Officially In: Daniel Rooney to US Embassy Dublin

Deerfield House Photo from Flickr by Jagian
Under Attribution 2.0 Generic Licence

He still needs Senate confirmation, but the rumors were true. Today at the White House, President Barack Obama announced his intent to nominate Daniel Rooney as the Ambassador to Ireland.

President Obama said, “I am honored and grateful that such a dedicated and accomplished individual has agreed to serve as the representative of the United States to the Irish people. Dan Rooney is an unwavering supporter of Irish peace, culture, and education, and I have every confidence that he and Secretary Clinton will ensure America’s continued close and unique partnership with Ireland in the years ahead.”

Dan Rooney is the recent recipient of the American Ireland Fund’s Lifetime Achievement Award and honorary Commander of the British Empire for contributions to peace and reconciliation in Northern Ireland, has played an integral role in the Irish peace process since the early 1970s. In 1976, Rooney co-founded the American Ireland Fund, an organization which to date has raised over $300 million for peace and education programs in Ireland. Rooney founded the annual prize for Irish Literature in 1987 and co-founded the Ireland Institution of Pittsburgh in 1989.

In 1993, the “Rooney Fellowship” was created to honor his generosity and charitable works. Chairman of the Pittsburgh Steelers, the winners of Super Bowl XLIII, Rooney was inducted into the Pro Football Hall of Fame in 2000. He has been the recipient of various awards in relation to his work within the community and for his involvement with the National Football League over the last 26 years, including: the Sporting News NFL Executive of the Year in 1972 and 2001, the Maxwell Football Club Reds Bagwell Award in 1999, and, in 2008, the YWCA Racial Justice Award and the Ellis Island Medal of Honor presented by the National Ethnic Coalition. Rooney also led the sports world’s efforts to include diversity beyond the field and into the front office through the “Rooney Rule.”

If Mr. Rooney is confirmed, he would be the 30th US ambassador to Ireland (where all but one were political appointees). He might also be pleased to know that Deerfield House, his new residence in Phoenix Park had just been restored by his predecessor, Ambassador Thomas C. Foley.


John Burns
of the Sunday Times just wrote this weekend that Thomas Foley, the departing American envoy to Ireland, has spent $500,000 (€390,000) of his own money restoring the US ambassador’s residence in Phoenix Park. “The Georgian mansion, which the Americans have used since 1952, has been redecorated several times, but Foley decided that a complete makeover was in order. “I took it on because it was so needy,” he told The New York Times. “This would be expected of a political appointee.” Foley bought works by American artists including Mark Rothko, Edward Hopper, Helen Frankenthaler and Sol LeWitt. The ambassador had several rooms repainted in Georgian colours. Chandeliers were restored, large mirrors placed over the fireplaces, security camera towers moved out of sight, rhododendrons blocking views of the house removed, and White House-style up-lighting installed. Finally, Foley asked the Irish government to apply a €47,000 lick of paint to the outside walls. The landlords agreed.”

You know, I just realized that the American Embassy in Dublin was completed in 1964. That’s a 45 year old building — may be showing its age, too.

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Officially In: Daniel Rooney to US Embassy Dublin

Deerfield House Photo from Flickr by Jagian
Under Attribution 2.0 Generic Licence

He still needs Senate confirmation, but the rumors were true. Today at the White House, President Barack Obama announced his intent to nominate Daniel Rooney as the Ambassador to Ireland.

President Obama said, “I am honored and grateful that such a dedicated and accomplished individual has agreed to serve as the representative of the United States to the Irish people. Dan Rooney is an unwavering supporter of Irish peace, culture, and education, and I have every confidence that he and Secretary Clinton will ensure America’s continued close and unique partnership with Ireland in the years ahead.”

Dan Rooney is the recent recipient of the American Ireland Fund’s Lifetime Achievement Award and honorary Commander of the British Empire for contributions to peace and reconciliation in Northern Ireland, has played an integral role in the Irish peace process since the early 1970s. In 1976, Rooney co-founded the American Ireland Fund, an organization which to date has raised over $300 million for peace and education programs in Ireland. Rooney founded the annual prize for Irish Literature in 1987 and co-founded the Ireland Institution of Pittsburgh in 1989.

In 1993, the “Rooney Fellowship” was created to honor his generosity and charitable works. Chairman of the Pittsburgh Steelers, the winners of Super Bowl XLIII, Rooney was inducted into the Pro Football Hall of Fame in 2000. He has been the recipient of various awards in relation to his work within the community and for his involvement with the National Football League over the last 26 years, including: the Sporting News NFL Executive of the Year in 1972 and 2001, the Maxwell Football Club Reds Bagwell Award in 1999, and, in 2008, the YWCA Racial Justice Award and the Ellis Island Medal of Honor presented by the National Ethnic Coalition. Rooney also led the sports world’s efforts to include diversity beyond the field and into the front office through the “Rooney Rule.”

If Mr. Rooney is confirmed, he would be the 30th US ambassador to Ireland (where all but one were political appointees). He might also be pleased to know that Deerfield House, his new residence in Phoenix Park had just been restored by his predecessor, Ambassador Thomas C. Foley.


John Burns
of the Sunday Times just wrote this weekend that Thomas Foley, the departing American envoy to Ireland, has spent $500,000 (€390,000) of his own money restoring the US ambassador’s residence in Phoenix Park. “The Georgian mansion, which the Americans have used since 1952, has been redecorated several times, but Foley decided that a complete makeover was in order. “I took it on because it was so needy,” he told The New York Times. “This would be expected of a political appointee.” Foley bought works by American artists including Mark Rothko, Edward Hopper, Helen Frankenthaler and Sol LeWitt. The ambassador had several rooms repainted in Georgian colours. Chandeliers were restored, large mirrors placed over the fireplaces, security camera towers moved out of sight, rhododendrons blocking views of the house removed, and White House-style up-lighting installed. Finally, Foley asked the Irish government to apply a €47,000 lick of paint to the outside walls. The landlords agreed.”

You know, I just realized that the American Embassy in Dublin was completed in 1964. That’s a 45 year old building — may be showing its age, too.

And These Are Genuine US Passports …

The good news is — the shortest wait between application and issuance of passport was 4 days!! The bad news is, and you won’t like this — the passports were genuine but the supporting documents used to apply for these passports were counterfeit. That and one undercover investigator was able to obtain four passports under four different names! Ouch!

Screencapture from GAO Report

This report on passport vulnerabilities made the news round last week, but the GAO report was not posted until this week. GAO-09-447 dated March 2009 — Undercover Tests Reveal Significant Vulnerabilities in State’s Passport Issuance Process” has the following details:

A genuine U.S. passport is a vital document, permitting its owner to travel freely in and out of the United States, prove U.S. citizenship, obtain further identification documents, and set up bank accounts, among other things. Unfortunately, a terrorist or other criminal could take advantage of these benefits by fraudulently obtaining a genuine U.S. passport from the Department of State (State).

There are many ways that malicious individuals could fraudulently obtain a genuine U.S. passport, including stealing an American citizen’s identity and counterfeiting or fraudulently obtaining identification or citizenship documents to meet State requirements. GAO was asked to proactively test the effectiveness of State’s passport issuance process to determine whether the process is vulnerable to fraud.

To do so, GAO designed four test scenarios that simulated the actions of a malicious individual who had access to an American citizen’s personal identity information. GAO created counterfeit documents for four fictitious or deceased individuals using off-the-shelf, commercially available hardware, software, and materials. An undercover GAO investigator then applied for passports at three United States Postal Service (USPS) locations and a State Department-run passport office.

The GAO investigator was easily able to obtain four genuine U.S. passports using counterfeit or fraudulently obtained documents. In their most egregious case, the GAO investigator obtained a U.S. passport using counterfeit documents and the SSN of a man who died in 1965. In another case, their undercover investigator obtained a U.S. passport using counterfeit documents and the genuine SSN of a fictitious 5-year-old child—even though his counterfeit documents and application indicated he was 53 years old.

GAO states that State and USPS employees did not identify their documents as counterfeit in any of their four tests. GAO acknowledged that although it doesn’t know what checks, if any, State performed when approving their fraudulent applications, it issued a genuine U.S. passport in each case. All four passports were issued to the same GAO investigator, under four different names.

GAO notes that the State Department operates 17 domestic passport-issuing offices, where most passports are issued each year. These offices are located in Aurora, Colorado; Boston; Charleston, South Carolina; Chicago; Honolulu; Houston; Los Angeles; Miami; New Orleans; New York; Norwalk, Connecticut; Philadelphia; Portsmouth, New Hampshire; San Francisco; Seattle; and 2 offices in Washington, D.C.—a regional passport agency and a special issuance agency that handles official U.S. government and diplomatic passports. Fifteen of these offices are regional passport agencies that process in-person applications in addition to applications received by mail. The remaining 2 facilities—Charleston, South Carolina, and Portsmouth, New Hampshire—are mega-processing centers with no access to the public.

GAO reports that they briefed State Department officials on the results of their investigation.

“They agreed that our findings expose a major vulnerability in State’s passport issuance process. According to State officials, the department’s ability to verify the information submitted as part of a passport application is hampered by limitations to its information sharing and data access with other agencies at the federal and state levels. They said that some federal agencies limit State’s access to their records due to privacy concerns or the fact that State is not a law enforcement agency.

In addition, they said that State does not currently have the ability to conduct real-time verification of the authenticity of birth certificates presented by passport applicants. They added that birth certificates present an exceptional challenge to fraud detection efforts, as there are currently thousands of different acceptable formats for birth certificates.

Further, they indicated that there are difficulties with verifying the authenticity of drivers’ licenses. Moreover, they said that although State attempts to verify SSN information submitted on passport applications on a daily basis with SSA, the results of this datasharing process are imperfect.
[…]
State officials acknowledged that they have issued other fraudulently obtained passports but did not offer an estimate of the magnitude of the problem. In order to improve State’s current passport fraud detection capabilities, officials said that State would need greater cooperation from other agencies at both the federal and state levels, and the ability to access other agencies’ records in real time. Subsequent to our briefing, State officials informed us that they identified and revoked our four fraudulently obtained U.S. passports, and that they would study the matter further to determine what steps would be appropriate to improve passport issuance procedures. We did not verify the accuracy of these State officials’ statements. We also briefed a representative of USPS on the results of our investigation, who did not offer any comments at the time of our briefing.”

You can read the whole thing here.


Update 3/18:
This made it to the Daily Press Briefing here.

QUESTION: Yeah. Apparently, there’s a GAO report – I think it came out at the end of last week – about scams to get passports. And the State Department at that point was saying they hadn’t seen the report. Have you seen it? Do you have a comment on the inherent ability to do this —

MR. WOOD: Yeah, we certainly have seen the report, and clearly there were some errors made with regard to these particular four passports. We’re going to make sure that this type of thing doesn’t happen again, which will mean putting in place a process – better processes for ensuring that, you know, that passports are provided – that are accurate, up-to-date, and you know – yeah.

QUESTION: But you’re just saying those four. I mean, is there a broader issue here of compromising other passports?

MR. WOOD: Not that I’m aware of. This was just – I believe the report was focused on – I think it was four individuals who were kind of operating under – for the GAO who were able to obtain passports with faulty information. And what I’m saying is that the Department is working on trying to put in place procedures to make sure that that type of thing does not happen again.

One individual, four passports! Man, please read the one page summary next time!

And These Are Genuine US Passports …

The good news is — the shortest wait between application and issuance of passport was 4 days!! The bad news is, and you won’t like this — the passports were genuine but the supporting documents used to apply for these passports were counterfeit. That and one undercover investigator was able to obtain four passports under four different names! Ouch!

Screencapture from GAO Report

This report on passport vulnerabilities made the news round last week, but the GAO report was not posted until this week. GAO-09-447 dated March 2009 — Undercover Tests Reveal Significant Vulnerabilities in State’s Passport Issuance Process” has the following details:

A genuine U.S. passport is a vital document, permitting its owner to travel freely in and out of the United States, prove U.S. citizenship, obtain further identification documents, and set up bank accounts, among other things. Unfortunately, a terrorist or other criminal could take advantage of these benefits by fraudulently obtaining a genuine U.S. passport from the Department of State (State).

There are many ways that malicious individuals could fraudulently obtain a genuine U.S. passport, including stealing an American citizen’s identity and counterfeiting or fraudulently obtaining identification or citizenship documents to meet State requirements. GAO was asked to proactively test the effectiveness of State’s passport issuance process to determine whether the process is vulnerable to fraud.

To do so, GAO designed four test scenarios that simulated the actions of a malicious individual who had access to an American citizen’s personal identity information. GAO created counterfeit documents for four fictitious or deceased individuals using off-the-shelf, commercially available hardware, software, and materials. An undercover GAO investigator then applied for passports at three United States Postal Service (USPS) locations and a State Department-run passport office.

The GAO investigator was easily able to obtain four genuine U.S. passports using counterfeit or fraudulently obtained documents. In their most egregious case, the GAO investigator obtained a U.S. passport using counterfeit documents and the SSN of a man who died in 1965. In another case, their undercover investigator obtained a U.S. passport using counterfeit documents and the genuine SSN of a fictitious 5-year-old child—even though his counterfeit documents and application indicated he was 53 years old.

GAO states that State and USPS employees did not identify their documents as counterfeit in any of their four tests. GAO acknowledged that although it doesn’t know what checks, if any, State performed when approving their fraudulent applications, it issued a genuine U.S. passport in each case. All four passports were issued to the same GAO investigator, under four different names.

GAO notes that the State Department operates 17 domestic passport-issuing offices, where most passports are issued each year. These offices are located in Aurora, Colorado; Boston; Charleston, South Carolina; Chicago; Honolulu; Houston; Los Angeles; Miami; New Orleans; New York; Norwalk, Connecticut; Philadelphia; Portsmouth, New Hampshire; San Francisco; Seattle; and 2 offices in Washington, D.C.—a regional passport agency and a special issuance agency that handles official U.S. government and diplomatic passports. Fifteen of these offices are regional passport agencies that process in-person applications in addition to applications received by mail. The remaining 2 facilities—Charleston, South Carolina, and Portsmouth, New Hampshire—are mega-processing centers with no access to the public.

GAO reports that they briefed State Department officials on the results of their investigation.

“They agreed that our findings expose a major vulnerability in State’s passport issuance process. According to State officials, the department’s ability to verify the information submitted as part of a passport application is hampered by limitations to its information sharing and data access with other agencies at the federal and state levels. They said that some federal agencies limit State’s access to their records due to privacy concerns or the fact that State is not a law enforcement agency.

In addition, they said that State does not currently have the ability to conduct real-time verification of the authenticity of birth certificates presented by passport applicants. They added that birth certificates present an exceptional challenge to fraud detection efforts, as there are currently thousands of different acceptable formats for birth certificates.

Further, they indicated that there are difficulties with verifying the authenticity of drivers’ licenses. Moreover, they said that although State attempts to verify SSN information submitted on passport applications on a daily basis with SSA, the results of this datasharing process are imperfect.
[…]
State officials acknowledged that they have issued other fraudulently obtained passports but did not offer an estimate of the magnitude of the problem. In order to improve State’s current passport fraud detection capabilities, officials said that State would need greater cooperation from other agencies at both the federal and state levels, and the ability to access other agencies’ records in real time. Subsequent to our briefing, State officials informed us that they identified and revoked our four fraudulently obtained U.S. passports, and that they would study the matter further to determine what steps would be appropriate to improve passport issuance procedures. We did not verify the accuracy of these State officials’ statements. We also briefed a representative of USPS on the results of our investigation, who did not offer any comments at the time of our briefing.”

You can read the whole thing here.


Update 3/18:
This made it to the Daily Press Briefing here.

QUESTION: Yeah. Apparently, there’s a GAO report – I think it came out at the end of last week – about scams to get passports. And the State Department at that point was saying they hadn’t seen the report. Have you seen it? Do you have a comment on the inherent ability to do this —

MR. WOOD: Yeah, we certainly have seen the report, and clearly there were some errors made with regard to these particular four passports. We’re going to make sure that this type of thing doesn’t happen again, which will mean putting in place a process – better processes for ensuring that, you know, that passports are provided – that are accurate, up-to-date, and you know – yeah.

QUESTION: But you’re just saying those four. I mean, is there a broader issue here of compromising other passports?

MR. WOOD: Not that I’m aware of. This was just – I believe the report was focused on – I think it was four individuals who were kind of operating under – for the GAO who were able to obtain passports with faulty information. And what I’m saying is that the Department is working on trying to put in place procedures to make sure that that type of thing does not happen again.

One individual, four passports! Man, please read the one page summary next time!

Quickie: A Severely Stretched Service

State’s Bureau of Diplomatic Security not only handles security for embassies and other civilian outposts around the globe but also protects foreign officials visiting the United States. With only 1,600 highly trained special agents in the bureau, the Iraq mandate has severely stretched the service. “You’d need the entire [Diplomatic Security] workforce just to do Iraq,” a senior State Department official said, “leaving nothing for Afghanistan, nothing for anywhere else in the world.”


U.S. Moves to Replace Contractors in Iraq

Blackwater Losing Security Role; Other Jobs Being Converted to Public Sector

Karen DeYoung │Washington Post
Tuesday, March 17, 2009; Page A07

Quickie: A Severely Stretched Service

State’s Bureau of Diplomatic Security not only handles security for embassies and other civilian outposts around the globe but also protects foreign officials visiting the United States. With only 1,600 highly trained special agents in the bureau, the Iraq mandate has severely stretched the service. “You’d need the entire [Diplomatic Security] workforce just to do Iraq,” a senior State Department official said, “leaving nothing for Afghanistan, nothing for anywhere else in the world.”


U.S. Moves to Replace Contractors in Iraq

Blackwater Losing Security Role; Other Jobs Being Converted to Public Sector

Karen DeYoung │Washington Post
Tuesday, March 17, 2009; Page A07

Olson v. Clinton: Court Grants Summary Judgment for State in a Discrimination Suit

Leonard Link recently wrote State Department Wins Round Against Gay Foreign Service Officer (h/t to Digger of Life After Jerusalem).

“U.S. District Judge Gladys Kessler ruled on March 12 that the U.S. State Department was entitled to summary judgment in a sexual orientation discrimination case brought by Karl Olson, a gay Foreign Service Officer (FSO) who claimed that adverse Employee Evaluation Reports concerning his service in Brazil were impermissibly tainted due to the homophobia of the Consul General in Rio de Janeiro. Olson v. Clinton, 2009 WL 635977 (D.D.C.).”

I had time to spare so I thought I would dig up more about this story.

FSO Karl Olson has been an FSO since 1985, tenured in 1988, and was NIV chief at ConGen Rio de Janeiro from 1993-1996. The case was originally brought against Secretary Rice but was substituted with Secretary Clinton as lead respondent when she became SoS. In his lawsuit, Olson seeks “judicial review of a Foreign Service Grievance Board (“FSGB” or “Board”) decision, alleging that it was arbitrary and capricious and tainted by prejudicial procedural errors.”

He received two Employee Evaluation Reports (EER) during his Rio de Janiero tour — looks like both reports were from one rating officer but reviewed by two different officers. EERs are use by the Foreign Service Selection Boards to evaluate FSOs for promotion or selection out of the Service.

On May 22, 1998, Olson filed a grievance with State “alleging that the EERs covering his time in Rio were inaccurate and falsely prejudicial, omitted favorable information, contained inadmissible comments, and were based on the anti-homosexual bias of Beffel and Zweifel” (his rating and reviewing officer). The case went to the FS Grievance Board (FSGB), was appealed, decided upon, went to the US District Court (D.C.), got remanded back to FSGB, decided upon, then finally went back to the US District Court (D.C.) where it landed on District Judge Gladys Kessler’s court.

You can read Judge Kessler’s March 12 Memorandum Opinion for Olson v. Clinton, 2009 WL 635977 (D.D.C.) here. Mr. Olson apparently filed all his pleadings under seal, so the Opinion is redacted/blacked out in various sections.

There are four things that strike me most about this case.

#1. Getting entangled with the FSGB and the Court looks like a real hard slog; Gosh, golly – this one took over 10 years! The website for the FSGB is here; everything there seems to be in Word document right now with ongoing work Notice says they are trying to “to make it more user friendly,” but website is bare, except for four annual reports in PDF files. Oh yeah, the search function makes me feel really dumb.

#2. Just see how many characters populated this case besides the FSO and his rating and reviewing officers. There was a third Consul General with his say, an Economic Officer who overheard criticisms about plaintiff, a Deputy Principal Officer with his say, an Administrative Officer, and an Ambassador who stated that he “received so many complaints about Mr. Olson” that he initiated a “campaign to emphasize ‘courtesy and respect’ to our visa officers.” Then there were those colleagues of Mr. Olson who felt that there were “homophobic attitudes” or an “atmosphere of homophobia,” including a DAS, a CA management analyst, and three Consular Officers.

Mr. Olson was the NIV chief at a constituent post, which means, there were a few folks between him and the chief of mission. The hierarchy would have been the Consular Section Chief and Consul General at ConGen Rio and then the Deputy Chief of Mission and the Ambassador at Embassy Brasilia. But who’s missing in the line-up of quotes? I have not seen any FSGB documents but no HRO, Consular FSNs, or DCM appeared to be quoted here. In a case like this, I wonder if the co-workers are naturally divided between the litigants? Who decides who speaks out for the record?

#3. There was that 1994 cable to Diplomatic Security from Rio, which the Court find most disturbing. “The cable targeted Plaintiff for no reason other than his sexual orientation and cited his homosexuality as its basis for initiating a defensive briefing (see page 8 for excerpt of cable).”

I guess we need some historical context here. In 1971 there was Gayer v. Laird, a challenge to anti-gay security clearance rules. In 1975, in Singer v. U.S Civil Service Commission, a gay federal employee was fired for being “flamboyant.”

As background, federal agencies used the sexual perversion criteria in the early 1950s to categorize homosexuals as security risks and separate them from government service. Agencies could deny homosexual men and women employment because of their sexual orientation until 1975, when the Civil Service Commission (now OPM) issued guidelines prohibiting the government from denying employment on the basis of sexual orientation. The guidelines, which further define the provisions of Executive Order 10450, resulted from court decisions requiring that persons not be disqualified from federal employment solely on the basis of homosexual conduct. Although the public policy change resulted in the restrictions against employment of homosexuals being lifted, the guidance for granting security clearances to homosexuals remained generally vague or restrictive until the early 1990s.

In 1995, President Clinton signed Executive Order #12968 on Access to Classified Information stating clearly that:

(c) The United States Government does not discriminate on the basis of race, color, religion, sex, national origin, disability, or sexual orientation in granting access to classified information.

(d) In determining eligibility for access under this order, agencies may investigate and consider any matter that relates to the determination of whether access is clearly consistent with the interests of national security. No inference concerning the standards in this section may be raised solely on the basis of the sexual orientation of the employee.

#4. Finally, although the Court pointed out some shortcomings in the FSGB’s decision, it says, “the Court must determine not whether the Board’s decision was perfectly correct, but whether it was arbitrary.” It also states that “it is not this Court’s role to determine the facts anew or to reach its own conclusions whether Plaintiff’s EERs were accurate.” The critical question according to the Court “is not whether bias existed – it did – but whether the FSGB’s decision was arbitrary and capricious when it determined that the EERs were not falsely prejudicial.”

The Court citing Ackerman v. United States [324 F.Supp. 2d 1, 7 (D.D.C. 2004)] also states that “Under the highly deferential administrative review standard, the decision to weight different events in a foreign service officer’s employment history is within the expertise of the FSGB and must receive deference.” (See FSGB report on this, p.11)

Now, that brings some rather sobering thoughts, doesn’t it?

Kessler’s Memorandum Opinion on Olson v. Clinton is supposed to be accompanied by an Order, but I can’t locate that right now. I’ll add it here if/when I find it. If you have the link, do please give me a holler.

Olson v. Clinton: Court Grants Summary Judgment for State in a Discrimination Suit

Leonard Link recently wrote State Department Wins Round Against Gay Foreign Service Officer (h/t to Digger of Life After Jerusalem).

“U.S. District Judge Gladys Kessler ruled on March 12 that the U.S. State Department was entitled to summary judgment in a sexual orientation discrimination case brought by Karl Olson, a gay Foreign Service Officer (FSO) who claimed that adverse Employee Evaluation Reports concerning his service in Brazil were impermissibly tainted due to the homophobia of the Consul General in Rio de Janeiro. Olson v. Clinton, 2009 WL 635977 (D.D.C.).”

I had time to spare so I thought I would dig up more about this story.

FSO Karl Olson has been an FSO since 1985, tenured in 1988, and was NIV chief at ConGen Rio de Janeiro from 1993-1996. The case was originally brought against Secretary Rice but was substituted with Secretary Clinton as lead respondent when she became SoS. In his lawsuit, Olson seeks “judicial review of a Foreign Service Grievance Board (“FSGB” or “Board”) decision, alleging that it was arbitrary and capricious and tainted by prejudicial procedural errors.”

He received two Employee Evaluation Reports (EER) during his Rio de Janiero tour — looks like both reports were from one rating officer but reviewed by two different officers. EERs are use by the Foreign Service Selection Boards to evaluate FSOs for promotion or selection out of the Service.

On May 22, 1998, Olson filed a grievance with State “alleging that the EERs covering his time in Rio were inaccurate and falsely prejudicial, omitted favorable information, contained inadmissible comments, and were based on the anti-homosexual bias of Beffel and Zweifel” (his rating and reviewing officer). The case went to the FS Grievance Board (FSGB), was appealed, decided upon, went to the US District Court (D.C.), got remanded back to FSGB, decided upon, then finally went back to the US District Court (D.C.) where it landed on District Judge Gladys Kessler’s court.

You can read Judge Kessler’s March 12 Memorandum Opinion for Olson v. Clinton, 2009 WL 635977 (D.D.C.) here. Mr. Olson apparently filed all his pleadings under seal, so the Opinion is redacted/blacked out in various sections.

There are four things that strike me most about this case.

#1. Getting entangled with the FSGB and the Court looks like a real hard slog; Gosh, golly – this one took over 10 years! The website for the FSGB is here; everything there seems to be in Word document right now with ongoing work Notice says they are trying to “to make it more user friendly,” but website is bare, except for four annual reports in PDF files. Oh yeah, the search function makes me feel really dumb.

#2. Just see how many characters populated this case besides the FSO and his rating and reviewing officers. There was a third Consul General with his say, an Economic Officer who overheard criticisms about plaintiff, a Deputy Principal Officer with his say, an Administrative Officer, and an Ambassador who stated that he “received so many complaints about Mr. Olson” that he initiated a “campaign to emphasize ‘courtesy and respect’ to our visa officers.” Then there were those colleagues of Mr. Olson who felt that there were “homophobic attitudes” or an “atmosphere of homophobia,” including a DAS, a CA management analyst, and three Consular Officers.

Mr. Olson was the NIV chief at a constituent post, which means, there were a few folks between him and the chief of mission. The hierarchy would have been the Consular Section Chief and Consul General at ConGen Rio and then the Deputy Chief of Mission and the Ambassador at Embassy Brasilia. But who’s missing in the line-up of quotes? I have not seen any FSGB documents but no HRO, Consular FSNs, or DCM appeared to be quoted here. In a case like this, I wonder if the co-workers are naturally divided between the litigants? Who decides who speaks out for the record?

#3. There was that 1994 cable to Diplomatic Security from Rio, which the Court find most disturbing. “The cable targeted Plaintiff for no reason other than his sexual orientation and cited his homosexuality as its basis for initiating a defensive briefing (see page 8 for excerpt of cable).”

I guess we need some historical context here. In 1971 there was Gayer v. Laird, a challenge to anti-gay security clearance rules. In 1975, in Singer v. U.S Civil Service Commission, a gay federal employee was fired for being “flamboyant.”

As background, federal agencies used the sexual perversion criteria in the early 1950s to categorize homosexuals as security risks and separate them from government service. Agencies could deny homosexual men and women employment because of their sexual orientation until 1975, when the Civil Service Commission (now OPM) issued guidelines prohibiting the government from denying employment on the basis of sexual orientation. The guidelines, which further define the provisions of Executive Order 10450, resulted from court decisions requiring that persons not be disqualified from federal employment solely on the basis of homosexual conduct. Although the public policy change resulted in the restrictions against employment of homosexuals being lifted, the guidance for granting security clearances to homosexuals remained generally vague or restrictive until the early 1990s.

In 1995, President Clinton signed Executive Order #12968 on Access to Classified Information stating clearly that:

(c) The United States Government does not discriminate on the basis of race, color, religion, sex, national origin, disability, or sexual orientation in granting access to classified information.

(d) In determining eligibility for access under this order, agencies may investigate and consider any matter that relates to the determination of whether access is clearly consistent with the interests of national security. No inference concerning the standards in this section may be raised solely on the basis of the sexual orientation of the employee.

#4. Finally, although the Court pointed out some shortcomings in the FSGB’s decision, it says, “the Court must determine not whether the Board’s decision was perfectly correct, but whether it was arbitrary.” It also states that “it is not this Court’s role to determine the facts anew or to reach its own conclusions whether Plaintiff’s EERs were accurate.” The critical question according to the Court “is not whether bias existed – it did – but whether the FSGB’s decision was arbitrary and capricious when it determined that the EERs were not falsely prejudicial.”

The Court citing Ackerman v. United States [324 F.Supp. 2d 1, 7 (D.D.C. 2004)] also states that “Under the highly deferential administrative review standard, the decision to weight different events in a foreign service officer’s employment history is within the expertise of the FSGB and must receive deference.” (See FSGB report on this, p.11)

Now, that brings some rather sobering thoughts, doesn’t it?

Kessler’s Memorandum Opinion on Olson v. Clinton is supposed to be accompanied by an Order, but I can’t locate that right now. I’ll add it here if/when I find it. If you have the link, do please give me a holler.