Posted: 2:40 am EDT
[twitter-follow screen_name=’Diplopundit’ ]

 

Is the Secretary of State bound by the rules of the Foreign Affairs Manual or not? That’s the question asked during the August 31 press briefing at the State Department.

QUESTION: Two other quick things. One is: Do you believe as a general matter that the Secretary of State, whomever he or she may be, is bound by the rules in the Foreign Affairs Manual or not? I mean, it may be that they’re not, that they have sort of a status that’s different and that therefore they have the rights to not follow it.

MR TONER: I mean, I would just say that every State Department employee from the Secretary on down takes the handling of classified information very seriously and is aware of the rules surrounding those classification standards.

In reading these excerpts, it is useful to remember the  State Department’s Most Candid Nugget.  A bit later, another one tried asking this again:

QUESTION: On the thing that everybody is obliged to – I mean, can you not address squarely whether the Foreign Affairs Manual applies to the Secretary of State or not?

MR TONER: I mean, I can say that, again, we, from the Secretary on down, take the handling of classified materials and the rules surrounding those – so I mean in that sense, including the Foreign Affairs Manual but also other regulations, stipulations, training that we undergo in how to handle classified and confidential information.

QUESTION: You take them —

MR TONER: Seriously. I’m sorry.

QUESTION: But does that mean that you’re bound by them?

MR TONER: We’re all bound by – how we treat classified information is, as I said, an important component of the work we do, but I’ve also made clear that when you look at classified material it is not an exact science, it’s not black and white, it’s not always clear, so there’s strong feelings and different beliefs about when something is classified, whether it’s born classified, whether it should be classified later. These are all questions that are being answered in a deliberative and a thorough way that we’re looking at that’s not somehow some cabal of people in a small room somewhere making these decisions. It’s an interagency process. It involves the IC, it involves other agencies as it touches their equities. So that’s our focus.

QUESTION: Mark, since you just said those —

MR TONER: Please, go ahead.

QUESTION: — rules and standards are so important that everyone in this building has to follow them, can you say from that podium categorically that Secretary Clinton followed the rules and the law?

MR TONER: I’m just not going to answer that question. It’s not our goal, it’s not our function in this regard in releasing these emails. Our goal and our sole purpose when we look at these emails is to decide – well, first to publish them according to the FOIA request that we have received. But in doing that, looking at them and deciding whether any of that material needs to be redacted and subsequently classified.

QUESTION: Isn’t it a little odd that the State Department can’t state categorically that the Secretary of State followed the rules?

MR TONER: All I can say is that there are – and I’ve alluded to there – I’ve not alluded to it, I’ve said as much to Arshad: There are other reviews, and that’s really for the inspector general and other entities who are out there looking at some of these broader questions.

Click here for the DPB | August 31, 2015.

The first question starts with “Do you believe …”  They can pin Mr. Toner to the wall with giant thumb tacks but we doubt very much if they can pry a straight answer out of him on this one.  What he believes is immaterial. What the building believes is what counts. And for that, we think you’d have to go ask the Legal Adviser.

Oops, wait! Brian Egan nominated to succeed Harold Hongju Koh is still stuck in the Senate confirmation process. Originally nominated in September 2014, Mr. Egan has now waited 347 days for his Senate confirmation. He had been renominated once before on January 16, 2015 when his nomination was not acted by the Senate last year.

While the Office of the Legal Adviser (without a Senate-confirmed Legal Adviser) has not released an opinion on this subject, it apparently told the OIG that the Foreign Affairs Manual‘s disciplinary provisions do not apply to political appointees as they are “not members of the Foreign Service or the Civil Service.”

The January 2015 OIG report Review of Selected Internal Investigations Conducted by the Bureau of Diplomatic Security (pdf) includes the following:

[The] Office of the Legal Adviser staff told OIG that the FAM’s disciplinary provisions do not apply to Ambassadors who, as in this instance, are political appointees and are not members of the Foreign Service or the Civil Service.

According to the OIG report, the Under Secretary for Management disagrees with this interpretation:

[T]he Under Secretary of State for Management advised OIG that he disagrees with the Office of the Legal Adviser interpretation, citing the provisions in the Foreign Service Act of 1980 which designate Chiefs of Mission appointed by the President as members of the Foreign Service. See Foreign Service Act of 1980, §§ 103(1) & 302(a)(1) (22 USC §§ 3903(1) & 3942(a)(1)).

Hey, if there’s a shootout between “L” and “M”, who wins?

Okay, first, how can Legal only cites the FAM’s disciplinary provisions? The Foreign Affairs Manual is the rules book for the agency. If the disciplinary provisions do not apply to political appointees, what other parts of the FAM do not apply to them?

Can they ship construction materials with their household effects, for instance? Can they change their workdays so they only have to work Tuesdays through Thursdays and have four day weekends every week? Can they travel first class without using U.S. air carriers? Are they obligated to account for their own conduct, whether on or off their jobs? Are they allowed to accept and retain gifts given to them by foreign governments? Can they speculate in currency exchange? Can their spouses work anywhere they want? Are they allowed to invest in real estate in their host countries? And on and on and on.

So if we follow the Office of Legal Adviser’s opinion to its logical conclusion, the Secretary of State, if a political appointee is also not subject to the FAM, yes?

That’s a dreadful opinion, by the way. It puts a politically appointed secretary of state and politically appointed American ambassadors in the enviable position of rallying the troops with “follow what I say, not what I do.” Because, if that’s the case, political appointees can do anything — fundraise overseas, for example — and not have consequences, while regular employees doing exactly the same thing could be penalized.  Or they/their spouses can ship goodies for private gain using the diplomatic pouch and not have any penalty while a career FSO’s spouse would surely be penalized for doing the same thing. And if political appointees are not subject to the Foreign Affairs Manual because they “are not members of the Foreign Service or the Civil Service” the questions then become 1) why are they in the Foreign Service or Civil Service pay scale? and 2) if not the FAM, which rules are they supposed to adhere to?

Of course, this could also mean that if a Foreign Service officer is appointed Secretary of State, he/she would then be subject to the FAM because he/she is a career member of the diplomatic corps. Not that there’s any great danger of that happening. Lawrence Eagleburger is the only career Foreign Service Officer to have served as Secretary of State (appointed Secretary of State on December 8, 1992, and continued in that position until January 19, 1993). But see why that L opinion is troubling?

In any case, we do think this is an important question that ought to have a simple answer.

Except that it doesn’t.

Is the Secretary of State bound by the rules of the Foreign Affairs Manual? 

During the September 1 DPB, a reporter revisited this once more:

QUESTION: It’s a question that I asked the other day and I’d like to ask if the State Department will take a policy decision on this, not with regard to Secretary – former Secretary Clinton, but with regard to current and past secretaries of state, and that is whether it is the view of the Department that the Secretary of State is bound by the rules laid out in the Foreign Affairs Manual.

MR TONER: Okay. I mean, I —

QUESTION: As a general principle, do they apply to the Secretary of State or not, or do they apply selectively? That’s the question.

MR TONER: Okay. I will get you an answer for that.

We await with great interest Mr. Toner’s answer to this very straightforward question. We hope the reporters would keep asking this question. Every day until we all get an answer.

#

Related posts:

• NewsFlash: “The FAM is not a regulation; it’s recommendations.” Hurry, DECLINE button over there!
• AFSA Politely Asks the State Dept: Is Adherence to the Foreign Affairs Manual Optional For Some?