Related to The New York Times report Thursday night, Criminal Inquiry Is Sought in Clinton Email Account, here are the memos from the inspectors generals of the State Department Steve Linick and Intelligence Community Inspector General I. Charles McCullough, III. The memos include the response from Under Secretary for Management Patrick Kennedy. The memos from the IGs are cc’ed to Heather Higginbottom, the Deputy Secretary for Management and Resources (D/MR). The response from U/S Management contains no courtesy copies. Trying to read as fast as I could to find that section where the IGs have requested a criminal inquiry.
Intelligence Community Inspector General (ICIG) staff conducted a preliminary assessment of the Department’s ongoing Freedom of Information Act (FOIA) process for the Clinton emails, including 296 emails publicly released by the Department on May 22, 2015. This preliminary assessment identified four areas that require immediate attention by Department leadership.
Attachment #A contains OIG’s and ICIG’s Memorandum, dated June 19, 2015, which makes four recommendations related to these areas.
Attachment #B contains U/S Patrick Kennedy’s June 25, 2015, and July 14, 2015, responses. Based on these responses, OIG and ICIG consider two of these recommendations to be closed, whereas the other two remain unresolved.
Attachment #C contains more detailed information about the status of each recommendation.
On June 29, 2015, OIG and ICIG sent U/S Patrick Kennedy a follow-up memorandum providing additional information supporting their concerns about the FOIA process used for the Clinton emails (see Attachment #D). Since then, ICIG has received confirmation from lC FOIA officials that several of these emails contained classified IC information, though they were not marked as classified. In addition, at least one of these emails has been released to the public and can be accessed on the Department’s FOIA website.
“Your posting about vacancies in the CT Bureau is interesting for retirees trying to land WAE gigs. I have been in the central HR WAE register for nearly a year and haven’t heard a peep from anyone needing help. I wrote letters to many bureau HR Specialists and individuals, and so far, “radio silence.” I do not have a large wart on my nose, either.
Most bureau HR Specialists seem to know nothing about the central HR WAE register, continuing to maintain their own lists of retirees, and using the same few WAEers over and over. While actively employed as an FSO, I experienced serious understaffing throughout the Department. DOS urgently needs to work on a better plan for a contingent workforce that includes retirees and EFMs — a system that provides more transparency and encourages bureaus to use retirees and EFMs to fill more gaps and to work on special projects — to get things done and to relieve crushing workloads on many FSOs. Many FSOs need to adapt an attitude that employees cannot “leap into the breach” and cover two, three, four positions for a sustained period of time. The prevalent philosophy of masochism within the FSO ranks must change.”
*WAE | The term WAE (When Actually Employed) is used in the State Department to describe a reemployed annuitant who works on an intermittent basis for no more than 1040 hours during each service year and whose appointment is not to exceed one year. Bureaus utilize WAEs to fill staffing gaps and peak workload periods. While the acronym WAE is currently well-known inside State, new employees understandably find it confusing. According to state.gov, in order to transition out of using the term WAE, the program has been renamed the Reemployed Annuitant (REA) Program. REA/WAE appointments are temporary, and do not exceed one year; a reemployed annuitant is not eligible to receive any other benefits.
Lawrence Wright is an author, screenwriter, playwright, and a staff writer for The New Yorker magazine. He is the author of eight books, including The Looming Tower: Al-Qaeda and the Road to 9/11, which spent eight weeks on The New York Times best seller list and was awarded the Pulitzer Prize for General Nonfiction. Last month, he wrote a piece about the civilian effort to save the five ISIS hostages.
New Yorker exclusive: Lawrence Wright’s definitive account of the secret civilian effort to save five ISIS hostages: http://t.co/jKQ6zdTiM7
The State Department appointed Carrie Greene, in the Office of Overseas Citizens Services, to be a liaison with the families. She seemed impatient with their independent investigations. “You really shouldn’t be talking to these terrorists,” she warned. “It’s against the law.” Viva Hardigg responded, “Excuse me, Carrie, but we are well acquainted with U.S. laws, and if someone you love is being held by terrorists, with whom else should you talk?” Greene ended her e-mails with “Please enjoy your day!”
When Peter Kassig was kidnapped, his parents got a call from a State Department official. Paula recalls, “She basically said, ‘We know your son has been taken in Syria. We don’t have an embassy in Syria. We don’t have people on the ground in Syria. We don’t have a diplomatic relationship with them, so we can’t do anything to help you.’ ” In May, 2014, the families had a joint meeting with Daniel Rubinstein, a special envoy appointed to handle affairs in Syria. “He was nice, but when we asked how to contact him we were told not to e-mail or phone him,” Diane Foley says. In order to talk with him on the phone, the families had to travel to a local F.B.I. office, so an agent could dial Rubinstein’s number for them.
Terrorism and violent extremism continue to pose a global threat, and combating them remains a top priority for the U.S. government. State leads and coordinates U.S. efforts to counter terrorism abroad. State’s Office of the Coordinator for Counterterrorism was elevated to bureau status in 2012 with the aim of enhancing State’s ability to counter violent extremism, build partner counterterrorism capacity, and improve coordination. GAO was asked to review the effects of this change and the new bureau’s efforts.
While the bureau has undertaken efforts to assess its progress, it has not yet evaluated its priority Countering Violent Extremism (CVE) program and has not established time frames for addressing recommendations from program evaluations. Specifically, the bureau established indicators and targets for its foreign assistance–related goals and reported results achieved toward each indicator. The bureau has also completed four evaluations covering three of its six programs that resulted in 60 recommendations. The bureau reported having implemented about half of the recommendations (28 of 60) as of June 2015 but has not established time frames for addressing the remaining recommendations. Without specific time frames, it will be difficult for the bureau to ensure timely implementation of programmatic improvements. In addition, despite identifying its CVE program as a priority and acknowledging the benefit of evaluating it, the bureau has postponed evaluating it each fiscal year since 2012.
image from gao.gov
The bureau’s number of authorized FTEs grew from 66 in fiscal year 2011 to 96 in fiscal year 2015, which is an increase of more than 45 percent. Figure 6 shows the number of authorized FTEs within the bureau for fiscal years 2011 to 2015, along with the number of FTE positions that were filled. While the bureau’s current authorized level of FTEs for fiscal year 2015 is 96 positions, it had 22 vacancies as of October 31, 2014. The percentage of vacancies in the bureau has ranged from 17 percent to 23 percent in fiscal years 2011 to 2015. According to the CT Bureau, these vacancies have included both staff-level and management positions.
In addition to the authorized FTEs, the CT Bureau also has non-FTE positions, which include contractors; interns; fellows; detailees; and “When Actually Employed,” the designation applied to retired State employees rehired under temporary part-time appointments. For fiscal years 2013, 2014, and 2015, respectively, the CT Bureau had 92, 78, and 69 such positions, in addition to its authorized FTEs, according to the CT Bureau.
State Should Evaluate Its Countering Violent Extremism Program and Set Time Frames for Addressing Evaluation Recommendations | GAO-15-684 | pdf
In December 2008, then Illinois Gov. Rod Blagojevich and his chief of staff, John Harris, were arrested for what U.S. Atty. Patrick Fitzgerald called a “political corruption crime spree” that included attempts to sell the U.S. Senate seat vacated by President-elect Barack Obama. He was accused of talking on FBI recordings about plotting to extract a $1.5 million campaign contribution from U.S. Rep. Jesse Jackson Jr.—in exchange for appointing Jackson to Obama’s vacated seat. Via Politico:
A federal criminal complaint detailed Blagojevich’s attempt to cash in on his power to appoint Obama’s replacement by first attempting to arrange a presidential cabinet appointment. When that failed, Blagojevich hoped for an ambassadorship.
Specifically, India or South Africa …er, no, India.
Via Lapham’s Quarterly
Just to show how little Blago and his chief of staff knew about the diplomatic service. Blagojevich in one recording says, “How much would you think a position like that would pay? I mean, again, this requires a lot of travel, it’s a lot of work. A reasonable…” The chief of staff responds, “Well, I mean you’d get an expense account. So it’s not all in pay.”
In 2015, the caps for Senior Foreign Service pay is between $172,074 – $183,300. He would have received hardship and COLA differentials. They’re currently 20% + 10% respectively of basic pay for FS employees assigned in New Delhi. The ambassador’s expense account? Teh-heh! Best read Bloomberg’s The Economics of Being a U.S. Ambassador.
Poor sod probably did not realize that the Indian monsoon would also ruin his properly combed hat.
In any case, for those who were hoping that Blago’s case would temper similar arrangements in the future will be disappointed. On June 22, the United States District Court for the Northern District of Illinois dismissed five of the 18 counts and ordered that the former governor be resentenced. Below is an excerpt from the Appeals Court ruling dated July 21, 2015.
Blagojevich now asks us to hold that the evidence is insufficient to convict him on any count. The argument is frivolous. The evidence, much of it from Blagojevich’s own mouth, is overwhelming. To the extent there are factual disputes, the jury was entitled to credit the prosecution’s evidence and to find that Blagojevich acted with the knowledge required for conviction.
But a problem in the way the instructions told the jury to consider the evidence requires us to vacate the convictions on counts that concern Blagojevich’s proposal to appoint Valerie Jarrett to the Senate in exchange for an appointment to the Cabinet. A jury could have found that Blagojevich asked the President-‐‑elect for a private-sector job, or for funds that he could control, but the instructions permitted the jury to convict even if it found that his only request of Sen. Obama was for a position in the Cabinet. The instructions treated all proposals alike. We conclude, however, that they are legally different: a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment.
Because the instructions do not enable us to be sure that the jury found that Blagojevich offered to trade the appointment for a private salary after leaving the Governorship, these convictions cannot stand. Compare Yates v. United States, 354 U.S. 298 (1957), and United States v. Rivera Borrero, 771 F.3d 973 (7th Cir. 2014), with Griffin v. United States, 502 U.S. 46 (1991). (Perhaps because the jury deadlocked at the first trial, the United States does not seriously contend that any error was harmless; a one-line statement in the brief differs from an argument. Cf. Hedgpeth v. Pulido, 555 U.S. 57, 60–62 (2008) (an error of this kind is not “structural”).)
McCormick describes the offense as a quid pro quo: a public official performs an official act (or promises to do so) in exchange for a private benefit, such as money. See also United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404– 05 (1999); United States v. McDonnell, 2015 U.S. App. LEXIS 11889 (4th Cir. July 10, 2015). A political logroll, by contrast, is the swap of one official act for another. Representative A agrees with Representative B to vote for milk price supports, if B agrees to vote for tighter controls on air pollution. A President appoints C as an ambassador, which Senator D asked the President to do, in exchange for D’s promise to vote to confirm E as a member of the National Labor Relations Board. Governance would hardly be possible without these accommodations, which allow each public official to achieve more of his principal objective while surrendering something about which he cares less, but the other politician cares more strongly.
A proposal to appoint a particular person to one office (say, the Cabinet) in exchange for someone else’s promise to appoint a different person to a different office (say, the Senate), is a common exercise in logrolling. We asked the prosecutor at oral argument if, before this case, logrolling had been the basis of a criminal conviction in the history of the United States. Counsel was unaware of any earlier conviction for an exchange of political favors. Our own research did not turn one up. It would be more than a little surprising to Members of Congress if the judiciary found in the Hobbs Act, or the mail fraud statute, a rule making everyday politics criminal.
Let’s work this through statute by statute. Section 1951, the Hobbs Act, which underlies Counts 21 and 22, forbids interference with commerce by robbery or extortion. Blagojevich did not rob anyone, and extortion, a defined term, “means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right” (§1951(b)(2)). The indictment charged Blagojevich with the “color of official right” version of extortion, but none of the evidence suggests that Blagojevich claimed to have an “official right” to a job in the Cabinet. He did have an “official right” to appoint a new Senator, but unless a position in the Cabinet is “property” from the President’s perspective, then seeking it does not amount to extortion. Yet a political office belongs to the people, not to the incumbent (or to someone hankering after the position). Cleveland v. United States, 531 U.S. 12 (2000), holds that state and municipal licenses, and similar documents, are not “property” in the hands of a public agency. That’s equally true of public positions. The President-elect did not have a property interest in any Cabinet job, so an attempt to get him to appoint a particular person to the Cabinet is not an attempt to secure “property” from the President (or the citizenry at large).
Sekhar v. United States, 133 S. Ct. 2720 (2013), shows that the phrase “obtaining of property” in the Hobbs Act must not be extended just to penalize shady dealings. Sekhar holds that a recommendation about investments is not “property” under §1951(b)(2) for two principal reasons: first, in the long history of extortion law it had never before been so understood (similarly, political logrolling has never before been condemned as extortion); second, the making of a recommendation is not transferrable. The Court restricted “property” to what one owner can transfer to another. By that standard a job in the Cabinet (or any other public job) is not “property” from the employer’s perspective. It is not owned by the person with appointing power, and it cannot be deeded over. The position may be filled by different people, but the position itself is not a transferrable property interest. A position is “held” or “occupied” but not “obtained,” and under Sekhar something that cannot be “obtained” also cannot be the subject of extortion.
Section 666, the basis (through a conspiracy charge) of Count 23, forbids theft or bribery in publicly funded programs (of which the State of Illinois is one). Count 23 relies on §666(a)(1)(B), which makes it a crime for an agent of a covered organization to solicit “corruptly … anything of value” in connection with a transaction worth $5,000 or more. “Corruptly” refers to the recipient’s state of mind and indicates that he understands the payment as a bribe or gratuity. United States v. Hawkins, 777 F.3d 880, 882 (7th Cir. 2015). It would not be plausible to describe a political trade of favors as an offer or attempt to bribe the other side.
So if a Governor appoints someone to a public commission and proclaims the appointee “the best person for the job,” while the real reason is that some state legislator had asked for a friend’s appointment as a favor, then the Governor has committed wire fraud because the Governor does not actually believe that the appointee is the best person for the job. That’s not a plausible understanding of §1346, even if (as is unlikely) it would be valid under the First Amendment as a criminal penalty for misleading political speech. And no matter what one makes of the subject, the holding of Skilling v. United States, 561 U.S. 358 (2010), prevents resort to §1346 to penalize political horse-trading. Skilling holds that only bribery and kickbacks violate §1346. So unless political logrolling is a form of bribery, which it is not, §1346 drops out.
The prosecutor insists, however, that Blagojevich’s situation is different and uncommon because he sought a post in the Cabinet for himself. It isn’t clear to us that this is unusual. The current Secretary of State was appointed to that position from a seat in the Senate, and it wouldn’t surprise us if this happened at least in part because he had performed a political service for the President. Ambassadors, too, come from the House or Senate (or from state politics) as part of political deals.
Some historians say that this is how Earl Warren came to be Chief Justice of the United States: he delivered the California delegation at the 1952 Republican convention to Eisenhower (rather than Senator Taft) in exchange for a commitment to appoint him to the next vacancy on the Supreme Court.
If the prosecutor is right, and a swap of political favors involving a job for one of the politicians is a felony, then if the standard account is true both the President of the United States and the Chief Justice of the United States should have gone to prison. Yet although historians and political scientists have debated whether this deal was made, or whether if made was ethical (or politically unwise), no one to our knowledge has suggested that it violated the statutes involved in this case. (Whether it might have violated 18 U.S.C. §599, and whether that statute is compatible with the First Amendment, are issues we do not address.)
The Federal Trade Commission’s Lisa Weintraub Schifferle, an attorney for FTC’s Division of Consumer and Business Education pens the following warning:
If you’re an OPM data breach victim, you probably know to look out for identity theft. But what about imposter scams? In the latest twist, imposters are pretending to be the FTC offering money to OPM data breach victims.
Here’s how it works: A man calls and says he’s from the FTC and has money for you because you were an OPM data breach victim. All you need to do is give him some information.
Stop. Don’t tell him anything. He’s not from the FTC.
One fake name the caller used was Dave Johnson, with the FTC in Las Vegas, Nevada. There’s not even an FTC office in Las Vegas. The FTC won’t be calling to ask for your personal information. We won’t be giving money to OPM data breach victims either.
That’s just one example of the type of scam you might see. You may get a different call or email. Here are some tips for recognizing and preventing government imposter scams and other phishing scams:
• Don’t give personal information. Don’t provide any personal or financial information unless you’ve initiated the call and it’s to a phone number you know to be correct. Never provide financial information by email.
• Don’t wire money. The government won’t ask you to wire money or put it on a prepaid debit card. Also, the government won’t ask you to pay money to claim a grant, prize or refund.
• Don’t trust caller ID. Scammers can spoof their numbers so it looks like they are calling from a government agency, even when they are not. Federal agencies will not call to tell you they are giving you money.
If you’ve received a call or email that you think is fake, report it to the FTC. If it’s an email that relates to the OPM breach, you also can forward it to US-CERT at firstname.lastname@example.org. If you gave your personal information to an imposter, it’s time to change those compromised passwords, account numbers or security questions.
The latest update from “M” on the OPM breach dated July 15, notes that “The State Department never transferred personnel records to the OPM facility. However, if you had other U.S. Government service prior to joining State, you may have had records that were involved.” On the background information breach, it says that “State Department employees’ SF-85 and SF-86 forms (depending on the appointment) were in the OPM system and thus were impacted. However, other background investigation material was not.”
If you have additional questions email DG DIRECT [DGDIRECT@STATE.GOV] or OPM’s new email: email@example.com
AFSA’s latest update to its membership is dated July 10 and available to read here.
Some developments on the fallout from the data breach:
Joseph Cassidy served 25 years in the Foreign Service. He joined the Service in 1989 and previously served in Georgetown, Nairobi, Windhoek, OSCE, USUN and Baghdad. He also served at IO, DRL, the WH, and as Special Assistant to P, INR and the Executive Secretariat. His most immediate assignment prior to retirement this past spring is Director of Policy and Regional and Functional Organizations at the Bureau of International Organizations. He pens 10 fixes for America’s ailing State Department in Foreign Policy’s Argument column.
Here are the best lines, in no particular order, from his FP piece; in technicolor font, of course, because, why not?
1. “[I]t’s not clear what authority remains for State, other than delivering the diplomatic mail.”
2. “The regional bureau assistant secretaries occupy sixth floor offices beneath the secretary, and the functional bureau assistant secretaries fight like cats in a bag for the next best real estate.”
Image from xlestatx72.tumblr.com via buzzfeed
3. “There are certain exceptions to the rule that upper floors are closer to God (including some temporarily semi-powerful special envoys slumming it on the lower floors), but employees below the sixth floor can’t help but feel like passengers berthed in steerage on the Titanic.”
4. “This centralization of diplomatic interactions by senior officials who are not subject matter experts is a particular temptation at State because high-level diplomacy is, well, fun.”
5. “It is no wonder that senior officials are reticent, even if unconsciously, to devolve responsibility down, or that too many “kiss-up, kick-down” style mid-level managers covet that high-level life and manage as if their subordinates exist only to make them look good.”
6. “Limiting their numbers, and cutting the large number of semi-independent special envoys, can help restore a more sustainable hierarchy, instead of what we have now, which is like fielding a soccer team with nine strikers clustered around the opponent’s goal, and a goalie and single defender lonely in the backfield.”
7. “If the intent is to simultaneously demonstrate haughty disdain and weaselly incompetence, the midday press briefing ritual — badgering reporters cornering a backpedaling, defensive State spokesperson — is the perfect vehicle.”
YouTube is littered with fine examples
8. “[D]ecisions by the sorting hat don’t always match an officer’s interests and experience. And, like trying to move from Hufflepuff to Ravenclaw, changing one’s cone can be as unpleasant as the semiofficial department term for it: “conal rectification.”
9. “The department does have senior leaders with broad talents. But we also have too many who write beautifully but couldn’t organize a grade school lunch line. Others can speak authoritatively, but lack reporting experience beyond writing an annual holiday card, or can balance a budget but possess diplomatic skills more likely to produce enemies than allies for the United States.”
10. “Gryffindor’s quidditch team didn’t operate on the principle of “One Team, Multiple Systems” and neither should State.”
11. “Like the pack dogs in the movie Up constantly distracted by squirrels, too many senior officials spend too much time preoccupied with the urgent rather than the important.”
12. “State’s organizational culture is antiquate and inefficient, concentrating decisionmaking in the hands of a few extremely overburdened top officials.”