  triggered by environmental conditions where s/he was last posted.”
  • Another FSO said, “I actually thought State did a decent job with my PTSD. After I was subject to an attack in Kabul, the social worker at post was readily available and helpful. He indicated I could depart post immediately if I needed to (and many did after the attack). When I departed post I was screened for PTSD and referred to MED here in DC. After a few sessions here with MED, I was referred to a private psychologist who fixed things up in a few months.”
  • One FSO who suffered from PTSD assured us that “State has come a very long way since 2005” and that it has made remarkable progress for an institution. Her concerns is that PTSD is widespread in the Department in the sense that people develop it in a wide range of posts and assignments. She cited consular officers in particular, who evacuate people from natural disasters and civil wars and deal with death cases on a regular basis, and are particularly at risk.

 

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June is PTSD Awareness Month. We are hosting a forum at http://forums.diplopundit.net for an open discussion on PTSD.

It’s not everyday that we get a chance to ask questions from somebody with post traumatic stress disorder. On Monday, June 29, FSO Rachel Schneller will join the forum and answer readers’ questions  based on her personal experience with PTSD.  She will be at this blog’s forum from noon to 2 pm EST. She will join the forum in her personal capacity, with her own views and not as a representative of the State Department or the U.S. Government.  She’s doing this as a volunteer, and we appreciate her time and effort in obtaining official permission and  joining us to help spread PTSD awareness. Please feel free to post your questions here.

Rachel Schneller joined the Foreign Service in 2001. Following a tour in Iraq 2005-6, she was diagnosed with PTSD. Her efforts to highlight the needs of Foreign Service Officers returning from tours in war zones helped prompt a number of changes in the State Department, for which she was awarded the 2008 Rivkin Award for Constructive Dissent.

Prior to joining the U.S. Department of State, Rachel served as a Peace Corps volunteer in Mali from 1996-98. She earned her MA from the Johns Hopkins School of Advanced International Studies (SAIS) in 2001. We have previously featured Rachel in this blog here, and here.

The forum, specifically created for PTSD discussion is setup as an “open” forum at this time; readers may post questions without registration.  We’re hosting, same Privacy Policy apply.

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Below are some of our previous blog posts on mental health, PTSD, security clearance and the State Department’s programs:

What to do when different voices start delivering multiple démarches in your head?]

USAID’s First War-Zone Related Suicide – Michael C. Dempsey, Rest in Peace

State Dept’s Suicide Prevention Resources — A Topic So Secret No One Wants to Talk About It

Former Foreign Service Kid Writes About Dad With Severe PTSD  (Many thanks to readers who took the time to write and send books to Tony Gooch! We appreciate your kindness).

Ron Capps | Back From The Brink: War, Suicide, And PTSD

Rachel Schneller | PTSD: The Best Thing that Ever Happened to Me

Senior Diplomat Disciplined for Volatile Behavior Cites PTSD in Grievance Case, Fails

Pick the Long or Short Form, But Take the Post-Traumatic Stress Disorder (PTSD) Screening

On the Infamous Q21, PTSD (Again) and High Threat Unaccompanied Assignments

Ambassador Crocker Arrested for Hit and Run and DUI in Spokane

Quickie | Running Amok: Mental Health in the U.S. Foreign Service

Former FSO William Anthony Gooch: No Mercy for Broken Men?

Post-Traumatic Stress Disorder: The Ticking Bomb in the Foreign Service

Clinton issues note on mental health; seeking help a sign of maturity and professionalism

EFM shouldn’t have to see three RMOs, do a PPT presentation and wait 352 days for help

Join the Petition: Revised Q21 for the Foreign Service

State Dept’s WarZone Deployment Incentives, Programs, Training and Medical Support

DMW: Mental Health Treatment Still a Security Clearance Issue at State Department

Insider Quote: Returning to the Real World

What’s State Doing with Question 21?

 

Emails Brief as Photos, But Where Are The Interesting Bits? #ClintonEmails

Posted: 9:06 am PDT

 

So the day before the three day Memorial Day weekend, this happened.

 

Where else would State dump these but at the foia.state.gov website, a slow and notoriously difficult to search website:

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But there’s help from the Wall Street Journal, which offers a faster loading site than the FOIA website.  It also allows you to tag any of the 800+ pages of emails.

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Yo! There’s no smoking gun, and everyone’s like whaaat? Teh-heh!

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What are we learning from this first batch of emails?

1) The document dump is not arranged or ordered in any useful way. The emails from 2011 are mixed with 2012. Some of the emails are included more than once. Some of the redactions are rather odd, given that some of these emails were already published via the NYT.  The former secretary of state is not referred to as HRC, only as “H.” The emails show an extremely small number of gatekeepers – Mills, Sullivan, Abedin, plus a couple of folks routinely asked to print this or that.

2) Sid, Sid, Sid — there are a good number of memos from “friend of S” or “HRC’s contact,” Sidney Blumenthal, who apparently had his own classification system. The memos he sent were marked “Confidential” although he was no longer a USG employee at the time he sent them and presumably, no classifying authority. Imagine the COM in Libya and NEA folks chasing down this intel stuff. Right. Instead of “OGA” for other government agency, State got “FOS”or “friend of S” as intel source.

3) “Pls. print” one of the former secretary of state’s favorite response to emails sent to her.

4) When former Secretary Clinton finally addressed the firestorm of her use of private email, she said: “I opted for convenience to use my personal email account, which was allowed by the State Department, because I thought it would be easier to carry just one device for my work and for my personal emails instead of two,” a self-assured Clinton told more than 200 reporters crowded into a U.N. corridor. (via Reuters). It looks like she had more than one email address, and we don’t know how many devices. The email below was sent from an iPad.

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5) HRC gave a speech on September 12, 2012  Remarks on the Deaths of American Personnel in Benghazi, Libya at the Treaty Room of the State Department.

Here is Harold Koh, the State Department Legal Adviser later that day thanking HRC for her “inspirational leadership.”

Screen Shot 2015-05-24 at 10.06.39 PM

6) On September 14, 2012, HRC delivered her  Remarks at the Transfer of Remains Ceremony to Honor Those Lost in Attacks in Benghazi, Libya atAndrews Air Force Base; Joint Base Andrews, MD. Video at: http://bcove.me/r4mkd76v.  Below are some of the ‘thank you’ emails sent to her, but mostly to HRC through Ms. Mills:

From Deputy Secretary Bill Burns to H:

Screen Shot 2015-05-24 at 8.44.18 PM

From State/CSO Rick Barton to Mills:

Screen Shot 2015-05-24 at 8.42.52 PM

From NEA’s Brett McGurk to Mills:

Screen Shot 2015-05-24 at 8.45.30 PM

From NEA/PD “blown away” to somebody to Mills:

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From Protocol to Mills to Protocol:

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7) On October 10, 2012, there was a congressional hearing on the Security Failures of Benghazi. “Did we survive today?” HRC asked.  The “Pat” referenced to in this email is most likely Patrick Kennedy, the Under Secretary for Management who testified at that hearing (see Security Failures of Benghazi: Today’s Hearing).

Screen Shot 2015-05-24 at 9.42.03 PM

8) In November 2012, the House Intelligence Committee had a closed hearing that reportedly had the Director of National Intelligence James Clapper, Matt Olsen, Director of the National Counterterrorism Center, CIA Acting Director Michael Morell and the State Department’s Under Secretary for Management Patrick Kennedy.  Those could be the Matt and Pat in this email:

Screen Shot 2015-05-24 at 8.14.43 PM

9) There was a meeting at the WH Situation Room on Nov 26, 2:35 pm on Benghazi. The invitation was for the Secretary +1, and if she was unable to attend, an invitation for one representative only. The then Executive Secretary John Bass (now US Ambassador to Turkey) asked Mills if she’d prefer “Pat” to attend or “Dan.” Dan is State’s former counterterrorism guy, replied “Pat should go” in reference to Patrick Kennedy. Mills asked HRC if she’s good with Pat going and she replied “I think I should go w Pat.”

Screen Shot 2015-05-24 at 8.26.48 PM

10) On December 17, 2012, then State Department spokesperson Victoria Nuland (now A/S for the EUR bureau) confirmed that the Accountability Review Board on Benghazi had concluded its work, and that the report went to Secretary Clinton that day (see ARB Concludes Work, Unclassified Report May Be Publicly Available on Wednesday).  The following email is between Burns and Mills dated December 18, 2012. It mentions three names, Eric, Pat, and Greg Starr.  We are guessing that the Eric in the email is Eric Boswell, the then Assistant Secretary of Bureau of Diplomatic Security, and Pat is the Under Secretary for Management. The portion referencing Greg Starr was redacted except for Burns’ “I like the Greg Starr idea.”

The ARB report was released the same day this email was sent (see Accountability Review Board Singles Out DS/NEA Bureaus But Cites No Breach of Duty; also see Accountability Review Board Fallout: Who Will be Nudged to Leave, Resign, Retire? Go Draw a Straw. Mr. Boswell was one of the four employees thrown under the bus. On February 1, 2013, Gregory B. Starr was sworn in as Principal Deputy Assistant Secretary of State for Diplomatic Security and Director of the Diplomatic Security Service. Mr. Starr also served as Boswell’s successor as acting DS Assistant Secretary until he was formally nominated by President Obama in July 2013.

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11) On December 20, 2012, the State Department’s two deputies, William Burns and Thomas Nides went before Congress instead of Secretary Clinton (see Clinton Recovering, Top Deputies Burns and Nides Expected to Testify Dec.20). Thank yous all around with HRC saying thank you to Burns and Nides. Thereafter, Cheryl Mills sent an email praising HRC’s email as being “so nice.”  This was then followed with more thank yous from Nides and Burns.

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12) So nothing surprising in the emails except the parts that may give some of us toothache. And the missing parts.  This is only the first batch of emails although our understanding is that this constitutes the Benghazi-related emails. If that’s the case, it is striking that we see:

a) No emails here to/from Eric Boswell, the Assistant Secretary for Diplomatic Security.

b) No emails directly related to the other three employees put on administrative leave, Diplomatic Security’s Charlene Lamb and Steve Bultrowicz, and NEA official, Raymond Maxwell (although he is on a few courtesy copy emails) see The Other Benghazi Four: Lengthy Administrative Circus Ended Today; Another Circus Heats Up).

c) No emails to/from Gregory Hicks who was Embassy Tripoli’s DCM at the time of the attack and who would have been attached by phone/email with Foggy Bottom (Hey! Are telephone conversations recorded like Kissinger’s?)

d) Except for an email related to one of the ARB panel member, there are no emails related to setting up the ARB, the process for the selection of ARB members, the assistance requested by the ARB, the support provided by the State Department to the panel, etc.  What happened to those emails?

(By the way, we also have not forgotten that Former State Dept DAS Raymond Maxwell Alleged Benghazi Document Scrub Pre-ARB Investigation).

13) Then Secretary Clinton was using at least two emails from her private server according to these released emails. It does not look like anyone from the State Department could have just sent her an email by looking her up on the State Department’s Global Address List (GAL). But certainly, her most senior advisers including the experienced, career bureaucrats at the State Department must have known that she was using private email.

Seriously, no one thought that was odd? Or did everyone in the know thought it was beyond their pay grade to question the practice? Let’s imagine an entry level consular officer conducting official business using a private email server. How long would that last? Right.

So what happened there? Ugh! Pardon me? You were just doing your job? That CIA briefer also was just doing his job.

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Terry Newell on “Speaking Truth to Power: Moral Courage in Public Service”

Posted: 4:43 am EDT

 

Where: AFSA headquarters, 2101 E St NW
When: Wednesday, May 20, 2015, from 11:30 to 1:15 p.m.
RSVP: Please click here to RSVP or email: events@afsa.org

Via afsa.org:

Dr. Terry Newell will address – through cases, exercises, and practical tips – not only how to speak truth to power, but how to keep your job when doing so, as well as what leaders need to do to foster the moral courage needed in their organizations.

Foreign and Civil Service members best serve when they voice their concerns about a policy or practice that fails to advance the mission and goals of their agency or the U.S. government. Leaders also need to encourage professional criticism or, as it is sometimes called, constructive dissent. AFSA has long supported constructive dissent through its awards program.

Dr. Newell spent nearly forty years in the federal government including distinguished service in the U.S. Air Force, the Department of Education, and the Office of Personnel Management. Since leaving his last position as Dean of Faculty at the Federal Executive Institute, he has concentrated on writing and teaching about ethical leadership in government.  His books include The Trusted Leader: Building the Relationships That Make Government Work; Statesmanship, Character and Leadership in America; and – most recently – To Serve with Honor: Doing the Right Thing in Government.  This book is filled with case studies, checklists, and stories of exemplary public servants, offering a practical, readable roadmap for acting ethically.

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Tweet of the Day: The Truth Behind The Afghanistan ‘Success Story’

Posted: 1:32 am EDT

 

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Looking at an American intervention that’s going to end, not with a bang, but on a deadline, it can be tough to find the silver lining.

This week Forbes contributor Loren Thompson tried to do that in a piece called “Five Signs Afghanistan Is Becoming An American Success Story,” making the case that staying the course in Afghanistan is “paying off.” His premise that Americans can hold their head high on Afghanistan is based on five points: the solid performance of Afghan forces, the country’s improved political climate, Islamabad’s renewed interest in cooperating with Kabul, a booming Afghan economy, and popular support for Afghanistan’s national institutions. It’s a concise, readable assessment, with one problem: The country Thompson describes doesn’t exist.

Gary Owen is a veteran, development worker, and blogger at “Sunny in Kabul.” He is also a regular contributor to the Afghan Analysts Network and Vice News. Gary Owen is a pseudonym. Follow Gary Owen on Twitter @elsnarkistani.

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OIG Steve Linick Seeks Legislative Support For Kill Switch on State Dept “Investigating Itself”

Posted: 1:41 am EDT

 

The Senate Foreign Relations Subcommittee on State Department management, operations and development held a hearing on April 21 with OIG Steve Linick  on the efficiency and effectiveness of State Department operations.

The video is also available here. Or you can watch here via the SFRC.

Only two senators stayed for the duration of the entire hearing, Senator Timothy M. Kaine of Virginia [D]  and Senator David Perdue of Georgia [R] . It’s quite a change from watching other congressional hearings.  No one was angry or hysterical. No one was tearing up.  The senators seem genuinely interested in hearing what Inspector General Linick had to say. They ask informed, thoughtful questions and follow-up questions. Both have also been hosted overseas during a CODEL or two and have complimentary things to say about the men and women of our diplomatic service.

Senator Ron Johnson of Wisconsin [R] did sit down but just long enough to ask and rail about Benghazi.  Senator Chris S. Murphy of Connecticut D] also came in to question the IG about BBG operations. It sounds like he has a lot of concerns about BBG and is working on efforts to shore up the long floundering red headed step child of global engagement.

IG Linick brought up two main challenges during the hearing, one on the OIG’s IT vulnerability and the other, its interest on getting first dibs when it comes to allegations of criminal or serious administrative misconduct by Department employees. Not “M”, not Diplomatic Security, but for the OIG to get right of first refusal on criminal allegations in the State Department.

Inspector Linick also asked for a flexible hiring authority so the OIG is able to hire retired FS employees and former SIGAR employees. These individuals have the experience OIG needs but they face restrictions under the current hiring authority. We hope he gets it.

We strongly support these asks by the OIG.  The first, because it makes sense. The second, because it’s long overdue.  It will remove the “it depends” mantra over in the Big House.  For the OIG to have real oversight, it should have the right to decide whether to conduct the investigations themselves or not.  That decision should not be left to State Department management. The OIG has already requested that the Department revise its current directives on this, but it doesn’t look like anything happened yet.  We would like to see Congress include this in the State Department congressional authorization.

IG Linick’s prepared testimony is here (pdf). Below is an excerpt:

OIG Network Vulnerabilities

Vulnerabilities in the Department’s unclassified network directly affect OIG’s IT infrastructure, which is part of the same network. We noted in our November 2013 Management Alert on information security that there are thousands of administrators who have access to the Department’s computer network. That access runs freely throughout OIG’s IT infrastructure and increases risk to OIG operations. For example, a large number of Department administrators have the ability to read, modify, or delete any information on OIG’s network including sensitive investigative information and email traffic, without OIG’s knowledge.17 OIG has no evidence that administrators have compromised OIG’s network. At the same time, had OIG’s network been compromised, we likely would not know. The fact that the contents of our unclassified network may be easily accessed and potentially compromised places our independence at unnecessary risk and does not reflect best practices within the IG community. OIG seeks to transition to an independently managed information system, which will require the Department’s cooperation and support from Congress.

A footnote on his prepared statement says that DS and the Bureau of Information Resource Management (State/IRM) recently agreed to notify and receive confirmation from OIG prior to accessing OIG systems in “most circumstances. ” 

Right of First Refusal To Investigate Allegations of Criminal or Other Serious Misconduct

Unlike other OIGs, my office is not always afforded the opportunity to investigate allegations of criminal or serious administrative misconduct by Department employees. Department components, including DS, are not required to notify OIG of such allegations that come to their attention. For example, current Department rules provide that certain allegations against chiefs of mission shall be referred for investigation to OIG or DS. However, that guidance further states that “[in] exceptional circumstances, the Under Secretary for Management may designate an individual or individuals to conduct the investigation.”19 Thus, DS or the Under Secretary may initiate an investigation without notifying us or giving us the opportunity to evaluate the matter independently and become involved, if appropriate. Accordingly, OIG cannot undertake effective, independent assessments and investigations of these matters as envisioned by the IG Act.

The directives establishing this arrangement appear to be unique to the Department. By contrast, the Departments of Defense, Justice, Homeland Security, the Treasury (and the IRS), and Agriculture, all of which had within them significant law enforcement entities prior to the establishment of their respective offices of Inspector General (OIG), defer to their OIGs for the investigation of criminal or serious administrative misconduct by their employees or with respect to their programs. Notice must be provided by all agency components to their respective OIGs of, at a minimum, allegations of misconduct by senior employees. In some agencies, notice must be provided of such allegations with respect to all employees. The respective OIGs have the right to decide whether to conduct investigations themselves or refer matters back to the relevant agency component for investigation or other action. However, in some cases, when requested by OIG to do so, the relevant agency component to which the OIG referred back the matter must report to the OIGs on the progress or the outcome of investigations.

Particularly where senior officials are involved, the failure to refer allegations of misconduct to an independent entity like OIG necessarily creates a perception of unfairness, as management is seen to be, as the U.S. Government Accountability Office (GAO) notes, “investigating itself.”*

This risks undermining confidence in the integrity of the Department. Moreover, this arrangement prevents OIG from carrying out its clear statutory duty, set forth in the IG Act, “to provide policy direction for and to conduct, supervise, and coordinate … investigations relating to the programs and operations” of the Department.

Accordingly, we are seeking legislative support—similar to that provided to other OIGs—for early notification to OIG of allegations of certain types of misconduct. In addition, OIG is seeking legislative clarification of its right to investigate such allegations.23 Current Department directives are a barrier to achieving accountable and transparent government operations.

Here is another footnote:

GAO, Inspectors General: Activities of the Department of State Office of Inspector General at 25-26. (GAO- 07-138, March 2007) ([B]ecause DS reports to the State Department’s Undersecretary [sic] for Management, DS investigations of department employees, especially when management officials are the subjects of the allegations, can result in management investigating itself.”); see also OIG’s Review of Selected Internal Investigations Conducted by the Bureau of Diplomatic Security (ESP-15-01, October 2014) (Department policies and procedures appear to have significant implications and created an appearance of undue influence and favoritism, which undermines public confidence in the integrity of the Department and its leaders).

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LittleSis: HRC Complex Corporate Ties

Posted: 10:37 am EDT

 

“…our problems have never respected dividing lines between global economics and international diplomacy. And neither can our solutions. That is why I have put what I call economic statecraft at the heart of our foreign policy agenda.”
Secretary of State Hillary Rodham Clinton

 

Of the 425 large corporate donors to the Clinton Foundation, the Wall Street Journal found 60 of those donors lobbied the State Department during Hillary Clinton’s tenure. Excerpt:

Mrs. Clinton’s spokesman, Nick Merrill, says: “She did the job that every secretary of state is supposed to do and what the American people expect of them—especially during difficult economic times. She proudly and loudly advocated on behalf of American business and took every opportunity she could to promote U.S. commercial interests abroad.”

Corporate donations to politically connected charities aren’t illegal so long as they aren’t in exchange for favors. There is no evidence of that with the Clinton Foundation.

In some cases, donations came after Mrs. Clinton took action that helped a company. In other cases, the donation came first. In some instances, donations came both before and after. All of the companies mentioned in this article said their charitable donations had nothing to do with their lobbying agendas with Mrs. Clinton’s State Department

A project of the Public Accountability Initiative. More about LittleSis. Read the disclaimer.
Related items:

Menendez Indictment: Visas for Girlfriends, Consular Affairs, INL, and Whatabout “H”?

Posted: 5:29 pm PDT

 

Today, a federal grand jury indicted Sen. Robert Menendez (D-N.J.) on corruption charges. According to the WSJ, Mr. Menendez, 61 years old, has said “he didn’t do anything wrong and plans to fight the charges.” The indictment is the culmination of a lengthy inquiry by the Federal Bureau of Investigation (FBI) into the relationship between the New Jersey senator and Florida eye doctor Salomon Melgen.” Wait, can you use constituent services as defense if the constituent lives in another state?

New Jersey editorials have now called on the senator to resign. Media reports says that he will step down as ranking member of Senate Foreign Relations Committee (SFRC) because of the indictment. The good senator from New Jersey is reportedly “outraged” by the indictment. He condemned the corruption case against him saying, “I am not going anywhere… I’m angry and ready to fight.” And he is, by god!

 

 

We’ve read through the indictment. We have excerpted the parts below that include the visas for girlfriends initiative (Brazil, Dominican Republic, Ukraine), the back and forth with Consular Affairs,  the visa refusals that were overturned, and the back and forth with the INL bureau on a port contract.

The names of the State Department officials are not included, but the indictment includes the offices at the State Department that were the receiving end of the senator’s attention and advocacy:  DAS for Visas Services, Embassy Santo Domingo  and the Assistant Secretary for International Narcotics and Law Enforcement Affairs (INL).

There’s also this nugget:

State 2 to Staffer 8 writes:

If H is in the room — best if the good senator from New Jersey doesn’t mention the prior private meeting they had.

Hey, that’s H, the State Department’s Bureau of Legislative Affairs whose job is to “facilitates effective communication between State Department officials and the Members of Congress and their staffs.” Whatsthatabout?

 

The full indictment document is available online here (pdf)

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Daily Press Briefing Needs IT and FOIA Specialists on HRC Emails, Plus HAK Files Go to Court

Posted: 1:25 am EDT

Clip via PostTV

Argghhhh! Whaaat?

Email System

The State Department has multiple automated information systems. All employees, including locally employed staff and contractors (apparently with the exception of Secretary Clinton and who knows how many others), have state.gov email addresses for use in their unclassified workstations.  But not everyone has classified access and in some places, you have to go to a controlled location just to read your classified email.  Here is a quick description from publicly available documents:

    • OpenNet is the Department’s internal network (intranet), which provides access to Department-specific Web pages, email, and other resources.
    • ClassNet is the Department’s worldwide national security information computer network and may carry information classified at or below the Secret level.
    • SMART-SBU or just “SMART” replaces existing Department of State unclassified email and cable systems with a Microsoft Outlook-based system.
    • SMART-C is the Classified State Messaging and Archive Retrieval Toolset

 

No one “scans” emails for classified material?

The real question seems to be — well, if all her email communication was conducted through a private email  server —  how can we be sure that no classified and sensitive information were transmitted using her private email account?  We can’t, how can we?

However, for ordinary employees with badges and logins, an Information System Security Officer (ISSO) has “read access to the employee’s mailbox to ensure that no messages contain classification levels higher than that allowed on the authorized information system” (see 12 FAM 640-pdf). Which seems to indicate that ISSOs as a matter of course, “scan” State Department electronic mailboxes and files to ensure that there are no material there beyond “Sensitive But Unclassified” in the unclass system, for example.


Moving on to fumigation

Anyways — remember the WikiLeaks fallout? At that time, federal employees and contractors who believe they may have inadvertently accessed or downloaded classified or sensitive information on computers that access the web via non-classified government systems, or without prior authorization, were told to contact their information security offices for assistance.

If the unthinkable does happen, their unclassified computers required the equivalent of um… let’s say, digital “fumigation.” But who does that for private email servers?

The office that handles FOIA requests is the Office of Information Programs and Services (A/GIS/IPS/RL) under the Bureau of Administration. The Department also has its own chief information officer. Can we please have the State Department’s IT and FOIA experts talk about this from the podium?  Please, please, please, pretty please, this is getting more painful to watch every day.

 

[grabpress_video guid=”7ebdc05049ec1cf964f05708abe166946e545cb4″]

 

In related news — when you see reports that US embassies have been cited multiple times by State/OIG for use of  “personal email folders,” we suggest you take a deep breath.  That’s not/not the same as the use of personal private emails like Yahoo or Gmail. What those OIG reports are probably referring to are the personal storage folders, also known as  .pst files in Microsoft Outlook on the employees’ hard disk drives. Why would you want to save your emails in the personal folders of your computer?

Because a .pst file is kept on your computer, it is not subject to mailbox size limits on the mail server. By moving items to a .pst file on your computer, you can free up storage space in the mailbox on your mail server.

 

Just because you have classification authority, must you?

Below is an excerpt from the State Department Classification Guide | January 2005, Edition 1 (pdf via the Federation of American Scientists)

High Level Correspondence. This includes letters, diplomatic notes or memoranda or other reports of telephone or face-to-face conversations involving foreign chiefs of state or government, cabinet-level officials or comparable level figures, e.g., leaders of opposition parties. It should be presumed that this type of information should be classified at least CONFIDENTIAL, though the actual level of classification will depend upon the sensitivity of the contained information and classification normally assigned by the U.S. to this category of information. Information from senior officials shall normally be assigned a classification duration of at least ten years. Some subjects, such as cooperation on matters affecting third countries, or negotiation of secret agreements, would merit original classification for up to 25 years.

One thing to remember here, and it’s an important one — the secretary of state is the highest classification authority at the State Department.

CFR 2005 Title 22 Volume I Section 9-10:

(a) In the Department of State authority for original classification of information as ‘‘Top Secret’’ may be exercised only by the Secretary of State and those officials delegated this authority in writing, by position or by name, by the Secretary or the DAS/ CDC, as the senior official, on the basis of their frequent need to exercise such authority.

But why would the USG’s classification guide or classification authority even apply to an email server that apparently is not owned nor physically possessed or maintained by the State Department?


No one is coming out of this smelling like roses

The 67th secretary of state exclusively used private email during her entire tenure at the State Department. She left the State Department on February 1, 2013.  The official word is that in October 2014 — to improve record-keeping or something — the State Department “reached out to all of the former secretaries of state to ask them to provide any records they had,” Secretary Clinton reportedly sent back “55,000 pages of documents to the State Department very shortly” after the letter was sent to her. “She was the only former Secretary of State who sent documents back in to this request,” said Ms. Harf.  This storyline is not even walking quite straight anymore according to the NYT’s follow-up report of March 5.

What appears clear is that the USG cannot possibly know the answer to the endless questions surrounding these emails since it does not have possession of the private email server used in the conduct of official business. But somebody must know how this set-up came to be in 2009.  What originated this, what security, if any  were put in placed?

As if we don’t have enough  disturbing news … have you seen this?

 

But 56th took his files with him!

In related news,  the National Security Archive  filed suit against the State Department this week under the Freedom of Information Act to force the release of the last 700 transcripts of former Secretary of State Henry Kissinger’s telephone calls (telcons). The Archive’s appeal of State’s withholding dates back to 2007.

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The 56th secretary of state had reportedly removed the telcons, along with his memcons and office files, from the State Department when he left office at the end of 1976. According to the FOIA-released declassification guide for the State Department “information that still requires protection beyond 25 years should be classified for only as long as considered necessary to protect the national security.”

But … but …it’s been almost 40 years, heeeellloo!

Where are we again? Oh, utterly distressed by this whole thing.

 

 

Related post:

Don’t read WL from your workstation, if read elsewhere make sure you wash your eyes or you go blind….

 

Related items:

It could be very long time before Hillary Clinton’s State Department e-mails see the light of day (WaPo)

12 FAM 640  DOMESTIC AND OVERSEAS AUTOMATED INFORMATION SYSTEMS CONNECTIVITY (pdf)

Leaked Guccifer emails did say “confidential” but the purported sender of those emails was no longer in USG service and presumably, no longer had any classification authority.

 

Rabbit Hole News: State Dept’s Private Email Usage Policy, Plus Attn: State/OIG – Firecracker Coming Your Way

Posted: 01:47 EST
Updated: 11:19 EST
Updated 15:14 EST

 

Shortly after the NYT broke the story about the former secretary of state’s exclusive used of a personal email account to conduct government business, we sent an inquiry to the State Department’s Office of Inspector General. We don’t know if they could comment about it but we wanted to ask anyway.  We’ve looked at the regs but the FAM is silent on the use of private email, or at least we thought it was. It almost seem as if the rule makers presumed that all employees will be using official email, thus, the rules only spell out the requirement for the preservation of records.

If Secretary Clinton was using a private email account and if her close advisers were also using private email accounts, we wanted to know how is this reconciled with the ability of individuals to FOIA government documents. We were also interested how this would keep other senior or even regular employees from using Yahoo or Gmail to conduct official business.

State/OIG’s response was, “we are not in a position to comment at this time.”

Actually, we asked the wrong questions.

In 2012, we blogged about the OIG inspection report of the U.S. Embassy in Kenya. (See State/OIG Releases Ambassador Scott Gration’s Embassy Report Card – And Look, No Redactions!). We mentioned in passing the ambassador’s use of commercial email for official government business. In light of these news reports that Secretary Clinton exclusively used nongovernment email during her four year tenure as secretary of state, the old 2012 report is getting some legs again.

 

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Below is an excerpt from that 2012 report specifically addressing the ambassador’s use of commercial email for daily communication of official government business. The ambassador was also slammed for using “a government-owned laptop that is not physically or electronically connected to the Department’s OpenNet network.”  

Mission Leadership Challenge 

Very soon after the Ambassador’s arrival in May 2011, he broadcast his lack of confidence in the information management staff. Because the information management office could not change the Department’s policy for handling Sensitive But Unclassified material, he assumed charge of the mission’s information management operations. He ordered a commercial Internet connection installed in his embassy office bathroom so he could work there on a laptop not connected to the Department email system. He drafted and distributed a mission policy authorizing himself and other mission personnel to use commercial email for daily communication of official government business. During the inspection, the Ambassador continued to use commercial email for official government business. The Department email system provides automatic security, record-keeping, and backup functions as required. The Ambassador’s requirements for use of commercial email in the office and his flouting of direct instructions to adhere to Department policy have placed the information management staff in a conundrum: balancing the desire to be responsive to their mission leader and the need to adhere to Department regulations and government information security standards. The Ambassador compounded the problem on several occasions by publicly berating members of the staff, attacking them personally, loudly questioning their competence, and threatening career-ending disciplinary actions. These actions have sapped the resources and morale of a busy and understaffed information management staff as it supports the largest embassy in sub-Saharan Africa.

Authorized Automated Information Systems 

The Ambassador uses a government-owned laptop that is not physically or electronically connected to the Department’s OpenNet network. Authorized Department OpenNet email systems are available on the Ambassador’s office desktop. According to 12 FAM 544.3 and 11 State 73417 (from the Assistant Secretary for Diplomatic Security to the Ambassador), it is the Department’s general policy that normal day-to-day operations be conducted on an authorized information system, which has the proper level of security controls. The use of unauthorized information systems increases the risk for data loss, phishing, and spoofing of email accounts, as well as inadequate protections for personally identifiable information. The use of unauthorized information systems can also result in the loss of official public records as these systems do not have approved record preservation or backup functions. Conducting official business on non-Department automated information systems must be limited to only maintaining communications during emergencies.

Recommendation 57: Embassy Nairobi should cease using commercial email to process Department information and use authorized Department automated information systems for conducting official business. (Action: Embassy Nairobi)

Source:  Inspection of Embassy Nairobi, Kenya | Report Number ISP-I-12-38A, August 2012 | pdf

 

We should point out that the 2012 report was issued prior to the tenure of IG Steve Linick and Secretary Clinton tenure at the State Department ended in February 2013.  But with 2016 just around the corner, this email debacle will not die a quiet death.

The unclassified cable  STATE 065111 on securing email accounts sent to all overseas posts on June 28, 2011 only says “avoid conducting official Department business from your personal email accounts.”

See the magic word there? It did not say you can’t, only that you shouldn’t.

So for the second day in a row, the subject of the Clinton emails was featured in the Daily Press Briefing. The State Department’s deputy spox, Marie Harf was impressive when she said that “There was no prohibition” on the use of personal email.  She emphasized that “There was not then and there is not now a prohibition on using a personal email for official business, and at the time she was in office, there was no time requirement for when those needed to be preserved as records.”

Entertainment value? High.

In any case, the question that we probably should have asked the OIG is this — if an ambassador was “hammered” for his use of nongovernment, private email, can we presume that ordinary bureaucrats would get a similar treatment? And if this is so  — don’t we then have a set of rules that applied to everyone but the head of the agency?   We originally cited 5 FAM 440 (pdf) as the rules governing  Electronic Records, Facsimile Records, and Electronic Mail Records in the State Department.  But wait —  the 2012 OIG report on Kenya cited 12 FAM 544.3 Electronic Transmission Via the Internet (pdf), a section of the FAM that has been in the rules books since 2005. It says in part:

It is the Department’s general policy that normal day-to-day operations be conducted on an authorized AIS [automated information system], which has the proper level of security control to provide nonrepudiation, authentication and encryption, to ensure confidentiality, integrity, and availability of the resident information. The Department’s authorized telework solution(s) are designed in a manner that meet these requirements and are not considered end points outside of the Department’s management control.
[…]
c. Employees should be aware that transmissions from the Department’s OpenNet to and from non-U.S. Government Internet addresses, and other .gov or .mil addresses, unless specifically directed through an approved secure means, traverse the Internet unencrypted. Therefore, employees must be cognizant of the sensitivity of the information and mandated security controls, and evaluate the possible security risks and then decide whether a more secure means of transmission is warranted (i.e., secure fax, mail or network, etc.)

d. In the absence of a Department-provided secure method, employees with a valid business need may transmit SBU information over the Internet unencrypted after carefully considering that:

(1) SBU information within the category in 12 FAM 541b(7)(a) and (b) must never be sent unencrypted via the Internet;

(2) Unencrypted information transmitted via the Internet is susceptible to access by unauthorized personnel;

(3) Email transmissions via the Internet generally consist of multipoint communications that are routed to their destination through the path of least resistance, which may include multiple foreign and U.S. controlled Internet service providers (ISP);

(4) Once resident on an ISP server, the SBU information remains until it is overwritten;

(5) Unencrypted email transmissions are subject to a risk of compromise of information confidentiality or integrity;

(6) SBU information resident on personally owned computers connected to the Internet is generally more susceptible to cyber attacks and/or compromise than information on government owned computers connected to the Internet;

(7) The Internet is globally accessed (i.e., there are no physical or traditional territorial boundaries). Transmissions through foreign ISPs or servers can magnify these risks; and

(8) Current technology can target specific email addresses or suffixes and content of unencrypted messages.

 

General policies, of course, can have exceptions and if that’s what happened here, wouldn’t it be nice to know who were granted exceptions to use private email accounts besides the secretary of state and why? And did the Legal Advisor or somebody else signed off on those exceptions? Was the clintonemail.com server an authorized AIS [automated information system] of the State Department, and if so, who authorized it?

We cannot predict where this email controversy is going to end, but some Internet sleuth is digging up Dubai, Denmark, Luxembourg in what seems to be an already convoluted matter.  If you read the link below there is an interesting question whether the Clinton e-mail server was hosted for some period of time by an outside hosting firm.  If the hosting firm was based overseas at an external location in Texas or elsewhere,  wouldn’t this be an added headache for cybersecurity and something the OIG’s new Office of Evaluations and Special Projects (ESP) might be interested in?

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While the Inspector General of the State Department might not be in a position to comment about this issue publicly at this time, or might not want to wade into the rabbit hole with this political firecracker, it may not have much of a choice.  Even our apolitical neighbors were dismayed by this.  The perception that the rules may have been applied selectively, based on rank undermines the Service.  That in itself is an excellent excuse to review the entire practice and determine to what extent exceptions were made.  The Republican National Committee has reportedly already asked the Office of Inspector General to look into whether Clinton’s practices led her or the department to violate the Federal Records Act.

It’s only a matter of time before there is a formal congressional request. Heads up State/OIG, this firecracker is heading your way.

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Related post:
So wait — Hillary Clinton never got a state.gov email? What does the FAM say?

Related items:

State Department June 28, 2011 Unclassified Cable 065111 on Securing Email Accounts via (foxnews)

NARA Bulletin 2014-06 | September 15, 2014 – Guidance on Managing Email

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

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

OMB | Managing Government Records Directive requires that Federal agencies manage all their email electronically by December 31, 2016.