State Dept on Ambo Nominees’ “Certificates of Documented Competency” — Working On It

— Domani Spero

The American Foreign Service Association was in the news yesterday after announcing that it will file a suit against the State Department if, by end of business day today, it does not get the certificates of demonstrated competence for ambassadorial nominees (see AFSA Threatens to Sue State Department Over Ambassadors Credentials, Again).

The topic made it to today’s Daily Press Briefing with the State Department spokesperson Jen Psaki answering questions about AFSA’s FOIA requests for these documents which were reportedly filed on July 29, 2013 and a second request filed on February 28, 2014.  Ms. Psaki refused to make a prediction of whether State would respond to AFSA’s request by the close of business today.

At about 3pm EST, ABC News tweeted that AFSA is giving the State Department until tomorrow morning to furnish the requested “Certificates of Documented Competency” for ambassador nominees.

When you look at that AFSA FOIA request delay of 7 months and a week, it might be useful to note that in FY2012, the State Department’s total requests in backlog is 10,464.   In fact, according to foia.gov, State has one of the highest backlogs, second only to DHS. In FY 2011, the average number of days to process a simple case was 156; for complex cases, 342. Some cases have been pending for 5 or 6 years (see State Dept FOIA Requests: Agency Ranks Second in Highest Backlog and Here’s Why).  The oldest pending request, as you can see below is 1,922 days.

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Here is the short version of the March 6, 2014 DPB:

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via Word It Out

Below is the long version from the March 6, 2014 DPB:

QUESTION: The American Foreign Service Association said yesterday that they were going to be filing suit against the State Department if, by end of business today, you don’t provide certificates of demonstrated competence for ambassadorial nominees. So I just wanted to know if you had any reaction to that.

MS. PSAKI: Sure. Well, AFSA submitted a FOIA request on July 29th 2013 to our website – this is just some details for all of you to be aware of – seeking certificates of a demonstrated competence for every ambassador from January 1st 2013 to the present. We receive, as many of you know, about 18,000 FOIA requests per year. Generally – we generally process requests on a first in, first out basis. So we’re currently actively processing the request in accordance with the statute and the Department’s regulations, which applies to the specific release they put out yesterday.

In terms of broadly speaking, obviously, in nominating ambassadors, we look – the Administration looks for qualified candidates who represent Americans from all walks of life and who show true zeal for serving their country, and we’ve received interest and recruited talented people from all across the country and all kinds of professional backgrounds, whether they are Foreign Service – well, that’s – they proceed through a different process, there, of course, but political appointees who may be from the business sector, who may be from a public service sector. We feel that this kind of diversity helps represent who we are and the United States around the world.

So long story short, we are reviewing their request. We process requests as they come in. Certainly we welcome the comments of anyone and views of anyone on these sorts of issues, but I think it’s important to remind everyone of what we look at when it comes to ambassadorial nominees.

QUESTION: Jen, they submitted this request in July? How many months ago?

QUESTION: January.

QUESTION: No, July 29th, she said.

QUESTION: I thought you said January.

MS. PSAKI: For every ambassador from January 20 —

QUESTION: Oh, sorry, sorry, sorry.

QUESTION: So how long should they expect to wait until you finish processing your request? And why should they even have to submit a FOIA request for this? Why wouldn’t you just – if they asked for it, why wouldn’t you just turn them over?

MS. PSAKI: They were asking for specific documents that are —

QUESTION: Right. But this is not an organization that has a questionable interest in this. It’s an organization that, in fact, represents – I mean, it is the – basically the union for Foreign Service officers, so it’s not really an outside party.

MS. PSAKI: Well, oftentimes, Matt, there’s a processing aspect that needs to take place with these requests, so —

QUESTION: Right, I’m sure that – I’m sure everyone is thrilled, everyone who’s ever filed a FOIA request to the State Department or any other government agency is thrilled, but I think that —

MS. PSAKI: There are many people who do. That’s part of the challenge in processing them.

QUESTION: Right. Okay, so you just threw this in the big pile, in the in-box with every single other request, even though they clearly have some – they have demonstrated interest in this subject. I don’t understand —

MS. PSAKI: I didn’t say we threw it in a pile, Matt.

QUESTION: Yeah, you did. You said you get 18,000 requests a year, so – and —

MS. PSAKI: We do. We process them.

QUESTION: So when they —

MS. PSAKI: But obviously, we’re working to review their request and see how we can meet it as quickly as possible.

QUESTION: But specifically they asked for it to be by the close of business tonight. Otherwise, they’re going to take their – take this to legal action.

MS. PSAKI: I understand that.

QUESTION: Are you saying that you will not be able to get it to them by end of day tonight?

MS. PSAKI: I’m not going to make a prediction of that. We’ll see what happens.

QUESTION: Just – can I have one —

MS. PSAKI: Sure.

QUESTION: Where – you are now processing this specific request, correct?

MS. PSAKI: Mm-hmm.

QUESTION: You’re actually looking at it and trying to satisfy it?

MS. PSAKI: Mm-hmm.

QUESTION: Okay. If you get 18,000 FOIA requests a year, what is the typical time lag for processing a request? Is it, as in this case, I guess, eight months or – is that typical or is it less, is it more?

MS. PSAKI: I don’t have any specific time breakdown for you. I’m happy to see if there’s anything like that we can provide.

QUESTION: And was this one —

MS. PSAKI: We’re – they’re about to start the press avail, but go ahead.

QUESTION: Okay. Was this one jumped to the front of the queue for any reason or no? It was processed —

MS. PSAKI: Well, there are cases where – and they asked for expedited processing, and some cases that question is asked. This didn’t satisfy the specific laid out standards for that, but we’re still working to see if we can process this as quickly as possible.

QUESTION: But it was not – was it jumped ahead or no? Or it —

MS. PSAKI: Well, we’re still working to see if we can process it as quickly as possible.

QUESTION: No, no, that’s not my question, though. My question is whether it got – I understand that they may have requested expedited processing —

MS. PSAKI: Mm-hmm.

QUESTION: — and did not – denied it because they don’t meet the standards, which happens to a lot of people.

MS. PSAKI: And at the same time, we’re still working to expedite – to process this as quickly as possible.

QUESTION: Right. Right. Right. No, but I’m sure you’re doing that with the other 17,199, right? I mean, the question is whether you are doing this faster.

MS. PSAKI: Specifically with this one, we are —

QUESTION: Yeah.

MS. PSAKI: — working to process it as quickly as possible.

QUESTION: But quicker than everything – others’ stuff?

MS. PSAKI: It doesn’t work in that exact way, but we’re working to process it as quickly as possible.

Ali.

QUESTION: And Jen, they said that – AFSA said that they also filed a second FOIA request on February 28th.

MS. PSAKI: Mm-hmm.

QUESTION: So did they express to you their – because I know there was discussion between counsels.

MS. PSAKI: Sure.

QUESTION: So was that part of the aspect, that they didn’t feel that the July request had been processed or addressed within a – expeditiously enough so that —

MS. PSAKI: You’d have to ask them that question. I’m not sure if they are basically about the same thing or not. So I’m happy to check, and you may want to check with them and see what the reason was for the second one.

QUESTION: These documents are – what they’re seeking or these certificates are not classified, are they?

MS. PSAKI: No, but they’re still internal files, and so obviously we go through a process —

QUESTION: Fair enough. But they’re for a very small number of people, 50. Do you have any idea how many pages one of these things is?

MS. PSAKI: Well, it’s every ambassadorial nominee for the last 14 months.

QUESTION: Right.

MS. PSAKI: So —

QUESTION: And how many – well, actually, it wouldn’t have been originally —

MS. PSAKI: 15?

QUESTION: No, because they filed it in July asking for every one that went back to January. So —

MS. PSAKI: But when you meet it, you’re abiding by what the FOIA request —

QUESTION: Fair enough. How many pages is one of these things?

MS. PSAKI: I don’t have a specific number of pages for you.

QUESTION: It seems to me like this is a very limited request from an organization that’s got a very, very important interest in this subject, and that frankly, they should, if they ask, should be allowed to see – without having to go to through the FOIA processing. Was there any – did – do you know – are you aware if they asked outside of FOIA to get this – to get these documents?

MS. PSAKI: They are closely engaged with our chief of staff and deputy secretary of state, and have a range of meetings. So I know that all of these issues have been discussed. In terms of this specific request, I can check if there’s anything we can share on that.

QUESTION: So in other words, you said no. They asked, you said no, you have to submit a FOIA? Is that —

MS. PSAKI: I’m not saying that’s how it all went down. I’m saying they have many channels for having discussions with people in the Administration. And if there’s more to share on whether they made this specific request outside of the FOIA request process, I’m happy to check into that.

QUESTION: Do you have any idea if there is a chance, even a remote chance, that the processing will be finished by 5 o’clock this afternoon?

MS. PSAKI: I’m not going to predict when it will be finished.

QUESTION: Well, I know, but —

MS. PSAKI: Obviously, we’re working to process it as quickly as possible.

QUESTION: I understand that. But is there a possibility that it could be done by 5 o’clock?

MS. PSAKI: There’s always a possibility.

QUESTION: There is. Okay.

QUESTION: How many nominees are we talking about? Have you got a figure?

MS. PSAKI: I don’t have a figure.

Well, then, tomorrow, maybe  — or we’ll wonder who’ll stop the rain …

 

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AFSA Threatens to Sue State Department Over Ambassadors Credentials, Again

Updated on March 6, 10:13 pm PST with the “demonstrated competence” requirement in the FS Act of 1980.

— Domani Spero

Via WaPo’s Al Kamen:

The State Department employees union is demanding that the department turn over key documents on three embattled ambassadorial nominees — and all pending Obama administration nominees, both career Foreign Service and non-career folks — by Thursday evening or face a prompt lawsuit for the materials.

The documents, called “certificates of demonstrated competence,” essentially explain the rationale for nominating  each individual. The 28-member governing board of the American Foreign Service Association (AFSA) voted unanimously to demand the documents.

AFSA had filed a Freedom of Information Act request for the documents in July, but it has not received them.
[…]
Although the board was very concerned about those particular three nominees, “We’re not going to be satisfied with one or two small victories,”AFSA president Robert Silverman said in an interview. “We want the system to be fixed, it’s broken.”

With the certificates in hand, the board, probably by telephone vote, is expected to deal with those three nominees. On the other hand, if AFSA needs to go to court for the documents, it may not get them before the full Senate votes on the nominations.

On AFSA’s Facebook page, the news has yet to generate a wave of response from its membership. Besides over a dozen likes and a few short “bravos,” a couple of concerns were also posted:

One wrote: “While I appreciate the broader issue, and think that it is nice that the press is focused on the service of career diplomats, I wonder how much efforts like this will go to alienate senior leadership in the Department and Administration who might later be called on to advocate for OCP or other issues of concern for the rank and file. I agree the Service would benefit if a few more Ambassadorships went to career diplomats, but I doubt that the senators who right now might applaud the sideshow generated by a lawsuit will feel similarly disposed when a Republican administration is making its appointments.”

Another comment: “While I am concerned about the quality of our Ambassadors I am even more concerned that AFSA has chosen this matter as the defining issue on which to expend its political capital.  I understand your explanation that no publicity is bad publicity but if the choice is to put our support behind an initiative that will benefit a very select few versus a different initiative that will benefit all, i.e. OCP, then I would rather we back the latter. My fellow proletarians may disagree but this seems to me a much wiser use of resources.”

In responding to one FB comment, Mr. Silverman, the AFSA president wrote in part:

“I want to assure you that we are working very closely on this Chief of Mission Guidelines initiative with the senior leadership at State, other Administration and SFRC. That has been the focus since the initiative’s genesis in August. Informally senior State leaders applaud and support this initiative. And we are collaborating closely with State on our single biggest ask of Congress: the third tranche of OCP. From my perspective as AFSA’s president, this collaboration has never been closer. The unprecedented media attention also strengthens AFSA’s voice in general. The goal is to have it help with OCP, and the most urgent issue in front of us – the Senate holds on 1,300 FS members awaiting tenure and promotion.”

Thursday night is reportedly the deadline.  It’ll be an interesting night, or maybe not.

If the State Department releases these “certificates of demonstrated competence” on “all pending Obama administration nominees,” it will, no doubt, be a media field day. We could be wrong, but we don’t think State will roll over a threat that easily.  If it does’t, AFSA will, of course, have to go to court. It won’t be for the first time.  Since we don’t have a drive-thru court, this will certainty take time winding through the federal district court. By the time a hearing is in sight or folks need to appear in court, the ambassadorial nominees potentially would already be confirmed and off to post.

We have not been able to find anything on these “certificates of demonstrated competence” — not in the FAM or anywhere else in state.gov.  Not even in history.state.gov but it is in the FS Act of 1980:(h/t to M!)

Section 304 (4)
(4) The President shall provide the Committee on Foreign Relations of the Senate, with each nomination for an appointment as a chief of mission, a report on the demonstrated competence of the nominee to perform the duties of the position in which he or she is to serve.

Also,  a little digging in ADST’s oral history project gave us an idea on what maybe in these “certificates.” Below is an excerpt from the ADST interview of Charles A. Schmitz who served in the State Department from 1964 to the early 1990’s. He worked in the Director General’s Office from 1976-1978 and served as AFSA Vice President in 1990 when the association took the State Department to court for these “certificates.” Excerpt below, read the full interview here (pdf).

The State Department, in a most conniving, almost criminal way, connived to keep from the public view the description of how bad a lot of these appointees were, in violation of the law. The law requires the State Department to issue a certificate of demonstrated competence for every ambassadorial appointee.
[…]
It is in the Foreign Service Act. It is much ignored, by the way. Pell required it to be written into the law, but then quit taking it seriously. Therefore, the certificate was produced in name only. It was not a certificate of competency at all. It was a brief, usually one page, description of what the person had done. A typical example was of the model…Mr. so-and-so has been a pillar of his community, a successful businessman in running his used car dealership and therefore would make an excellent ambassador of the United States to Spain. It was so bad that these things were not even carefully done. They had typos in them. In one case the last line naming the country was the wrong country.
[…]
Nobody noticed it because they classified it. There is a little operation in the State Department that produced these things. They were not really State Department people, they were White House people sent over to write these things. There were two of them. They then sent them as confidential documents to the Senate Foreign Relations Committee. That is why we sued him. We said that you can not classify somebody’s resume. Under the National Security Act involving classification this is a violation of the act. We, of course, argued that point until we were blue in the face for months and months with the State Department in negotiations. They refused to move on it, so AFSA sued the Secretary of State in the Federal District Court. Before the matter came to hearing, the State Department compromised and provided AFSA all of the documents which it had withheld until that point. It undertook to provide us the documents as the law should require and denied having done anything wrong.
[…]
These things turned out to be laughable in practice. They were slipshod, superficially done, just marking the boxes So we had to expose that in some fashion. And that was important that it was exposed and ultimately, as I said before, what caused a certain amount of embarrassment. This didn’t defeat any of those nominees, but it may have had some effect on other potential appointees, or the nominators anyway who realized it wasn’t going to be just a free ride to nominate anybody as ambassador.

Remember Battlestar Galactica’s “All this has happened before, and all of it will happen again?”  

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