Burn Bag: Ding! Ding! Ding! This Is Your ‘More Than Just Stupid’ Warning!

Via Burn Bag:

“A director of a regional diplomatic courier office has openly expressed he does not want to hire “women of childbearing age”. He achieves this by carefully examining candidates’ resumes when hiring to fill an EFM position. BBag, can you stop this stupidity, considering it’s from an FS-1?”

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EFM – eligible family member
FS01 – the highest rank in the regular Foreign Service, last step before the Senior Foreign Service; equivalent to a full Colonel in the military

Why this is more than just stupid? SCOTUS:

The Supreme Court decides International Union, UAW v. Johnson Controls and addresses the issue of fetal hazards. In this case, the employer barred women of childbearing age from certain jobs due to potential harm that could occur to a fetus. The Court rules that the employer’s restriction against fertile women performing “dangerous jobs” constitutes sex discrimination under Title VII. The Court further rules that the employer’s fetal protection policy could be justified only if being able to bear children was a bona fide occupational qualification (BFOQ) for the job. The fact that the job posed risk to fertile women does not justify barring all fertile women from the position.

The Supreme Court in Phillips v. Martin Marietta Corp. holds that Title VII’s prohibition against sex discrimination means that employers cannot discriminate on the basis of sex plus other factors such as having school age children. In practical terms, EEOC’s policy forbids employers from using one hiring policy for women with small children and a different policy for males with children of a similar age.

In Gibson v. West, the Supreme Court endorses EEOC’s position that it has the legal authority to require that federal agencies pay compensatory damages when EEOC has ruled during the administrative process that the federal agency has unlawfully discriminated in violation of Title VII.

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Supreme Court Throws Out 2002 ‘Born in Jerusalem’ Passport Law

Posted: 12:04 pm EDT

Excerpt from the SCOTUS  6-3 decision from ZIVOTOFSKY, BY HIS PARENTS AND GUARDIANS, ZIVOTOFSKY ET UX. v. KERRY, SECRETARY OF STATE (pdf):

Petitioner Zivotofsky was born to United States citizens living in Jerusalem. Pursuant to §214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, his mother asked American Embassy officials to list his place of birth as “Israel” on, inter alia, his passport. Section 214(d) states for “purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” The Embassy officials refused to list Zivotofsky’s place of birth as “Israel” on his passport, citing the Executive Branch’s longstanding position that the United States does not recognize any country as having sovereignty over Jerusalem. Zivotofsky’s parents brought suit on his behalf in federal court, seeking to enforce §214(d). Ultimately, the D. C. Circuit held the statute unconstitutional, con- cluding that it contradicts the Executive Branch’s exclusive power to recognize foreign sovereigns.

Quick background of this long-standing practice: Place of birth was first added to the U.S. passport designed in 1917. An October 4, 1963 staff study by the Passport Office on “Place of Birth” information in the United States Passport reflects “the passport used during World War I was the first in which including the place of birth of the passport holder was mandatory as part of the identification of the bearer, probably was a wartime travel control measure. The item was included in all subsequent revisions of the passport format, down to and including the present issuances.”

For United States passport purposes, the Department of State has defined the term “bearer’s origin” to be the bearer’s place of birth as it is presently recognized. That entry is included to assist in identifying the individual, not the individual’s nationality. The passport very clearly states that the bearer is a United States national or citizen.

7 FAM 1360: Birthplace in Jerusalem (pdf):

For a person born in Jerusalem, write JERUSALEM as the place of birth in the passport. Do not write Israel, Jordan or West Bank for a person born within the current municipal borders of Jerusalem. For applicants born before May 14, 1948 in a place that was within the municipal borders of Jerusalem, enter JERUSALEM as their place of birth. For persons born before May 14, 1948 in a location that was outside Jerusalem’s municipal limits and later was annexed by the city, enter either PALESTINE or the name of the location (area/city) as it was known prior to annexation. For persons born after May 14, 1948 in a location that was outside Jerusalem’s municipal limits and later was annexed by the city, it is acceptable to enter the name of the location (area/city) as it was known prior to annexation.

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Most Apt Question on #ClintonEmails: “Simply put, where was everyone?”

Posted: 2:36 am EDT

 

“I remain mystified by the fact that the use of a private e-mail account apparently went either unnoticed or unremarked upon during the four-year tenure in office of the former secretary” […] ”Simply put, where was everyone? Is there any record indicating that any lawyer, any FOIA officer, any records person, any high-level official ever respectfully confronted the former secretary with reasonable questions about the practice of sending e-mails from a private account? It is unfathomable to me that this would not have been noticed and reported up the chain.”

Jason Baron
Former Director of Litigation, NARA
Source: HRC Emails: Federal officials voiced growing alarm over Clinton’s compliance with records laws, documents show

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Congress Threatens to Benghazimazi State Dept Funding Over Clinton Emails

Posted: 1:01 am EDT

 

First, the State Department told the court that the Clinton emails won’t be released until next year.

But US District Court Judge Rudolph Contreras rejected the proposal and ordered to State Department to get on with it on a rolling basis.

And then — oh, look!


According
to NYT, here’s what happened:

In the five-minute session with reporters, Mrs. Clinton also addressed questions about her exclusive use of a personal email address while at the State Department, saying she wanted the department to release the emails she had sent and received from her private account sooner rather than the estimated release in January 2016.

“They belong to the State Department, so the State Department has to go through its process,” Mrs. Clinton said. “But as much as they can expedite the process, that’s what I’m asking them to do.”

Because Mrs. Clinton exclusively used a personal email account while at the State Department, much of her correspondence has been shielded from federal records requests, creating a firestorm from Republicans investigating her handling of the 2012 attack on the United States mission in Benghazi, Libya.

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Someday, somebody will helpfully calculate the labor cost of 12 employees doing this for 5 weeks; something that could have been avoided if the responsible people were doing their jobs responsibly in the first place.

In any case, Congress has now threatened to benghazimazi the State Department funding, not all of it, just some, of course. Rep. Kay Granger (R-Texas), chairwoman of the House Appropriations subcommittee that oversees funding for State and foreign aid told The Hill that funding could be withheld from the agency’s programs and efforts “unless it relates to our own national security or our allies.” According to The Hill, GOP sources said divisions such as Legislative Affairs and Public Affairs and the Office of the Secretary could be affected.  Whether this would be a tame who will blink first contest or a real pissing contest, remains to be seen.

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Also, on May 21st, this happened:

About 350 pages of the Clinton emails obtained by The New York Times and now available online, represent about a third of the roughly 850 pages of emails from Secretary Clinton’s personal account that have been turned over to the Select Committee on Benghazi. The emails seemed to be all Sid, Sid, Sid, but there are also emails from the former Ambassadors to Libya, Chris Stevens (p.116, p.138, p.341) and Gene Cretz (p.70, p.346), former A/S for NEA Jeff Feltman (p.68, p.71), Cheryl Mills, State Department management go-to guy, Pat Kennedy (p.330), among others.  Click here to read it or download the pdf file here.

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FOIA and Clinton Aides: Some Shock and Awe at the Foggiest Bottom

Posted: 1:02 am EDT

 

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That WSJ article above has this to say about the Keystone-related documents subject to FOIA and the rapid dominance doctrine in the halls of Foggy Bottom:

The Keystone documents Ms. Mills objected to were all either held back or redacted, the same person said. After Ms. Mills began scrutinizing documents, the State Department’s disclosure of records related to Keystone fell off sharply, documents that include a court filing show.

Two others with knowledge of State Department records procedures said political appointees were allowed greater say than the FOIA experts thought was appropriate. It was hard to push back against the political staff, one said.

The pipeline project was so sensitive that an expert on FOIA was invited to a State Department policy meeting to advise on how to prospectively shield documents from disclosure, such as by marking them as involving the “deliberative process,” said a person who attended.

That’s the infamous exemption for the “deliberative process,” otherwise known as the “b-5.” In early May, the Senate Judiciary Committee held a hearing on “Ensuring an Informed Citizenry: Examining the Administration’s Efforts to Improve Open Government.” Joyce Barr, the Assistant Secretary for Administration, as well as Chief FOIA Officer for the Department of State was one of the witnesses and made news for reportedly saying that Secretary Clinton’s use of a private email account for official business was “not acceptable.” Too late much?

One other witness at that hearing was Thomas S. Blanton, the Director of the National Security Archive at George Washington University. Below is from his prepared statement on the “b-5″ exemption, also known as the “withhold it if you want to” exemption.

One reason why FOIA does not work is the abuse of the most discretionary exemption in the FOIA, the fifth or “b-5” on deliberative process. This exemption also includes attorney-client privilege, and every lawyer in this room shivers at the idea of infringing on that. Yet, I would point out that the Presidential Records Act dating back to 1978 has eliminated the b-5 exemption as a reason for withholding records 12 years after the President in question leaves office. Through the PRA, we have conducted a 35-year experiment with putting a sunset on the deliberative process exemption, and the facts show us no damage has been done with a 12-year sunset. Yes, some embarrassment, such as the junior White House lawyer who vetted (and rejected) a certain Stephen Breyer for a Supreme Court nomination back in the 1990s. But no new spate of lawsuits. No re-opened litigation. No damage to the public interest. Embarrassment cannot become the basis for restricting open government. In fact, embarrassment makes the argument for opening the records involved.

According to Mr. Blanton, the Justice Department’s use of the “withhold it if you want to” exemption is at an all-time high this year, invoked 82,770 times to withhold records that citizens requested. The same exemption used by the CIA to withhold volume 5 of a 30-year-old internal draft history of the disaster at the Bay of Pigs. This is the same exemption used by the FBI to censor most of the 5,000 pages it recently “released” on the use of the Stingray technology to locate individuals’ cell phones.  Apparently, this is the exemption that the administration also used to keep the Office of Legal Counsel final opinions out of the public domain according to Mr. Blanton.

So, are we terribly shocked yet?

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State, Local, Tribal/Territorial Govt Employees Traveling Abroad on USG Duties Will Soon Get Official Passports

Posted: 1:40 am EDT

 

The Federal Register has published the interim final rule amending passport rules that will allow the State Department to issue an official passport to an official or employee of a state, local, tribal, or territorial government traveling abroad to carry out official duties in support of the U.S. government.

22 CFR 51.3(b) provides that an “official passport” may be issued to: an official or employee of the U.S. government traveling abroad to carry out official duties; spouses and family members of such persons; and, when authorized by the Department of State, U.S. government contractors traveling abroad to carry out official duties on behalf of the U.S. government.

Increasingly, the federal government utilizes officials or employees of state, local, tribal, and territorial governments in support of federal activities, both domestically and overseas, such as the Federal Bureau of Investigation’s Joint Terrorism Task Force. When required to travel internationally in support of such federal activities, these individuals are not currently eligible for official passports. Issuance of an official passport to such individuals signifies to foreign governments that they are carrying out official duties in support of the U.S. government. The activities undertaken by these officials are often of pressing national security, law enforcement, or humanitarian importance and occur with little advance notice. It is in the U.S. government’s interest to provide these individuals the travel documents necessary to allow them to travel in a timely manner.

Under 22 U.S.C. 211a et seq., the Secretary of State has the authority to make rules for the granting and issuance of passports. The Department is amending section 51.3(b) of 22 CFR to authorize issuing official passports to an official or employee of a state, local, tribal, or territorial government traveling abroad to carry out official duties in support of the U.S. government.

The blue tourist passport is the only passport that can be used by U.S. citizens for leisure travel abroad. A no-fee passport looks identical to a tourist passport, but it can only be used for dependents who are traveling with their sponsor to an overseas duty station. Turn to page 26. If there is an amendment in the back of the passport, it is a no-fee passport. No-fee, official and diplomatic passports cannot be used for personal travel.

The blue tourist passport is the only passport that can be used by U.S. citizens for leisure travel abroad. A no-fee passport looks identical to a tourist passport, but it can only be used for dependents who are traveling with their sponsor to an overseas duty station. Turn to page 26. If there is an amendment in the back of the passport, it is a no-fee passport. No-fee, official and diplomatic passports cannot be used for personal travel.          (via army.mil)

Revise paragraph (b) of §51.3 to read as follows:
§51.3 Types of passports.
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(b) Official passport. When authorized by the Department, an official passport may be issued to:

(1) An official or employee of the U.S. government traveling abroad to carry out official duties, and family members of such persons;

(2) A U.S. government contractor traveling abroad to carry out official duties on behalf of the U.S. government; or

(3) An official or employee of a state, local, tribal, or territorial government traveling abroad to carry out official duties in support of the U.S. government.

Click here (pdf) for the current rule.

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Burn Bag: A weekend on lockdown, whataboutyou?

Posted: 12:01 pm  EDT

Via Burn Bag:

While the Danger Pay Working Group contemplates denying Danger Pay to Mexico border posts, consulate staff in Guadalajara spent the weekend on lockdown and the narco violence related security incidents in Matamoros have gone up fourfold.

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Next Generation U.S. Passport To Roll Out in 2016, No More Additional Page Insert Starting Jan 1, 2016

Posted: 5:04  pm EDT

 

Below is from the official proposal to be published on the Federal Register tomorrow eliminating the visa page insert (VPI) service for regular fee U.S. passports:

The Department proposes eliminating the visa page insert service for regular fee passport book holders beginning January 1, 2016. The expected effective date of this rule coincides with when the Department expects to begin issuing an updated version of the Next Generation Passport book. The Department routinely updates the technology used to produce U.S. passport books so that U.S. passport books use the most current anti-fraud and anti-counterfeit measures. The Next Generation Passport, which is the next update of the U.S. passport book, will contain a polycarbonate data-page and will be personalized with laser engraving. This passport will also employ conical laser perforation of the passport number through the data and visa pages; display a general artwork upgrade and new security features including watermark, security artwork, optical variable security devices, tactile features, and optically variable inks. The primary reason for eliminating visa page inserts is to protect the integrity of the Next Generation Passport books.

In 2012, an interagency working group tasked with overseeing the development and deployment of Next Generation Passport books found that visa page inserts could compromise the effectiveness of security features of the new passport books that are intended to provide greater protections against fraud and misuse. To maximize the effectiveness of the Next Generation Passport that is expected to be issued to the general public in 2016, the Department considered whether visa page inserts could be phased out at the time that the Department begins to issue the new passport books.

As part of this study, the Department considered the extent of the public’s usage of visa page inserts, costs to the Department of eliminating the service, and whether any inconvenience to the public could be minimized. A study of a sample of visa page insert applications revealed that a significant majority of those applying for visa page inserts had them added to 28-page passport books, rather than to the larger 52-page books. A set of visa page inserts is 24 pages. Accordingly, a 52-page passport book is the same size as a 28-page book with a set of extra visa pages. The Department determined that the demand for additional visa pages would be substantially reduced by issuing only the larger 52-page passport books to overseas U.S. passport applicants. Accordingly, the Department has begun issuing the 52-page book to overseas applicants, who are the most likely to apply for extra visa pages, at no additional cost. This should further reduce the already limited demand for visa page inserts, thus making the rule’s impact on the public very minimal. Individuals who apply for U.S. passports within the United States will continue to have the option to request a 52-page passport at no additional charge.

Each version of the Next Generation Passport book contains two fewer pages total, but the same number of visa pages as the passport books currently in circulation. Accordingly, after the Department begins issuing the Next Generation Passport book, all domestic passport book applicants will still have the option to choose between a 26-page passport book and a larger 50-page passport book, but the larger 50-page passport books will be automatically issued to people applying overseas.

The Department believes the limited demand for visa page inserts is outweighed by the importance of ensuring that the Next Generation Passport provides the maximum protection against fraud and misuse. Furthermore, the Department must monitor unused inventories of passport products, and the elimination of visa page inserts would facilitate more secure inventory controls. Accordingly, the Department proposes eliminating visa page inserts in passport books issued to the general public beginning January 1, 2016.

image from state.gov

image from state.gov click for larger view

When news about the elimination of passport page inserts first surfaced in late March, we went looking for answers.  A State Department official responded to our inquiry as follows, with emphasis on security and other interesting details:

The Department’s highest priority is to protect the lives and interests of U.S. citizens and this includes our commitment to ensure the U.S. passport remains the most secure travel document in the world. As we look forward to the next version of the U.S. passport, an internal focus group determined that supplemental visa pages pose vulnerabilities to both the physical security of the passport and the issuance process. While the United States is the only country to offer the option of adding additional visa pages to passports, below is some additional data which helped us arrive at our decision:

  • The total demand for additional visa pages is quite small. In FY 2012, we saw approximately 168,000 requests for additional pages compared to 12 million passport issuances.
  • For years have we have offered two passport book sizes to the American public: 28 pages and 52 pages. In FY2013 we estimated that 97% of all passport renewals used fewer than 18 visa pages, a strong indication that the current book sizes we offer meet the needs of the majority of American travelers.
  • To meet the needs of frequent travelers, we began issuing the 52-page passport books at all overseas posts which is where most requests for additional visa pages are processed.
  • Customers can renew their passports via expedited service both domestically and overseas at U.S. consulates and embassies.

We realize some frequent travelers may have concerns about this decision, but it is our duty to implement policies that reinforce and maintain the security of the passport. The United States allows travelers to enter into the country with a valid visa in an expired passport, as long as both passports (the valid and the expired one with the visa) are from the same country and type. Many other governments have similar regulations. However, we recommend that travelers obtain the latest information on visas and entry requirements from the nearest embassy or consulate of destination country before traveling.

According to CA, after the proposed rule is announced on the Federal Register, the Bureau of Consular Affairs will conduct outreach to educate the public on the elimination of visa pages insert (VPI), the effects of this decision, and alternative consular services.

Interested parties may submit comments for 60 days starting April 29, by any of the following methods:

  • Visit the Regulations.gov web site at: http://www.regulations.gov/index.cfm and search the RIN 1400-AD76 or docket number DOS-2015-0017.
  • Mail (paper, disk, or CD-ROM): U.S. Department of State, Office of Passport Services, Bureau of Consular Affairs (CA/PPT), Attn: CA/PPT/IA, 44132 Mercure Circle, P.O. Box 1227, Sterling, Virginia 20166-1227.

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Keeping Up With the State Department Spox’s Explainer on the Clinton Separation Statement

Posted: 12:42 am EDT

 

The hunt for Secretary Clinton’s OF-109 Separation Statement was all over the news last week, although it seemed, oh, so much longer.  Fox News was searching for it. The Daily Caller found a whistleblower who alleged double standard.  Media Matters  called out the conservative media’s own double standard. Add the official spokesperson of the State Department and we got a free roller coaster ride plus coupons.

It looks like 12 FAM 564.4 is the relevant regulation um, excuse me, “recommendation” in the Foreign Affairs Manual. Waiting for the spox to clarify that although the briefing is mandatory, signing the separation statement is really optional and voluntary!

12 FAM 564.4 Termination
(TL:DS-88; 02-13-2003) (Uniform State, AID, OPIC, TDP)
a. A security debriefing will be conducted and a separation statement will be completed whenever an employee is terminating employment or is otherwise to be separated for a continuous period of 60 days or more. The debriefing is mandatory to ensure that separating personnel are aware of the requirement to return all classified material and of a continuing responsibility to safeguard their knowledge of any classified information. The separating employee must be advised of the applicable laws on the protection and disclosure of classified information (see 12 FAM 557 Exhibit 557.3) before signing Form OF-109, Separation Statement (see 12 FAM 564 Exhibit 564.4).

 

Via DPB, March 17, 2015 with State Department Spokesperson Jennifer Psaki:

QUESTION: So when you say – it is my understanding that all employees – and I think you even alluded to this when it first came up, that all employees were required to sign this document on completion of their government service. Is that not the case?

MS. PSAKI: Required is not the accurate term. It’s – we’re looking into how standard this is across the federal government and certainly at the State Department. But there’s no – we’re not aware of any penalty for not signing it.

QUESTION: Well, at the State Department, though, is it – it is common practice, though, is it not, for employees, at least employees below the rank of Secretary of State to sign such a thing – to sign such a document when they leave? Is it not?

MS. PSAKI: Well, I just don’t want to characterize how common practice it is. Certainly, I understand there’s been a focus on this form. We’ve answered the question on whether or not Secretary Clinton signed the form, and we’ll see if there’s more statistics we can provide about how common it is.

QUESTION: It’s your understanding, though, that not completing this form is not a violation of any rule or regulation?

MS. PSAKI: It’s not a violation of any rule, no.

QUESTION: And when you said that you have found no record of her two immediate – was it her two immediate predecessors?

MS. PSAKI: Correct.

 

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AFSA Politely Asks the State Dept: Is Adherence to the Foreign Affairs Manual Optional For Some?

Posted: 1:01  am EDT

 

The Daily Press Briefing of March 11  toppled me off my chair when I heard the official spokesperson of the State Department, Jennifer Psaki said from the podium, “The FAM is not a regulation; it’s recommendations.”  (see NewsFlash: “The FAM is not a regulation; it’s recommendations.” Hurry, DECLINE button over there!).

On March 17, the American Foreign Service Association (AFSA) wrote to Arnold Chacon, the Director General of the Foreign Service and the State Department’s top HR official requesting clarity on the applicability of 3 FAM to career and political/non-career employees of the oldest executive agency in the union.

We would be grateful if you could help us understand if there is, in practice or by law, any difference in how these standards apply to and are enforced for non-career appointees as opposed to career employees, both Foreign Service and Civil Service.

AFSA noted the March 10 press briefing, where “Spokesperson Jen Psaki referred to 3 FAM as “guidelines” as distinguished from “law”:

As the Foreign Service, we have always understood the FAM to consist of regulations to which we must adhere. AFSA would like to ask if non-career appointees are formally subject to all of the rules and regulations in 3 FAM.

Screen Shot 2015-03-18

Foreign Affairs Manual

 

3 FAM is the section of the Foreign Affairs Manual that covers personnel:

This volume of the FAM sets forth the policies and regulations governing the administration of the personnel system applicable to the Department of State. Regulations adopted jointly by the Department of State and other agencies (e.g. Broadcasting Board of Governors, USAID, Commerce, Agriculture, Peace Corps,) are so identified wherever they appear in this volume. (see pdf)

Volume 3 of the FAM is organized around eight major personnel topics, each of which is assigned a series of nine chapters of 89 subchapters. In so far as is practicable, each subchapter is restricted to a single topic. Since some topics relate to both Foreign Service and Civil Service employees, while others relate to employees of only one of the services, subchapters, or parts thereof, contain a legend, which indicates coverage.

☞Chapters in the 1000 series contain general information on the organization of the FAM and general policies and regulations relating to all Civil Service and/or Foreign Service employees.

☞Chapters in the 2000 series contain regulations and policies, which govern the day-to-day operations of the Foreign Service and Civil Service personnel systems.

☞Chapters in the 3000 series contain regulations and policies which govern Civil Service and Foreign Service pay, leave administration, benefits (e.g. Federal Employees Health Benefits (FEHB), Federal Employees Group Life Insurance (FEGLI), Office of Worker’s Compensation Program (OWCP), Unemployment Compensation for Federal Employees (UCFE), Reasonable Accommodations), allowances and travel. In addition, Chapters in the 3000 series contains special program regulations and policies such as Transit Subsidy Program, Student Loan Repayment Program (SLRP), and Professional Liability Insurance (PLI).

☞Chapters in the 4000 series contain regulations and policies which govern the conduct of Foreign Service and Civil Service employees; provide penalties for misconduct; establish grievance and appeals procedures; and provide for awards for outstanding performance.

☞Chapters in the 5000 series contain regulations and policies, which govern labor management relations in the Department.

☞Chapters in the 6000 series contain regulations and policies, which govern the administration of the retirement program for Civil Service and Foreign Service employees.

☞Chapters in the 7000 series contain regulations and policies, which govern the administration of the Foreign Service National personnel system for Overseas Employees.

☞Chapters in the 8000 series contain regulations and policies, which govern the administration of the various overseas employment programs administered by the Office of Overseas Employment (HR/OE).

If it comes from the podium, it is official.

So it is, of course, understandable that AFSA is concerned when she calls the FAM “guidelines.”  But equally troubling to hear her say from the official podium that the FAM is not regulations but recommendations, as if somehow adherence to it is voluntary and optional. We’ve asked state.gov for a comment and the nice person there told us they’re consulting with their subject matter experts and hopefully will have something for us.

Anyone has an in with the folks at the Office of the Legal Adviser?  Would you kindly please ask them to wade in on this?

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