@StateDept may soon get the ‘security clearance suspension without pay’ hammer, it’s a baaad idea

Posted: 1:02 am PT
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In addition to some 40 reports a year mandated by the 2016 authorization bill, it also includes a troubling provision for suspension without pay (SWOP) whenever the security clearance of a Foreign Service member is suspended. Not just for suspension for national security reasons anymore. If this bill is signed into law, won’t the State Department be able to put any employee on suspension without pay, at any time, for any reason?

We blogged about this last year:

The most widely reported FSO with a suspended clearance in recent memory is Peter Van Buren whose TS clearance was suspended for about a year. Under this proposed bill, PVB would not have been assigned to a telework position or paid for the duration of his fight with the State Department. Which means he and others like him would have to quit and find a paying job or starve unless he/she has a savings account that can sustain the investigation for a year or years.

Any FS employee who might dissent or engage in whistleblowing activity, any perceived troublemaker for that matter, can be put on SWOP, and that would be it.  An FSO who experienced first hand the suspension of a security clearance put this in very stark terms:

In practical terms they can remove the employee instantly, without telling anyone why until much later, by which time the employee will have resigned unless they can afford to go for months or years without a salary. And once the employee has resigned, the case is closed, the former employee loses their clearance because they resigned, and with it any right to know the reasons for the suspension. If the employee quits, the Department does not have to justify itself to anyone, and if the Department doesn’t have to pay them, 99.9 percent will quit.

The bill provides for a “reasonable time to respond orally and in writing to the proposed suspension” — members of the Foreign Service assigned to duty in the United States will get 15 days after receiving notice of the proposed suspension; members of the Foreign Service assigned to duty outside the United States will 30 days after receiving notice of the proposed suspension. It also provides for what appears to be a very limited review by the Foreign Service Grievance Board (FSGB).

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An insider told us that basically any dissenter can be taken off the payroll almost at will, just by putting a national security spin on their dissent – which apparently can be quite easy to do.

Word has it that this has been on the State Department’s wish list since at least the Rice tenure as secretary of state. So now, it’s here and if it’s passed, it will add a new layer of chill to an already risk averse organization.

It is important to note that the investigation to a security clearance suspension can go on for years. A lawyer who has represented FS employees on security clearance cases, J. Michael Hannon writes on FSJ:

Under State Department regulations and established law, the Bureau of Diplomatic Security has the sole authority to determine whether your security clearance should be suspended on the basis of “all facts available upon receipt of the initial derogatory information.” The standard to be applied is to determine whether it is “in the interests of national security” to continue your security status or to suspend it.

The regulations further provide that DS investigations must be “reported in a timely manner” and issues requiring temporary suspension of clearance must be resolved “as quickly as possible (normally within 90 days).” The department is, however, permitted to continue suspension of an individual’s clearance “until the relevant issues have been fully resolved.” If that seems open-ended, it is.

Employees are already afforded just “minimal due process” (typically a notice and an opportunity to respond) in these security clearance investigations.  Apparently, there are “no rules of evidence that pertain to a DS investigation or restrain its conclusions.”  So when investigations can go on for a year, or two, or even several years as in some cases, which employee can sustain on an indefinite no work and no pay arrangement? An employee overseas given 30 days to respond, some with no housing or families in the DC area, will have to deal with the suspension, and relocation of self and family members at the same time.  Posts will have to deal with staffing gaps.

If the organization wants to get rid of an employee — for whatever reason — what’s the incentive to resolve the suspension quickly when given enough time, most employees will be forced to quit under these circumstances?

Not only that, we can already imagine several scenarios where hostile security services can undermine our diplomatic service by a well-placed rumor or allegation here and there while availing of this prospective hammer.

S.1635 Department of State Operations Authorization and Embassy Security Act, Fiscal Year 2016 passed the Senate by unanimous consent on April 28, 2016. (See Whoa! Senate Passes @StateDept Operations Authorization and Embassy Security Act, FY2016).  The House needs to pass it as well, and we haven’t been able to find the House bill.  However, on April 29, the Senate did send a message to the House requesting its concurrence to the FY16 authorization bill.  The bill is currently held at the desk for floor action; it doesn’t look like the House will be back in session until May 10.

Read the bill via congress.gov, the congressional record in PDF or as TEXT here. Below is the text on the security clearance suspension provision:

SEC. 216. SECURITY CLEARANCE SUSPENSIONS.

(a) Suspension.—Section 610 of the Foreign Service Act of 1980 (22 U.S.C. 4010) is amended—

(1) by striking the section heading and inserting the following:

“SEC. 610. SEPARATION FOR CAUSE; SUSPENSION”; AND

(2) by adding at the end the following:

“(c) (1) In order to promote the efficiency of the Service, the Secretary may suspend a member of the Service without pay when—

“(A) the member’s security clearance is suspended; or

“(B) there is reasonable cause to believe that the member has committed a crime for which a sentence of imprisonment may be imposed.

“(2) Any member of the Foreign Service for whom a suspension is proposed under this subsection shall be entitled to—

“(A) written notice stating the specific reasons for the proposed suspension;

“(B) a reasonable time to respond orally and in writing to the proposed suspension;

“(C) representation by an attorney or other representative; and

“(D) a final written decision, including the specific reasons for such decision, as soon as practicable.

“(3) Any member suspended under this subsection may file a grievance in accordance with the procedures applicable to grievances under chapter 11.

“(4) If a grievance is filed under paragraph (3)—

“(A) the review by the Foreign Service Grievance Board shall be limited to a determination of whether the provisions of paragraphs (1) and (2) have been fulfilled; and

“(B) the Board may not exercise the authority provided under section 1106(8).

“(5) In this subsection:

“(A) The term ‘reasonable time’ means—

“(i) with respect to a member of the Foreign Service assigned to duty in the United States, 15 days after receiving notice of the proposed suspension; and

“(ii) with respect to a member of the Foreign Service assigned to duty outside the United States, 30 days after receiving notice of the proposed suspension.

“(B) The terms ‘suspend’ and ‘suspension’ mean placing a member of the Foreign Service in a temporary status without duties and pay.”.

(b) Clerical Amendment.—The table of contents in section 2 of such Act is amended by striking the item relating to section 610 and inserting the following:
“Sec. 610. Separation for cause; suspension.”.

 

Related item:

SECURITY CLEARANCES: KNOW YOUR RIGHTS (PDF)

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