NPR News writes that both Florida Sen. Marco Rubio and former Florida Gov. Jeb Bush have defended birthright citizenship, but they have said more needs to be done about women who might come into the U.S. expressly to have children. “If there’s abuse, if people are bringing, pregnant women are coming in to have babies simply because they can do it, then there ought to be greater enforcement,” Bush told conservative radio host Bill Bennett this week, as reported by Politico. Like how, or greater enforcement of what?
Thanks to brave presidential candidates Trump and Bush, et al, the term “anchor baby” is now the subject of interest and ignorance by a media preoccupied with whatever shiny object is held in front of it.
Trump wants to tear up part of the Constitution he unilaterally proclaims is unconstitutional; no one is sure what the other Republicans plan to “do” about this issue, but they sure don’t support it somehow.
So what are “anchor babies” and which parts of American law affect them?
An “anchor baby” (many find the term offensive, referring as it does to a child as an object) is a child born in the United States to a foreign citizen, legally or illegally present in the U.S., who, by virtue of the 14th Amendment to the Constitution, automatically and forever acquires American citizenship. The child need only prove s/he was born in the U.S.
The term anchor comes into play because at the age of 21 the child can begin filing green card paperwork for his/her extended family. The single American citizen in a family becomes the “anchor” through which all can eventually become legal permanent residents of the U.S. and soon after, citizens.
Many conservatives feel conveying citizenship so freely cheapens the meaning of being an “American,” and especially object to the idea that a mother illegally in the United States can birth an American citizen. Others are troubled by a growing industry that sends foreign mothers to the U.S. specifically so that they can create such citizens, so-called “birth tourism.”
The concept that anyone born in the U.S. (one exception: those born not subject to U.S. law, which has been held to apply primarily to Native Americans and to children of certain accredited foreign diplomats exempt [immune] from U.S. laws, though there are loopholes even there) is automatically an American citizen is part of the 14th Amendment to the Constitution, the so-called Citizenship Clause.
The 14th was adopted in 1868, in the aftermath of the Civil War as part of reconciling the status of millions of slaves forcibly brought to the United States. The Citizenship Clause specifically overruled the 1857 Supreme Court decision in Dred Scott v. Sandford), which had held that Americans descended from African slaves could not be citizens of the United States. The Amendment cleared up any ambiguities, stating “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
The most significant test of the 14th Amendment came in 1898, via United States v. Wong Kim Ark. The Supreme Court upheld that a child born in the United States automatically became a U.S. citizen. At issue were laws passed after the Wong child’s birth that excluded Chinese citizens from entering the U.S. The decision in Wong has been understood to mean that the legal status of the mother, as well as any secondary immigration laws below the Constitution, have no bearing on the granting of citizenship.
It can get complicated, and there have been unsuccessful efforts to overturn or reinterpret Wong in light of contemporary concerns over immigration.
For those who like their law in Latin, the idea that anyone born in a certain country automatically acquires citizenship there is called jus soli (right of soil.) The opposite, that citizenship is derived only via one’s parents, is called jus sanguinis (right of blood.) No European nation offers unrestricted jus soli, and very few other countries outside the Western Hemisphere do either.
Foreigners, Visas and Babies
While some foreigners who give birth in the U.S. enter illegally by walking across a land border, a significant number of moms enter the U.S. on visas or the rough equivalent, the visa waiver program, which provides less fettered access to citizens from certain countries, mostly Europeans. Some give birth in the U.S.; is this legal?
It is. There is no law whatsoever that prohibits someone from coming to the United States specifically to give birth here and create an “anchor baby.”
Many uninformed commentators point to two visa laws that they feel may prohibit such an act, the “public charge” provision and the fraud provision.
[…] Birth Tourism
The current issue of Rolling Stone contains a long article on “birth tourism.” Such “tourism” is a huge business in Asia, particularly in China where rising incomes coincide with existing interest in emigration. Companies arrange for everything; a mom need only provide money. The companies legally assist the mother in obtaining a visa, arrange for her to stay in the U.S. in an apartment complex (dubbed “maternity hotels”), usually in California for convenience for flights from Asia, full of other Chinese moms, and then give birth in a local hospital staffed with Chinese-speaking doctors.
There is absolutely nothing illegal about birth tourism under U.S. law.
The Daily Signal picked it up and got an official statement from deputy spox Mark Toner:
State Department Deputy Spokesperson Mark Toner says the reason for the revisions is actually “to underscore that the Department encourages employees to engage with the public on matters related to the nation’s foreign relations.”
“The revised policies and procedures are more protective of employee speech as they establish a higher bar for limiting employees’ writing or speaking in their personal capacity, while also recognizing changing technologies in communication, such as social media,” Toner said in a statement to Daily Signal.
Toner also said the revisions do not change the procedures employees must follow before testifying in court or before Congress but “streamline the review process and also remind employees about existing rules regarding the disclosure of classified and other protected information.”
Streamline-apalooza! Here’s the laugh out loud cry from our favorite Veronica Mars:
“It’s an absolute overreach,” Rep. Jason Chaffetz, chairman of the House Oversight and Government Reform Committee told the Daily Signal:
“They should be able to talk to the media, they should be able to speak to Congress,” the Utah Republican said. “They have an absolute and total right to interact with Congress. There are whistleblower protections. That’s not a balanced approach to current and former employees’ rights.”
No kidding! We imagine that the State Department would say no one is preventing anyone from speaking to the media or Congress, they just want to know what you’re going to say first. Before you say it. And hey, the agency will even help you clean it up, if needed.
When the ACLU defended Mr. Van Buren in 2012, it made the following argument:
The Supreme Court has long made clear that public employees are protected by the First Amendment when they engage in speech about matters of public concern. A public employee’s First Amendment rights can be overcome only if the employee’s interest in the speech is outweighed by the govemment’s interest, as employer, in the orderly operation of the public workplace and the efﬁcient delivery of public services by public employees. Pickering v. Bd. of Educ, 391 U.S. 563, 568 (1968). The government bears an even greater burden of justiﬁcation when it prospectively restricts employees’ expression through a generally applicable statute or regulation. United States v. National Treasury Employees Union, 513 U.S. 454, 468 (1995) (“NTEU”).
The Supreme Court has repeatedly held that public employees retain their First Amendment rights even when speaking about issues directly related to their employment, as long as they are speaking as private citizens. Garcetti
v. Ceballos, 547 U.S. 430, 421 (2006).
Further, the State Department’s pre-publication review policy, as applied to blog posts and articles, raises serious constitutional questions. Through its policy, the State Department is prospectively restricting the speech of Mr. Van Buren as well as all present and future State Department employees. Where, as here, the restriction limits speech before it occurs, the Supreme Court has made clear that the government’s burden is especially heightened. NTE U, 513 U.S. at 468. The State Department must show that the interests of potential audiences and a vast group of present and future employees are outweighed by that expression’s necessary impact on the actual operation of government. Id. Courts have also required careful tailoring of prospective restrictions to ensure they do not sweep too broadly and that they actually address the identiﬁed harm. Id. at 475. Given this heightened standard, it is highly unlikely that the State Department could sustain its burden of demonstrating that its policy is constitutional.
In 2012, the ACLU presumably, used the 2009 version of 3 FAM 4170. The updated version of 3 FAM 4170 issued July 27, 2015 is much tighter and has a much wider reach. We don’t know how one could argue that this enhanced policy could better sustain constitutional challenge. But then, perhaps, State has a stable of constitutional lawyers at a ready. Besides, those folks outside the building do not have legal standing to challenge these rules. So.
Oh, wait, perhaps, the State Department is also counting that no one will cross the fine line after Mr. Van Buren, and this policy functions, at its core, as a simple deterrent.
On July 27, 2015, two months short of Year 3 since Mr. Van Buren retired, the State Department without much fanfare released its new 3 FAM 4170 rules in 19 pages. For the “FAM is not a regulation; it’s recommendations” crowd, we hope you folks have great lawyers.
My! Look who’s covered!
The updated FAM, same as the old FAM, is divided into two meaty parts — official capacity public communication and personal capacity public appearances and communications. The new version of 3 FAM 4170 is all encompassing, covering the following (not exhaustive list):
— all personnel in the United States and abroad who are currently employed (even if in Leave Without Pay status) by the Department of State and the United States Agency for International Development (USAID), including but not limited to Foreign Service (FS) employees, Civil Service (CS) employees (including schedule C appointees and annuitants returning to work on temporary appointments on an intermittent basis, commonly referred to as “While Actually Employed (WAE)” personnel), locally employed staff (LE Staff), personal service contractors (PSCs), employees assigned to fellowships or details elsewhere and detailees or fellows from other entities assigned to the Department, externs/interns, and special government employees (SGEs).
— Former Department of State employees (including former interns and externs) must seek guidance from A/GIS/IPS for applicable review process information. Former USAID employees (including former interns and externs) must consult the Bureau for Legislative and Public Affairs for applicable review process information.
— Employee testimony, whether in an official capacity or in a personal capacity on a matter of Departmental concern, may be subject to the review requirements of this subchapter. Employees should consult with the Department of State’s Office of the Legal Adviser or USAID’s Office of the General Counsel, as appropriate, to determine applicable procedures.
In practical terms, we think this means that if you get summoned to appear before the House Select Benghazi Committee and is testifying in your personal capacity as a former or retired employee of the State Department, these new regulations may still apply to you, and you may still need clearance before your testimony.
Convince us that we’re reading this wrong, otherwise, somebody poke Congress, please.
Also, does this mean that all retired FSOs who contribute to ADST’s Oral History project are similarly required to obtain clearance since by its definition, “online forums such as blogs” and “a person or entity engaged in disseminating information to the general public” are considered media organizations under these new rules?
Institutional interest vs. public interest
We are particularly interested in the personal capacity publication/communication rules because that’s the one that can get people in big trouble, as shown in the Van Buren case. Here’s the equivalent of our bold Sharpie.
3 FAM 4176.4 says: “A principal goal of the review process for personal capacity public communications is to ensure that no classified or other protected information will be disclosed without authorization. In addition, the Final Review Office will evaluate whether the employee’s public communication is highly likely to result in serious adverse consequences to the efficiency or mission of the Department, such that preventing those consequences outweighs the employee’s presumptively high interest in communicating and the public’s interest in receiving the communication.”
Institutional interest trumps public interest? Where do you draw the line? You can still write a dissent cable as the “3 FAM 4172.1-3(D). No Review of Dissent Channel Communications” included in the 2009 version of the FAM survives as 3 FAM 4171 (e) in the current rules:
Views on matters of Departmental concern communicated through methods of internal communication (including, for example, the Department’s internal dissent channel) or disclosures made pursuant to 5 U.S.C. 2302(b)(8)(B) are not subject to the review requirements of this subchapter.
Which is fine and all, except — who the heck gets to read your dissent cable except the folks at Policy Planning? The State Department is not obligated to share with Congress or with the American public any dissenting opinions from its diplomats. One might argue that this is appropriate, after all, you can’t have diplomats second guessing in public every foreign policy decision of every administration. So, the American public typically only hears about it when a diplomat quits. But given the two long wars in Iraq and Afghanistan, is the American public best served by this policy? And by the way, candid opinion like the case of the six-page memo, entitled “The Perfect Storm,” in the lead up to the Iraq War, is still classified. Why is that?
The new regs also say this:
“To the extent time and resources allow, reviewers may assist the employee in identifying possible modifications or other adjustments to avoid the inclusion of non-classified but otherwise protected information, or the potential for adverse consequences to the Department’s mission or efficiency (including the employee’s ability to perform his or her duties effectively in the future).”
If we weigh the Van Buren book against these parameters, how much of the book’s 288 pages would survive such “modifications” or “adjustments.”
There goes the book, We Meant Well in Afghanistan, Also.
The Peter Van Buren Clause
We’ve come to call “3 FAM 4172.1-7 Use or Publication of Materials Prepared in an Employee’s Private Capacity That Have Been Submitted for Review“ as the Peter Van Buren clause. Below is the original language from the 2009 version of the FAM:
An employee may use, issue, or publish materials on matters of official concern that have been submitted for review, and for which the presumption of private capacity has not been overcome, upon expiration of the designated period of comment and review regardless of the final content of such materials so long as they do not contain information that is classified or otherwise exempt from disclosure as described in 3 FAM 4172.1-6(A).
That section of the FAM appears to survive under the current 3 FAM 4174.3 Final Review Offices, underlined for emphasis below.
c. To ensure that no classified information is improperly disclosed, an employee must not take any steps to proceed with a public communication (including making commitments to publishers or other parties) until he or she receives written notice to proceed from the Final Review Office, except as described below. If, upon expiration of the relevant timeframes below, the Final Review Office has not provided an employee with either a final response or an indication that a public communication involves equities of another U.S. Government entity (including a list of the entity or entities with equities), the employee may use, issue, or publish materials on matters of Departmental concern that have been submitted for review so long as such materials do not contain information described in 3FAM 4176.2(a) and taking into account the principles in 4176.2(b). When an employee has been informed by the Final Review Office that his or her public communication involves equities of another U.S. Government entity or entities, the employee should not proceed without written notice to proceed from the Final Review Office. Upon the employee’s request, the Final Review Office will provide the employee with an update on the status of the review of his or her public communication, including, if applicable, the date(s) on which the Department submitted the employee’s communication to another entity or entities for review. Ultimately, employees remain responsible for their personal capacity public communications whether or not such communications are on topics of Departmental concern.
The Van Buren clause appears to survive, until you take a closer look; italicized below for emphasis:
3 FAM 4176.2 (a) Content of Personal Capacity Public Communications
a. When engaging in personal capacity public communications, employees must not:
(1) Claim to represent the Department or its policies, or those of the U.S. Government, or use Department or other U.S. Government seals or logos; or
(2) Disclose, or in any way allow the public to access, classified information, even if it is already publicly available due to a previous unauthorized disclosure.
3 FAM 4176.2 (b) Content of Personal Capacity Public Communications
b. As stated in 3 FAM 4174.2(c)(1), a purpose of this review process is to determine whether the communication would disclose classified or other protected information without authorization. Other protected information that is or may be subject to public disclosure restrictions includes, but is not limited to:
(1) Material that meets one or more of the criteria for exemption from public disclosure under the Freedom of Information Act (FOIA), 5 U.S.C. 552(b), including internal pre-decisional deliberative material;
(2) Information that reasonably could be expected to interfere with law enforcement proceedings or operations;
(3) Information pertaining to procurement in violation of 41 U.S.C. 2101-2107;
(4) Sensitive personally identifiable information as defined in 5 FAM 795.1(f); or
(5) Other nonpublic information, when used in a manner as prohibited by 5 CFR 2635.703.
Can one make the case that the conversations between the writer and his boss in the Van Buren book are “internal pre-decisional deliberative material?” Or that any conversation between two FSOs are deliberative? Of course. State can make a case about anything and everything. Remember, it did try to make the case that the book contained classified information. (see “Classified” Information Contained in We Meant Well – It’s a Slam Dunk, Baby!). Also, we should note that documents marked SBU or sensitive but unclassified are typically considered nonpublic information. Under these new rules, it’s not just classified information anymore, anything the agency considers deliberative material or any nonpublic material may be subject to disclosure restrictions.
3 FAM 4174.2 Overview (2015): Waving the ‘suitability for continued employment’ flag
c. Employees’ personal capacity public communications must be reviewed if they are on a topic “of Departmental concern” (see 3 FAM 4173). Personal capacity public communications that clearly do not address matters of Departmental concern need not be submitted for review.
(1) The personal capacity public communications review requirement is intended to serve three purposes: to determine whether the communication would disclose classified or other protected information without authorization; to allow the Department to prepare to handle any potential ramifications for its mission or employees that could result from the proposed public communication; or, in rare cases, to identify public communications that are highly likely to result in serious adverse consequences to the mission or efficiency of the Department, such that the Secretary or Deputy Secretary must be afforded the opportunity to decide whether it is necessary to prohibit the communication (see 3 FAM 4176.4).
(2) The purposes of the review are limited to those described in paragraph (1); the review is not meant to insulate employees from discipline or other administrative action related to their communications, or otherwise provide assurances to employees on matters such as suitability for continued employment (see, e.g., 3 FAM 4130 for foreign service personnel and 5 CFR 731 for civil service personnel). Ultimately, employees remain responsible for their personal capacity public communications whether or not such communications are on topics of Departmental concern.
More 3 FAM 4170 Fun: Not meant to insulate employees from discipline or other administrative action
3 FAM 4176.1(e) General
e. As stated in 3 FAM 4174.2(c)(1), the review process is limited to three purposes. (See also 3 FAM 4176.4.) Therefore, completion of the review process is not a Department “clearance” or “approval” of the planned communication, and is not meant to insulate employees from discipline or other administrative action related to their communications, including for conducting personal capacity public communications that interfere with the Department’s ability to effectively and efficiently carry out its mission and responsibilities, by, for example, disrupting operations, impairing working relationships, or impeding the employee from carrying out his or her duties. Ultimately, employees remain responsible for their personal communications whether or not the communications are on topics of Departmental concern.
3 FAM 4176.3 Employee must disclose his/her identity to Department reviewers
a. PA reviews all personal capacity public communications on matters of Departmental concern by senior officials at the Assistant Secretary level and above, including Chiefs of Mission. For all other employees wishing to communicate publicly in their personal capacity on matters of Departmental concern, there are two review processes available:
(1) Individuals may, as a first step, submit their requests for review to the Final Review Office (as described in 3 FAM 4174.3(a)). For employees submitting a request to PA, such requests should be submitted via PAReviews@state.gov. The Final Review Office will then consult with the employee’s immediate supervisor(s) and any other offices concerned with the subject matter in accordance with 3 FAM 4176.4(c). The Final Review Office will then make the final determination; and
(2) Alternatively, employees may initially submit their requests for review to their immediate supervisor(s), the Public Affairs Office in their bureaus or posts, and any other Department offices concerned with the subject matter. The materials must then be submitted to the Final Review Office, noting all such reviewers and any comments received. The Final Review Office will then verify those reviews, assess whether other reviews are needed, and make the final determination.
b. Supervisors, Public Affairs Offices, or any other offices involved in the review process must flag for the Final Review Office any view that the proposed public communication may:
(1) Contain classified or other protected information;
(2) Result in serious adverse consequences to the efficiency or mission of the Department; or
(3) Be or become high impact or high profile, for example communication that is controversial, or otherwise involves a sensitive Department priority; and
(4) The Final Review Office will then apply the standard described in 3 FAM 4176.4(a).
c. In all cases, an employee must disclose his or her identity to the relevant Department reviewers.
d. If another U.S. Government entity seeks Department review of a personal capacity public communication by that entity’s employee, the Department office in receipt of such request must coordinate with PA.
3 FAM 4177 Noncompliance may result in disciplinary action, criminal prosecution and/or civil liability.
a. Failure to follow the provisions of this subchapter, including failure to seek advance reviews where required, may result in disciplinary or other administrative action up to and including separation. Violations by USAID employees may be referred to the Deputy Administrator for Human Resources or USAID’s Office of the Inspector General (see 3 FAM 4320). Disciplinary action will be pursued consistent with applicable law, including 5 U.S.C. 2302
b. Publication or dissemination of classified or other protected information may result in disciplinary action, criminal prosecution and/or civil liability.
This is the part where we must remind you that what the former State Department spokesperson said about the FAM being recommendations is a serious bunch of hooey!
Oh, hey, remember the 2-day clearance for tweets …’er scandal?
We wrote about it here and here, and the “ain’t gonna happen 2-day clearance” for social media posting is now part of the Foreign Affairs Manual. Apologies if the 2-working day review timeframe below for social media postings is too shocking for 21st century statecraft innovation purists. These are the rules, unless you can get the current State Department spokesperson to say from the podium that these are merely recommendations that employees/retirees/interns/charforce are free to ignore. We must add that the 2009 version of these rules, required that materials of official concern submitted in the employee’s private capacity must “be submitted for a reasonable period of review, not to exceed thirty days.” The old rules made no distinction whether the submitted material is a book manuscript, an article, a blogpost or a tweet.
screen grab from 3 FAM 4170
Yo! What’s Missing?
The new regs emphasized the need for official clearance for official and private communication “to ensure that no classified information is improperly disclosed.” It however, does not include any guidance on the use of a private server for emails and social media postings where classified information could be improperly disclosed.
A Much Better FAM Version, Hey?
From the organizational perspective, some folks would say that this is a “much better” version of the FAM. We’d call this a much better plug. An insider could argue that this is a “very fine sieve.”
Okeedokee, but what do you think will be its consequences for the rank and file? No one will officially admit this as the intent, but after reading this new version of 3 FAM 4170, this is what we think it really says:
The updated regs also says that “In light of the rapid pace with which many social media platforms are used, all offices, sections, or employees who routinely post to such platforms in their official capacity are encouraged to seek advance blanket authorization to engage for their social media communications, in accordance with 3 FAM 4175.1(c).”
The blanket authorization as far as we can tell only applies to those who are engaged in social media platforms in their official capacities, it makes no similar provision for employees in social media platforms in their private capacities.
Fun With Fido or Grumpy Cat
The new regs helpfully notes that “Employees who, in their personal capacity, wish to communicate publicly on matters that are clearly not “of Departmental concern” (see 3 FAM 4173) need not seek Department review under the procedures outlined herein, and need not use the personal capacity disclaimer discussed below in paragraph (b).”
So, basically, if you blog, tweet or write a book about Kitty Kat or Fidodog, or about their travels and adventures in Baghdad, Kabul, Sanaa, and all the garden spots, you don’t need to seek Department review. That is, as long as Kitty Kat is not secretly arming the rodent insurgents and tweeting about it and Fidodog is not flushing government money down the toilet and blogging about it.
When I wrote that Rawr piece in 2011, I wrote this:
I have not seen or heard of Tigers actually yanking anybody’s clearance due to an offending blog. I am aware of private sessions of discouragements, issues with onward assignments, and of course, threats of various colors and stripes among directed at FS bloggers. And as far as I know, they have not technically kicked out anyone who blogs either — unless you call the “push” to retirement a payback kick.
Well, State did yank Peter Van Buren‘s clearance afterwards, but it was for more than just a blog. Occasionally, I get a request to cite a case where identified individuals got into real trouble due to blogging in the Foreign Service. Except for a small number of cases (PVB, ADA and MLC), I’ve refrained from writing about the blog troubles out of concern that writing about them makes it worse for the individual bloggers. In many cases, the bloggers themselves quietly remove their blogs online without official prompting. Out of the abundance of caution.
A recent FSGB case decided in January 2015 shows a charge of “Poor Judgment” against an FSO based on a post in her personal blog written in October 2008. That’s right. The blog post was online for barely a day and was taken down in 2008. To be clear, the poor judgment charge related to the blog is just half the charges filed against this employee. But in January 2013, State proposed a five day suspension for the FSO. Excerpt from the FSGB record of proceeding available online:
The Improper Personal Conduct charges are based on grievant’s personal relationships in the summer of 2008 with two individuals to whom she had previously issued non-immigrant visas, and the Poor Judgment charge is based on a post in her personal Internet blog in October of 2008.
During a flight to the United States during the spring of 2008, grievant unexpectedly encountered another citizen of Country X (Citizen B) for whom she had issued a visa, fell into conversation with him, and exchanged contact information. Upon her return to Country X, grievant was hospitalized in June 2008. While in the hospital, she received a call from Citizen B, who said he would ask his family members to visit her. They did so. Soon after Citizen B returned to Country X, grievant invited him to lunch. Thereafter, the two conducted an intimate relationship for about three weeks.
Later, Citizen A contacted grievant requesting her assistance in issuing a visa to his new wife. Grievant told him she could not be involved in his wife’s visa application process because she knew him. Consequently, another Consular Officer adjudicated and issued the visa for Citizen A’s new wife. Shortly thereafter, grievant posted on her personal blog (using Citizen A’s initials) a comment saying, in effect, that sharing a bottle of wine with someone could be disastrous, especially when that person shows up at your workplace seeking a visa for his new bride. Within a day of this blog posting, grievant was warned by a colleague to take it down, and grievant did so.
In a letter issued on January 31, 2013, the Department of State proposed to suspend grievant for five workdays, based on three charges that arose from conduct occurring in 2008. Ultimately, the suspension was reduced to three workdays. Grievant’s appeal raised issues of timeliness as well as challenges to the substance of the charges. Grievant is a class FS- 04 Consular Officer who was serving abroad in 2008. In May 2009, a co-worker at her Embassy complained to the RSO that grievant had become too close to some visa applicants and their attorneys and was maintaining improper personal relationships with them. The Office of the RSO investigated the allegations and eventually referred the matter to the Consular Integrity Division (CID). In its report of October 2009, CID found no wrongdoing and returned the matter to post. Nonetheless, the RSO referred the complaint of the co-worker to DS for investigation, but did not do so until January 2011. DS, for no articulated reason, did not assign the case to a field agent until September 28, 2011. DS then did not complete its investigation and forward the matter to HR until late October or early November 2012.
The Board concluded that there was no fact-based excuse for the delay at the RSO level and that there was no evidence of necessity for the length of time engulfed in the DS investigation. The Board found that the grievant had been harmed by the overall delay, caused by two different bureaucracies in the Department. The Board identified the harm as the statistically diminished promotability of this particular officer, given her combination of time-in-service and time-in- class.
The FSGB explains in the footnotes that 1) “She [grievant] was unmarried and remained unmarried through at least the date of her suspension. We mention her marital status only because in other disciplinary cases, an officer’s married status has been deemed a risk for coercion if someone knowing of the sexual misconduct threatened to reveal it to the officer’s spouse. Here, however, it does not appear that the grievant’s marital status was relevant to the selection of penalty or the choice of the charges. Noting grievant’s marital status may obviate confusion, if anyone examining other grievances or appeals should consider this case for comparison purposes.” 2) “Because of sensitivity surrounding the country in which grievant served her first tour, both parties refer to it as “Country X…”
In its decision last January, the FSGB held (pdf) that “grievant had shown by a preponderance of the evidence that the Department’s delay of over three years in proposing grievant’s suspension was unexcused and unreasonable and that grievant’s promotional opportunities had been harmed as a result of the delay. Grievant is entitled to reversal of the three-day suspension for charges of Improper Personal Conduct and Poor Judgment, as well as removal of the suspension letter from her OPF. Grievant is entitled to promotion to the FS-03 level, as recommended by the 2013 Selection Boards, retroactive to 2013.”
While this case was resolved on the FSO’s favor, I’m taking note of this case here for several reasons:
1) According to the redacted report published online, the misconduct was reported to the agency by one of grievant’s co-workers on May 20, 2009. An embassy is a fishbowl. Anyone at post familiar with one’s activities, in real life or online can file an allegation. If you write a blog specific to your post, people at post inevitably will connect you to it. A single blogpost, even if taken down, can reach back and bite. Across many years. State’s position is that grievant’s argument that the Department had no regulations or guidelines about personal blogs in 2008 “does not make her posting any less wrong.” Interestingly, that official line doesn’t seem to apply when it comes to the former secretary of state’s use of private email.
2) Even if an allegation is dismissed by the Consular Integrity Division (CID), it does not mean the end of it, as this case clearly shows. After the case was dismissed by CID, the case was forwarded to Diplomatic Security for another investigation. “Counting from the date on which the behavior was reported (as specific misconduct) to the agency to the date of proposal of the five-day suspension, the period of delay in dispute is three (3) years and eight months.” While I can understand what might have prompted the initial complaint, I’m curious about the second referral. I’d be interested to see comparable cases to this. I’m wondering if this case would have been referred to a second investigation if she were a male officer? Absolutely, yes, no? But why a duplicate investigation?
3) When grievant departed Country X for a new post, her continued blogging activity prompted other Consular (CID) investigations. Since there are no public records of these incidents until the cases end up in the FSGB, it is impossible to tell how many FS employees have been referred to CID or DS for their blogging activities. Or for that matter, what kind of topics got them in trouble. I am aware of cases where FS bloggers had difficulties with onward assignment, but those were never officially tied to their blogging activities; that is, there were no paper trail pointing directly at their blogs. This is the first case where we’re seeing on paper what happens:
Grievant states in the ROP that “while in [REDACTED] she did not receive any of the initial positions she bid on. Eventually, she was told that even though she had a good reputation for her work, “there was the blog thing.” Also, she recalls that a “handshake” offer of a Consular Chief position in [REDACTED] was rescinded. She attributes this to an unnamed official’s claim that “Embassy decided they did not want me after CID told them about my history (presumably the blog, and my time in Country X).”
4) Beyond the consequences of not getting onward assignments, here’s the larger impact: “In 2015, the first year her file would be reviewed without any discipline letter, grievant would have been in the Foreign Service for nine years and in class FS-04 for seven years. In point of fact, these lengths of time in service and time in class fall far above the average promotion times for officers moving from grade FS-04 to FS-03.[…] We conclude, under the totality of circumstances, that the untimely suspension prejudiced her chances for promotion to FS-03 in the years 2015-2018.”
5) Beyond the blog thing — the FSO in this grievance case was an untenured officer serving her first tour at a “sensitive” country the FSGB would only refer to as Country X. When the FSO argue that she was never counseled at post regarding these relationships (other half of charges is for Improper Personal Conduct), the State Department contends that “any lack of counseling “does not erase the perception of impropriety [grievant’s] actions could create if made public, nor does it serve as an implicit concession that [grievant’s] actions were somehow appropriate.” \
Well, okay, but ….. 3 FAM 4100 is the rules for the road when it comes to employee responsibility and conduct. Which part of the current A100 or leadership and management classes are these FAM sections incorporated? While I can understand the department’s contention above, it also does not absolve the agency from its responsibility to provide appropriate counsel and training, most especially for entry level officers. Or is this a gap in the training of new employees? When a new, inexperienced officer is first posted overseas, who can he/she ask about delicate issues like this? Is there a Dear Abby newbies can write to or call for counsel at the State Department without the question trailing the employee down every corridor?
According to the Foreign Affairs Manual, the Act of August 26, 1950 (64 Stat. 476), codified at 5 U.S.C. 7532, “confers upon the Secretary of State the authority, in the Secretary’s absolute discretion, to suspend without pay any civilian officer or employee of the Department (including the Foreign Service of the United States) when deemed necessary in the interest of the national security (see 12 FAM 235.2).”
Section 610 (2)(c)(1) of S.1635 says that in order to promote the efficiency of the Service, the Secretary may suspend a member of the Service without pay when—
(A) the member’s security clearance is suspended; or
(B) there is reasonable cause to believe that the member has committed a crime for which a sentence of imprisonment may be imposed.
The new language indicates suspension without pay (SWOP) whenever the security clearance is suspended for whatever reason. Not just for national security reasons anymore, folks.
The most widely reported FSO with a suspended clearance in recent memory is Peter Van Buren whose TS clearance was suspended for about a year. Under this proposed bill, PVB would not have been assigned to a telework position or paid for the duration of his fight with the State Department. Which means he and others like him would have to quit and find a paying job or starve unless he/she has a savings account that can sustain the investigation for a year or years.
Any FS employee who might dissent or engage in whistleblowing activity, any perceived troublemaker for that matter, can be put on SWOP, and that would be it. An FSO who experienced first hand the suspension of a security clearance put this in very stark terms:
In practical terms they can remove the employee instantly, without telling anyone why until much later, by which time the employee will have resigned unless they can afford to go for months or years without a salary. And once the employee has resigned, the case is closed, the former employee loses their clearance because they resigned, and with it any right to know the reasons for the suspension. If the employee quits, the Department does not have to justify itself to anyone, and if the Department doesn’t have to pay them, 99.9 percent will quit.
We want to look at the numbers of suspension and revocation, unfortunately, this is something that is not publicly available from Diplomatic Security. A source speaking on background put the numbers very low at less than 30 suspensions a year and of those probably less than 5 are revocations. Another source long familiar with this issue guesstimate the number as closer to 70-80 suspension per year, and the number of revocations probably at15-20 per year. We are unable to verify these numbers independently. The higher numbers may be due to greater hiring, as well as to the use of “Scattered Castles,” a computer database that lists all prior security clearance determinations by other agencies which may prompt a suspension and re-investigation of the clearance. But even if we take the higher numbers of 80 suspensions, that is still a small number compared to the total FS workforce.
A source not authorized to speak on this subject told us that the bulk of security clearance suspensions and revocations involve personal behavior issues ranging from alleged sexual misconduct to alcohol abuse, to failure to report on time a relationship that should be reported. Very few security clearance cases involve a matter that is criminal, so very few result in prosecution.
The question then becomes why? Why would Congress want this? And just as important, why does the State Department support this?
The long history of this section of the bill reportedly dates back to Condoleezza Rice’s term at the State Department. It was allegedly intended to create parity between Foreign Service (FS) and Civil Service (CS) employees.
State can indeed put CS employees on SWOP as soon as clearance is suspended, but the rules also gives CS employees appeal rights to the Merit Systems Protection Board (MSPB). We understand that MSPB records and procedures are public and that it is specifically granted authority to review security clearance cases. The FS employees do not have the same protection with the Foreign Service Grievance Board. The final review adjudicative body, the Security Appeals Panel, not part of FSGB, allegedly does not even keep records of its deliberative process or set precedent for future cases. Currently, the rules on the FAM says: “If the individual is represented by counsel or other representative, the representative does not have a right to have access to or to review any material. However, to the extent authorized by the individual and the Department, the representative may review material that the individual has access to pursuant to subsection (b) above if he or she is properly cleared.”
The numbers of suspension/revocation are low but Congress doesn’t have to talk about the numbers. The members can talk about getting rid of bad apples in the government, which is always popular. In doing so, Congress can look tough on security, tough on the State Department and tough on keeping tabs on government money.
This is not a good idea. If only a quarter of all suspensions end in revocation, isn’t the USG throwing money and lives away? In addition to our concern that this could be use by the State Department to shut-up dissenters or potential whistleblowers, we also have the following concerns:
Costs in hiring/training
The USG has a lengthy hiring process for FS employees and typically trains them before sending them to posts overseas. The cost of that investment does not come cheap. Members of the FS also go through language training and spends most of their careers in overseas assignments.The length of time to replace/train/deploy an FS employee is significantly longer than the time to replace a CS employee.
FS family logistics
FS members overseas with suspended clearance are normally sent home to a desk job that does not require a clearance or their expertise. Not all FS members have houses to come home to in the WashDC area. They’ll have to pull kids out of schools, and move their entire household. What happens to them in DC if the employee is without work and without pay under this proposal? A suspension in this case would technically be a firing as the FS employee will be forced to find an alternate job that pays. So what happens when the case is resolved without a revocation, will the employee be able to come back? Since the investigation ends when the employee leaves, there is no win here for the employee.
Prime targets of hostile intel service
FS employees spends most of their career overseas. By virtue of their positions, they are prime targets of any hostile intel service. They can be subject of a security investigation though no fault of their own. This is even more concerning with the OPM hack purportedly conducted by a foreign government. If true that a foreign government now has the personal details of over 20 million security clearance holders, including those in the State Department who used OPM’s e-Qip system, how does one even protect oneself from the potential misuse of that information that can lead to a clearance suspension?
What can you do?
As we have posted earlier, the State Authorization bill was offered as an amendment when the NDAA was debated in the Senate in June but it was not voted on when the NDAA passed on June 18 (That would be H.R. 1735 which passed 215 (71-25) We understand that both chambers are now starting the process to bring the bill to conference in order to resolve differences. The State Authorization bill, we are told, will not be part of those discussions. In order for this to move forward, it will either need to be brought to the floor as a stand alone vote or Corker/Cardin could try again to attach it to another piece of legislation. Given that this is the first authorization bill passed by the SFRC in 5 years, and made it through the committee with bi-partisan support, we suspect that this might not be the end of this bill.
We’re hoping that employees’ fundamental rights and due process do not become casualties particularly in gaining concessions from Congress on the overseas comparability pay (CP) fight. That would be a terrible bargain. Educate your elected representative on the consequences of this section of the bill. See that AFSA is tracking this matter and talking to Congress.
The 2016 presidential election is some 18 months away. Some folks who are hoping to land a gig at some of our European embassies are expecting to get busy just about now. About 2/3 of all ambassadorial appointments will go to career diplomats but about a third will still go to top supporters of the winning candidate, most of them heavy lifters when it comes to rounding up funds to help get their candidate elected. That’s not going to end anytime soon. See list of Obama Bundlers via OpenSecrets. Click here for Obama’s ambassadors during his first term, click here for the current appointees. Click here for George W. Bush’s Pioneer Fundraisers who got similar appointments. @PhilipArsenault has the breakdown of appointments for both presidents, both terms here.
In any case — apparently, the not quite so rich has a new lament this election cycle. “Who needs a bundler when you have a billionaire?” One fundraiser interviewed on WaPo says, “Bundlers felt they were part of the process and made a difference, and therefore were delighted to participate. But when you look at super-PAC money and the large donations that we’re seeing, the regular bundlers feel a little disenfranchised.” All that money is moving the ground under their feet, and disrupting the status of the new incarnation of rangers, pioneers, and bundlers.
It is highly unlikely that the next President of the United States will appoint Super-PACs as ambassadors to Paris, London, Madrid or Brussels, etc.. So folks, calm down! While waiting for the call, folks should gear up learning about what American ambassadors do. Oh, interested individuals also need to figure out which posts to avoid for various reasons. It could be that the official ambassador residence is too small, or smaller than the house the appointee is accustomed to, or too old, or needs a new roof, or new paint, or new floors, or has bad toilets (and new appointee ends up supervising repairs and all that). So put that on the to-do list but for now, an excellent book to read is Ambassador Dennis C. Jett’s book, American Ambassadors, The Past, Present and Future of American Diplomats, because it’s delightful and informative and everyone should know what he/she is getting into. Also mark your calendars; the author will be giving a talk on the book at AFSA on June 11th from 2:00 to 3:30 pm. Many thanks to Ambassador Jett and Palgrave Macmillan’s Claire Smith for permission to share an excerpt from the book with our readers.
On the face of it, the first ambassador for whom I worked seemed perfect for the job. If the director of a movie called up central casting and told them to send over actors to audition for a role as an ambassador, he would have been a shoo-in for the part. He had, in fact, been an actor, costarring in movies with Marlene Dietrich and Shirley Temple. He had also been a successful politician, elected to Congress twice and as governor of Connecticut. The Connecticut Turnpike is named after him.
He came from a wealthy and illustrious lineage—his family included a senator, an admiral, and another ambassador. They could trace their roots back to the pilgrims. Tall, handsome, and silver-haired, he was fluent in several languages. According to one expert on style, he was “one of the most polished gentlemen in America” for more than half a century. He was also named ambassador three times by three different presidents. In referring to him, a journalist once wrote: “If the United States could be represented around the world the way it is represented in Argentina, it would be loved by the peoples of all nations.”
In reality, the ambassador was a disaster—and a dangerous one at that. Although he seemed to some to be the perfect diplomat, those who knew him better considered him, in effect, a threat to national security. The reason for such a divergence of opinion is that there is more to being an ambassador than simply glitz and glamour.
And when it came to John Davis Lodge, there was little else.
I did not know all of that when I was assigned to Buenos Aires as my first diplomatic posting. In early 1973, I had only been in the Foreign Service for a few weeks. All newly minted Foreign Service Officers (FSOs) are introduced to the State Department through a six-week course, a kind of boot camp for bureaucrats. There the raw recruits get basic training about the government they are to represent. Toward the end of the course, the fledgling FSOs are given a list of all the postings in the world that are available for their first tour of duty. They have to decide on their preferences and then hope that the personnel system answers their prayers.
Having grown up and been educated mainly in New Mexico, where the Hispanic and Native American cultures had an influence on even a transplanted Northeasterner like me, I decided Latin America would be my first choice. Because Argentina seemed the most exotic of the possibilities in the southern hemisphere, that country was at the top of my list. As luck would have it, none of my peers ranked it as high, so the job was mine. But first I had to take additional training, including learning Spanish.
It was then that I came across an article in the Washington Post about Lodge written by Lewis Diuguid, the paper’s Latin American correspondent. In essence, the article said that Lodge was all style and no substance; dinners at the elegant ambassadorial residence inevitably dissolved into songfests, with Lodge belting out his favorite tunes from Broadway shows. The article claimed that Lodge kept four staff members in the embassy’s information section engaged full time in trying to get the local press to run photos and articles about his latest social activities.
Diuguid implied that Lodge’s desire to appear in the newspapers did not extend beyond photographs and the society pages. The article went on to quote anonymous sources, who said a serious conversation with Lodge was impossible and that if anyone had any real business to conduct with the embassy, they went to see the deputy chief of mission, the number two person in any embassy and one who is always a career diplomat.
As I read the article, I found it hard to believe it was not grossly exaggerated. I wondered how someone in such an exalted position could be such an apparent lightweight. A few weeks after arriving in Buenos Aires, I had the opportunity to witness Lodge in action. He gave a large formal dinner at the residence for a visiting official from Washington. It was not a social occasion but rather an important opportunity to gather impressions on how the new government would conduct itself. One big question was whether Peronist officials would even come to the dinner. It was feared they might not if hostility toward the United States was going to again be one of Peron’s policies.
The evening unfolded, however, as if the Diuguid article had scripted the event. At the end of the sumptuous meal, as coffee and dessert were being served, Lodge called over an accordionist who had been providing soft background music. With this accompaniment, he burst into song while still seated at the table and rolled off a number of tunes. We all then adjourned to the ballroom, where he continued the entertainment. Among his favorite Argentine guests was a couple whom he summoned to join him at the grand piano. While the husband played, the wife and Lodge sang duets from Porgy and Bess and other Broadway hits.
As the show dragged on, the Peronist officials signaled they wanted to talk to the visiting official and the deputy chief of mission privately, so they all slipped off to the library. The Peronists made it clear that the new government would be open to a constructive and productive relationship with the United States, unlike in the past. This was a significant shift in policy that would be welcomed in Washington.
Finally, after the songfest, the guests began bidding the Lodges good night and thanking them profusely for the evening. The embassy staff members were always the last to leave; it was customary to stay until dismissed by the ambassador. As we waited for this to happen, Lodge learned of the discussion that had taken place in the library while he was singing in the ballroom. He became furious at his deputy, ranting that he had been stabbed in the back before but never in his own home. Unmoved by the success of the discussions, Lodge continued to berate the poor man in front of all of us. That evening I learned an important lesson: a country is not well served by an ambassador who thinks entertaining is the most important of his duties.
On February 11, the State Department suspended US Embassy operations in Yemen and relocated its remaining skeleton staff outside of the country until further notice. News report says that more than 25 vehicles were taken by Houthi rebels after the American staff departed Sanaa’s airport. According to WaPo, Abdulmalek al-Ajri, a member of the Houthis’ political bureau, said that the seized vehicles would be returned to local staff at the U.S. Embassy on Wednesday evening, with a U.N. official observing the handover.
Ajri said the U.S. Embassy was being guarded by Yemeni security forces, which have fallen under the Houthis’ control. The security forces have not entered the embassy compound, which is still being managed by the facility’s local Yemeni staff, he said. […] Ajri said he did not know how many embassy vehicles the group had seized at the airport. He claimed that a fight broke out over the vehicles between local embassy staffers, forcing Houthi fighters to intervene and seize them.
We haven’t heard anything about the return of those vehicles to Embassy Sana’a. As to this purported fight between local embassy staffers over the embassy vehicles, that is simply ridiculous — what, like the local employees are fighting over who could take which armored vehicle home? That’s silly.
What is not silly is that we still have local employees at Embassy Sana’a. They, typically, are not evacuated when post suspends operations. In 2003, Ghulam Sakhi Ahmadzai, the building maintenance supervisor at the U.S. Embassy in Kabul was the Foreign Service National Employee of the Year. He was recognized for his exceptional efforts in Afghanistan during the 13-year absence of American employees and following the reopening of the U.S. Embassy in Kabul in December 2001. His loyalty to the U.S. government and to maintaining the integrity of the embassy during that absence, despite personal risk, could not be repaid by that one award. No doubt there are other Ghulams in Tripoli and Sana’a and in other posts where we have suspended operations in the past. Please keep them in your thoughts.
Reading the newsclips and the tweets in the lead up to this latest evacuation, one cannot help but note that most folks do not really know what happens in an evacuation. Former FSO Peter Van Buren wrote a helpful explainer about embassy evacuations for Reuters. This is an explainer that should have been on DipNote. For folks who might be upset with this evac explainer, go find those anonymous officials who talked about this evacuation while we still had people on the ground.
The mechanics of closing an embassy follow an established process; the only variable is the speed of the evacuation. Sometimes it happens with weeks of preparation, sometimes with just hours.
Every American embassy has standing evacuation procedures, or an Emergency Action Plan. In each embassy’s emergency plan are built-in, highly classified “trip wires,” or specific thresholds that trigger scripted responses. For example, if the rebels advance past the river, take steps “A through C.” Or if the host government’s military is deserting, implement steps “D through E,” and so forth, until the evacuation is complete.
Early steps include moving embassy dependents, such as spouses and children, out of the country on commercial flights. Next is the evacuation of non-essential personnel, like the trade attaché, who won’t be doing much business if a coup is underway. While these departures are underway, the State Department issues a public advisory notifying private American citizens of the threat. The public alert is required by the U.S.’s “No Double Standard” rule, which grew out of the 1988 Lockerbie bombing of a Pan Am flight. In that case, threat info was made available to embassy families, but kept from the general public.
These embassy drawdown steps are seen as low-cost moves, both because they use commercial transportation, and because they usually attract minimal public attention.
AP’s Matt Lee revisited the question of Raymond Maxwell’s Benghazi-related allegations during the September 16 Daily Press Briefing with State Department deputy spox, Marie Harf.
Here is the short version:
Below is the video clip followed by an excerpt from the transcript where the official spox of the State Department called the allegations of one of its former top officials “a crazy conspiracy theory about people squirreling away things in some basement office and keeping them secret.” Crazy. Conspiracy. Of course! Now stop asking silly questions and go home.
Over 20 years of service in the Navy and the diplomatic service and his allegation is reduced to a sound bite. Mr. Maxwell is lucky he’s retired, or he would have been made to work, what was it, as a telecommuter? Pay attention, there’s a lesson here somewhere.
In The American Conservative today, Peter Van Buren writes:
Maxwell impresses as a State Department archetype, dedicated to the insular institution, apolitical to the point of frustration to an outsider, but shocked when he found his loyalty was not returned.
He has revealed what he knows only two years after the fact. People will say he is out for revenge. But I don’t think that’s the case. As a State Department whistleblower who experienced how the Department treats such people, I know it’s not a position anyone wants to be in.
You don’t just wake up one morning and decide to turn your own life, and that of your family, upside down, risking financial ruin, public shaming, and possibly jail time. It is a process, not an event.
QUESTION: You wouldn’t – you would probably disagree, but anyway, this has to do with what Ray Maxwell said about the AR – the preparation to the documents for the – for submission to the ARB. You said yesterday that his claims as published were without merit and showed a – I think you said lack of understanding of the process, how it functioned.
MS. HARF: How the ARB functioned, a complete lack of understanding, I think I said.
QUESTION: Complete lack of understanding, okay.
MS. HARF: Not just a partial lack of understanding.
QUESTION: Okay. So what was it that – presuming he’s not making this story up about coming into the jogger’s entrance and going to this room where – I mean, I presume there’s nothing really sinister about collecting documents for the – for whatever purpose, but it —
MS. HARF: There may have been a room with documents —
MS. HARF: — being collected and – yes.
QUESTION: Okay. So what did he see if he did not see —
MS. HARF: I have no idea what he saw.
QUESTION: Was there, that you’re aware of – and I recognize that you were not here at the time and this was a previous Secretary and a previous Secretary’s staff, likely all of them previous although I don’t know that to be true, so you may not know. But I would expect that you have asked them for their account of what happened.
MS. HARF: Okay.
QUESTION: So was there some kind of an effort by member – that you’re aware of or – let me start again. Was there some kind of effort by State Department officials to separate out or scrub down documents related to the – to Benghazi into piles that were – did not – piles into – into piles that were separated by whether they made the seventh floor look – appear in a bad light or not? I’m sorry. I’m not – asking this in a very roundabout way. Were there —
MS. HARF: It’s okay, and we’re – and he was referring, I think, to the ARB process. Is that right?
MS. HARF: Yeah.
QUESTION: Did people involved in preparing the documents for the ARB separate documents into stuff that was just whatever and then things that they thought were – made people on the seventh floor, including the Secretary, look bad?
MS. HARF: Not to my knowledge, Matt, at all. The ARB had full and unfettered access and direct access to State Department employees and documents. The ARB’s co-chairs, Ambassador Pickering and Admiral Mullen, have both repeated several times that they had unfettered access to all the information they needed. So the ARB had complete authority to reach out independently and directly to people. Employees had complete authority to reach out directly to the ARB. And they’ve said themselves they had unfettered access, so I have no idea what prompted this somewhat interesting accounting of what someone thinks they may have seen or is now saying they saw.
But the ARB has been clear, the ARB’s co-chairs have been clear that they had unfettered access, and I am saying that they did have full and direct access to State Department employees and documents.
QUESTION: Could they – could a group of people operating in this room in preparing for the ARB to look at the documents – could a group of people have been able to segregate some documents and keep the ARB from knowing about them —
MS. HARF: No.
QUESTION: — or seeing them?
MS. HARF: Not to my knowledge.
QUESTION: So it’s —
MS. HARF: The ARB, again, has said – and everything I’ve talked to everybody about – that they had unfettered access to what they needed.
QUESTION: Well, yeah, but you can’t need what you don’t know about, kind of, right? Do you understand what – see what —
MS. HARF: The ARB had full and direct access —
QUESTION: So they got to see —
MS. HARF: — to State Department employees and documents.
QUESTION: So there were no documents that were separated out and kept from the ARB that you – but you —
MS. HARF: Not that I’ve ever heard of, not that I know of. I know what I know about the ARB’s access. We have talked about this repeatedly.
MS. HARF: And I don’t know how much clearer I can make this. I think, as there often are with Benghazi, a number of conspiracy theories out there being perpetrated by certain people. Who knows why, but I know the facts as I know them, and I will keep repeating them every day until I stop getting asked.
QUESTION: Okay. And does this apply to documents that were being collected in response to requests from Congress?
MS. HARF: Well, it’s a different process, right. It was a different process. And obviously, we’ve produced documents to Congress on a rolling basis. Part of that – because it’s for a different purpose.
QUESTION: Well, who – what was this group – well, this group of people in the – at the jogger’s entrance —
MS. HARF: In the – I love this – sounds like some sort of movie. Yes.
QUESTION: Well, whatever it sounds like, I don’t know, but I mean, we happen to know that there was an office that was set up to deal with this, understandably so because it required a lot of effort.
MS. HARF: Correct.
QUESTION: But that room or whatever it was, that office was only dealing with stuff for the ARB?
MS. HARF: I can check if people sat in the same office, but there are two different processes. There’s the ARB process for how they got their documents. There’s the Congressional process –we’ve been producing documents to them on a rolling basis —
QUESTION: I understand.
MS. HARF: — part of which in that process is coordinating with other agencies who may have equities in the documents, who may have employees who are on the documents. So that’s just a separate process.
QUESTION: Okay. So the people in that office were not doing anything with the Congress; they were focused mainly on the ARB?
MS. HARF: I can see who actually sat in that office. I don’t know. But what we’re focused on is the process, right, and the ARB had full and direct access to State Department employees and documents. The congressional process – as you know, we have been producing documents to Congress on a rolling basis —
QUESTION: Well, I guess that this mainly relates to the —
MS. HARF: — and there’s just different equities there.
QUESTION: This – the allegation, I think, applies to the ARB. But you are saying —
MS. HARF: Right, and I’m talking about the ARB.
QUESTION: — that it is impossible for a group of people to collect a stack of documents that say something that they don’t like and secret them away or destroy them somehow so that the ARB couldn’t get to them? Is that what you’re saying? It’s impossible for that to happen?
MS. HARF: I’m saying I wasn’t here then. What I know from talking to people here who were is that the ARB had full and direct access to State Department employees and documents.
QUESTION: Okay, but that doesn’t answer the question of whether there wasn’t —
MS. HARF: It does answer the question. (Laughter.)
QUESTION: Well – no, no, no, no. No, no, no. One of his allegations is that there were people who were separating out documents that would make the Secretary and others —
MS. HARF: So that the ARB didn’t have access to them.
QUESTION: Right, but – that put them in a bad light.
MS. HARF: But I’m saying they had access to everything.
QUESTION: Okay. But —
MS. HARF: So —
QUESTION: — do you know even —
MS. HARF: — I’m responding.
QUESTION: But even if it would’ve been impossible for them to keep these things secret, was there a collection of —
MS. HARF: This is a crazy conspiracy theory about people squirreling away things in some basement office and keeping them secret. The ARB had unfettered access.
QUESTION: Okay. I mean, Marie, I appreciate the fact that you’re taking that line. But I mean, there is a select committee investigating it.
MS. HARF: Well, it happens to be true. And tomorrow there will be an open hearing on ARB implementation, where I’m sure all of this will be discussed with Assistant Secretary Greg Starr.
QUESTION: Okay. And they will have – they will get the same answers that you’ve just given here?
The June 2014 issue of the Foreign Service Journal includes an article, Publishing in the Foreign Service by FSO Yaniv Barzilai, who is serving in Baku on his first overseas posting. He is the author of 102 Days of War—How Osama bin Laden, al Qaeda & the Taliban Survived 2001 (Potomac Books, 2013). Below is an excerpt from that article with a prescription for the improvement of the pre-publication clearance process in the State Department.
There is plenty of room for improvement in the pre-publication clearance process. First and foremost, State must do a better job of adhering to the regulations it has set forth in the Foreign Affairs Manual. Anything short of that standard is unfair to everyone involved.
Second, the department should establish clear guidelines on how it distributes material internally and across the interagency community. That threshold should have nothing to do with terms as vague as “equities.” Instead, offices and agencies should have the opportunity to clear on material only if that material is the result of “privileged information”: information that employees acquire during the discharge of their duties that is not otherwise available.
Third, State needs to ensure that former employees receive treatment comparable to current employees. A significant gap exists between the attention given to current employees by PA and that former employees receive from A/GIS/IPS/PP/LA.
As that lengthy acronym suggests, former employees are relegated to an obscure office in the Bureau of Administration when they seek pre-publication clearance. In contrast, the PA leadership is often engaged and provides consistent oversight of the review process for current employees. This bifurcation not only creates unnecessary bureaucratic layers and redundancies, but places additional burdens on former employees trying to do the right thing by clearing their manuscripts. This discrepancy should be rectified.
These short-term fixes would go a long way toward improving the pre-publication clearance process for employees. In the long term, however, the State Department should consider establishing a publication review board modeled on the CIA’s Publication Review Board.
A State Department PRB would codify a transparent, objective and fair process that minimizes the need for interagency clearance, ensures proper and consistent determinations on what material should be classified, and reduces the strain on the State Department at large, and its employees in particular.
Ultimately, State needs to strike a better balance between protecting information and encouraging activities in the public domain. The pre-publication review process remains too arbitrary, lengthy and disjointed for most government professionals to share their unique experiences and expertise with the American public.
We totally agree that a publication review board is needed for State. Instead of parcelling out the work to different parts of the bureaucracy, a review board would best serve the agency. We have some related posts on this topic on the Peter Van Buren case as well as the following items:
The rules and regulations for publishing in the Foreign Service can be found in the infamous Foreign Affairs Manual 3 FAM 4170 (pdf). Last June, AFSA told its members that for more than a year it has been negotiating a revision to the current Foreign Affairs Manual regulations governing public speaking and writing (3 FAM 4170).
“As mentioned in our 2013 Annual Report, our focus has been to accommodate the rise of social media and protect the employee’s ability to publish. We have emphasized the importance of a State Department response to clearance requests within a defined period of time (30 days or less). For those items requiring interagency review, our goal is to increase transparency, communication and oversight. We look forward to finalizing the negotiations on the FAM chapter soon—stay tuned for its release.”
This week, we blogged about the former AFSA presidents asking the Senate to postpone consideration of FSO Dana Shell Smith’s nomination as ambassador to Qatar until the Foreign Service Grievance Board (FSGB) has made a decision in the case related to Ms. Smith and Susan Johnson, another senior FSO and the immediate past president of the organization (see Former AFSA Presidents to SFRC: Delay Approval for FSO Dana Smith as Qatar Ambassador).
On the same day, the Senate Foreign Relations Committee (SFRC) cleared Ms. Smith’s nomination for the Senate’s full vote. We’ve covered these nominations long enough to understand that the Senate seldom ever listen to the concerns of constituents unless they are aligned to the senators’ self-interest or their pet items.
In 2012, Senator Marco Rubio (R-FL) announced his intent to opposethe nominees for WHA, including the nominee for Ecuador, Adam Namm due to what he called this Administration’s policy towards Latin America defined by “appeasement, weakness and the alienation of our allies.” He was eventually confirmed.
On December 15, 2011, 36 conservative foreign policy experts have written to ranking senators to plead for the confirmation of Matthew Bryza as ambassador to Azerbaijan to no avail. WaPo nominated two senators, Sens. Barbara Boxer (D-Calif.) and Robert Menendez (D-N.J.) who placed a hold on the Bryza nomination with the Most Craven Election-Year Pandering at the Expense of the National Interest Award.Ambassador Bryza eventually quit the Foreign Service and became the Director of the International Centre for Defence Studies in Tallinn, Estonia.
In April this year, fifteen former presidents of the American Foreign Service Association (AFSA)wrote a letter to Senate leaders calling for the rejection of three nominees for ambassadorships: George Tsunis (Norway); Colleen Bell (Hungary) and Noah Mamet (Argentina). All these nominees have now been endorsed by the SFRC and are awaiting full Senate vote. The only nomination that could potentially be in real trouble is Tsunis. Minnesota Sens. Amy Klobuchar and Al Franken have said they oppose his nomination. Apparently, every member of the Minnesota U.S. House delegation signed a letter to President Obama asking him to rescind his nomination of GeorgeTsunis as ambassador to Norway. Why Minnesota? It is home to the largest Norwegian-American population in the United States.So is this nomination dead? Nope. If the Democrats in the Senate vote for Tsunis without the Klobuchar and Franken votes, he could still get a simple majority, all that’s required for the confirmation.Correction (h/t Mike D: Senators Tim Johnson (D-SD) is on the record here opposing the Tsunis nomination. Senator Heidi Heitkamp (D-ND) said she, too, will not support the Tsunis nomination. So if all the Democrats in the Senate minus the four senators vote in favor of the Tsunis nomination, that’ll be 49 votes, two vote short of a simple majority. Let’s see what happens.
So, back to Ms. Smith, the State Department nominee as ambassador to Qatar. We think she will eventually be confirmed. Her ‘Certificate of Competency” posted online says:
Dana Shell Smith, a career member of the Senior Foreign Service, class of Minister-Counselor, currently serves as Senior Advisor to the Under Secretary for Public Diplomacy and Public Affairs in the Department of State. Known as a linguistic, cultural and policy expert on the Middle East, she understands the region well and can effectively present major U.S. policy issues to diverse audiences. Her leadership, management and public affairs expertise, as well as her interpersonal skills and creativity, will enable her to advance bilateral relations with the Government of Qatar, an important U.S. partner in managing the problems of the Middle East.
Dang! That is impressive but it missed an important accomplishment.
This boo! strategy may be creative but also oh, so…. so… amateurish. Who thought Macmillan would buy this scaredy tactic? Perhaps they should have threatened to buy all the copies and burn them all. The really funny ha!ha! part about this is despite the charge that the book contained “unauthorized disclosures of classified information” the formal State Department charges filed against Mr. Van Buren did not mention this and he was officially retired with full benefits. (See After a Year of Serious Roars and Growls, State Dept Officially Retires FSO-Non Grata Peter Van Buren).
We Meant Well is now on second edition on paperback and hardback. We understand that the book is also used as a text at colleges and at various US military schools but not/not at the Foreign Service Institute. This past April, Mr. Van Buren also published his new book, Ghosts of Tom Joad: A Story of the #99Percent. As Iraq falls apart, we thought we’d check on Mr. Van Buren. He told us there is no truth to the rumor that he will retitle WMW to “I Told You So.”
This is an old story, of course, that folks would like to forget. Dirty laundry aired so publicly, ugh! So most people have moved on, got awards, promotions, moved houses, new jobs, and sometimes, they may even end up as ambassador to places where people express dissent onlyin whispers and always off the record.