Senator Grassley Eyes Linda Howard Case, Seeks Answers on TIP Policy and @StateDept Employees

Posted: 1:45 am EDT


On October 20, 2011, State/OIG issued a report entitled Audit of Bureau of East Asian and Pacific Affairs Compliance with Trafficking in Persons Requirements (AUD/IP-12-02 – pdf). The audit found that Department employees were not uniformly aware of key matters relating to Trafficking in Persons (TIP), including what constitutes TIP activity, the penalties for TIP violations, and where to report allegations of violations. The OIG report notes that although the Department’s code of conduct prohibited employees from acquiring a commercial sex act and using forced domestic labor, it did not specifically address TIP or require employees to report suspected TIP violations.

Based on the report’s findings, OIG made four recommendations to State’s J/TIP. Of these four recommendations, OIG closed Recommendation 3 on July 23, 2013, based on the Department’s decision to designate OIG to receive reports of TIP violations. However, according to its follow-up report of September 2015 (pdf), the other two recommendations —  enclosure of the U.S. Government’s TIP policy in the Department’s Foreign Affairs Manual (FAM), and an expanded code of conduct for employees to cover conduct with respect to TIP activities — remained open.

State/OIG concludes that “by not implementing the recommendations or J/TIP providing an acceptable alternative to fulfill the intent of the open recommendations, the Department is not well-positioned to hold employees accountable for violations of TIP or ensure TIP policies and requirements are understood and followed.”

We missed this — but in September when State/OIG released the follow-up report(officially called Management Assistance Report) related to TIP, Senator Chuck Grassley also fired off a letter to Secretary Kerry asking questions sepcific not just to the OIG report but also the Linda Howard case (see Ex-State Dept Employee Settles Housekeeper’s Claim Over Slavery and Rape).

According to Senator Grassley’s letter, the Howard case “raises questions about the Department’s commitment to holding itself to the same standard by which it judges other countries in assessing their compliance with anti-trafficking standards in its annual TIP report.” Hey, we made it to the footnotes!

Screen Shot 2015-11-15

(click image to read the Grassley letter or click 2015-09-17 CEG to State (Trafficking in Persons)

Among the questions Senator Grassley asked Secretary Kerry are the following:

  1. Regarding the two TIP-related OIG recommendations that remain outstanding since 2011:
    1. Why did the Department fail to implement these recommendations?
    2. Who is responsible for the failure to implement them?
    3. Was former Secretary Clinton or any of her aides including Cheryl Mills, HumaAbedin, or Jake Sullivan informed of any of these recommendations, decisions, or findings? If so, please provide all related records, including emails. If the Secretary and her senior staff were not informed, please explain, why not.
  2. How does the Department ensure that its foreign service officers treat the domestic workers they hire or sponsor in accordance with the TVPA?
    1. As of the date of this letter, how many domestic workers are employed by Department employees worldwide?
    2. Do Department employees stationed abroad need to obtain approval from the Chief of Mission, the Regional Security Officer (RSO), or any other Department official before recruiting and hiring domestic workers? If so, whose approval is needed and what controls exist to ensure the security and safety of those workers as well as national interests? If not, why not?
    3. Is there an independent and confidential reporting mechanism by which these domestic workers may file a complaint with the Department for alleged abuses by Department employees? If not, will you consider adopting such a mechanism?
    4. Do you think implementing OIG’s 2011 recommendations would help Department employees identify and report suspected instances of TIP violations that may be occurring within their own ranks and housing complexes?

The senator is also asking questions specifically related to the State Department’s handling of the Howard case including:

— Did DS or the Department refer these allegations to any other entity, such as the OIG, or any other law enforcement agency? If so, on what date and to whom?

— At any point in time, was Under Secretary of Management Patrick Kennedy, who oversees DS, apprised of any of the allegations, decisions, findings, or news reports relating to Linda Howard or Russell Howard? If so, when, and what was his response? Please provide all related records, including emails. If not, why not?

— At any point in time, was former Secretary Clinton or any of her aides including Cheryl Mills, Huma Abedin, or Jake Sullivan informed of any of the allegations, decisions, findings, or news reports relating to Linda Howard or Russell Howard? If so, please provide all related records, including emails. If not, why not?

There is an FSGB grievance case (read online) that may or may not be related to the Howard case (names have been redacted) but the timeframe and circumstances appears similar, and it looks like DOJ declined to prosecute the case in 2011:

REDACTED (grievant) is a twenty-year Foreign Service employee of the Department of State (Department, agency). While assigned to the U.S. Embassy in REDACTED, she and her husband, an REDACTED national, were the subjects of a Bureau of Diplomatic Security (DS) investigation based on allegations by a household worker of sexual abuse and related crimes. This investigation began in June 2009 and ended with a declination of prosecution by the Department of Justice (DOJ) in March 2011.1 Grievant agrees that she curtailed from post in June 2009 for unrelated reasons.


Related posts:

@State Dept’s Danger Pay: All Through With Promises, Promises Now?

Posted: 3:10 am EDT


On September 14, we posted about the new State Department’s danger pay posts (New Danger Pay Differential Posts: See Gainers, Plus Losers Include One Post on Evacuation Status). Previously, we’ve written about these upcoming changes including potential fallout to bidding, student loan repayment, security funding allocation, EFM employment, and first and second tour (FAST) officers’ onward assignments (see Danger Danger, Bang Bang — State Department Eyes Changes in Danger Pay). Click here for AFSA’s update to its members regarding the changes in danger pay.

This is the first time the State Department had updated its danger pay process and designation from best we could tell. Of the forty or so danger pay posts, about half lost their designation, including Monterrey and Nuevo Laredo which lost 20%, and all Saudi Arabian posts which lost 15%. Wouldn’t better planning with a longer roll out have been better for everyone? Why was there such a short fuse on this project? Was Congress snapping at somebody’s heels?

One group particularly affected (without any mitigation in place) are Eligible Family Members (EFMs) who receive danger pay but do not receive any other differentials. All EFMs in posts that lost their danger pay designation have suffered a pay cut and will not receive any hardship pay in lieu of the danger pay lost. The dual-income Foreign Service families particularly in Saudi Arabia and some in Mexico had a pay cut of at least 20%.

The changes in the danger pay designation also affected employees who went to some difficult posts to qualify for the student loan program (SLRP).  Student Loan Repayment Program (SLRP) is a recruitment and retention tool used by the Department to attract and retain Civil Service and Foreign Service employees applying for or encumbering specific positions.  The loan repayment is linked to danger/hardship only, and is for posts designated at 20% or greater. We understand that some who qualified for SLRP this year, will not qualify next year if they’re seeing danger/hardship under 20%. Despite that fact that the SLRP was used to “lure” officers to some of these challenging posts.  That section of the FAM updated in May this year, notes that “Posts may be added to or eliminated from this list as differential and danger pay rates change.”

We understand that entry level officers (ELOs, we don’t know how many) felt particularly short-changed by these changes.  These officers typically go out on their first two overseas tours on directed assignments. They go where they’re sent by the State Department. They get equity points based on danger pay and hardship differentials that help determine their next assignment.  We should add that super high equity posts  (like Iraq/Afghanistan, etc.) are not available to first tour officers. A large number of first tour officers end up in visa mill posts in Mexico, China, India, Brazil and posts in Africa. Which means that a 5-10% change in equity in the pecking order is noticeable.



I wonder if their CDOs say if you take Promisestan now with 15% danger pay and 20% hardship, you get bidding priority for say Buenos Aires or Madrid when you bid next time. Did the CDOs blink when they said that?  By the time the ELOs bid, Promisestan had been downgraded to zero danger pay with hardship still at 20%.  So ELOs who said yes to 35%, now had to make do with their 20%.

“A claim of fairness and transparency does not make it so,” one writes.

A senior government official had apparently told employees earlier that “this is not going to be such a big deal.” But for a number of employees just starting off on their careers at State, this is going to be a big deal. Somebody made them a promise, an inherent tradeoff when they started, and now they’re told they just have to suck it. We understand that despite efforts by AFSA, FSOs, and some posts themselves argued against danger pay changes or for mitigation — specifically including entry level bidding should these changes be imposed — management apparently had not been responsive.

We sent the following to DGHR on Twitter but he, too, has not been responsive.


We estimate that this affects the bidding of a small range of A-100 classes, perhaps some members in the 174th-180th classes. And perhaps that’s the problem? A small number of entry level FSOs, though no fault of their own, are negatively impacted in their bidding options by these changes. And the somebodies at the State Department — from M, DGHR, DS, CDA, PRI — have decided that the negative impact to these newbies are acceptable.

Say — isn’t this kind of like going on a cross country A-Z train with the fares changing midway through the trip? Suddenly, here comes the conductor asking for additional fares somewhere at the P stop, even if you’ve originally paid up to get to the Z stop.

The Yoda conductor delivers the bad news:

So sorry, just doing the job, I am.  P stop not as good as Z stop. But F stop, it is not.

If throw up, you must, use bucket under coach seat, please.


AFSA Issues Update on Danger Pay to Members

Posted: 3:51 pm EDT


On September 14, we posted about the new State Department’s danger pay posts (New Danger Pay Differential Posts: See Gainers, Plus Losers Include One Post on Evacuation Status). Previously, we’ve written about these upcoming changes including potential fallout to bidding, student loan repayment, security funding allocation, EFM employment, and FAST officers onward assignments (see Danger Danger, Bang Bang — State Department Eyes Changes in Danger Pay).

Today, the American Foreign Service Association (AFSA) sent an update to its members on danger pay:

By now, most members have seen the Department’s cable (15 STATE 104596) announcing changes to Danger Pay and Hardship Differential for several posts. AFSA fought hard against the imposition of these changes, but by law, we were not allowed to negotiate the amounts adjusted or the posts affected.

Despite AFSA’s proposal to delay implementation until January 1, 2016, the Department chose to institute the changes last week. That said, we were able to bargain successfully regarding certain aspects of the impact of these changes.

The list below provides a more detailed summary of AFSA‘s proposals as well as the results of our bargaining efforts:

  • Fair Share Bidding: The Department accepted AFSA’s proposal that employees already assigned to a post which, as a result of the new designations, drops below the 15 percent threshold, will nonetheless be credited for their service at the post and not be considered Fair Share bidders when they bid on their next assignment.

  • 6/8 Eligibility: The Department has agreed to AFSA’s proposal that if the TOD for a post increases due to a change in allowances resulting from the new danger pay designations, employees will be allowed to serve the tour of duty that was in effect when they were assigned to that post and still meet the 6/8 eligibility requirements.

  • 2014 Bidders: The Department has agreed to AFSA’s proposal to extend Fair Share and 6/8 provisions to all employees assigned in 2014 who have not yet arrived at post (though they, like all others at post, would be subject to the updated danger and hardship rates).

  • Grandfathering Allowances: Because allowances are a component of the Standardized Regulations and cover all civilian employees overseas, the Department was precluded from accepting AFSA’s proposal to grandfather Foreign Service employees at their current rates of pay in cases where they are no longer able to receive Danger Pay.

  • Student Loan Repayment Program (SLRP): The Department was not able to accept AFSA’s proposal to “grandfather” employees participating in this program since benefits are disbursed pursuant to a 12-month term and eligibility of positions is subject to change on a yearly basis. Therefore, current recipients will receive benefits under existing terms of the program and receive payment in the fall of 2015. Employees wishing to receive benefits should apply in the summer of 2016.

AFSA would like to thank all of the members who shared their concerns regarding how this proposed change would affect them, not only in financial terms, but also in terms of morale. We fully share the sentiment expressed by many serving at dangerous posts that this change has taken place at a time when it has never seemed more challenging to carry out our mission.

Please let us know if you have any questions on this issue. You may email us at, or call (202) 647-8160.


Dear AFSA, please check your mailbox. We’ve sent at least three emails in July and September inquiring about this and also about the applicability of the Foreign Affairs Manual to noncareer appointees. To-date, we haven’t heard from AFSA’s elected reps; we’re starting to think …. yeah? really? but … but …




State Dept Updates 3 FAM 4140 Guidelines For USG Personnel Taken Hostage

Posted: 1:49 pm EDT


We’ve previously blogged about the Iran hostages here (see Supremes Say No to Appeal from US Embassy Iran HostagesJanuary 20, 1981: The Iran Hostages – 30 Years LaterNovember 4, 1979: Iranian Mob Attacks US Embassy Tehran; Hostages Compensated $50/DayThe Iran Hostages: Long History of Efforts to Obtain Compensation).

In light of the significant shift in hostage taking by terrorists organizations (media reports say that there are roughly 30 Americans held hostage overseas), President Obama directed a comprehensive review of U.S. policy toward overseas hostage-takings last year.  On June 24, 2015, President Obama approved Presidential Policy Directive (PPD) 30, U.S. Nationals Taken Hostage Abroad and Personnel Recovery Efforts and issued an Executive Order on the recovery of U.S. hostages taken abroad, which directs key organizational changes “to ensure that the U.S. Government is doing all that it can to safely recover Americans taken hostage overseas and is being responsive to the needs of their families.”  According to the Fact Sheet, PPD-30 “reaffirms” the U.S. Government’s dedication to achieving the safe recovery of U.S. nationals taken hostage abroad

On August 28, 2015, President Obama announced the appointment of James O’Brien as Special Presidential Envoy for Hostage Affairs (see President Obama Appoints James O’Brien as First Special Presidential Envoy for Hostage Affairs).

This past June, the State Department also updated its Foreign Affairs Manual related to U.S. Government personnel taken hostage. That affirmation for safe recovery is item one on the updated FAM, a language that had been absent from the rules books for at least 20 years.

Note that per 2 FAH-1 H-115.3, the new version does not comply with the standard FAM colors, which requires that new or revised material be shown in both darkmagenta™ (R139,G0,B139) and in italic. We’ve marked the changes below for easier identification.


(CT:PER-770; 06-02-2015)
(State/USAID/BBG/Commerce/Foreign Service Corps-USDA) (Applies to Foreign Service and Civil Service Employees) 

a. The U.S. Government will make every effort to recover U.S. Government personnel who are victims of a hostage taking incident while serving abroad.

b. Individuals who are taken hostage should be aware that their captors may seek to exploit their knowledge of sensitive information to the detriment of the United States or their fellow hostages. Individuals should be mindful that whatever they say may be used to mislead or punish their colleagues, and that information obtained from one captive may be used when interrogating another. Captured individuals should not divulge classified or sensitive information and should not discuss sensitive aspects of the work of any fellow hostages.

c. Individuals should be aware that active members of the U.S. Armed Services who are taken captive are subject to different legal authorities and organizational policies when they are captured, due to their possible status as Prisoners of War. For additional information please reference Executive Order 10631.

d. If detained with other captives, it is essential to avoid internal conflicts within the group and maintain a unified approach to the captors (e.g., group agrees not to discuss religion, politics or the economy with the captors).

e. While awaiting rescue, individuals taken hostage should make an effort to:

(1) Eat and drink to preserve their health and seek opportunities to remain mentally active;

(2) Circumstances permitting, build rapport with their captors by humanizing themselves;

(3) Leave evidence of their presence in each location (such as strands of hair, fingerprints, blood, bits of fingernails, etc.); and

(4) Maintain faith in their individual beliefs and have confidence in the efforts of their family and the U.S. Government to obtain their release.

f. If asked to produce evidence of proof of life, such as a photo or a video, it is advisable to do so as it confirms the individual’s continued survival to family and possibly the U.S. Government entities working on your release, and aids in the negotiation process.

g. The decision to attempt escape rests with the individuals concerned based on their judgment, environment, and level of threat. However, the decision should be consistent with the considerations set forth above.

h. In the event of a recovery operation, individuals awaiting rescue should drop to the ground, ensure their hands and face are visible, and identify themselves as American citizens.

i. For more information, Department personnel can follow this link to the High Threat Security Overseas Seminar: Abduction: Prevention, Preparation and Response for Individuals.

j. Hard and fast rules are not always helpful and the U.S. Government recognizes that the ability of individuals to resist extreme pressure differs. But, to the extent possible, one must help one’s colleagues and avoid exploitation. Sound judgment is essential.

Below is the old 3 FAM 4143 guidelines that took effect on November 8, 1995; we have not been able to find a version in effect after 1995 and before it was superseded by the June 2, 2015 version (pdf via the Internet Archive):

(TL:PER-303; 11-08-1995)
(Uniform State/USAID/USIA/Commerce/Foreign Service Corps-USDA) (Applies to Foreign Service and Civil Service Employees)

a. U.S. Government personnel serving abroad are expected to be mature, responsible, and patriotic individuals for whom the concept of service has a real and personal meaning.

b. Individuals who are taken hostage should be aware that their captors may seek to exploit them. Their captors may be seeking information to be used to the detriment of the United States or of their fellow hostages, and are likely to use information obtained from one captive when interrogating another. Individuals should consequently be guided by the knowledge that whatever they say may be used to mislead or punish their colleagues and that their actions may result in reprisals.

c. Captured individuals should not discuss sensitive aspects of the work of their fellow hostages. They should not divulge classified or sensitive information. They should not sign or make statements or take action which they believe might bring discredit to the United States.

d. The decision to attempt escape rests with the individual concerned. However, the decision should be consistent with the considerations set forth above.

e. Hard and fast rules are not always helpful and the U.S. Government recognizes that the ability of individuals to resist extreme pressure differs. But, to the extent possible, one must help one’s colleagues and avoid exploitation. Sound judgment is essential.

Here is also quick guidance per 2 FAH-1 H-112.3 on how to tell if employees have discretion to deviate from the instructions in the Foreign Affairs  Manual. The Foreign Affairs Handbook instructs FAM drafters that “information must be clear, and the discretion of the reader to deviate from instructions must be clear.” Level of discretion is to be described by the use of three auxiliary verbs: “must,” “should,” and “may.”

(1) Mandatory:  “Must” is used to advise the reader that he or she has no discretion to deviate from the instructions. In some cases, the reader will have no discretion, but another person or entity can grant authority to deviate from the instruction. If that’s the case, the person with authority and the circumstances under which the authority may be exercised is identified (by title) or office (by name/symbol);

(2) Recommended: “Should” is used to advise the reader that the instruction is the Department’s preferred approach. However, the word “should” permits the reader to deviate if the reader can accomplish the objective in another way. FAM drafters are told to “clearly specify how much discretion the reader has, and advise the reader if he or she must justify any deviations. Use the term “recommended” if you believe the word “should” will not convey these points adequately in the context of the sentence. Either define the word “should” or hyperlink to this definition at the beginning of subchapters in which the word appears.”

(3) Advisory:  “May” is used to advise the reader that he or she has the option to pursue alternative courses of action. “May” is used when neither law, regulation, nor management policy dictates which of several options to follow.


State Dept: “In the process of updating” its new rules for speaking and writing. Again.

Posted: 1:23  am EDT


In December 2012, we were informed by inside the building sources that the State Department was rewriting its 3 FAM 4170 rules on official clearance for speaking, writing, and teaching. (see State Dept to Rewrite Media Engagement Rules for Employees in Wake of Van Buren Affair).

On July 27, 2015, two months short of Year 3 since Peter Van Buren retired, the State Department without much fanfare released its new 3 FAM 4170 rules in 19 pages. (see State Dept Releases New 3 FAM 4170 aka: The “Stop The Next Peter Van Buren” Regulation).

The new 3 FAM 4171.b says (see pdf):

 Former Department of State employees (including former interns and externs) must seek guidance from A/GIS/IPS for applicable review process information. Former USAID employees (including former interns and externs) must consult the Bureau for Legislative and Public Affairs for applicable review process information.

On September 3, we asked the State Department for guidance on pre-publication requirement for former/retired employees under the new 3 FAM 4170.

Last Friday, after a second inquiry, we finally got a response from a State Department spokesman as follows:

 The Department is in the process of updating the Foreign Affairs Manual (FAM) guidance relating to the pre-publication obligations of former employees.  Former employees’ obligations will vary based upon the non-disclosure agreements they may have signed. For example, they may have obligations under the Classified Information Non-Disclosure Agreement (SF-312) or the SCI (Sensitive Compartmented Information) Non-Disclosure Agreement (Form 4414).

If employees have signed a non-disclosure/secrecy agreement with another agency, then they may also have pre-publication review obligations with those agencies as well. This obligation is separate from any requirement for pre-publication review that an employee may have with the State Department but the Department can provide the coordination with those other agencies, if requested.

SF-312 Classified Information Nondisclosure Agreement via specifically contains the following paragraphs:

3. I have been advised that the unauthorized disclosure, unauthorized retention, or negligent handling of classified information by me could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation. I hereby agree that I will never divulge classified information to anyone unless: (a) I have officially verified that the recipient has been properly authorized by the United States Government to receive it; or (b) I have been given prior written notice of authorization from the United States Government Department or Agency (hereinafter Department or Agency) responsible for the classification of information or last granting me a security clearance that such disclosure is permitted. I understand that if I am uncertain about the classification status of information, I am required to confirm from an authorized official that the information is unclassified before I may disclose it, except to a person as provided in (a) or (b), above. I further understand that I am obligated to comply with laws and regulations that prohibit the unauthorized disclosure of classified information.

5. I hereby assign to the United States Government all royalties, remunerations, and emoluments that have resulted, will result or may result from any disclosure, publication, or revelation of classified information not consistent with the terms of this Agreement.

8. Unless and until I am released in writing by an authorized representative of the United States Government, I understand that all conditions and obligations imposed upon me by this Agreement apply during the time I am granted access to classified information, and at all times thereafter.

Sensitive Compartmented Information Non-Disclosure Agreement Form 4414 via NCSC (pdf) contains the following:

4. (U) In consideration of being granted access to SCI and of being assigned or retained in a position of special confidence and trust requiring access to SCI, I hereby agree to submit for security review by the Department or Agency that last authorized my access to such information or material, any writing or other preparation in any form, including a work of fiction, that contains or purports to contain any SCI or description of activities that produce or relate to SCI or that I have reason to believe are derived from SCI, that I contemplate disclosing to any person not authorized to have access to SCI or that I have prepared for public disclosure. I understand and agree that my obligation to submit such preparations for review applies during the course of my access to SCI and thereafter, and I agree to make any required submissions prior to discussing the preparation with, or showing it to, anyone who is not authorized to have access to SCI. I further agree that I will not disclose the contents of such preparation with, or show it to, anyone who is not authorized to have access to SCI until I have received written authorization from the Department or Agency that last authorized my access to SCI that such disclosure is permitted.

5. (U) I understand that the purpose of the review described in paragraph 4 is to give the United States a reasonable opportunity to determine whether the preparation submitted pursuant to paragraph 4 sets forth any SCI. I further understand that the Department or Agency to which I have made a submission will act upon it, coordinating within the Intelligence Community when appropriate, and make a response to me within a reasonable time, not to exceed 30 working days from date of receipt.

9. (U) Unless and until I am released in writing by an authorized representative of the Department or Agency that last provided me with access to SCI, I understand that all conditions and obligations imposed on me by this Agreement apply during the time I am granted access to SCI, and at all times thereafter.

Whoa! Is there a way out?

The State Department has  several student paid/unpaid internship programs.  The program’s eligibility requirement includes the ability to receive either a Secret or Top Secret clearance (pdf). So, does a student who receives a one-year internship at State be in the hook for life when it comes to obtaining clearance for speaking, writing, teaching and all media engagement as it is written under 3 FAM 4170? Are the interns/externs aware of their obligations under these rules before they sign up for these internships?

Where can interns/externs obtain a release in writing from a State Department representative?  We originally sent our inquiry to A/GIS/IPS cited as the contact office, but could not even get a response from there. There is no easily available email box to send the request either for a clearance or to request a release.

NOTE: For current employees, the reviewing office is the Bureau of Public Affairs (paclearances[at] It looks like State/PA also has The PA Clearances Database accessible online. You need to sign up to register for an account to allow the online submission of clearance requests to the Bureau of Public Affairs. The site says “Using this site will expedite your clearance request.”

For former and retired State Department employees, how far back is the USG going to reach back? For life?

On December 29, 2009, President Obama issued Executive Order 13526 which prescribes a uniform system for classifying, safeguarding, and declassifying national security information.  “No information may remain classified indefinitely,” the order says.  The default declassification date, is 10 years. After 25 years, declassification review is automatic, with nine narrow exceptions that allow information to continue to be classified. Classifications beyond 75 years require special permission.

Given the default declassification at 10 years, can retired and former employees get an automatic release from these obligation at 10 years after they leave their jobs at the State Department?

For employees who are no longer attached in any capacity to the State Department, and haven’t been for 20 years, and have no interest in pursuing consulting or WAE appointments at the agency, ought they not be able to obtain a release from their obligations under these nondisclosure provisions?

Perhaps it’s time for State to put together its own Publication Review Board (PRB)? The CIA has one, and this article by John Hollister Hedley, the Chairman of the PRB on former CIA employees seeking to become published authors is instructive:

The courts have held that this signed agreement is a lifetime enforceable contract.(3) The courts also have noted that the secrecy agreement is a prior restraint of First Amendment freedom. But they ruled it a legitimate restraint, provided it is limited to the deletion of classified information and so long as a review of a proposed publication is conducted and a response given to its author within 30 days.(4)
The important thing is for us to be reasonable and professional about what we protect. It does not take a genius to know what information requires a hard look: for example, in an age of terrorism and for privacy act considerations, we have to protect identities not already in the public domain. Also taboo–because they impact adversely our ability to conduct our business, most of it necessarily in secret–are cover arrangements, liaison relationships, covert facilities, and unique collection and analytic capabilities. These constitute the sources and methods that truly need protection. For the most part, they can easily be avoided without keeping an author from telling a story or restricting an author’s opinion on a variety of intelligence subjects.

In prepublication reviews, we have to show we know the difference between what truly is sensitive and what is not. We do not earn respect just by saying “no,” but neither do we earn respect just by giving away information. Our unique role is to judge whether a denial of disclosure would stand up in court, whether we could make a compelling case in a court of law that specific damage to US national security would result. We can have it both ways: we can protect that which needs to be protected, while being forthcoming about intelligence activities in a way that can help educate, inform, enlighten, and even entertain the general public. That is the cost of doing business in this free society we help to preserve; trying to have it both ways is a challenge that comes with the territory.

The article is focused on pre-publication review of manuscripts but notes that the submissions ranges “from 1,000-page book manuscripts to one-page letters to the editor. There are speeches, journal articles, theses and op-eds, book reviews, and movie scripts. There are scholarly treatises, works of fiction, and, recently, a cookbook featuring a collection of recipes acquired and served by Agency officers and spouses around the world. Perhaps the most novel review (no pun intended) involved an interactive CD-ROM video spy game co-authored by former Director of Central Intelligence (DCI) William Colby and KGB Gen. Oleg Kalugin.”

We should note that the State Department’s pre-publication review has three purposes per 3 FAM 4170:

(1) The personal capacity public communications review requirement is intended to serve three purposes: to determine whether the communication would disclose classified or other protected information without authorization; to allow the Department to prepare to handle any potential ramifications for its mission or employees that could result from the proposed public communication; or, in rare cases, to identify public communications that are highly likely to result in serious adverse consequences to the mission or efficiency of the Department, such that the Secretary or Deputy Secretary must be afforded the opportunity to decide whether it is necessary to prohibit the communication (see 3 FAM 4176.4).

The CIA’s PRB on the other hand says that  the sole purpose of its prepublication review is “to assist authors in avoiding inadvertent disclosure of classified information which, if disclosed, would be damaging to national security–just that and nothing more.”


Related items:

SF312-13 | Classified Information Nondisclosure Agreement

FORM_4414_Rev_12_2013 | Sensitive Compartmented Information Non-Disclosure Agreement

New Danger Pay Differential Posts: See Gainers, Plus Losers Include One Post on Evacuation Status

Posted: 3:11 pm EDT
Updated: 811:33 pm PDT


In February 2015, we blogged about the proposed changes to the State Department’s danger pay incentives (see Danger Danger, Bang Bang — State Department Eyes Changes in Danger Pay). In February, a total of 26 countries with 45 posts/locations were eligible to receive danger pay allowance according to the publicly available data from the State Department’s Office of Allowances. As of September 6, 2015, employees in a total of 28 countries with 47 named post and locations, plus 20 undesignated posts labeled as “other” are eligible to receive danger pay differential.  Note that “other” is a place which is not listed individually in Section 920 of the Department of State Standardized Regulations (DSSR) but which is located in a country or area which has been so designated by the Secretary of State, e.g. Herat and Mazar-e-Sharif in Afghanistan.

Danger Pay allowance provides additional compensation for employees serving at designated danger pay posts. It is paid as a percentage of basic compensation in 5, 10, 15, 20, 25, 30 and 35% increments. In addition to being paid to permanently-assigned personnel, danger pay may also be paid to employees on temporary duty or detail to the post.

According to the State Department,  the danger pay allowance is in lieu of that part of the hardship post  differential rate (Chapter 500) at a post which is attributable to  political violence.  Consequently, the rate of post differential may be reduced while danger pay allowance is in effect to avoid dual crediting  for political violence.

Under circumstances defined by the Secretary of State, a danger pay  allowance may also be granted to civilian employees who accompany U.S. military forces designated by the Secretary of Defense as eligible for imminent danger pay.  The Secretary of State will define the area of  application for civilian employees and the amount of danger pay shall  be the same flat rate amount paid to uniformed military personnel  as imminent danger pay.  Danger pay authorized under this subparagraph  will not be paid for periods of time that the employee either receives  danger pay authorized under subparagraph “f” or post differential that would duplicate political violence credit.

Danger Pay authorized under DSSR 652(g), unofficially referred to as “hazardous duty” or “imminent danger pay,” is paid at a flat monthly rate (currently $225). Employees cannot receive Post Hardship Differential and Danger Pay under DSSR 652(g) for the same periods of time, nor can employees receive Danger Pay under DSSR 652(f) and 652(g) at the same time. Imminent Danger Pay under DSSR 652(g) is established for designated areas for U.S.G. civilian employees accompanying uniformed military for whom the Secretary of Defense has established a similar benefit. No review of the Post Hardship Differential is conducted when establishing Imminent Danger Pay under DSSR 652(g) so employees cannot receive both allowances since they are being provided for duplicate conditions.

Plus Posts

The total number of countries (26 to 28) and locations (45 to 47) under the changed designations do not tell the details. Let’s start with countries which gained danger pay differentials under the new designations.

  • Kenya: The capital city of Nairobi retained its 15% danger pay differential and nine new locations are now designated at 15% as well (Kihara, Wangige, Kahawa, Kikuyu, Kiambu, Ruiru, Kibichiku, Thogoto, Other). We’d appreciate it if  somebody can help us understand why we have this nine new entries? Who or what do we have in these places? Contact us here.  Embassy Nairobi is the largest U.S. embassy in Africa with a staff of more than 1,300 (including local employees and more than 400 U.S. direct hires) among 19 federal agency offices.  The President’s Emergency Plan for AIDS Relief (PEPFAR) in Kenya includes four U.S. Government agencies as implementers of the program: USAID, CDC, the U.S. Army Walter Reed Medical Research Unit, and the Peace Corps. In terms of staffing, USAID is the second largest component in the mission next to the State Department, with DOD and CDC as the third and fourth largest components respectively. (Thanks J.) 
  • Colombia: The capital city of Bogota lost its 15% pay differential but seven new locations, namely, Baranquilla, Buenaventura, Cali, Medellin, San Andres, San Marta, Other are now designated at 15% danger pay. DEA has the second largest representation (next to the State Department) among agencies at U.S. Mission Colombia, so we conclude that this new designation covers DEA employees and contractors, as well as military personnel operating outside the capital city.
  • Haiti: The capital city of Port-au-Prince, as well as Petitionville and all Other locations are newly designated at 15%.
  • Turkey: Gaziantep is newly designated at 25%.  The city is located in the southeastern Anatolia, some 185 kilometres east of Adana and 97 kilometres north of Aleppo, Syria.
  • In Tunisia, Carthage has been added at 25%.

All posts in Afghanistan, CAR, Iraq, Libya, Pakistan (except Quetta), Somalia, South Sudan, Syria and Yemen are  now at the top bracket at 35%.

Back in February, we’ve asked why Erbil and the Erbil Diplomatic Support Center in Iraq did not have the same danger pay rates.  Under the new designation, the Erbil Diplomatic Support Center (EDSC) and Basrah have both been bumped up to 35% (they were previously at 25% and 30% respectively). The State Department has not totally ditched the seven danger pay brackets but with very few exceptions, it has narrowed the danger pay posts into tighter bundles at the 15%, 25% and 35% pay brackets.

Screen Shot 2015-09-14

click image to view the full list

Minus Posts

There are also losers under the new designation. All the locations are diplomatic/consular posts where we have permanently stationed employees.

  • Mexico: Back in February, Nogales was at 10%, Ciudad Juarez, Matamoros and Tijuana were at 15%, and Monterrey and Nuevo Laredo were both at 20%. As of September 6, the only post in Mexico with danger pay is Ciudad Juarez at 15%.
  • Saudi Arabia:  Riyadh, Jeddah and Dharan were all at the 15% danger pay bracket in February 2015. Under the new designation, all these posts no longer have danger pay differential. The only location in Saudi Arabia currently designated at 15% is “Other.”
  • Algeria lost its 15% for Algiers but retains 25% for Other.
  • Burundi lost its 5% for Bujumbura but retains 5% for Other.  We should note that US Embassy Bujumbura went on “ordered departure” for non-emergency personnel and family members on May 15, 2015. There is a Travel Warning against all travel to Burundi and recommends that U.S. citizens currently in Burundi depart as soon as it is feasible to do so.”  The evacuation status for post—either authorized or ordered—has a 180-day clock  (by law, an evacuation cannot last longer than 180 days). Has that evacuation lifted? If not, isn’t it odd that post currently on evacuation status does not have “danger pay” for the emergency personnel remaining at post? Does that make sense? Yes, there are hardship and COLA differentials, but the embassy was not evacuated due to hardship, was it?
  • Israel and Jerusalem both lost their 15%.
  • Nigeria lost its 10% danger pay designation for Lagos.

We understand that at U.S. Mission Saudi Arabia where Riyadh, Jeddah and Dhahran have lost their 15% danger pay, “M” had increased the hardship differential at all three posts from 15% to 25%. So the net loss of pay to officers/specialists is at 5%. But as we’ve also previously noted here, Eligible Family Members (EFMs) receive danger pay while working in embassies but do not receive any other differentials. All EFMs in posts that lost their danger pay designation will suffer a pay cut and will not receive any hardship pay in lieu of the danger pay lost. The few dual-income families in Mexico and Saudi Arabia, will actually have a pay cut of at least 20%.

We’ve posted potential fallouts to these changes back in February. We understand that these are among the questions that still remained unanswered from Foggy Bottom.

One source says that his/her post “have asked AFSA for updates on what they are doing and recommending” but that post  is only “getting radio silence so no kudos to AFSA either.”

Danger Pay, like Post Hardship Differential, and Difficult-to-Staff Incentive Differential (also known as Service-Needs Differential) are all considered recruitment and retention incentives. These allowances are designed to recruit employees to posts where living conditions may be difficult or dangerous. The State Department has been criticized for its inability to evaluate and measure the effectiveness of its incentive program, specifically its danger and hardship programs. The GAO had also previously complained that State did not comply with a congressional mandate to evaluate its increases in hardship and danger pay.   We don’t know if these new changes now include an evaluation of the effectiveness of these incentives.


Danger Pay- September 2015 Diplopundit




Holy Mother of FAM!!! Oh, Mr. Toner, What Have You Done?

Posted: 2:39 am PDT


On August 31, the State Department’s deputy spox was asked if the Secretary of State is bound by the rules of the Foreign Affairs Manual or not? (see Question of the Day: Is the Secretary of State bound by the rules of the Foreign Affairs Manual or not?). On September 1, the question was asked again and Mr. Toner promised to get an answer.

On September 3, the question was revisited for the third time, and here is the delightful exchange:

QUESTION: I have a – I’d asked you a question the other day and you said you’d get me an answer to it —

MR TONER: Did I? (Laughter.)

QUESTION: — and the question was whether the Foreign Affairs Manual applies to secretaries of state? Does it?

MR TONER: So – (laughter) – yeah. So I did do some research into this, as did others. It is – the Foreign Affairs Manual is – it is not comprehensive in, nor is it a bible for all Foreign Service officers or civil servants. So – and what do I mean by that? I mean it’s not – for example, there’s things in there about reimbursement of the use of your private vehicle. Certainly, that doesn’t apply to the Secretary of State or many people within the State Department.

So it’s – what’s contained in the Foreign Affairs Manual – and this is – I apologize but this is a kind of an in-the-weeds question – all of that is not necessarily relevant to, for example, ambassadors or secretaries of state or senior Department officials. I mean, if I can say what I think the essence of your question was, and I’m sorry if this is presumptive, but was whether they are bound by the responsibility to protect classified information. That certainly is true, that any Secretary of State, any senior State Department official is bound by that. And I spoke to this the other day, is that any individual, whether you’re the Secretary of State on down, takes that responsibility seriously.

QUESTION: But my question —


QUESTION: I mean, I really – I was not asking whether they were bound by every aspect of it, including those that are not relevant to them. It was whether they’re bound – basically whether they’re bound by the things that are relevant to them.

So to take the one that you raised, which is not whether they’re bound to protect classified information or to take seriously the responsibility to protect classified information, the question would be then, since you raised that as a specific: Are they bound – are secretaries of state bound by the rules in the Foreign Affairs Manual with regard to the handling of classified information?

MR TONER: I would say, as they are pertinent to the – and again, I don’t have the Foreign Affairs Manual in front of me – but as they are pertinent to the responsibility to protect and safeguard classified information, and we’ve talked about this, frankly, ad nauseum about the gradations and how we classify stuff and how we look at it. But as those rules – they apply to everyone in the State Department, including, for example, politically appointed ambassadors, and certainly by a secretary of state who is appointed by the President and, frankly, serves at the pleasure of the President and is not a Foreign Service officer in that regard or a civil servant.

QUESTION: So insofar as the regulations of the Foreign Affairs Manual touch on the protection of classified information, they apply to everyone, including the Secretary of State?

MR TONER: Again, I don’t have it in front of me but – and I’m not trying to parse this, but in a sense I am. Insofar as those regulations apply to the protection and safeguarding of classified information, yes.

QUESTION: Thank you.

QUESTION: Can we go back —

QUESTION: That didn’t seem like a parse to me.


Selective application, amirite?

First, Mr. Toner says, “So I did do some research into this…” Excuse me, why the heck is he doing the research on this? What’s the use of the Office of Legal Adviser, if you can’t get them to issue a formal opinion on this matter?

Then he says, “the Foreign Affairs Manual is – it is not comprehensive in, nor is it a bible for all Foreign Service officers or civil servants.”

Oh dear. Quick! If you’re in a disciplinary process, tell your lawyers.

Saying “again, I don’t have the Foreign Affairs Manual in front of me” might be a trick in the PA playbook but it’s not cute, okay?  This question has been asked since August 31st. The FAM is online, and easily retrievable.

He did say that “Insofar as those regulations apply to the protection and safeguarding of classified information, yes,” when asked if  the protection of classified information apply to everyone, including the Secretary of State per FAM.

Hey, did you know that “reimbursement of the use of your private vehicle doesn’t apply to the Secretary of State or many people within the State Department?”

Makes you wonder, for all the stuff where the FAM doesn’t cover the Secretary of State and many other people within the State Department, what alternate rules and regulations govern their workplace, and conduct on and off their jobs?  We’d like to know in case we’re tapped by  President Julian Navarro to find a successor for the libidinous Secretary Larson.

But seriously.

Per 2 FAM 1111.1 the Department of State articulates official guidance, including procedures and policies, on matters relating to Department management and personnel, known collectively as “directives,” in the Foreign Affairs Manual and Handbook Series. Directives include Department administrative organization policies and procedures. These directives derive their authority from statutes, Executive orders, other legal authorities, and Presidential directives, such as OMB circulars, and Department policies.

Per 2 FAM 1115.5-1 the Foreign Affairs Handbook (FAH) series is a supplemental series providing guidelines and procedures for implementing policies and directives contained in the FAM. Materials published in the FAH has the same force and effect as materials published in the FAM.

These directives apply to the Department of State and its operations worldwide (2 FAM 1111.3)

These directives apply to all Department of State and other relevant personnel worldwide (2 FAM 1111.4)

Note that 2. FAM 1111.4 does not make a distinction whether an employee is a career employee or a political appointee who is employed by the State Department.  Also, every time the FAM is updated, a Change Transmittal documents it.  All transmittals includes the following reminder:

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).

Pardon me?  Between 1-10, how confusing is all this? Sigh…

By the way, AFSA did ask a similar question earlier this year concerning this (see AFSA Politely Asks the State Dept: Is Adherence to the Foreign Affairs Manual Optional For Some?). We understand that the State Department had issued a response in the waning days of the previously elected AFSA Governing Board. As far as we are aware, that response has not been released to the AFSA membership. And we have not been able to get a response to two questions we sent to the newly elected president and VP of AFSA.




Question of the Day: Is the Secretary of State bound by the rules of the Foreign Affairs Manual or not?

Posted: 2:40 am EDT


Is the Secretary of State bound by the rules of the Foreign Affairs Manual or not? That’s the question asked during the August 31 press briefing at the State Department.

QUESTION: Two other quick things. One is: Do you believe as a general matter that the Secretary of State, whomever he or she may be, is bound by the rules in the Foreign Affairs Manual or not? I mean, it may be that they’re not, that they have sort of a status that’s different and that therefore they have the rights to not follow it.

MR TONER: I mean, I would just say that every State Department employee from the Secretary on down takes the handling of classified information very seriously and is aware of the rules surrounding those classification standards.

In reading these excerpts, it is useful to remember the  State Department’s Most Candid Nugget.  A bit later, another one tried asking this again:

QUESTION: On the thing that everybody is obliged to – I mean, can you not address squarely whether the Foreign Affairs Manual applies to the Secretary of State or not?

MR TONER: I mean, I can say that, again, we, from the Secretary on down, take the handling of classified materials and the rules surrounding those – so I mean in that sense, including the Foreign Affairs Manual but also other regulations, stipulations, training that we undergo in how to handle classified and confidential information.

QUESTION: You take them —

MR TONER: Seriously. I’m sorry.

QUESTION: But does that mean that you’re bound by them?

MR TONER: We’re all bound by – how we treat classified information is, as I said, an important component of the work we do, but I’ve also made clear that when you look at classified material it is not an exact science, it’s not black and white, it’s not always clear, so there’s strong feelings and different beliefs about when something is classified, whether it’s born classified, whether it should be classified later. These are all questions that are being answered in a deliberative and a thorough way that we’re looking at that’s not somehow some cabal of people in a small room somewhere making these decisions. It’s an interagency process. It involves the IC, it involves other agencies as it touches their equities. So that’s our focus.

QUESTION: Mark, since you just said those —

MR TONER: Please, go ahead.

QUESTION: — rules and standards are so important that everyone in this building has to follow them, can you say from that podium categorically that Secretary Clinton followed the rules and the law?

MR TONER: I’m just not going to answer that question. It’s not our goal, it’s not our function in this regard in releasing these emails. Our goal and our sole purpose when we look at these emails is to decide – well, first to publish them according to the FOIA request that we have received. But in doing that, looking at them and deciding whether any of that material needs to be redacted and subsequently classified.

QUESTION: Isn’t it a little odd that the State Department can’t state categorically that the Secretary of State followed the rules?

MR TONER: All I can say is that there are – and I’ve alluded to there – I’ve not alluded to it, I’ve said as much to Arshad: There are other reviews, and that’s really for the inspector general and other entities who are out there looking at some of these broader questions.

Click here for the DPB | August 31, 2015.

The first question starts with “Do you believe …”  They can pin Mr. Toner to the wall with giant thumb tacks but we doubt very much if they can pry a straight answer out of him on this one.  What he believes is immaterial. What the building believes is what counts. And for that, we think you’d have to go ask the Legal Adviser.

Oops, wait! Brian Egan nominated to succeed Harold Hongju Koh is still stuck in the Senate confirmation process. Originally nominated in September 2014, Mr. Egan has now waited 347 days for his Senate confirmation. He had been renominated once before on January 16, 2015 when his nomination was not acted by the Senate last year.

While the Office of the Legal Adviser (without a Senate-confirmed Legal Adviser) has not released an opinion on this subject, it apparently told the OIG that the Foreign Affairs Manual‘s disciplinary provisions do not apply to political appointees as they are “not members of the Foreign Service or the Civil Service.”

The January 2015 OIG report Review of Selected Internal Investigations Conducted by the Bureau of Diplomatic Security (pdf) includes the following:

[The] Office of the Legal Adviser staff told OIG that the FAM’s disciplinary provisions do not apply to Ambassadors who, as in this instance, are political appointees and are not members of the Foreign Service or the Civil Service.

According to the OIG report, the Under Secretary for Management disagrees with this interpretation:

[T]he Under Secretary of State for Management advised OIG that he disagrees with the Office of the Legal Adviser interpretation, citing the provisions in the Foreign Service Act of 1980 which designate Chiefs of Mission appointed by the President as members of the Foreign Service. See Foreign Service Act of 1980, §§ 103(1) & 302(a)(1) (22 USC §§ 3903(1) & 3942(a)(1)).

Hey, if there’s a shootout between “L” and “M”, who wins?

Okay, first, how can Legal only cites the FAM’s disciplinary provisions? The Foreign Affairs Manual is the rules book for the agency. If the disciplinary provisions do not apply to political appointees, what other parts of the FAM do not apply to them?

Can they ship construction materials with their household effects, for instance? Can they change their workdays so they only have to work Tuesdays through Thursdays and have four day weekends every week? Can they travel first class without using U.S. air carriers? Are they obligated to account for their own conduct, whether on or off their jobs? Are they allowed to accept and retain gifts given to them by foreign governments? Can they speculate in currency exchange? Can their spouses work anywhere they want? Are they allowed to invest in real estate in their host countries? And on and on and on.

So if we follow the Office of Legal Adviser’s opinion to its logical conclusion, the Secretary of State, if a political appointee is also not subject to the FAM, yes?

That’s a dreadful opinion, by the way. It puts a politically appointed secretary of state and politically appointed American ambassadors in the enviable position of rallying the troops with “follow what I say, not what I do.” Because, if that’s the case, political appointees can do anything — fundraise overseas, for example — and not have consequences, while regular employees doing exactly the same thing could be penalized.  Or they/their spouses can ship goodies for private gain using the diplomatic pouch and not have any penalty while a career FSO’s spouse would surely be penalized for doing the same thing. And if political appointees are not subject to the Foreign Affairs Manual because they “are not members of the Foreign Service or the Civil Service” the questions then become 1) why are they in the Foreign Service or Civil Service pay scale? and 2) if not the FAM, which rules are they supposed to adhere to?

Of course, this could also mean that if a Foreign Service officer is appointed Secretary of State, he/she would then be subject to the FAM because he/she is a career member of the diplomatic corps. Not that there’s any great danger of that happening. Lawrence Eagleburger is the only career Foreign Service Officer to have served as Secretary of State (appointed Secretary of State on December 8, 1992, and continued in that position until January 19, 1993). But see why that L opinion is troubling?

In any case, we do think this is an important question that ought to have a simple answer.

Except that it doesn’t.

Is the Secretary of State bound by the rules of the Foreign Affairs Manual? 

During the September 1 DPB, a reporter revisited this once more:

QUESTION: It’s a question that I asked the other day and I’d like to ask if the State Department will take a policy decision on this, not with regard to Secretary – former Secretary Clinton, but with regard to current and past secretaries of state, and that is whether it is the view of the Department that the Secretary of State is bound by the rules laid out in the Foreign Affairs Manual.

MR TONER: Okay. I mean, I —

QUESTION: As a general principle, do they apply to the Secretary of State or not, or do they apply selectively? That’s the question.

MR TONER: Okay. I will get you an answer for that.

We await with great interest Mr. Toner’s answer to this very straightforward question. We hope the reporters would keep asking this question. Every day until we all get an answer.


Related posts:




State Dept’s Wibbly Wobbly Jello Stance on Use of Private Email, Also Gummy Jello on Prostitution

Posted: 1:38 am EDT


We’ve added to our timeline of the Clinton Email saga (see Clinton Email Controversy Needs Its Own Cable Channel, For Now, a Timeline).

On August 24, 2015, State Dept. Spokesman John Kirby told CNN:  “At The Time, When She Was Secretary Of State, There Was No Prohibition To Her Use Of A Private Email.” Below is the video clip with Mr. Kirby.

Okay, then. Would somebody please get the State Department to sort something out. If there was no prohibition on then Secretary Clinton’s use of a private email, why, oh, why did the OIG inspectors dinged the then ambassador to Kenya, Scott Gration for using commercial email back in 2012? (See OIG inspection of US Embassy Kenya, 2012).

Screen Shot 2015-08-25

Oh, and here’s a more recent one dated August 25, 2015. The OIG inspection of U.S. Embassy Japan (pdf) says this:

In the course of its inspection, OIG received reports concerning embassy staff use of private email accounts to conduct official business. On the basis of these reports, OIG’s Office of Evaluations and Special Projects conducted a review and confirmed that senior embassy staff, including the Ambassador, used personal email accounts to send and receive messages containing official business. In addition, OIG identified instances where emails labeled Sensitive but Unclassified6 were sent from, or received by, personal email accounts.

OIG has previously reported on the risks associated with using commercial email for official Government business. Such risks include data loss, hacking, phishing, and spoofing of email accounts, as well as inadequate protections for personally identifiable information. Department policy is that employees generally should not use private email accounts (for example, Gmail, AOL, Yahoo, and so forth) for official business.7 Employees are also expected to use approved, secure methods to transmit Sensitive but Unclassified information when available and practical.8

OIG report referenced two cables, we’ve inserted the hyperlinks publicly available online: 11 STATE 65111 and 14 STATE 128030 and 12 FAM 544.3, which has been in the rules book, at least since 2005:

12 FAM 544.3 Electronic Transmission Via the Internet  (updated November 4, 2005)

“It is the Department’s general policy that normal day-to-day operations be conducted on an authorized [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.”

This section of the FAM was put together by the Office of Information Security (DS/SI/IS) under the Bureau of Diplomatic Security, one of the multiple bureaus that report to the Under Secretary for Management.

Either the somebodies were asleep at the switch, as the cliché goes, or somebody at the State Department gave authorization to the Clinton private server as an Automated Information System.

In any case, the State Department’s stance on the application of regulations on the use of private and/or commercial email is, not wobbly jello on just this one subject or on just this instance.


dancing jello gummy bears

On October 16, 2014, State/OIG released its Review of Selected Internal Investigations Conducted by the Bureau of Diplomatic Security. This review arose out of a 2012 OIG inspection of the Department of State (Department) Bureau of Diplomatic Security (DS). At that time, OIG inspectors were informed of allegations of undue influence and favoritism related to the handling of a number of internal investigations by the DS internal investigations unit. The allegations initially related to eight, high-profile, internal investigations. (See State/OIG Releases Investigation on CBS News Allegations: Prostitution as “Management Issues” Unless It’s NotCBS News: Possible State Dept Cover-Ups on Sex, Drugs, Hookers — Why the “Missing Firewall” Was a Big Deal).

One of those eight cases relate to an allegation of soliciting a prostitute.

The Foreign Affairs Manual (FAM) provides that disciplinary action may be taken against persons who engage in behavior, such as soliciting prostitutes, that would cause the U.S. Government to be held in opprobrium were it to become public.1

In May 2011, DS was alerted to suspicions by the security staff at a U.S. embassy that the U.S. Ambassador solicited a prostitute in a public park near the embassy. DS assigned an agent from its internal investigations unit to conduct a preliminary inquiry. However, 2 days later, the agent was directed to stop further inquiry because of a decision by senior Department officials to treat the matter as a “management issue.” The Ambassador was recalled to Washington and, in June 2011, met with the Under Secretary of State for Management and the then Chief of Staff and Counselor to the Secretary of State. At the meeting, the Ambassador denied the allegations and was then permitted to return to post. The Department took no further action affecting the Ambassador.

OIG found that, based on the limited evidence collected by DS, the suspected misconduct by the Ambassador was not substantiated. DS management told OIG, in 2013, that the preliminary inquiry was appropriately halted because no further investigation was possible. OIG concluded, however, that additional evidence, confirming or refuting the suspected misconduct, could have been collected. For example, before the preliminary inquiry was halted, only one of multiple potential witnesses on the embassy’s security staff had been interviewed. Additionally, DS never interviewed the Ambassador and did not follow its usual investigative protocol of assigning an investigative case number to the matter or opening and keeping investigative case files.

Department officials offered different justifications for handling the matter as a “management issue,” and they did not create or retain any record to justify their handling of it in that manner. In addition, OIG did not discover any guidance on what factors should be considered, or processes should be followed, in making a “management issue” determination, nor did OIG discover any records documenting management’s handling of the matter once the determination was made.

The Under Secretary of State for Management told OIG that he decided to handle the suspected incident as a “management issue” based on a disciplinary provision in the FAM that he had employed on prior occasions to address allegations of misconduct by Chiefs of Mission. The provision, applicable to Chiefs of Mission and other senior officials, states that when “exceptional circumstances” exist, the Under Secretary need not refer the suspected misconduct to OIG or DS for further investigation (as is otherwise required).2 In this instance, the Under Secretary cited as “exceptional circumstances” the fact that the Ambassador worked overseas.3

DS managers told OIG that they viewed the Ambassador’s suspected misconduct as a “management issue” based on another FAM disciplinary provision applicable to lower-ranking employees. The provision permits treating misconduct allegations as a “management issue” when they are “relatively minor.”4 DS managers told OIG that they considered the allegations “relatively minor” and not involving criminal violations.

Office of the Legal Adviser staff told OIG that the FAM’s disciplinary provisions do not apply to Ambassadors who, as in this instance, are political appointees and are not members of the Foreign Service or the Civil Service.5

OIG questions the differing justifications offered and recommends that the Department promulgate clear and consistent protocols and procedures for the handling of allegations involving misconduct by Chiefs of Mission and other senior officials. Doing so should minimize the risk of (1) actual or perceived undue influence and favoritism and (2) disparate treatment between higher and lower-ranking officials suspected of misconduct.6 In addition, OIG concludes that the Under Secretary’s application of the “exceptional circumstances” provision to remove matters from DS and OIG review could impair OIG’s independence and unduly limit DS’s and OIG’s abilities to investigate alleged misconduct by Chiefs of Mission and other senior Department officials.

In the SBU report provided to Congress and the Department, OIG cited an additional factor considered by the Under Secretary—namely, that the Ambassador’s suspected misconduct (solicitation of prostitution) was not a crime in the host country. However, after the SBU report was issued, the Under Secretary advised OIG that that factor did not affect his decision to treat the matter as a “management issue” and that he cited it in a different context. This does not change any of OIG’s findings or conclusions in this matter. 

After the SBU report was issued, the Under Secretary of State for Management advised OIG that he disagrees with the Office of the Legal Adviser interpretation, citing the provisions in the Foreign Service Act of 1980 which designate Chiefs of Mission appointed by the President as members of the Foreign Service. See Foreign Service Act of 1980, §§ 103(1) & 302(a)(1) (22 USC §§ 3903(1) & 3942(a)(1)). 

During the course of that review, State/OIG said it discovered some evidence of disparity in DS’s handling of allegations involving prostitution. Between 2009 and 2011, DS investigated 13 prostitution-related cases involving lower-ranking officials.

The OIG apparently, found no evidence that any of those inquiries were halted and treated as “management issues.”


Also, have you heard?  Apparently, DEA now has an updated “etiquette” training for its agents overseas.

That’s all.

Is there a diplomatic way to request that the responsible folks at the State Department culture some real backbone in a petri-dish?

No, no, not jello backbone, please!