Omar v. Kerry, Passport Revocation “Arbitrary and Capricious,” New Hearing Ordered Within 60 Days

Posted: 3:51 am EDT
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Back in April 2015, a San Francisco man sued the State Department in federal court, claiming that American embassy officials in Yemen illegally revoked his passport and left him stranded in that country for more than a year. This passport revocation case was just one in a string of lawsuits alleging improper revocation of passports by the U.S. Embassy in Yemen.

On October 13, the U.S. District Court of the Northern District of California ordered the State Department to return the U.S. passport of Yemeni-American Mosed Shaye Omar which was revoked “based on the involuntary statement he provided at the U.S. Embassy in Sana’a on January 23, 2013.” (See Court orders @StateDept to return Yemeni-American’s improperly revoked U.S.passport).

On February 16, the U.S. District Court of the Northern District of California issued a cross motions for summary judgment:

This lawsuit presents the question of whether the United States government may revoke a United States citizen’s passport based solely on a purported “confession” that the citizen did not write, dictate, read, or have read to him, but did in fact sign. On the record before the Court, the answer is no.

Plaintiff Mosed Shaye Omar, a United States citizen, challenges the revocation of his passport following his interrogation and detention at the U.S. Embassy in Sana’a, Yemen. Plaintiff was stranded in Yemen for 13 months before he was provided written notice of the basis for his passport revocation and granted a temporary passport to return home to the United States. Plaintiff challenges the passport revocation and the constitutionality of the post-revocation proceedings wherein he sought return of his passport. The Court previously granted Plaintiff’s motion for a preliminary injunction and ordered the government to return Plaintiff’s passport. The now pending cross-motions for summary judgment followed. Having considered the parties’ submissions, including their supplemental briefs, and having had the benefit of oral argument on December 17, 2015, the Court GRANTS Plaintiff’s motion for summary judgment and DENIES the government’s cross-motion. The government’s revocation of Plaintiff’s passport predicated solely on his “confession” was arbitrary and capricious. The matter is therefore REMANDED for a new hearing within 60 days.
[T]he only evidence in the record regarding the statement—other than the statement itself—is Plaintiff’s declaration attesting that he had no knowledge of what he was signing and that he was coerced into signing the statement based on the government’s false representation that if he did so he would obtain his and his daughter’s passports. The government does not offer any other evidence, including any evidence as to how the statement came about. On this record the statement itself is not substantial evidence supporting the government’s revocation decision.

Judge Jacqueline Scott Corley further writes:

It is inconceivable that Plaintiff would bear the burden of proving that he did not use a false name in obtaining his passport where he had no right to know the evidence against him in advance. Such a practice would run afoul of the fundamental nature of our system of justice. 

The court record notes that “Plaintiff, through his counsel, repeatedly asked for a copy of the statement upon which his passport revocation was based; however, the government refused to provide it until the parties exchanged simultaneous briefs seven days before the hearing. (AR 83-90.) The government similarly declined counsel’s request for a continuance of the hearing to allow counsel to prepare as they were only retained a month before the hearing. (AR 52-55.)”

The court has remanded the case to the State Department for a new hearing within 60 days:

The Court thus remands for a new hearing within 60 days. 22 C.F.R. § 51.70(c). As noted above, the government shall bear the burden of establishing that Plaintiff’s passport was properly revoked pursuant to 22 C.F.R. § 51.62(a)(2). Both parties agree, and indeed request, that the Court retain jurisdiction following remand. Because it is within the Court’s discretion to do so, the Court agrees to retain jurisdiction pending the remand.

For the reasons stated above, the Court GRANTS Plaintiff’s motion for summary judgment and DENIES Defendant’s motion for summary judgment. This matter is remanded to the State Department for proceedings consistent with this Order, including a new hearing within 60 days under 22 C.F.R. § 51.70(c). The Court’s preliminary injunction remains in effect and Plaintiff shall retain possession of his passport during these administrative proceedings, and until he is afforded a full and fair hearing regarding the government’s allegation that Plaintiff’s passport is subject to revocation under 22 C.F.R. § 51.62(a)(2).8 Within 30 days of the conclusion of the administrative proceedings, the parties shall provide a joint status report detailing how they wish to proceed.

Read the full document below or see the  original post here.


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State/OIG Reminds @StateDept of IT Contingency Planning Deficiencies

Posted: 12:59 am EDT
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Last week, State/OIG issued a Management Assistance Report (MAR-PDF) reminding the State Department of continued deficiencies identified in information technology contingency planning at its overseas posts:

OIG identified IT contingency planning deficiencies in 69 percent (20 out of 29) of overseas inspections performed during FYs 2014 and 2015. The issues identified ranged from information management staff at posts not developing, updating, or testing IT contingency plans to plans that lacked appropriate key stakeholders and contact information as part of emergency preparedness, contrary to requirements set forth in 5 Foreign Affairs Manual (FAM) 1064, 12 FAM 623.7, 12 FAM 632.3, and National Institute of Standards and Technology Special Publication 800-34. This report recommends that the Department take action to ensure that information management personnel are held accountable for IT contingency planning by making this responsibility explicit in their work requirements.

Recommendations from 2011 OIG Memorandum Report Unimplemented

OIG inspection teams continue to report IT contingency planning findings in overseas inspection reports, despite a December 2011 OIG memorandum2 to the Bureau of Information Resource Management with two recommendations addressing the topic. The memorandum identified IT contingency planning issues involving bureaus’ and posts’ lack of attention to developing and testing IT contingency plans as part of their emergency preparedness activities. The Bureau of Information Resource Management stated in compliance responses that it was planning to implement a tracking mechanism and develop a SharePoint site to capture risk scoring compliance for posts and bureaus. However, after 4 years the bureau still lacks a tracking mechanism and a SharePoint site as mentioned in their compliance responses. The September 2015 compliance response noted that the bureau is researching other alternatives to comply with OIG recommendations.

 So State/OIG is trying again with this MAR and a nudge on the Work Requirements of Information Management Staff

A review of Foreign Service employee evaluation reports for information management officers or the most senior information management personnel at embassies and consulates revealed that only 12 percent (32 out of 272) had a stated work requirement to develop and test IT contingency plans. According to 5 FAM 825 and 5 FAM 826, responsibility for the development and testing of IT contingency plans lies with the information management staff overseas.

Recommendation 1: The Bureau of Information Resource Management, in coordination with the regional bureaus, should include the requirement to complete and test information technology contingency plans in the work requirements for information management personnel. (Action: IRM, in coordination with AF, EAP, EUR, NEA, SCA, and WHA).

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Let’s dispel this fiction that an Obama appointed Inspector General is on “fishing expeditions”

Posted: 12: 34 am EDT
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In January, we posted about a Clinton ally going after a senior advisor of the Inspector General of the State Department (see It Took Awhile But Here It Is — Going After @StateDept OIG Steve Linick With Fake Sleeper Cells).

Politico recently reported this:

The State Department’s internal watchdog office subpoenaed the Clinton Foundation last fall for records about projects the foundation was involved in during Hillary Clinton’s time as secretary of state as well as records related to longtime Clinton aide Huma Abedin, a foundation representative confirmed Thursday.
A spokesman for Inspector General Steve Linick declined to comment on the subpoena or the scope of the office’s inquiry. Lawyers for Abedin did not respond to messages seeking comment on the development.

However, a spokesman for Clinton’s presidential campaign suggested the inquiry was unfounded and unnecessary.

“It’s very hard, to be honest with you, for me personally to keep track of all the fishing expeditions that this IG office has conducted,” spokesman Brian Fallon said on CNN.
“This is the same office that launched an investigation into one of Secretary Clinton’s top aides over maternity leave and when the Justice Department refused to go along with that fishing expedition they had to give it up and, now, ever since, they’ve had to look for other things,” Fallon told CNN . “That was ridiculous and the Justice Department laughed at it when the IG made a referral over there and rightfully so.”

Brian Fallon previously worked as spokesman for Eric Holder at the Justice Department and has been the press secretary for the Clinton Campaign since April 2015.

Isn’t it weird that the campaign spox knew that the Justice Department “laughed at it?”

Whenever there is a leak of a State/OIG work product, some folks assume that the leak can only come out of Foggy Bottom. Because obviously, accusing the folks in Congress of leaking an official report is really nutty, hey?  That never happens, right?

Let’s dispel with this fiction that State/OIG Steve Linick appointed by President Obama is out to get the democratic frontrunner and that these investigations are “fishing expeditions.”

The  Inspector General Act of 1978 imposes a dual reporting requirement on inspectors general to both their agency heads and to the Congress.

(5) to keep the head of such establishment and the Congress fully and currently informed, by means of the reports required by section 5 and otherwise, concerning fraud and other serious problems, abuses, and deficiencies relating to the administration of programs and operations administered or financed by such establishment, to recommend corrective action concerning such problems, abuses, and deficiencies, and to report on the progress made in implementing such corrective action.

The OIG’s Semi-Annual Report to Congress no longer includes a summary of congressional requests made to the inspector general but we know from media reports that Senator Chuck Grassley of the Judiciary Committee wrote to the State Department on June 13, 2013 and August 15, 2013 regarding the Department’s use of Special Government Employee (SGE) designations. In March 2015, Senator Grassley asked (PDF) State/OIG to look into SGEs and related issues to Huma Abedin.  IG Linick’s response is here (PDF).

On March 25, 2015, Secretary Kerry requested (PDF) IG Linick for an expedited review of the State Department work “to preserve a full and complete record of American foreign policy, consistent with federal laws and regulations.” Note  that the Kerry request is available through and not through

Presumably, these are not the only requests but even if the Secretary of State or members of Congress were not asking for investigations, there are issues related to the Clinton tenure that no inspector general worth his/her salt can simply afford to ignore.

Imagine all the uproar going on related to State Department emails, email server, SGEs, FOIA, classifications, big donors, family foundation, potential conflicts of interest and blah, blah, blah.

Now, imagine an inspector general ignoring all that and focusing his attention elsewhere safe like oh, auditing expenditures for FSI’s furniture.

Is that the inspector general we need?

In this election season, any investigation related to the former secretary of state is a political landmine. The easy way would have been to hide under a rock and not come out until well, November 10, 2016.  The fact that the Office of the Inspector General at the State Department is working as it should even when there are political IEDs everywhere is a sign of courage under fire.  And it’s only going to get rougher from hereon.  Hat’s off to you, folks, for doing what you’ve publicly sworn to do — to faithfully discharge the duties of the office you’ve entered.