Posted: 12:45 pm EDT
[twitter-follow screen_name=’Diplopundit’ ]
The question is why? Why is the Senate Foreign Relations Committee (SFRC) demanding that our diplomats self-certify that they have not committed a felony within the last seven years? The form says “disclosure of this information is voluntary.” But also that “failure to provide the information requested may result in delay or exclusion of your name on a Foreign Service nomination list.”
Career members of the Foreign Service must be promoted into the Senior Foreign Service by appointment of the President, by and with the advice and consent of the Senate. This self-certification is reportedly also required for employees who are up for commissioning and tenuring at the Foreign Relations committee.
So basically in bullying our diplomats into signing this witless self-certification, the SFRC will be able to provide better advice to President Obama?
All Diplomats Must Hold and Keep Top Secret Clearances
The American diplomatic profession requires the issuance of a security clearance. All Foreign Service officers must hold and keep an active Top Secret security clearance.
The personnel security background investigation begins after an individual has been given a conditional offer of employment and has completed the appropriate security questionnaire, usually a Standard Form 86, Questionnaire for National Security Positions, and other required forms. Once the security package is received by the Office of Personnel Security and Suitability, it is reviewed for completeness. National agency record checks and scanned fingerprint checks are then conducted. A case manager will direct the background investigation to cover key events and contacts from the individual’s past and present history. Once the investigators have completed a report, highly trained security clearance adjudicators will weigh the results against existing adjudicative guidelines for security clearances. A critical step in the background investigation is the face-to-face interview the individual will have with a DS investigator. This interview usually occurs within a few weeks of an individual submitting a complete security clearance package. Security clearances are subject to periodic reinvestigation every 5 years for TS clearance, and every 10 years for a Secret clearance.
When there is derogatory information, even based on preliminary facts from a DS criminal investigation, Federal Bureau of Investigation (FBI) counterintelligence or other law enforcement investigation, or an Inspector General investigation, the security clearance is suspended. Personnel whose security clearances have been suspended may not be placed on temporary duty status at diplomatic facilities abroad and may not be retained in positions requiring a security clearance until the investigation is resolved.
The names of those with pending investigations are automatically removed from the promotion list. It goes without saying …. oops, maybe it does need saying — diplomats who have pled guilty or convicted of a crime will not be able to hold a security clearance, much less have his/her name included in the promotion list.
Let’s give you an example — Michael Sestak, an FSO who pled guilty in a visa fraud-bribery case. He is currently sitting in jail. He’ll be sentenced in April. When he comes out of prison, he will not/not have a job to return to at the State Department. Does anyone at the SFRC really think that somebody like Mr. Sestak can slip through federal employment again, get on the promotion list and somehow make it through the most deliberative body in Congress. No? So why would anyone in the Senate think that this self-certification is anything but idiotic?
8,042 Diplomats Targeted
On March 2012, fcw.com cited 2,102,269 as the total number of executive branch employees. Of those, however, only 1,877,990 are full-time, permanent employees. These numbers reportedly do not include uniformed military personnel, or data on the Postal Service and excludes legislative and judicial branch employees.
Out of the 2.1 million employees, the State Department has a total of 71,782 employees which includes 47,110 Foreign Service National (FSN) employees; 10,871 Civil Service (CS) employees and 13,801 (FS) Foreign Service employees as of December 2014 (see stats here-pdf.)
Of the total 13,801 Foreign Service employees, 8,042 are considered “Generalists” and 5,759 are “Specialists.” The “Specialists which include DS agents, and HR, IT professionals are not subject to Senate confirmation. The “Generalists” are the Foreign Service Officers whose tenure and promotion are subject to confirmation by the United States Senate.
The Senate majority in the Foreign Relations Committee appears to be targeting only Foreign Service officers. FSOs, and FSOs alone have been asked to self-certify that they have not been “convicted of or pled guilty of any crime” in the last seven years. As far as we are aware, this requirement does not extend to nominees who are political appointees.
What makes career diplomats special, pray tell?
The White House Knows About This? You Gotta be Kidding.
This self-certification form which is not available at OPM.gov and does not include an official form number says that “The information collected and maintained in this form will be used as part of the vetting process for Foreign Service Lists submitted to the White House for eventual nomination to the Senate.”
An informed source told us that this self-certification had been negotiated between a representative of AFSA, a staffer at the Senate Foreign Relations Committee, and the State Department.
No, there were no photos.
Apparently, there also was no White House representative involved, although you might missed that when reading the unclassified State Department 14 STATE 98420 cable dated Aug 12, 2014, which says in part:
The Senate Foreign Relations Committee (SFRC) now requires additional vetting before it considers nominees for confirmation in all of the above-mentioned categories. Effective immediately all employees in those categories who have been nominated on or after April 1, 2014 must file a self-certification form certifying that they have not been convicted of a crime or pled guilty in any court over the past seven years, regardless of whether the record in the case has been sealed, expunged, or otherwise stricken from the court record. HR will notify those employees who are up for commissioning, tenure and SFS promotion that they must submit the form, available at: [Note: we redacted sbu link] and which must be submitted to HR-PasSelfCertificat@state.gov.Please note: failure to submit the form will mean that HR will not/not forward your name to the White House for nomination to the Senate. There is no waiver of the SFRC requirement. For those individuals who are unable to make the certification, and wish to provide information relevant to any conviction or guilty plea in the last seven years, they may report the information in the space provided on the form. Further investigation may be made on the basis of any additional information provided. The Department may then be required to provide this information to the SFRC.
AFSA and the State Department must realized that this is a meaningless and coersive made-up document, but both rolled over and played dead. No other nominees of any agency of the U.S. government are obliged to sign such a certificate, which is essentially, again, meaningless in the context of a profession in which an active security clearance is a prerequisite to the performance of a job.
This is spectacular and unprecedented.
Why roll over and play dead?
The SFRC can hold up ambassadorial nominations, senior State Dept level nominations (undersecretaries/assistant secretaries), and decide who to put first on the hearings list and who to put last (see Happy Easter Greeting: SFRC Left Town With 19 Ambassadorial Nominations Still Stuck on Glue!). The simple act of holding up large numbers of nominees rather than passing them through at a reasonable pace wreaks havoc on State’s budget, assignments process, and people’s lives. (see Is the U.S. Senate Gonna Wreck, Wreck, Wreck, the Upcoming Bidding Season in the Foreign Service?) Salaries, promotions, transfers, offices, authorities are money. Ambassadors who do not go to posts on time have big time resource implications in addition to political implications. People who do not have the legal authority to do their jobs (is a consular officer’s notarial legal if he/she did not receive Senate confirmation?) operate in a legal limbo presumably implying risks of all kinds.
Why not ‘just do it’ like Nike? It’s already done but it’s a horrible precedent, what’s next?
This is already being done. Folks have already signed this self-certifying documents and have submitted them as a requirement to their nominations. They don’t really have a choice, do they? But where does it end?
We’ve learned that the SFRC gets information on names recommended for promotion from the State Department “following vetting” and also directly from the OIG, including information that reportedly goes back decades.
That’s right, going back decades.
If an FSO or any employee is charged with a crime, the employee defends himself/herself in court, and if charged with an administrative matter, the employee defends himself/herself in an HR process. That’s how it works.
One SFRC staffer is now reportedly “negotiating” to gain access to OIG investigative data under the guise of allowing the Senate panel to better advise President Obama concerning the qualifications of Foreign Service Officer candidates. But what the SFRC is now “negotiating” with State and AFSA would be access to raw OIG and Diplomatic Security reports containing derogatory information without any of an employee’s mitigating, exculpatory or defensive evidence information. You okay with that?
What is Senator Corker’s SFRC going to ask for next, your diplomatic liver?
The White House seems asleep at the wheel on this. Today, it’s the State Department, tomorrow, it could be any agency in the Federal Government.
Hey, the Senate Foreign Relations Committee is doing it, what’s the rest of the Senate going to ask for next?