SFRC Bullies Diplomats Up For Promotion to Self-Certify They Have Not Been Convicted of Any Crime

Posted: 12:45 pm EDT

 

The question is why? Why is the Senate Foreign Relations Committee (SFRC) demanding that our diplomats self-certify that they have not committed a felony within the last seven years? The form says “disclosure of this information is voluntary.” But also that “failure to provide the information requested may result in delay or exclusion of your name on a Foreign Service nomination list.”

Career members of the Foreign Service must be promoted into the Senior Foreign Service by appointment of the President, by and with the advice and consent of the Senate. This self-certification is reportedly also required for employees who are up for commissioning and tenuring at the Foreign Relations committee.

So basically in bullying our diplomats into signing this witless self-certification, the SFRC will be able to provide better advice to President Obama?

How?


All Diplomats Must Hold and Keep Top Secret Clearances

The American diplomatic profession requires the issuance of a security clearance. All Foreign Service officers must hold and keep an active Top Secret security clearance.

The personnel security background investigation begins after an individual has been given a conditional offer of employment and has completed the appropriate security questionnaire, usually a Standard Form 86, Questionnaire for National Security Positions, and other required forms.  Once the security package is received by the Office of Personnel Security and Suitability, it is reviewed for completeness. National agency record checks and scanned fingerprint checks are then conducted. A case manager will direct the background investigation to cover key events and contacts from the individual’s past and present history.   Once the investigators have completed a report, highly trained security clearance adjudicators will weigh the results against existing adjudicative guidelines for security clearances. A critical step in the background investigation is the face-to-face interview the individual will have with a DS investigator. This interview usually occurs within a few weeks of an individual submitting a complete security clearance package. Security clearances are subject to periodic reinvestigation every 5 years for TS clearance, and every 10 years for a Secret clearance.

When there is derogatory information, even based on preliminary facts from a DS criminal investigation, Federal Bureau of Investigation (FBI) counterintelligence or other law enforcement investigation, or an Inspector General investigation, the security clearance is suspended.  Personnel whose security clearances have been suspended may not be placed on temporary duty status at diplomatic facilities abroad and may not be retained in positions requiring a security clearance until the investigation is resolved.

The names of those with pending investigations are automatically removed from the promotion list.  It goes without saying …. oops, maybe it does need saying — diplomats who have pled guilty or convicted of a crime will not be able to hold a security clearance, much less have his/her name included in the promotion list.

Let’s give you an example — Michael Sestak, an FSO who pled guilty in a visa fraud-bribery case. He is currently sitting in jail. He’ll be sentenced in April.  When he comes out of prison, he will not/not have a job to return to at the State Department. Does anyone at the SFRC really think that somebody like Mr. Sestak can slip through federal employment again, get on the promotion list and somehow make it through the most deliberative body in Congress. No? So why would anyone in the Senate think that this self-certification is anything but idiotic?

 

8,042 Diplomats Targeted

On March 2012, fcw.com cited 2,102,269 as the total number of executive branch employees.  Of those, however, only 1,877,990 are full-time, permanent employees. These numbers reportedly do not include uniformed military personnel, or data on the Postal Service and excludes legislative and judicial branch employees.

Out of the 2.1 million employees, the State Department has  a total of 71,782 employees which includes 47,110 Foreign Service National (FSN) employees; 10,871 Civil Service (CS) employees and 13,801 (FS) Foreign Service employees as of December 2014 (see stats here-pdf.)

Of the total 13,801 Foreign Service employees, 8,042 are considered “Generalists” and 5,759 are “Specialists.”  The “Specialists which include DS agents, and HR, IT professionals are not subject to Senate confirmation.  The “Generalists” are the Foreign Service Officers  whose tenure and promotion are subject to confirmation by the United States Senate.

The Senate majority in the Foreign Relations Committee appears to be targeting only Foreign Service officers.  FSOs, and FSOs alone have been asked to self-certify that they have not been “convicted of or pled guilty of any crime” in the last seven years. As far as we are aware, this requirement does not extend to nominees who are political appointees.

What makes career diplomats special, pray tell?


The White House Knows About This? You Gotta be Kidding.

This self-certification form which is not available at OPM.gov and does not include an official form number says that “The information collected and maintained in this form will be used as part of the vetting process for Foreign Service Lists submitted to the White House for eventual nomination to the Senate.”

An informed source told us that this self-certification had been negotiated between a representative of AFSA, a staffer at the Senate Foreign Relations Committee, and the State Department.

No, there were no photos.

Apparently, there also was no White House representative involved, although you might missed that when reading the unclassified State Department 14 STATE 98420 cable dated Aug 12, 2014, which says in part:

The Senate Foreign Relations Committee (SFRC) now requires additional vetting before it considers nominees for confirmation in all of the above-mentioned categories. Effective immediately all employees in those categories who have been nominated on or after April 1, 2014 must file a self-certification form certifying that they have not been convicted of a crime or pled guilty in any court over the past seven years, regardless of whether the record in the case has been sealed, expunged, or otherwise stricken from the court record. HR will notify those employees who are up for commissioning, tenure and SFS promotion that they must submit the form, available at:  [Note: we redacted sbu link] and which must be submitted to HR-PasSelfCertificat@state.gov.
Please note: failure to submit the form will mean that HR will not/not forward your name to the White House for nomination to the Senate. There is no waiver of the SFRC requirement. For those individuals who are unable to make the certification, and wish to provide information relevant to any conviction or guilty plea in the last seven years, they may report the information in the space provided on the form. Further investigation may be made on the basis of any additional information provided. The Department may then be required to provide this information to the SFRC.

 

AFSA and the State Department must realized that this is a meaningless and coersive made-up document, but both rolled over and played dead.  No other nominees of any agency of the U.S. government are obliged to sign such a certificate, which is essentially, again, meaningless in the context of a profession in which an active security clearance is a prerequisite to the performance of a job.

This is spectacular and unprecedented.

Well, not unprecedented if you count Senator McCarthy’s witch hunt and lavender scare in the 1950s.


Why roll over and play dead?

The SFRC can hold up ambassadorial nominations, senior State Dept level nominations (undersecretaries/assistant secretaries), and decide who to put first on the hearings list and who to put last (see Happy Easter Greeting: SFRC Left Town With 19 Ambassadorial Nominations Still Stuck on Glue!).  The simple act of holding up large numbers of nominees rather than passing them through at a reasonable pace wreaks havoc on State’s budget, assignments process, and people’s lives. (see Is the U.S. Senate Gonna Wreck, Wreck, Wreck, the Upcoming Bidding Season in the Foreign Service?)  Salaries, promotions, transfers, offices, authorities are money. Ambassadors who do not go to posts on time have big time resource implications in addition to political implications. People who do not have the legal authority to do their jobs (is a consular officer’s notarial legal if he/she did not receive Senate confirmation?) operate in a legal limbo presumably implying risks of all kinds.

So —

Self_certification

click image for larger view

 

Why not ‘just do it’ like Nike? It’s already done but it’s a horrible precedent, what’s next?

This is already being done. Folks have already signed this self-certifying documents and have submitted them as a requirement to their nominations.  They don’t really have a choice, do they? But where does it end?

It doesn’t.

We’ve learned that the SFRC gets information  on names recommended for promotion from the State Department “following vetting” and also directly from the OIG, including information that reportedly goes back decades.

That’s right, going back decades.

If an FSO or any employee is charged with a crime, the employee defends himself/herself in court, and if charged with an administrative matter, the employee defends himself/herself in an HR process. That’s how it works.

One SFRC staffer is now reportedly “negotiating” to gain access to OIG investigative data under the guise of allowing the Senate panel to better advise President Obama concerning the qualifications of Foreign Service Officer candidates. But what the SFRC is now “negotiating” with State and AFSA would be access to raw OIG and Diplomatic Security reports containing derogatory information without any of an employee’s mitigating, exculpatory or defensive evidence information. You okay with that?

What is Senator Corker’s SFRC going to ask for next, your diplomatic liver?

The White House seems asleep at the wheel on this. Today, it’s the State Department, tomorrow, it could be any agency in the Federal Government.

Hey, the Senate Foreign Relations Committee is doing it, what’s the rest of the Senate going to ask for next?

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Email Episode 1472: No Dust Left on Chappaqua Server?

Posted: 11:28 pm PDT

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The New York Times also posted the letter from the former secretary of state’s lawyer David E. Kendall to House Chairman Trey Gowdy.  Excerpt below:

There is no basis to support the proposed third-party review of the server that hosted the hdr22@clintonemail.com account. During the fall of 2014, Secretary Clinton’s legal representatives reviewed her hdr22@clintonemail.com account for the time period from January 21, 2009 through February 1, 2013. After the review was completed to identify and provide to the Department of State all of the Secretary’s work-related and potentially work-related emails, the Secretary chose not to keep her non-record personal e-mails and asked that her account (which was no longer in active use) be set to retain only the most recent 60 days of e-mail. To avoid prolonging a discussion that would be academic, I have confirmed with the Secretary’s IT support that no e-mails from hdr22@clintonemail.com for the time period January 21, 2009 through February 1, 2013 reside on the server or on any back-up systems associated with the server.

Page 8 of this 9-page document includes a letter from the State Department’s Under Secretary for Management Patrick Kennedy:

We understand that Secretary Clinton would like to continue to retain copies of the documents to assist her in responding to congressional and related inquiries regarding the documents and her tenure as head of the Department. The Department has consulted with the National Archives and Records Administration (NARA) and believes that permitting Secretary Clinton continued access to the documents is in the public interest as it will help promote informed discussion.

Accordingly, Secretary Clinton may retain copies of the documents provided that: access is limited to Secretary Clinton and those directly assisting her in responding to such inquiries; steps are taken to safeguard the documents against loss or unauthorized access; the documents are not released without written authorization by the Department; and there is agreement to return the documents to the Department upon request. Additionally, following counsel, we ask that, to the extent the documents are stored electronically, they continue to be preserved in their electronic format. In the event that State Department reviewers determine that any document or documents is/are classified, additional steps will be required to safeguard and protect the information.

The  entire Kendall-Gowdy letter is available to read here.

Because it’s Friday, there is also this item from Gawker and ProPublica adding a stranger twist to this  email saga.

 

 

In related news, remember when Michael Schmidt broke the NYT story about  Secretary Clinton’s exclusive use of a personal email account during her entire tenure as Secretary of State? That was on March 2.  On March 25,  Secretary Kerry finally asked the Office of Inspector General to review email and record retention at his agency.  The letter Secretary Kerry sent to IG Steve Linick is available to read here (pdf).

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I don’t know about you but … it’s that kind of week.

Greys-Anatomy perfectedflaw

Image: Tumblr, perfectedflaw via Mashable

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Burn Bag: The situation regarding spousal employment … probably the most honest response yet

Posted: 1:40 pm EDT

 

“Yes, we devote more and better lip service to the problem every year.”  

ll1ucy_reaction gifs

Image via reactiongifs.com

— an unnamed regional bureau wag’s response when asked if the situation regarding spousal employment had improved over the years.

 

 

Clinton Email Saga: How do you CTRL+F 55,000 pages of paper?

Posted: 12:43  am EDT

 

Marc Perkel who runs a spam filtering service has an interesting addition to the Clinton email saga, something to do with what happens to emails that go through a  spam filtering service.  But he also wrote this:

But – and this is a very important point – is HOW the emails were turned over. She printed each one out on paper one by one and handed over boxes of paper with the email printed. Thus those email can’t be searched electronically. So if someone wants all emails to some individual or emails about a subject then someone has to hand search these emails and they are likely to miss something.

It would have been far easier to copy all the emails onto a thumb drive and hand that over to the State Department where they could be electronically imported into the system and electronically searchable like all the other emails are. But she chose to go to great trouble to deliberately make things difficult for the State Department to process those emails.  And that indicates an act of bad faith. She’s just giving all of us the virtual finger.

This from a a guy who writes that if Clinton is the candidate,  he “would still vote for her in the general election over any Republican.”

Also see  Attn: Delivery Man Schlepping Boxes With 55,000 Pages of Emails to Foggy Bottom, You’re Wanted at the Podium! (Corrected)

When asked why these documents were not provided to State in electronic format for better searchability, the official spox said, “Well, there is some long precedent here for how this is done.”  I don’t know what kind of precedent she is talking about.  Has anyone ever had to produce  55,000 pages of emails before from a private email server? How do you search that? Control+D for smart not?

This is basically 110 reams of paper at 500 sheets per ream, or 11 bales of paper.  And if the Clinton folks instead used a thumb drive for these 55,000 pages of email, it probably could have spared a tree or two!

Reseed’s strategy is prevention and remediation — not only can we curb deforestation by encouraging consumers and retailers to adopt e-receipts, but we can also reverse some of the damage with the money saved. Forgoing 55,000 receipts can spare an entire tree, and it only takes a dollar in donations for Reseed to plant a tree.

Going Paperless: The Hidden Cost of a Receipt
Part of a series produced by The Huffington Post and the Clinton Global Initiative 

Oy! What’s that?

The ACLU writes that the politics swirling around the Clinton email scandal obscure real problems:

As the Committee for Responsibility and Ethics in Washington has documented at length, various Bush White House officials used Republican National Committee accounts to communicate with Attorney General Alberto Gonzales in what would become the scandal over the hiring and firing of United States attorneys that the Department of Justice later found to be the inappropriately politicized.

The decision by Secretary Clinton to use “clintonemail.com” exclusively for official business disregards these historical examples. Unfortunately, officials can face the strong temptation to hide official business out of the reach of Freedom of Information Act requests. And as the new retention rules recognize, that’s unacceptable for our democracy.

 

On March 17, twelve open government organizations also wrote a letter to Secretary Kerry and David S. Ferriero, the Archivist of the United States asking that the Clinton emails containing federal records be transferred to the Department of State in their original electronic form:

Because it is of the utmost importance that all of former Secretary Clinton’s emails are properly preserved and transferred back to the State Department for accountability and historical record purposes, we are asking that you verify that Secretary Clinton’s emails containing federal records are transferred to the Department of State in their original electronic form, so that all such emails may be accessible pursuant to the Freedom of Information Act. The Archivist and State Department are authorized by the Federal Records Act to seek the recovery of records that may have been improperly removed, and the task of determining which emails constitute federal records should not be left solely to Mrs. Clinton’s personal aides. Rather, the Archivist and State Department should oversee the process to ensure its independence and objectivity. To the extent that it is ascertained that any record emails were deleted, they should be retrieved if technically possible.

The letter available online here (pdf) was signed by Cause of Action, Defending Dissent Foundation, Electronic Frontier Foundation, MuckRock, National Coalition for History, National Security Archive, National Security Counselors, OpenTheGovernment.org, Pirate Times, Project on Government Oversight (POGO),  Society of Professional Journalists and The Sunlight Foundation.

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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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Old Diplomats’ Almanac Question of the Day: So you want to be an American Ambassador?

Posted: 00:07  PDT

 

NewsFlash: “The FAM is not a regulation; it’s recommendations.” Hurry, DECLINE button over there!

Posted: 12:30 pm EDT

 

“I don’t have the FAM in front of me. I can certainly check and see if there were certain policies, if there were regulations. The FAM is not a regulation; it’s recommendations.”

That’s a direct quote from the official spokesperson of the U.S. Department of State, Jennifer Psaki, who managed to change internal agency policy in just eight words during the Daily Press Briefing on March 10, 2015. Here is a screenshot from the transcript that you may look at just as soon as you’ve picked up your jaw from the floor.

Screen Shot 2015-03-11

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Dammit! Yahoo called the FAM “regulations.” It obviously has no idea there’s something wrong with its search engine!

Screen Shot 2015-03-09

 

Okay, let’s try searching for this at the State Department’s official website at state.gov.

Screen Shot 2015-03-11

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Well, it turns out, those folks running the official agency website also have no idea they have this  all wrong. Calling the FAM “regs” is not acceptable because that stands for “regulations.” This would make us all think that the FAM is regulations. And according to the official spokesperson, the FAM is really just recommendations.  And if so, this must mean that the Foreign Affairs Manual is just a suggestion or proposal for the best course of action for State Department employees. Are folks subjected to it free to decline some or all those recommendations?

The Office of Directives Management must now change the URL from http://www.state.gov/m/a/dir/regs/ to http://www.state.gov/m/a/dir/recommendations/  — otherwise this will all lead to confusion.

But this is actually great news.

That FSO who was imposed charges to the amount of $14,804.01 by the State Department for packing, shipping, storing and repacking household effects (HHE) that included 44 boxes of marble tiles weighing 5871 pounds – may now go back and ask for a refund.  The specialist who was disciplined “for improper personal conduct and failure to follow regulations” following an extramarital sexual relationship with a local national and not informing his wife about the affair, may now go back and tell the FSGB that he’ll decline the State Department’s recommendations.

FSGB No. 2009-041:  The Department argues that the regulation in effect in 1999, 6 FAM 161.4 (currently 14 FAM 611.5(2)) clearly prohibits shipment and storage of construction materials as HHE.  As a Foreign Service Officer, grievant is responsible for knowing all of the applicable regulations.

FSGB No. 2011-051 (pdf):  Department regulations state the applicable policies regarding employee conduct that may result in disciplinary action. Grievant was obliged to know these regulations and to conform his conduct accordingly. 3 FAM 4130, Standards for Appointment and Continued Employment, provides guidelines for when disciplinary action may be taken against an employee. 3 FAM 4138 provides that disciplinary action may be taken for:

criminal, dishonest or disgraceful conduct (see section 3 FAM 4139.14); . . . conduct which furnishes substantial reason to believe that the individual may be or is being subject to coercion, improper influence, or pressure which is reasonably likely to cause the individual to act contrary to the national security or foreign relations of the United States; . . . conduct which clearly shows poor judgment or lack of discretion which may reasonably affect an individual or the agency’s ability to carry out its responsibilities or mission.

This is going to put the entire Foreign Service Grievance Board out of work, right?

Anyone who’s ever been cited for FAM infractions and/or been disciplined as a result of the contents in the Foreign Affairs Manual may consider ringing their lawyers.  All employees, presumably, are now welcome to decline any or all recommendations under the FAM?

Arrggghhh! Quit laughing. This isn’t funny!

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Former Secretary Clinton talks about her state.gov private emails

Posted: 01:11 am  EDT

 

Excerpt from the transcript of Hillary Clinton’s remarks on the email controversy swirling about via Time’s @ZekeJMiller:

There are four things I want the public to know.

First, when I got to work as secretary of state, I opted for convenience to use my personal email account, which was allowed by the State Department, because I thought it would be easier to carry just one device for my work and for my personal emails instead of two.

Looking back, it would’ve been better if I’d simply used a second email account and carried a second phone, but at the time, this didn’t seem like an issue.

Second, the vast majority of my work emails went to government employees at their government addresses, which meant they were captured and preserved immediately on the system at the State Department.

Third, after I left office, the State Department asked former secretaries of state for our assistance in providing copies of work- related emails from our personal accounts. I responded right away and provided all my emails that could possibly be work-related, which totalled roughly 55,000 printed pages, even though I knew that the State Department already had the vast majority of them. We went through a thorough process to identify all of my work- related emails and deliver them to the State Department. At the end, I chose not to keep my private personal emails — emails about planning Chelsea’s wedding or my mother’s funeral arrangements, condolence notes to friends as well as yoga routines, family vacations, the other things you typically find in inboxes.

No one wants their personal emails made public, and I think most people understand that and respect that privacy.

Fourth, I took the unprecedented step of asking that the State Department make all my work-related emails public for everyone to see.

I am very proud of the work that I and my colleagues and our public servants at the department did during my four years as secretary of state, and I look forward to people being able to see that for themselves.

Again, looking back, it would’ve been better for me to use two separate phones and two email accounts. I thought using one device would be simpler, and obviously, it hasn’t worked out that way.

 

The Clinton folks have also released a Q&A on her email use:

 

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So if we tell over 70,000 employees that they should secure their email accounts and “avoid conducting official Department business from your personal email accounts,” then we go off and use our own private non-government email, what leadership message are we sending out to the troops?  Follow what I say not what I do?

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The secretary of state is the highest classifying authority at the State Department. Since she did not have a state.gov account, does this mean, she never sent/receive any classified material via email in the entirety of her tenure at the State Department? If so, was there a specific person who routinely checked classified email and cable traffic intended for the secretary of state?

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The podium heads insist that there is no restriction in use of private emails. Never mind that this is exclusive use of private emails. If a junior diplomat or IT specialist sets-up his/her own email server to conduct government business at the home backyard shed in Northern Virginia, do you think Diplomatic Security would not be after him or her? Would he/she even gets tenured by the Tenuring Board despite systems management practices contrary to published guidelines?  If the answer is “yes,” we’d really like to know how this works. For ordinary people.

And then there’s this — if there were a hundred people at State that the then secretary of state regularly sent emails to, was there not a single one who said, “wait a minute’ this might not be such a great idea?

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Bottomline despite this brouhaha? Her personal email server will remain private. She has full control over what the public get to see. End of story. Or maybe not.

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Oops, what’s this? Oh, dear.

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FOIA Access to Information Scorecard 2015: State Department Gets an “F”

Posted: 5:27 pm EDT
Updated: March 13, 8:54 pm EDT, WSJ video added

 

Yesterday, we did a snapshot of the FOIA operation in FY2014 based on the State Department’s annual reporting.

The following excerpt extracted from Making the Grade, Access to Information Scorecard 2015 (pdf)  originally published by the Center for Effective Government. To support their work, please check them out here.

A building block of American democracy is the idea that citizens have a right to information
about how their government works and what it does in their name. An informed citizenry is a key component of a healthy democracy. And without detailed information about what government does, citizens can’t hold their elected and appointed officials accountable for their actions.

These values were codified into law in 1966 with the passage of the Freedom of Information Act (FOIA). This law gives anyone a right to request information from government agencies
and requires agencies to promptly provide that information unless disclosure would harm a “specifically protected interest” established by law; protecting the personal privacy rights of individuals is one such interest. Over the years, millions of citizens have benefitted from the law’s disclosure of information about the safety of consumer products, environmental health risks in their communities, and public spending.

[…]

This is the second year the Center for Effective Government has conducted an in-depth analysis of FOIA implementation for the 15 federal agencies that together received over 90 percent of all the freedom of information requests in 2012 and 2013 (the most recent years for which data is available).

Image from Center for Effective Government

Image from Center for Effective Government

  • The Department of State score (37 percent) was particularly dismal. While its website is a bright spot for the agency (with a solid 80 percent on that sub-score), its 23 percent processing score is completely out of line with any other agency’s performance.
  • The State Department was the only agency in the scorecard whose rules do not require staff to notify requesters when processing is delayed, even though this is mandated by law.
  • While 65 percent of its requests were simple, only eight percent were processed within the required 20 days. The State Department had the second-largest request backlog and the third-lowest rate of fully-granted requests. Only 51 percent of requests were granted in full or in part at the State Department. The agency also had the longest average processing time for appeals – 540 days, or roughly a year and a half – and the second-largest backlog of appeals.

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

Posted: 1:25 am EDT

Clip via PostTV

Argghhhh! Whaaat?

Email System

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

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

 

No one “scans” emails for classified material?

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

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


Moving on to fumigation

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

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

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

 

 

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

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

 

Just because you have classification authority, must you?

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

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

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

CFR 2005 Title 22 Volume I Section 9-10:

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

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


No one is coming out of this smelling like roses

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

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

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

 

But 56th took his files with him!

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

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

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

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

 

 

Related post:

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

 

Related items:

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

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

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